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

Thu Dec 17 15:26:56 UTC 2015

I agree with you Kaili even considering that California court will be the place to defend such clause in case of breach. Would be interesting to listen to a lawyer opinion about it.
 Best, 
Vanda Scartezini
Polo Consultores Associados
Av. Paulista 1159, cj 1004
01311-200- Sao Paulo, SP, Brazil
Land Line: +55 11 3266.6253
Mobile: + 55 11 98181.1464 
Sorry for any typos. 

On 12/17/15, 1:17 AM, "at-large-bounces at atlarge-lists.icann.org on behalf of Kan Kaili" <at-large-bounces at atlarge-lists.icann.org on behalf of kankaili at gmail.com> wrote:

>Again, as a new comer, I am now able to better understand the issue.  Thanks to all of you.
>
>As one of the ALAC's ATLAS II recommendations was that ICANN needed to adjust its contractual framework to minimize conflict between its requirements and relevant national laws, I wonder if it is possible to, after ICANN's standard contract provisions, add a simple clause like "in case of conflicts, relevant national laws prevail".  Then, the registrar only needs to provide a detailed list of these conflicts so ICANN will know what is going on.   
>
>To me, this looks like a blanket waiver for all such cases which might save all the costs for case-by-case waivers, as well as looks and feels better.  Or, maybe I am again missing something...?
>
>Thanks again. 
>
>Kaili
>
>
>
>----- Original Message ----- 
>From: "Roberto Gaetano" <roberto_gaetano at hotmail.com>
>To: "'John R. Levine'" <johnl at iecc.com>; "'Christian de Larrinaga'" <cdel at firsthand.net>
>Cc: "'At-Large Worldwide'" <at-large at atlarge-lists.icann.org>
>Sent: Thursday, December 17, 2015 12:10 AM
>Subject: [At-Large] R: I: [ALAC-Announce] ICANN News Alert -- Notice ofPreliminary Determination To Grant Registrar Data RetentionWaiver Request for Ascio Technologies,Inc. Danmark - filial af Ascio Technologies, Inc. USA
>
>
>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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