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Re: [gnso-dataprotection-thickwhois] FW: [ssac] FYI: [Soac-infoalert] Proposed Final 2013 RAA | ICANN

  • To: Don Blumenthal <dblumenthal@xxxxxxx>, "gnso-dataprotection-thickwhois@xxxxxxxxx" <gnso-dataprotection-thickwhois@xxxxxxxxx>
  • Subject: Re: [gnso-dataprotection-thickwhois] FW: [ssac] FYI: [Soac-infoalert] Proposed Final 2013 RAA | ICANN
  • From: Marika Konings <marika.konings@xxxxxxxxx>
  • Date: Tue, 23 Apr 2013 00:37:36 -0700

Don, All,

I've scanned through the different documents with my non-lawyer, non expert
eye and found the following clause in the data retention specification that
seems to be relevant to the sub-team's discussion (see

2. If, based on the receipt of either (i) a written legal opinion from a
nationally recognized law firm in the applicable jurisdiction that states
that the collection and/or retention of any data element specified herein by
Registrar is reasonably likely to violate applicable law (the “Opinion”) or
(ii) a ruling of, or written guidance from, a governmental body of competent
jurisdiction providing that compliance with the data collection and/or
retention requirements of this Specification violates applicable law,
Registrar determines in good faith that the collection and/or retention of
any data element specified in this Specification violates applicable law,
Registrar may provide written notice of such determination to ICANN and
request a waiver from compliance with specific terms and conditions of this
Specification (a “Waiver Request”). Such written notice shall: (i) specify
the relevant applicable law, the allegedly offending data collection and
retention elements, the manner in which the collection and/or retention of
such data violates applicable law, and a reasonable description of such
determination and any other facts and circumstances related thereto, (ii) be
accompanied by a copy of the Opinion and governmental ruling or guidance, as
applicable, and (iii) be accompanied by any documentation received by
Registrar from any governmental authority, in each case, related to such
determination, and such other documentation reasonably requested by ICANN.
Following receipt of such notice, ICANN and Registrar shall discuss the
matter in good faith in an effort to reach a mutually acceptable resolution
of the matter. Until such time as ICANN’s Procedure for Handling Whois
Conflicts with Privacy Law is modified to include conflicts relating to the
requirements of this Specification and if ICANN agrees with Registrar’s
determination, ICANN's office of general counsel may temporarily or
permanently suspend compliance and enforcement of the affected provisions of
this Specification and grant the Wavier Request. Prior to granting any
exemption hereunder, ICANN will post its determination on its website for a
period of thirty (30) calendar days. Following such modification of ICANN’s
Procedure for Handling Whois Conflicts with Privacy Law, all Wavier Requests
(whether granted or denied) shall be resolved pursuant to such modified

3. If (i) ICANN has previously waived compliance with the requirements of
any requirement of this Data Retention Specification in response to a Waiver
Request from a registrar that is located in the same jurisdiction as
Registrar and (ii) Registrar is subject to the same applicable law that gave
rise to ICANN’s agreement to grant such wavier, Registrar may request that
ICANN to grant a similar waiver, which Draft request shall be approved by
ICANN, unless ICANN provides Registrar with a reasonable justification for
not approving such request, in which case Registrar may thereafter make an
Wavier Request pursuant to Section 2 of this Data Retention Specification.

4. Any modification of this Data Retention Specification to address
violations of applicable law shall only apply during the period of time that
the specific provisions of the applicable law giving rise to such violations
remain in effect. If the applicable law is repealed or modified (or
preempted) in a manner that would no longer prohibit the collection and/or
retention of data and information as originally specified in this Data
Retention Specification, Registrar agrees that the original version of this
Specification will apply to the maximum extent permitted by such modified
applicable law.

In addition, the following provision is included in the RAA in relation to
'special amendments' (see

6.8 Registrar may apply in writing to ICANN for an exemption from the
Approved Amendment (each such request submitted by Registrar hereunder,an
“Exemption Request”) during the thirty (30) calendar day period following
the date ICANN provided notice to Registrar of such Approved Amendment.

