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

[Carlton Samuels <carlton.samuels@xxxxxxxxx>]

The cinch to all this is the Use Case.  And where the applicant is alleging
violation, then a Use Case would be relevant to determination, especially
with respect to access and display of the WHOIS data.

Some guidance may be gleaned from the .cat Registry RSEP request and
subsequent implementation.

-Carlton


==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
=============================


On Tue, Apr 23, 2013 at 2:37 AM, Marika Konings <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 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 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> 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><paf@xxxxxxxxxx%3E>
> >
> Date: Monday, April 22, 2013 10:47 PM
> To: "ssac@xxxxxxxxx<mailto:ssac@xxxxxxxxx <ssac@xxxxxxxxx>> SSAC" <
> ssac@xxxxxxxxx<mailto:ssac@xxxxxxxxx> <ssac@xxxxxxxxx%3E>>
> 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><david.olive@xxxxxxxxx%3E>
> >
> 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%3E>"
> <soac-infoalert@xxxxxxxxx<mailto:soac-infoalert@xxxxxxxxx><soac-infoalert@xxxxxxxxx%3E>
> >
>
> 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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