News Review | ICANN EPDP Timeline: Final Report Due Feb 1, 2019

Domain Mondo's weekly internet domain news review (NR 2019-01-06 with analysis and opinion: Features • 1) ICANN EPDP Timeline: Final Report Due Feb 1, 2019,  2) GDPR & ICANN WHOIS:  EPDP Meetings and the EPDP Legal Committee,  3) .NET Decline & Verisign $VRSN, and more, 4) ICYMI: California Splinternet, Contract for the Web, and more, 5) Most Read.

1) ICANN EPDP Timeline: Final Report Due Feb 1, 2019

EPDP Timeline as of Jan 3, 2019: Final Report due Feb 1, 2019 (source: ICANN.org).

Editor's note--so much to do, so little time left--the Final Report, due Feb 1, 2019, will most likely be a "rush job" written by ICANN staff (as was the Initial Report).  At last week's meeting (Jan 3), it was obvious very few EPDP members have actually read the public comments to the Initial Report, relying instead on ICANN staff summaries and interpretations. The EPDP Legal Committee (see further below) just had its first meeting January 2, 2019. This dysfunctional EPDP is looking more and more like another ICANN GDPR Train Wreck:

Definition of "train wreck" -- a chaotic or disastrous situation that holds a peculiar fascination for observers.

2)  GDPR & ICANN WHOIS:  EPDP Meetings & EPDP Legal Committee

EPDP Meetings were previously scheduled for Tuesday Jan 8, 2019, and Thursday Jan 10, 2019, at 14:00 UTC (9am EST), but may not be held due to a proposal sent by EPDP Chair Kurt Pritz late Friday (Jan 4) to cancel those meetings and have three small groups consider the public comments to the EPDP Initial Report. Read the EPDP leadership's proposal (pdf) and check the EPDP wiki and mail list for further updates as to this coming week's meetings.

For regular EPDP meetings, observers may use Adobe Connect, or browser / app audiocast. Links: EPDP Initial Report (pdf); comments to the Initial Report; Public Comment Review Tool PCRT;  GNSO Council EPDP page and updates; links to all EPDP meetings' transcripts and recordings are on the GNSO calendar. Other EPDP links: wiki; mail list; action items; Temp Spec; EPDP Charter (pdf); Data Elements Workbooks (pdf).

Editor's note: see last week's News Review for more info on the January 3rd EPDP meeting, which I summed up by quoting EPDP member and NCSG Chair Stephanie Perrin:

"Let us ask the legal counsel to explain how one goes about elucidating purposes of processing. It is a bit late, but we are a long way from bringing this thing home, in my opinion. Better late than never .... My comment about seeking legal advice, was to try to explain to us what this process is. We do not have a sound methodology, people are all over the map, in my view because they do not really understand what we are trying to do."

At the January 3rd meeting, the EPDP working group did reject the few suggestions they considered from the public comments in regard to "Purpose 1" including my suggested "primary purpose"--

"As subject to registry and registrar terms, conditions and policies, and ICANN consensus policies: to record and maintain records of the names and contact information of domain name registrants."

As noted above, the EPDP Chair sent out a proposal (pdf) late Friday, to not have plenary meetings this coming week and instead have three small teams meet to consider the public comments. The upcoming EPDP face-to-face (F2F) meeting is in Toronto, 16-18 January 2019. After the F2F  meeting in Toronto ends January 18th, the EPDP working group will have only two weeks to prepare and file its "Final Report" by Feb 1, 2019 (see EPDP Timeline above).

The EPDP Legal Committee met Jan 2, 2019, and will meet again on January 9. See also action items and  legal mail list. Initial questions (from the Jan 2 meeting) below:

Question 1: "The EPDP Team also took note of a related footnote which states, “[if contact details for persons other than the RNH are provided] it should be ensured that the individual concerned is informed”. The EPDP Team discussed whether this note implies that it is sufficient for the Registered Name Holder (RNH) to inform the individual it has designated as the technical contact, or whether the registrar may have the additional legal obligations to obtain consent. The EPDP Team agreed to request further clarification from the EDPB on this point. (p. 33 of Initial Report)"

Question 2: "(For the EDPB) If registrars allow registrants to self-identify at the time as a natural or legal person, who will be held liable if the registrant incorrectly self-identifies and personal information is publicly displayed? Apart from self-identification, and educational materials to inform the registrant, are there any other ways in which risk of liability could be mitigated by registrars? (p. 53 of Initial Report)."

