ICANN Contract vs National Law

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ICANN is a California based corporation yet it enters into binding contracts with companies all over the world. …

ICANN is a California based corporation yet it enters into binding contracts with companies all over the world.
Some of the contractual requirements may be in direct conflict with national law, so how do you strike the balance

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  • 1. ICANN Contract vs. National Law With Michele Neylon
  • 2. ICANN Contract vs. National Law Michele Neylon
  • 3. Who am I? Michele Neylon - Founder / CEO Blacknight http://mneylon.tel @mneylon http://michele.me/blog IIA Net Visionary 2013 Chair RrsG, Chair Registrar Advisory Board Eurid, member EWG
  • 4. What Will I Cover? • Registrars • EU law • Registries • ICANN “law”
  • 5. I am NOT a lawyer!
  • 6. Head Hurts?
  • 7. EU Registries vs ICANN (Historical) • .tel – delayed due to whois policy • .cat – 3 years+ to get a whois policy change + comply with Spanish law
  • 8. Post Snowden World
  • 9. Getting away with murder? • EU citizens more conscious of data privacy + digital issues than before • Logically the risk of litigation has increased • Irish DPC being sued for not being tough enough on Facebook! • Registrars and registries at risk? • Is ICANN? Doubtful – they’re still safe in the US!
  • 10. EU Law vs ICANN?
  • 11. 2013 RAA • Problematic for EU based registrars • Problematic for non-EU registrar with EU registrants – Data retention – Data elements to be collected – Periods of retention
  • 12. Article 29 Working Party • 6th June letter to ICANN (http://michele.cat/ch ) • “..to avoid unnecessary duplication of work by 27 national data protection authorities in Europe.. the WP wishes to provide a single statement for all relevant registrars targeting individual domain name holders in Europe”
  • 13. Article 29 Working Party • 2013 RAA obligations NOT based on legal requirement in EU • Risk of data breach -> exposure of personal data • Opposes Private corporation (ICANN) introducing data retention -> national govt should do it (if needed)
  • 14. What about Whois? • Art 29 WP doesn’t like “open” whois • Most ccTLDs in EU “gate” data BUT ICANN forces registrars AND registries to publish EVERYTHING by default • What will “Geo” gTLDs do?
  • 15. ICANN’s response? • Waiver process for retention / collection elements of 2013 RAA (see http://michele.cat/cg ) • No change on Whois “waiver” process (yet) • Article 29 letter rejected
  • 16. Impact on Registrars / Registries • Delays • Cost (lawyers don’t work for free!) • ONLY registrars on 2013 RAA can offer new TLDs • If a registrar doesn’t have a waiver then how will their DPC react? • Is it worth the risk?
  • 17. Waiver = how long? • Advantage for registrars in countries with other registrars • 45 days? 90 days? • Timeline published by ICANN has a 30 day publication period
  • 18. Our Experience (so far) • • • • Delay Submitted request on September 17th Received basic acknowledgement same day Received a reply on October 25th with queries
  • 19. The Future? • • • • GAC involvement? Article 29 WP again? EU Commission? ICANN?
  • 20. Questions?
  • 21. Thank You …
  • 22. Credits • Logos image via http://www.flickr.com/photos/27845211@N0 2/2616906744/sizes/l/