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ICANN Policy / Contract vs Local Law
- To: "comments-whois-conflicts-procedure-22may14-en@xxxxxxxxx" <comments-whois-conflicts-procedure-22may14-en@xxxxxxxxx>
- Subject: ICANN Policy / Contract vs Local Law
- From: Michele Neylon - Blacknight <michele@xxxxxxxxxxxxxx>
- Date: Mon, 7 Jul 2014 13:00:01 +0000
Dear Sir / Madam
We thank ICANN for opening up this topic to public comment.
I am submitting these comments on behalf of Blacknight Internet Solutions Ltd,
IANA 1448.
As a registrar based in Ireland, which is part of the European Union, we find
the current policies and contractual obligations that ICANN imposes on
registrars and registries to be highly problematic.
We also find that ICANN's attempts to date at addressing these shortcomings
creates an unnecessary burden on registrars and registries who simply wish to
comply with their national laws.
In fact ICANN's inability to address these issues in a functional and timely
fashion has led some registrars, including ourselves, to lose thousands of Euro
in sales due to ICANN's insistence on the 2013 RAA in order for registrars to
offer new TLDs.
The paper prepared by ICANN staff contains a number of specific questions which
we will address in our comments.
Current Whois Procedure:
1.1 Is it impractical for ICANN to require that a contracted party already has
litigation or a government proceeding initiated against it prior to being able
to invoke the Whois Procedure? How can the triggering event be meaningfully
defined?
It's completely illogical that a contracted party must face litigation before
they can use a process. We would have loved to use a procedure or process to
get exemptions, but expecting us to already be litigating before we can do so
is, for lack of a better word, nuts.
1.2 Alternatively, does that suggest the Whois Procedure has not been invoked
because of an absence of enforcement action?
1.3 Are there any components of the triggering event/notification portion of
the RAA's Data Retention Waiver process that should be considered as optimal
for incorporation into a modified Whois Procedure?
That assumes that the RAA retention waiver process is functional. Based on our
experiences with it we have found it to be anything but functional.
Any procedure should be:
- simple and straightforward
- quick
- easy to access
Registrars and other contracted parties are not making frivolous requests when
they ask ICANN to "permit them" to comply with the law. That ICANN, a
California Corporation, feels that it has ANY standing with respect to
companies obligations under their respective national laws is incredibly hard
to understand.
1.4 Should parties be permitted to invoke the Whois Procedure before
contracting with ICANN as a registrar or registry?
Yes .
1.5 Would reaching different solutions with different registries with respect
to exemption or modification of Whois requirements in light of different laws
in various jurisdictions raise questions of fair and equal treatment?
No. A registry or a registrar cannot be expected to operate against their local
legislation.
5.1 What impacts would an exemption or modification have on the contract, and
on others in the same jurisdiction?
They should all be treated the same in a jurisdiction.
Also, ICANN needs to revise its contracts to take into account data privacy
concerns. This has been raised more than once, but ICANN to date has not been
able to address the problems. The letters from various data privacy /
protection groups, civil society and others have outlined issues with the ICANN
policies and contracts, yet ICANN has chosen not to heed them.
5.2 Is the exemption or modification termed to the length of the agreement? Or
is it indefinite as long as the contracted party is located in the jurisdiction
in question, or so long as the applicable law requiring the objection is in
force?
Indefinite as long as the law is in place
5.3 Should an exemption or modification based on the same laws and facts then
be granted to other affected contracted parties in the same jurisdiction
without invoking the Whois Procedure?
YES. The current process is illogical and forces registrars to go through
needless effort and expense. If ANY registrar in Germany, for example, is
granted a waiver based on German law, then ALL registrars based in Germany
should receive the same treatment. Expecting each registrar to go through a
lengthy, confusing and expensive process to "prove a negative" is not logical
and does not reflect well on ICANN.
We hope that ICANN is going to start taking data privacy legislation seriously
in its interactions with contracted parties.
As a first step ICANN should have its own data privacy officer.
ICANN is a data controller, as its contracts govern registrars and registries
handling of personal data, yet it does not have a data privacy officer.
Regards
Michele
--
Mr Michele Neylon
Blacknight Solutions
Hosting, Colocation & Domains
http://www.blacknight.co/
http://blog.blacknight.com/
http://www.technology.ie
Intl. +353 (0) 59 9183072
Twitter: http://twitter.com/mneylon
-------------------------------
Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
Road,Graiguecullen,Carlow,Ireland Company No.: 370845
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