Question 3: "As noted below, the EPDP Team disagreed about the application of Art. 6(1)b, namely, does the reference ‘to which the data subject is party’ limit the use of this lawful basis to only those entities that have a direct contractual relationship with the Registered Name Holder? Similarly, in relation to Art. 6(1)(b), questions arose regarding how to apply “necessary for the performance of a contract”; specifically, does this clause solely relate to the registration and activation of a domain, or, alternatively, could related activities such as fighting DNS abuse also be considered necessary for the performance of a contract? The EPDP Team plans to put these questions forward to the European Data Protection Board (EDPB) to obtain further clarity in order to help inform its deliberations. (p. 57 of the Initial Report)."

3) Names, Domains & Trademarks

a.  The Continuing Decline of  gTLD .NET: Verisign's second-largest top-level domain .NET has been declining in total registrations for 3 years now (2016-2018), from a total of 15,805,487 (Jan 2016) to beginning 2019 with only 13,956,864 .NET domain name registrations, a decline of 12% or almost 2 million .NET domain name registrations. Editor's note: Cause? Price-gouging by both ICANN and Verisign, plus a diminution of need (rationale) for any defensive registrations in the face of a glut of hundreds of new gTLDs, i.e., "if you have the .COM, that's all you really need."

gTLD .NET decline in domain name registrations 2016-2018

Thanks to its .COM monopoly (which continues to grow in total registrations), Verisign $VRSN was among the best performers of 2018 among the NASDAQ-100--$VRSN up 29.6% in 2018 (sources: FactSet.com and Marketwatch.com):

$VRSN

b. Where Have All the Vowels Gone? | NYTimes.com: "... tech companies like Tumblr and Flickr arrived on the scene, dropping e’s both for distinctiveness and because the altered names made it easier to trademark, claim [.COM] domain names on the internet and conduct other practical business."

c. How to: Build a photography website in 2019…what you need to know--emulsive.org. See also  fstoppers.com--"Trademark for Photographers: Protecting Your Brand and Photography Business."

4) ICYMI Internet Domain News:  California Splinternet & More

a. California Splinternet: California May Soon Get Its Own Version Of The Internet--wired.com.

b.  Fair Use Continued to Bear the Weight of Protecting Speech and Innovation--2018 in Review | eff.org. See also Data Privacy Scandals and Public Policy--eff.org, and Encrypting the Web to Encrypting the Net--eff.org.

c. The Internet Became Less Free In 2018. Can We Fight Back?--wired.com.

d. Government of India Wants Tech Companies To Give Law Enforcement 24-Hour Access To User Data And Broken Encryption--techdirt.com. See also: 133 Internet Shutdowns by Governments in India 2018--thecitizen.in, and Proposed rule changes for online platforms--indianexpress.com.

e. New Web Contract--France is the first country to sign a new "web contract" which aims to make the internet accessible, safe, and reliable worldwide--southeusummit.com. Editor's note: for more info go to Contract for the Web | contractfortheweb.org:

f. is for faster--year after net-neutrality’s repeal, internet is faster than ever?--bostonglobe.com.

5) Most Read this past week on DomainMondo.com: 

#1 News Review | Six Questions for 2019 & Twelve for 2018 Answered

-- John Poole, Editor • Domain Mondo 

feedback & comments via twitter @DomainMondo
Follow @DomainMondo

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News Review | EPDP Initial Report: ICANN GDPR Train Wreck #2

Domain Mondo's weekly internet domain news review (NR 2018-11-18 with analysis and opinion: Features • 1) EPDP Initial Report: ICANN GDPR Train Wreck #2,  2) Other ICANN news: a. Afilias & .WEB, b. More New gTLDs' Dysfunction,  c.ICANN in Paris, 3) Names, Domains & Trademarks: Cybersquatting?, Tucows $TCX, GoDaddy $GDDY, ICYMI re: .COM, 4) ICYMI Internet Duopoly: US & China, and more,  5) Most Read.

UPDATE Nov 21-22, 2018: ICANN has published the EPDP Initial Report (pdf) now open for comment by anyone until comments close Dec 21, 2018, 23:59 UTC.  A webinar is planned for Thursday 29 November at 14.00 UTC (more info at the link).

This will be the only opportunity for public comment, "speak now or forever hold your peace!" Read also the blog post by EPDP leadership Kurt Pritz and Rafik Dammak.

1) EPDP Initial Report: ICANN GDPR Train Wreck #2

Definition of "train wreck" -- a chaotic or disastrous situation that holds a peculiar fascination for observers.

UPDATE Nov 20: The EPDP working group's "initial report" will be published for public comment tomorrow, Nov 21, or next week. Latest version here (pdf).

