Nick Wood, member of the MARQUES Council and the Cyberspace Team, provides an update on the latest plans regarding WHOIS data.

ICANN 75 took place last month as a hybrid meeting, with participants online and in-person in Kuala Lumpur. In preparation for the meeting, ICANN staff circulated their proposed Whois Disclosure System (WDS) Design Paper.

Access to domain name registration data has been an issue for brand owners since the EU GDPR came into force in 2018. There has been a desire for a centralised system which would provide a simpler and more predictable way for brand owners to request registration data.

The proposed WDS is intended to be a proof-of-concept approach, to help provide data on the demand for the more complex and costly System for Standardised Access/Disclosure (SSAD), which was the output of the cross-community policy work of the last couple of years.

Key features

Some of the key features of the proposed WDS are:

• The WDS would connect requestors seeking non-public gTLD domain name registration data, such as brand owners and law enforcement officers, with relevant, participating registrars.
• The use of the system will not be compulsory, and where a registrar is not participating the system will not accept the request.
• In the initial iteration it is not envisaged that registries will be included in this system since the party with the direct registrant relationship is the registrar.
• It will utilise an existing portal that registrars have access to. Registrars who have agreed to participate in the WDS will be notified when a request for domain registration data has been submitted and should log in to the portal to view the request.
• Any additional verification of the identity of the requestor or the legal basis for the request that the registrar considers necessary must happen outside of the system.
• There is no guarantee that the registration data will be disclosed; it will be for the individual registrar to apply the appropriate balancing test. If there is disclosure, this would take place directly between the registrar and requestor, outside the system. Once they have reviewed and actioned the request, however, the participating registrar will be expected to indicate within the system whether disclosure was refused, partially refused or approved, and the reason for any refusal.
• There will be no fee charged to requestors for use of the system, at least initially.
• System development will take approximately a year, including a three-month ramp-up.
• The initial proposal is for this system to be maintained for two years, but with a review of usage and effectiveness after a year.

Concerns with the WDS

A number of concerns with the WDS design have been expressed, including that the system will not gather reliable data if use is not compulsory and/or all requests are not captured, regardless of whether the registrar is participating.

Improvements that have been proposed include that an email should be sent to the registrar with the content of the request, particularly if the registrar is non-participatory; that all requests should be captured in the system; and that an API should be developed to allow registrars to interface more seamlessly.

Since ICANN 75, the GNSO’s small team working on this issue has had further discussions with ICANN staff, who have indicated that some of these additional requirements could be accommodated immediately and some could be future developments, but that some will not be possible.

In particular, ICANN has raised data protection concerns about storing requests in the system for registrars who are not participating, and so is unlikely to agree to do this.

During the ICANN 75 discussions ICANN staff were pressing the GNSO for a quick decision on whether to support the development of the WDS, arguing that they have a window during which they could build this without significantly impacting other projects. At present, however, it seems the GNSO is not yet ready to give that go-ahead. 

IP community divided

Among the IP community, there have been strong divisions of opinion on whether to support the development of the WDS.

Some see little value in a system which does not deliver any certainty of actually receiving the registration data. There are also concerns that there will never be further work done on developing a fuller system, or on further policy work to try to give certainty of disclosure.

Others are more optimistic, viewing this as an initial step: if the system can deliver data about the nature of the demand, responsiveness and responses of registrars this could be valuable in informing further work.

For the WDS to capture that data, however, brand owners, law enforcement and registrars will all have to commit to use it. The jury is still out.

Nick Wood is Executive Chairman of Com Laude and a member of the MARQUES Cyberspace Team.