[At-Large] R: I: [ALAC-Announce] ICANN News Alert -- Notice of Preliminary Determination To Grant Registrar Data Retention Waiver Request for Ascio Technologies, Inc. Danmark - filial af Ascio Technologies, Inc. USA

[Roberto Gaetano]

A few comments on this subject.
I do understand that this is not a priority (except, of course, for the
European registrars and their customers), but we all know how to use the
delete button.

The first comment is that it sounds really funny that a "waiver" is granted
to allow registrars to... obey the laws of their countries - which I assume
they have to do anyway, regardless the language of the contracts. It might
well be a good way to solve a more complicated problem, but it is sure
puzzling for a registrar to have to ask ICANN permission to comply with the
law. Is it just a matter of perception, or do we have a problem of substance
- or at least of form?
Second, the matter under discussion (permanence of registrant information)
is something that is forbidden under European law, but is not at all
compulsory under US law - which means that not including this provision as
compulsory in the contract would not have violated US law at all.
Third, and that was really my point, that mistakenly I have not detailed in
full, is the need for individual waivers, and the procedure thereof - which
has been abundantly discussed in previous months in at least a couple of
ICANN meetings. The procedure is that the registry needs to get a statement
from the local authorities showing the unlawfulness of the provision, and
only at that time an individual waiver is granted. However, the EU GAC
representative had already informed ICANN about the European law (that I am
sure ICANN's General Counsel knows very well). So, a bulk waiver could have
been issued up front for the registrants operating in countries where such
law is in effect. Again, maybe a minor nuisance, but multiplied by the
number of European registrars this creates the useless loss of time and
effort by ICANN, by the individual registrars and by each and every of the
local authorities. It could be argued, I admit, that this is ICANN's
contribution to the alleviation of the unemployment problem :>)

Cheers,
Roberto


> -----Messaggio originale-----
> Da: at-large-bounces at atlarge-lists.icann.org [mailto:at-large-
> bounces at atlarge-lists.icann.org] Per conto di John R. Levine
> Inviato: mercoledì 16 dicembre 2015 04:57
> A: Christian de Larrinaga
> Cc: At-Large Worldwide
> Oggetto: Re: [At-Large] I: [ALAC-Announce] ICANN News Alert -- Notice of
> Preliminary Determination To Grant Registrar Data Retention Waiver Request
> for Ascio Technologies, Inc. Danmark - filial af Ascio Technologies, Inc.
USA
> 
> > The thing to get our heads around is not that ICANN complies or not
> > with any of the myriad of laws around the world but that it feels
> > entitled to issue "waivers" as if it has any geo political legal
standing on
> laws.
> 
> That seriously misrepresents what's going on.
> 
> ICANN operates under US law, and all of the registrars sign the same
> agreement.  The agreement is entirely compliant with US law, but laws in
> other countries are different and sometimes contract provisions that are
> legal in one country are not in another.  This is not something unique to
> ICANN or to US law.
> 
> So the waivers are the way that ICANN reconciles the inevitable conflicts
> between the terms in a complex contract and varying local laws.  If the
> contracts were changed to reflect, say, French law, you'd still need
waivers
> for registrars outside Europe, the'd just be different ones.
> 
> R's,
> John
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