UPDATE Nov 19: Editor's note: I removed the "?" from this post's title after the EPDP group spent the first 50 minutes of its call Monday, Nov 19, 2018, discussing what would actually be in the "initial report," and when it would be published--for more "color" review the Adobe recording, meeting transcript (pdf), and chat transcript. The Initial Report (pdf) "latest version." Timeline updates below. Monday's call was also notable in that EPDP Chair Kurt Pritz dropped off the call early, leaving ICANN staff member Marika Konings to chair the rest of the meeting. More info on the Monday meeting wiki page and action items.

EPDP meeting Tuesday Nov 20 (wiki page, docs, chat transcript, Adobe recording), 14:00 UTC (9am EST). See also GNSO Council EPDP page and updates. Links to all EPDP meetings' transcripts and recordings are on the GNSO calendar. Other EPDP links: wiki, mail list, action items, Temp Spec, EPDP Charter (pdf), Data Elements Workbooks (pdf).

EPDP Current Target Dates (updated since EPDP Chair's letter):

• 19 Nov 2018  21 Nov Publish Initial Report & Public Comment (30 days)
• ‌19 Dec 2018  21 Dec Public Comment period close on the Initial Report
• 1 Feb 2019 Submission of Final Report to the GNSO Council

EPDP meetings this week scheduled for Monday Nov 19 and Tuesday Nov 20 starting at 14:00 UTC (9am EST). "Sneak Peek"--as of Friday, Nov 16, 2018, the ‘hopefully almost final’ version of the EPDP Initial Report: Redline version (pdf) and Clean version (pdf).

Last week's (ending Nov 16) EPDP highlights:

Re: Report of small team on Roles & Responsibilities of ICANN and Contracted Parties (Registrars, Registry Operators) [Editor's note: Rickert controllers memo (pdf), ICANN org feedback (pdf)]

On Nov 13, 2018, Alan Woods (RySG) wrote: "Thank you Thomas [Rickert], and furthermore thank you for your very balanced approach to the very surprising and frustrating events of last night's call. I think you have hit the nail on the head here, and I echo your sentiments in the last paragraph. I got the distinct impression (however far from the truth that may be) that ICANN Org were holding their cards close to their chest, and although having been at the table of the ePDP, appear to be open to rejecting the work of the ePDP. These are discussions which should have been had day 1, openly and transparently, and in fact this proves the fundamental importance of the ePDP actually having substantive discussion of the roles and responsibilities prior to the interim report publication.

"To echo Thomas, and indeed Diane, who I also recall made the point very well during the meeting, the hopes and wishes of the parties as to the allocation of roles and responsibilities are irrelevant; such matters are decided with reference alone to the legal reality and legal facts as to the roles held in the processing situation. I would further note that a statement made last night, (with the stated proviso that my audio dropped and I rejoined just as this utterance occurred therefore I will need to recheck the transcript for both context and accuracy), that ICANN Org is not a controller as it does not itself perform actual processing of the data; this concept of controllership is simply incorrect. I also heard this statement in Abu Dhabi from ICANN and indeed from the same person, and I also then raised my objection in an attempt to clarify. To hear it repeated again, last night, was worrisome (to put it mildly)."

"I personally think, receipt of the memo, in its entirety, and not a mere summary, as was promised in the dying moments of the meeting, is now hugely necessary. I furthermore think at this point the question of independent outside counsel for the eDPD is now, moreso than ever, a required step."

Stephanie Perrin (NCSG): "I agree with Alan.  Somehow, every time we go back to the EPDP as a whole, it seems we become less precise and the summary is that everything is hunky dory.  It is not.  Yesterday's small team call was extremely important; many thanks to Thomas [Rickert] for his excellent chairmanship of that call.  I appear to be in the minority in supporting a delay in the release of our report, but I think it is extremely important to at least sketch out the implications of this evident failure to agree on the basic premises of data controllership and accountability." (source)

Re: Legal vs Natural Persons (Registrants):

Stephanie Perrin (NCSG): "Given that Cherine Chalaby has just written to Keith Drazek (GNSO Council Chair) to express worry over whether we are going to finish this thing on time, perhaps we ought to stick to what is within scope. It is not clear to me how a new policy requiring that a distinction be made between legal and natural persons is within scope. Further to this general remark, I do not see any way a registrar or registry can evade responsibility for "accidentally" collecting personal information. Consent has to be meaningful and informed. On accuracy....read the RDS reveiw Team II report which is doubling down on accuracy. I would certainly not sign on to this one, if I were a registrar." (source)

More on last week's EPDP meetings (ending Nov 16) on last week's News Review. Also note:

• Advocates draw battle lines over national (US) Privacy Law--TheHill.com.

