ICANN Contract vs. National LawWith Michele Neylon

ICANN Contract vs. National Law

Michele Neylon

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

What Will I Cover?

• Registrars• EU law

• Registries• ICANN “law”

I am NOT a lawyer!

Head Hurts?

EU Registries vs ICANN (Historical)

• .tel – delayed due to whois policy • .cat – 3 years+ to get a whois policy change +

comply with Spanish law

Post Snowden World

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!

EU Law vs ICANN?

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

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”

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)

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?

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

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?

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

Our Experience (so far)

• Delay• Submitted request on September 17th • Received basic acknowledgement same day• Received a reply on October 25th with queries

The Future?

• GAC involvement?• Article 29 WP again?• EU Commission?• ICANN?

Questions?

Thank You …

Credits

• Logos image via http://www.flickr.com/photos/27845211@N02/2616906744/sizes/l/