+1 Thank you. - Kaili ----- Original Message ----- From: "Christopher Wilkinson" <cw@christopherwilkinson.eu> To: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Sent: Thursday, December 17, 2015 4:13 AM Subject: Re: [At-Large] [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 Good evening: 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.) Best regards CW -------------------------------------------------------------------------------- On 16 Dec 2015, at 17:10, Roberto Gaetano <roberto_gaetano@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 :>)
Cheers, Roberto
-----Messaggio originale----- Da: at-large-bounces@atlarge-lists.icann.org [mailto:at-large- bounces@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.
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