• Facebook Failed to Police How Its Partners Handled User Data--NYTimes.com.

2) Other ICANN News

a. Afilias IRP Filing Deadline re .WEB 27 Nov 2018. CEP / IRP Status Update 13 Nov 2018 (pdf): Cooperative Engagement Process (CEP) and Independent Review Processs (IRP) No active IRPs,
Active CEPs:

b. More ICANN New gTLDs' Dysfunction: ICANN's Next Round of unwanted, unneeded new gTLDs that "fail to work as expected on the internet" and ripoff consumers (registrants):

GNSO Council: " ... The New gTLD Subsequent Procedures PolicyDevelopment Process Working Group is currently developing policy that may ultimately instruct PTI to place new gTLDs into the root. However, it is not anticipated that delegations would occur in FY20 [ending June 30, 2020]."

source: https://www.icann.org/en/system/files/correspondence/langdon-orr-neuman-to-nguyen-06nov18-en.pdf

Editor's note: Jeff Neuman SOI. See also this.

c.  ICANN in Paris: What Happens When A Non-Profit Has Too Much Money? Among other things, this.

3) Names, Domains & Trademarks

a. Smoothie maker alleges domain name shakedown--MarketWatch.com:

“It is not cybersquatting when someone comes along and decides to adopt your domain name as a trademark. There is a secondary market in domain names. People buy and sell domain names every day.”--Attorney John Berryhill.

Editor's note: also never adopt a hyphenated .COM domain name for your business without getting the exact match .com domain with no hyphen, e.g., tmobile.com redirects to T-Mobile.com.

b. Tucows $TCX  Q3 2018 Question and Answer Transcript (pdf)

c. GoDaddy $GDDY Vice President of Investor Relations & Strategy, Sam Kemp, will host meetings at the Barclays Global TMT Conference in San Francisco on Wednesday, December 5, 2018. GoDaddy's most recent investor presentation will be available on its investor relations website at https://investors.godaddy.net.

d. ICYMI re: .COM, NTIA, Verisign, & ICANN: Verisign's Attempt to Increase its Fees Still Unjustified Despite Diversionary Tactic | circleid.com including the comment, and including mine:

"Good article Zak, until you got to "the [ICANN] Board can fulfill its responsibilities as the owner of the [.COM] registry"--WRONG! Notwithstanding ICANN's corrupt and misguided efforts to turn all gTLDs (new and legacy) into privately owned "assets"--no one "owns" the top-level domain .COM, it is still a global public resource as originally promulgated, and delineated in RFC 1591:

"These designated authorities [e.g., Verisign] are trustees for the delegated domain [.COM], and have a duty to serve the community. The designated manager [e.g., Verisign] is the trustee of the top-level domain for ... the global Internet community. Concerns about "rights" and "ownership" of domains are inappropriate. It is appropriate to be concerned about "responsibilities" and "service" to the community."

"Anyone could justifiably argue that ICANN "trashed" the concept of "gTLD trusteeship" for all of those gTLDs ICANN created after 1998, and obviously neither the ICANN Board, ICANN org, nor its so-called "ICANN community" have ever acted like a responsible "owner" or "steward" or even "trustee" of ANY gTLD, with the possible exception of the legacy gTLD .INT, which is why your argument is naive that the ICANN Board would now reform itself and recognize the "global public interest" in not only selecting a "trustee" for .COM, but also limiting that trustee's fees. ICANN is incompetent, corrupt, unfit (pdf) see p.12 and exhibits. Thankfully, the U.S. government is still exercising its historic "stewardship" role over .COM via the Cooperative Agreement notwithstanding our disappointment with the pricing "giveaway." If the U.S. government ever steps away from its historic stewardship role re: .COM, .COM and its registrants will be exploited for their "maximum profit potential" by ICANN and Verisign and .COM will be ruined just like ICANN and Verisign are now doing with .NET."

4) ICYMI Internet Domain News 

Internet Duopoly: "If I may be politically incorrect, there are two kinds of internet emerging: Californian cyberspace and Chinese cyberspace"--French president Macron at IGF2018--see also  Chair's Summary (draft) (pdf).

Internet Freedom: "Moroccan Internet Users Are ‘Partially’ Free"--moroccoworldnews.com.

ITU Plenipot ended Nov 16, 2018, in Dubai, more here.

5) Most Read this past week on DomainMondo.com: 

#1 News Review | GDPR & ICANN EPDP Draft Initial Report Dysfunction

-- John Poole, Editor • Domain Mondo 

feedback & comments via twitter @DomainMondo
Follow @DomainMondo

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