What’s up with WHOIS? The GDPR May Limit or Prevent Access to Domain Name Registration Information

by Dorsey & Whitney LLP

Domain name registrars and registries might soon be changing their mantra from, “I think ICANN,” to, “Maybe ICANN’T,” when it comes to providing publicly available WHOIS information for domain name registrants.  New potential models for WHOIS will be posted January 15, 2018, and attempts to salvage at least most of the existing WHOIS system are underway.

ICANN, the Internet Corporation for Assigned Names and Numbers, is an international nonprofit organization responsible for creating and maintaining rules related to domain names.  Among other things, ICANN contractually requires accredited domain name registrars (companies selling domain names to the public) and certain domain name registries (companies that manage domain name extensions) to maintain a free, publicly available WHOIS database from which anyone may obtain basic contact and technical information about domain name registrants.  This data includes information like the domain name registrants’ names, addresses, email addresses, and phone numbers.  Registrars that fail to comply with these requirements are in breach of their agreement and risk losing ICANN accreditation.

But registrars and registries now find themselves between a rock and hard place when it comes to providing required WHOIS data in light of changes to EU privacy law under the General Data Protection Regulation (“GDPR”), which become effective on May 25, 2018.  We have written previously about the GDPR in other contexts here and here. In a nutshell, the GDPR imposes duties on companies based in the EU or offering goods and services to EU residents requiring these companies to protect all data that relates to a living individual, even where that data is publicly available or voluntarily submitted by the individual.  EU residents also have various rights, including the right to object (opt-out) and the right to be forgotten (erasure/data cleansing).  Consent to use data cannot be folded into online terms and conditions (like those agreed to during the registration of most domain names) and it may be withdrawn.  Companies that fail to comply with the GDPR may face enormous fines of up to €20 million or 4% of global annual revenue, whichever is greater.  Because much of the information available in WHOIS databases is governed by the GDPR (when it relates to EU registrants), these organizations are concerned about their ability to comply both with ICANN’s contractual requirements for public disclosure of personal WHOIS data and the GDPR’s data protection requirements.  Given the massive fines at stake under the GDPR, it is not surprising that many are opting to shirk ICANN’s WHOIS requirements as they prepare for the GDPR’s implementation.

For its part, ICANN has acknowledged the conflict and has created a Protection/Privacy Issues webpage with updates on its consideration of the issue.  ICANN received a letter from the EU’s Article 29 Working Party in December saying that the current WHOIS system does not comply with the GDPR and the goals of WHOIS may be met by developing a system of layered access in which different users receive access to different sets of data.

For the time being, ICANN is investigating options and has stated and that it will defer taking action for noncompliance with its WHOIS requirements if registries and registrars share their models for complying with the GDPR, their analysis of how each model complies with the GDPR and ICANN obligations, and a description of how the disclosed model does not simply abandon all WHOIS obligations.  It has asked for models to be submitted by January 10, 2018, and plans to post the models on January 15, 2018.  These submitted models are being evaluated by an outside law firm, which will present a number of options to ICANN, presumably so that it may either adjust its WHOIS policies or provide guidance to registrars and registries on how to comply with both the GDPR and WHOIS obligations.

In its latest memo to ICANN (December 21, 2017), the outside law firm describes how layered access to WHOIS would significantly increase the cost and burden on registrars who are not in a good position to assess legally who should receive which type of access to WHOIS.  It recommends that layered access be considered as a temporary solution only.  It suggests that ICANN negotiate with EU regulators to allow the current WHOIS system to continue to exist long-term, with the same information publicly available (except for email addresses, which it deems unnecessary for enforcement activities).  It notes that similar information is currently publicly available in trademark registers.

In the meantime, this conflict is likely to have a negative impact on the ability of brand owners to enforce their rights against domain name squatters and infringers.  If registries and registrars are unwilling to provide WHOIS data, it will be more difficult to ascertain the identities and contact information for infringers, either for purposes of sending demand letters or establishing patterns of abuse.  It could also make it difficult to file complaints under the Uniform Dispute Resolution Policy (“UDRP”), which requires that a complainant list the contact information for a domain registrant as it appears in the WHOIS database.  If the WHOIS information is not available, it is unclear what information, if any, a complainant would be required to include in the complaint to ensure it is complete and whether an arbitrator or registrar reviewing the complaint could refuse to act based on a lack of information.  Even if WHOIS information is available under a new, layered access system, the increased effort required to obtain ownership information will likely increase enforcement costs for brand owners.

For now, it appears that ICANN is serious about trying to resolve the issue.  We will keep our readers updated on changes to this developing situation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dorsey & Whitney LLP | Attorney Advertising

Written by:

Dorsey & Whitney LLP

Dorsey & Whitney LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.