> 6.8.1 Each Exemption Request will set forth the basis for such requestand
> provide detailed support for an exemption from the Approved Amendment. An
> Exemption Request may also include a detailed description and support for any
> alternatives to, or a variation of, the Approved Amendment proposed by such
> Registrar.
> 6.8.2 An Exemption Request may only be granted upon a clear and convincing
> showing by Registrar that compliance with the Approved Amendment conflicts
> with applicable laws or would have a material adverse effect on the
> long-­-term financial condition or results of operations of Registrar. No
> Exemption Request will be granted if ICANN determines, in its reasonable
> discretion, that granting such Exemption Request would be materially harmful
> to registrants or result in the denial of a direct benefit to registrants.
> 6.8.3 Within ninety (90) calendar days of ICANN’sreceipt of an Exemption
> Request,ICANN shall either approve (which approval may be conditioned or
> consist of alternatives to or a variation of the Approved Amendment) or deny
> the Exemption Request in writing,during which time the Approved Amendment will
> not amend this Agreement.
> 6.8.4 If the Exemption Requestis approved by ICANN, the Approved Amendment
> will not amend this Agreement; provided, that any conditions, alternatives or
> variations of the Approved Amendment required by ICANN shall be effective and,
> to the extent applicable, will amend this Agreement as of the Amendment
> Effective Date.If such Exemption Request is denied by ICANN, the Approved
> Amendment will amend this Agreement as of the Amendment Effective Date (or, if
> such date has passed,such Approved Amendment shall be deemed effective
> immediately on the date of such denial), provided that Registrar may, within
> thirty (30) calendar days following receipt of ICANN’s determination, appeal
> ICANN’s decision to deny the Exemption Request pursuant to the dispute
> resolution procedures set forth in Section 5.8.
> 6.8.5 The Approved Amendment will be deemed not to have amended this Agreement
> during the pendency of the dispute resolution process. For avoidance of doubt,
> only Exemption Requests submitted by Registrar that are approved by ICANN
> pursuant to this Article 6 or through an arbitration decision pursuant to
> Section 5.8 shall exempt Registrar from any ApprovedAmendment, and no
> Exemption Request granted to any otherApplicable Registrar (whether by ICANN
> or through arbitration), shall have any effect under this Agreement or exempt
> Registrar from any Approved Amendment.

Others may have found other provisions that pertain to our discussions?

Best regards,


On 23/04/13 05:15, "Don Blumenthal" <dblumenthal@xxxxxxx> wrote:

> ICANN published the new RAA late yesterday. I'll look at it in the morning but
> wouldn't be averse to a summary from someone whose morning starts before mine.
> :)  I'm on UTC–3 for the week. I've spent my life in the Eastern TZ. It's
> strange feeling to be in the Western Hemisphere and be an hour ahead.
> Don
> From: Patrik Fältström <paf@xxxxxxxxxx<mailto:paf@xxxxxxxxxx>>
> Date: Monday, April 22, 2013 10:47 PM
> To: "ssac@xxxxxxxxx<mailto:ssac@xxxxxxxxx> SSAC"
> <ssac@xxxxxxxxx<mailto:ssac@xxxxxxxxx>>
> Subject: [ssac] FYI: [Soac-infoalert] Proposed Final 2013 RAA | ICANN
> No action required.
>    Patrik
> Begin forwarded message:
> From: David Olive <david.olive@xxxxxxxxx<mailto:david.olive@xxxxxxxxx>>
> Subject: [Soac-infoalert] Proposed Final 2013 RAA | ICANN
> Date: 23 april 2013 04:21:54 CEST
> To: "soac-infoalert@xxxxxxxxx<mailto:soac-infoalert@xxxxxxxxx>"
> <soac-infoalert@xxxxxxxxx<mailto:soac-infoalert@xxxxxxxxx>>
> http://www.icann.org/en/news/announcements/announcement-22apr13-en.htm
> ICANN Notice:
> After an extended period of negotiations, ICANN is posting a Proposed Final
> 2013 Registrar Accreditation Agreement (RAA) for public comment.
> On 7 March 2013, ICANN posted its version of the 2013 RAA for public comment,
> noting some areas of disagreement between ICANN and the Registrar Negotiating
> Team (NT). In addition, some of the specifications posted for comment were
> ICANN versions only. Since the March 7th posting, the Registrar NT has engaged
> in frequent negotiation sessions with ICANN in order to bring to closure to
> all of the open negotiation topics and to consider the community comments
> received from the 7 March posting. As a result, at ICANN's public meeting in
> Beijing, China, ICANN and the Registrar NT announced that they had reached
> agreement in principle on each of the outstanding items highlighted in the
> March posting version. The documents posted today reflect ICANN and the
> Registrar NT's agreements and are the Proposed Final 2013 RAA.
> To allow for transparency into the proposed final version of the 2013 RAA, and
> to allow community input on the revisions to the RAA since the March 7th
> posting, ICANN is opening a full comment forum.
> ICANN thanks the Registrar Negotiating Team (NT) for its continued engagement
> in good faith negotiations on the RAA. The RAA posted today reflects
> hard-fought concessions on many of key issues raised throughout the
> negotiations.
> --
> David A. Olive
> Vice President, Policy Development Support
> Internet Corporation for Assigned Names and Numbers (ICANN)
> 1101 New York Avenue, NW - Suite 930
> Washington, D.C.    20005
> Office: 202.570.7126      Mobile:  202.341.3611
> [cid:C523D645-90D0-463A-B793-97F0E8966E07]
> _______________________________________________
> soac-infoalert mailing list
> soac-infoalert@xxxxxxxxx<mailto:soac-infoalert@xxxxxxxxx>
> https://mm.icann.org/mailman/listinfo/soac-infoalert

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