[At-Large] [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
cw at christopherwilkinson.eu
Wed Dec 16 20:13:36 UTC 2015
This question has already been addressed - at lest in part - in the context of the IAG-WHOIS working group earlier this year.
I attach a copy of my comments to their report. The main points, which have been generally supported by the subsequent formal ALAC statement, are:
1. ICANN should apply international best practice in Privacy and Data Protection, world-wide
2. Failing which, in each relevant jurisdiction (e.g. the EU), ICANN should apply a block exemption for all Registries and Registrars concerned. No more individual procedures.
That is one of Roberto's points, below.
I also proposed that:
3. In any event, ICANN should reverse the burden of proof. That is, the default would be that the Registrar/Registry respects applicable law and it is up to ICANN to initiate a contrary procedure should it determine that security and stability is thereby prejudiced. (Since ICANN has never, to my knowledge, suggested that a ccTLD Registry or their Registrars are threatening Security and Stability by respecting applicable laws, I guess that is an extreme outlier case.)
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On 16 Dec 2015, at 17:10, Roberto Gaetano <roberto_gaetano at hotmail.com> wrote:
> 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 :>)
>> -----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.
>>> 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
>> 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
>> for registrars outside Europe, the'd just be different ones.
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