Subject: R: R: Registrar Data retention Waivers and silliness
From: Roberto Gaetano <[email-masked]>
To: 'Alan Greenberg' <[email-masked]>
Date: Tue, 19 Jan 2016 10:44:41 +0000

Hi, Alan.
Sorry for the delay.
The text below is what I had in mind. It is drafted as a message to the
list.
If that should take the shape of a more-or-less "formal" comment, the text
would need some editing.
What do you have exactly in mind?
Cheers,
R

==============================
I would like to follow up to the discussion about the data retention waiver,
listing what are my personal conclusions.
Let's keep for the moment aside the funny aspect of "granting a waiver" to
allow Registrars to... comply with their national laws. It is not the first
time, and probably not the last one, that I find funny some legal
procedures, and then I am explained by some lawyers that this, on the other
hand, is perfectly "normal".
It has been clear for everybody, including ICANN, that the data retention as
included in the contracts is against European law. This has been pointed out
at length by the EC, as well as by some Member States representatives. So,
it should have been obvious (it was indeed to the vast majority of European
Registrars and European participants to the ICANN processes) that if a
waiver was needed, that would have been eventually granted to each and every
European Registrar, because none of them would have been allowed (by their
Governments, not by ICANN) to conduct business in a way that is contrary to
national laws (that have to be compliant with European law for this matter).
It seems a straightforward matter: since this situation involves each and
every European Registrar (plus the Registrars in countries that have a
similar national law), the waiver should be negotiated once and for good for
every Registrar that is in this situation.
What has happened instead is something that I do consider silly: ICANN
obliges each and every European Registrar to follow a procedure to get an
individual waiver. This procedure, incidentally, is far from
straightforward, as it involves several back and forths, exchange of letters
and phone calls, meetings, and I have been told that at least in some cases
that has even involved Jones & Day. This is a substantial cost for each and
every European Registrar, as well as a substantial loss of time. Of course,
it also involves costs and time from ICANN's side.
If I were in a bad mood, which is not the case, I would even go further and
suggest that this cumbersome procedure substantiates a case of unfair
practices, because it puts an additional burden on a part of the Registrar
community, that should compete worldwide on fair and equal basis.
Last but not least, in light of the recent discussions on accountability and
budget, can I know how much this waiver thing has costed ICANN (and
therefore all of the domain names registrants who ultimately provide the
money) adding up legal fees of the external law firm, time of staff,
telecommunication costs, maybe even travel? I am sure that all Registrars
already know how much it has costed them, so it would be nice to see the
order of magnitude of the total cost. And I bet it is not just peanuts.
Cheers
Roberto

==============================

> -----Messaggio originale-----
> Da: Alan Greenberg [mailto:[email-masked]]
> Inviato: martedì 12 gennaio 2016 04:36
> A: Roberto Gaetano
> Oggetto: Re: R: Registrar Data retention Waivers and silliness
> 
> I had a more subjective message in mind but if you are willing to research
this
> I am certainly happy with that.
> 
> Timing is not an issue. I had been meaning to send my message since I read
> yours in the middle of December, so do whatever you think is proper.
> 
> Alan
> 
> At 10/01/2016 08:46 PM, you wrote:
> >Hi Alan.
> >I am willing to do that, but with a caveat.
> >I will be extremely busy until Wednesday evening, and while I would
> >make a personal comment based just on impressions I feel that drafting
> >a comment that will be the baseline for an ALAC statement would require
> >a bit more work, with collection of raw data about number of registrars
> >involved (so far, plus those who will have to get into this process in
> >the future), correct evaluation of the effort needed, etc.
> >So, OK unless you need this before, say, a week from now. I can commit
> >for a delivery during the next weekend.
> >Cheers,
> >R.
> >
> >
> > > -----Messaggio originale-----
> > > Da: Alan Greenberg [mailto:[email-masked]]
> > > Inviato: domenica 10 gennaio 2016 00:59
> > > A: Roberto Gaetano
> > > Oggetto: Registrar Data retention Waivers and silliness
> > >
> > > Hi Roberto,
> > >
> > > A while ago you wrote a short message about the registrar data
> > > retention waivers and whether it was "just plain silly" -
> > > http://atlarge- lists.icann.org/pipermail/at-large/2015q4/004240.html.
> > >
> > > Would you consider drafting a statement, as formal ALAC advice to
> > > the Board, making just this comment, pointing out the amount of work
> > > that is being generated for both the registrars and ICANN, and
> > > suggesting that we develop a more streamlined procedure to address the
> issue?
> > > The inclusion of the word "silly" in such a message would indeed
> > > help to
> >put
> > > it into perspective, as would the advice being drafted by a former
> > > Vice
> >Chair
> > > of the Board.
> > >
> > > Regards, Alan