We can predict with a large certainty the public WHOIS will be a thing of the past.
This will create issues for two group and a few more, but let’s focus on these two for now:
LEA’s (Law Enforcement Agencies)
Commercial cyber crime fighters, perhaps not the best choice to call them this but as they are very diverse, this seems to cover most of them.
The EU GDPR is somewhat (okay very often) characterized as the boogeyman invented by folks who are so pro-privacy that they lost sense with reality.
This is a misconception. Yes the EU GDPR has been created by an army of lawyers and legal folks that are downright scary in numbers, but they were very much in touch with reality during the process.
The EU GDPR has been forged by the EU directive 95/46/ec and has been challenged in court on a national level and European level by many times. The courts were always trying to strike a balance between privacy and the needs for LEA’s.
Cybercrime is not just something that only happens at the DNS level it is happening on all levels in our society.
Many companies outside of the DNS have been dealing with the EU directives for years and embedded them into their processes when it comes to data collection and data processing. And lets not forget they dealt with Cyber Crime and LEA’s, so far, nothing new.
During the creation of the EU GDPR, many LEA’s were consulted, and this is reflected within the EU GDPR.
For LEA’s there are enough provisions to continue their work.
Commercial cyber crime fighters, what about them?
At first glance and due to one-sided information it looks like these folks are screwed big time. However, this is not the case. The EU GDPR has room, but it requires a legal framework and contractual obligations. I keep this very broad as I am no lawyer, but when you dig through the EU GDPR, you will discover room to operate.
What Commercial cyber crime fighters should not do.
Look at ICANN for help or the EU Data commissioners.
ICANN has a horrible track record when it comes to privacy in general. Not intentional but due to circumstances, but it is what it is. So asking ICANN is not the solution, ICANN requires tons of help regarding the subject of privacy themselves. Like the blind leading the blind here.
EU Data Commissioners
From a high-level perspective, these folks and the Article 29 WG can help. But the problem is that we are dealing with very specific purposes and operational matters, and they cannot zoom into a micro level. And on a macro level, you get the idea that nothing is possible and privacy is blocking everything and anything.
What Commercial Cyber Crime fighters should do.
As a Registrar, we run into practical GDPR issues all the time. The solution? Consult a lawyer that is well versed when it comes to the GDPR and knows the DNS industry well.
Costs money for sure, but hey our business depends on it. And don’t forget many companies outside the DNS already did this in the past, again nothing new here.
The only thing that might be new here is the sudden change in thinking on an ICANN level and a boatload of people who are in desperate need for tailor-made solutions. Again ICANN will not help you out there, neither will the RDS WG at this stage. When it comes to the RDS WG, you will need to bring that knowledge to the table and the solutions. You might get lucky that someone will join us that has deep knowledge about fighting abuse on an operational level and has in-depth knowledge about the EU GDPR and knows exactly what to do.
Personally, I wouldn’t count on that; I would try to get ahead of this.
So far my interaction with several lawyers gave me a positive feeling when it comes to the EU GDPR. Just when you are about to smash your head against the wall while yelling:”this cannot be done! or this is going to cost us a fortune!” The lawyers so far always came up with a solution or interpretation of the EU GDPR that turned the issue in a workable solution, ie the EU GDPR is not so black and white as it appears, it actually appears very well balanced, you just need to know the nuances.
If you need a lawyer that knows the EU GDPR and DNS drop me a line, I have worked with several of them over the last few years, not to mention the last few weeks 😉
Theo Geurts ICANN Registrar.