INTA Continues Efforts to Reconcile the Need for Open WHOIS Database with European General Data Protection Regulation

INTA’s Internet advocacy efforts are in full swing with the advent of the May 25 implementation of the EU’s General Data Protection Regulation (GDPR). There is an existential threat to the current open WHOIS registrant data directory that INTA members rely on to facilitate business and combat a myriad of online abuses, including counterfeiting, phishing, and fraud. As explained in an April 1 INTA Bulletin article, the WHOIS system is about to “go dark,” because ICANN’s proposed interim compliance model will not be fully operational by the May 25 implementation date of the GDPR and access could be denied absent that model. INTA recognizes the importance of personal privacy and understands that it is important to balance data protection considerations against the need to prevent consumer fraud and abuse. This helps to ensure a secure and reliable domain name system.

With that balance in mind, INTA has historically supported an open, accessible, contactable, and accurate WHOIS system. INTA is doubling down on its efforts to keep as much information as possible publicly available, within the limits of the law. There is much uncertainty about what those limits are, and ICANN is working with the EU’s Data Protection Authorities (DPAs) to clarify what elements can be displayed and what should be hidden behind a layered access model that would require accreditation and credentialing.

To this effect, INTA has contacted all European DPAs and the EU Commission representative to the Article 29 Working Party. The Article 29 Working Party is an advisory group composed of the DPAs to assist with interpretation and enforcement of the GDPR. As of May 25, the Working Party will become the EU Data Protection Board, with expanded authority and enforcement powers.

Along with direct contact with the DPAs, INTA is working within the ICANN system to develop solutions to open issues and is participating in community outreach and information events hosted by the Intellectual Property Constituency and the Business Constituencies. INTA filed comments on the Proposed Interim Model, prepared talking points to present to ICANN’s Government Advisory Committee, and, most recently, published a reaction to the Article 29 Working Party’s most recent advice to ICANN. The Working Party’s advice may be found on ICANN’s website.

The Governmental Advisory Committee of ICANN supports the position of intellectual property owners, consumer advocates, and law enforcement regarding the importance of keeping as much WHOIS data open and accessible as is allowed within the limits of the new regulations; however, there seems to be a disconnect with the government representatives engaged in ICANN and the DPAs as to where the limits may be. The U.S. government has officially requested short-term forbearance in order to find a workable solution. INTA supports this request. INTA’s Washington, D.C. and Brussels representatives are monitoring the issue closely, with meetings being organized with government officials on both sides of the Atlantic.

INTA is advocating for the following terms:

• Forbearance until the Interim Model is operational;
• Distinguishing between registrations of natural and legal persons;
• Limiting policy to contracted parties and registrants with an EU nexus;
• Allowing for publication in the public WHOIS of the registrant’s actual email address;
• Including a specific “Day One” solution for accessing the non-public WHOIS data mechanism in the
interim;
• Addressing the need for automated requests to identify patterns of domain name abuse; and
• Prescribing a compliance remedy for ICANN’s contracted parties that fail to follow the model.

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.