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

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”

6. I am NOT a lawyer!

7. Head Hurts?

11. EU Registries vs ICANN (Historical)
• .tel – delayed due to whois policy
• .cat – 3 years+ to get a whois policy change +
comply with Spanish law

12. Post Snowden World

14. 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!

16. EU Law vs ICANN?

17. 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

19. 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”

20. 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)

21. 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?

23. 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

25. 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?

26. 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

28. Our Experience (so far)
•
•
•
•
Delay
Submitted request on September 17th
Received basic acknowledgement same day
Received a reply on October 25th with queries

29. The Future?
•
•
•
•
GAC involvement?
Article 29 WP again?
EU Commission?
ICANN?

30. Questions?

31. Thank You …

32. Credits
• Logos image via
http://www.flickr.com/photos/27845211@N0
2/2616906744/sizes/l/