Coronavirus may have claimed another victim at ICANN — closure on talks designed to reopen private Whois data to the likes of law enforcement and trademark owners.
In a remarkable U-turn, the Governmental Advisory Committee, which has lit a series a fires under ICANN’s feet on this issue for over a year, late last week urged that the so-called Expedited Policy Development Process on Whois should not wrap up its work in June as currently planned.
This would mean that access to Whois data, rendered largely redacted worldwide since May 2018 due to the GDPR regulation in Europe, won’t be restored to those who want it as quickly as they’ve consistently said that they want it.
Surprisingly (or perhaps not), pro-access groups including the Intellectual Property Constituency and Business Constituency sided with the GAC’s request.
In an email to the EPDP working group’s mailing list on Thursday, GAC chair Manal Ismail indicated that governments simply don’t have the capacity to deal with the issue due to the coronavirus pandemic:
In light of the COVID-19 pandemic, and its drastic consequences on governments, organizations, private sector and individuals worldwide, I would like to express our serious concerns, as GAC leaders, that maintaining the current pace of work towards completion of Phase 2 by mid-June could jeopardize the delivery, efficacy and legitimacy of the EPDP’s policy recommendations.
While recognizing that the GAC has continually advised for swiftly completing policy development and implementing agreed policy on this critical public policy matter, we believe that given the current global health emergency, which puts many in the EPDP and the community under unprecedented stress (for example governments has been called to heightened duties for the continuity of essential public services), pressing important deliberations and decisions in such a short time frame on already strained participants would mean unacceptably sacrificing the product for the timeline.
We understand there are budget and human resources considerations involved in the completion of Phase 2 of the EPDP. However, we are all living through a global health pandemic, so we call on the EPDP Team to seriously reassess its course and expectations (be it on the duration of its calls, the turn-around time of reviews, its ultimate timeline and budget) emulating what numerous governments, global organizations, and households are doing to adapt during these challenging times across the world.
In April last year, before the EPDP group had even formally started its current phase of talks, Ismail wrote to ICANN to say the GAC expected the discussions to be more or less wrapped up by last November and that the new policy be implemented by this April.
Proponents of the access model such as Facebook have taken to suing registrars for not handing over Whois data in recent months, impressing the need for the issue to be urgently resolved.
So to now request a delay beyond June is a pretty big U-turn.
While Ismail later retracted her request for delay last Thursday, it was nevertheless discussed by the working group that same day, where the IPC, the BC and the ALAC all expressed support for the GAC’s position.
The registrars and registries, the non-commercial users and the ISPs were not supportive.
Delay might be tricky. For starters, hard-sought neutral working group chair Janis Karklins, has said he can’t continue working on the project beyond June 30, and the group has not secured ICANN funding for any further extensions to its work.
It will be up to the GNSO Council to decide whether to grant the extension, and the ICANN board to decide on funding.
The working group decided on Thursday to ask the Council for guidance on how to proceed.
What’s worrying about the request, or at least the IPC and BC’s support of it, is that coronavirus may just be being deployed as an excuse to extend talks because the IP owners don’t like the proposal currently on the table.
“The reality is we’re looking at a result that is… just not going to be sufficient from our perspective,” MPAA lawyer Frank Journoud, an IPC rep on the working group, said on its Thursday call. “We don’t want the perfect to be the enemy of the good, but right now we’re not even going to get to good.”
The group is recommending something called SSAD, for Standardized System for Access and Disclosure, in which a central gateway provider, possibly ICANN itself, would be responsible for granting Whois access credentials and fielding requests to the relevant registries and registries.
The almost 70 comments submitted before the March 23 deadline have been published in an unreadable, eye-fucking Google spreadsheet upon which transparency-loving ICANN may as well have hung a “Beware of the Leopard” sign. The staff summary of the comments is currently nine days late.