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

[Don Blumenthal <dblumenthal@xxxxxxx>]

Marika,

Thanks vey much. That's very helpful in focusing on the critical provisions. I 
also will check the redline to see if anything has been removed from the 2009 
agreement that might apply.

For our consideration - to what extent do we point to specific language and 
discuss the extent to which it does or doesn't address relevant data protection 
concerns? Or do we just point to the process and say that a non-final process 
has begun and list to the paragraph number with a bried description?

Don

Sent from my tablet

On Apr 23, 2013, at 4:37 AM, "Marika Konings" 
<marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> wrote:

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 
http://www.icann.org/en/resources/registrars/raa/proposed-data-retention-22apr13-en.pdf):

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 retentionn 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 th!
 e 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 procedures.

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 
http://www.icann.org/en/resources/registrars/raa/proposed-agreement-22apr13-en.pdf):

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,

Marika

On 23/04/13 05:15, "Don Blumenthal" 
<dblumenthal@xxxxxxx<mailto: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><mailto:paf@xxxxxxxxxx>>
Date: Monday, April 22, 2013 10:47 PM
To: "ssac@xxxxxxxxx<mailto:ssac@xxxxxxxxx><mailto:ssac@xxxxxxxxx> SSAC" 
<ssac@xxxxxxxxx<mailto: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><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><mailto:soac-infoalert@xxxxxxxxx>"
 
<soac-infoalert@xxxxxxxxx<mailto: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]





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