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Euro registrars miffed about ICANN privacy delays

Kevin Murphy, February 21, 2014, Domain Registrars

Registrars based in the European Union are becoming increasingly disgruntled by what they see as ICANN dragging its feet over registrant privacy rules.

Some are even refusing to sign the 2013 Registrar Accreditation Agreement until they receive formal assurances that ICANN won’t force them to break their local privacy laws.

The 2013 RAA, which is required if a registrar wants to sell new gTLD domains, requires registrars to keep hold of registrant data for two years after their registrations expire.

Several European authorities have said that this would be illegal under EU privacy directives, and ICANN has agreed to allow registrars in the EU to opt out of the relevant provisions.

Today, Luxembourgish registrar EuroDNS said it asked for a waiver of the data retention clauses on December 2, but has not heard back from ICANN over two months later.

The company had provided ICANN with the written legal opinion of Luxembourg’s Data Protection Agency

In a snippy letter (pdf) to ICANN, EuroDNS CEO Lutz Berneke wrote:

Although we understand that your legal department is solely composed of lawyers educated in US laws, a mere translation of the written guidance supporting our request should confirm our claim and allow ICANN to make its preliminary determination.

EuroDNS has actually signed the 2013 RAA, but says it will not abide by the provisions it has been told would be illegal locally.

Elsewhere in Europe, Ireland’s Blacknight Solutions, said two weeks ago that it had requested its waiver September 17 and had not yet received a pass from ICANN.

“Why is it my problem that ICANN doesn’t understand EU law? Why should our business be impacted negatively due to ICANN’s inability to listen?” CEO Michele Neylon blogged. “[W]hile this entire farce plays out we are unable to offer new top level domains to our clients.”

But while Blacknight is still on the old 2009 RAA, other European registrars seem to have signed the 2013 version some time ago, and are already selling quite a lot of new gTLD domains.

Germany’s United-Domains, for example, appears to be the third-largest new gTLD registrar, if name server records are anything to go by, with the UK’s 123-Reg also in the top ten.

ICANN is currently operating a public comment period on the waiver request of OVH, a French registrar, which ICANN says it is “prepared to grant”.

That comment period is not scheduled to end until February 27, however, so it seems registrars agitated about foot-dragging have a while to wait yet before they get what they want.

EU body tells ICANN that 2013 RAA really is illegal

Kevin Murphy, January 29, 2014, Domain Registrars

A European Union data protection body has told ICANN for a second time — after being snubbed the first — that parts of the 2013 Registrar Accreditation Agreement are in conflict with EU law.

The Article 29 Data Protection Working Party, which is made up of the data protection commissioners in all 28 EU member states, reiterated its claim in a letter (pdf) sent earlier this month.

In the letter, the Working Party takes issue with the part of the RAA that requires registrars to keep hold of customers’ Whois data for two years after their registrations expire. It says:

The Working Party’s objection to the Data Retention Requirement in the 2013 RAA arises because the requirement is not compatible with Article 6(e) of the European Data Protection Directive 95/46/EC which states that personal data must be:

“kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected”

The 2013 RAA fails to specify a legitimate purpose which is compatible with the purpose for which the data was collected, for the retention of personal data of a period of two years after the life of a domain registration or six months from the relevant transaction respectively.

Under ICANN practice, any registrar may request an opt out of the RAA data retention clauses if they can present a legal opinion to the effect that to comply would be in violation of local laws.

The Working Party told ICANN the same thing in July last year, clearly under the impression that its statement would create a blanket opinion covering all EU-based registrars.

But a week later ICANN VP Cyrus Namazi told ICANN’s Governmental Advisory Committee that the Working Party was “not a legal authority” as far as ICANN is concerned.

The Working Party is clearly a bit miffed at the snub, telling ICANN this month:

The Working Party regrets that ICANN does not acknowledge our correspondence as written guidance to support the Waiver application of a Registrar operating in Europe.

the Working Party would request that ICANN accepts the Working Party’s position as appropriate written guidance which can accompany a Registrar’s Data Retention Waiver Request.

It points out that the data protection commissioners of all 28 member states have confirmed that the letter “reflects the legal position in their member state”.

ICANN has so far processed one waiver request, made by the French registrar OVH, as we reported earlier this week.

Weirdly, the written legal opinion used to support the OVH request is a three-page missive by Blandine Poidevin of the French law firm Jurisexpert, which cites the original Working Party letter heavily.

It also cites letters from CNIL, the French data protection authority, which seem to merely confirm the opinion of the Working Party (of which it is of course a member).

EU registrars seem to be in a position here where in order to have the Working Party’s letter taken seriously by ICANN, they have to pay a high street lawyer to endorse it.

ICANN says Article 29 letter does not give EU registrars privacy opt-out

Kevin Murphy, July 15, 2013, Domain Policy

Registrars based in the European Union won’t immediately be able to opt out of “illegal” data retention provisions in the new 2013 Registrar Accreditation Agreement, according to ICANN.

ICANN VP Cyrus Namazi on Saturday told the Governmental Advisory Committee that a recent letter from the Article 29 Working Party, which comprises the data protection authorities of EU member states, is “not a legal authority”.

Article 29 told ICANN last month that the RAA’s provisions requiring registrars to hold registrant data for two years after the domain expires were “illegal”.

While the RAA allows registrars to opt out of clauses that would be illegal for them to comply with, they can only do so with the confirmation of an adequate legal opinion.

The Article 29 letter was designed to give EU registrars that legal opinion across the board.

But according to Namazi, the letter does not meet the test. In response to a question from the Netherlands, he told the GAC:

We accept it from being an authority, but it’s not a legal authority, is our interpretation of it. That it actually has not been adopted into legislation by the EU. When and if it becomes adopted then of course there are certain steps to ensure that our contracted parties are in line with — in compliance with it. But we look at them as an authority but not a legal authority at this stage.

It seems that when the privacy watchdogs of the entire European Union tell ICANN that it is in violation of EU privacy law, that’s not taken as an indication that it is in fact in violation of EU privacy law.

The European Commission representative on the GAC expressed concern about this development during Saturday’s session, which took place at ICANN 47 in Durban, South Africa.

2013 RAA is illegal, says EU privacy watchdog

European privacy regulators have slammed the new 2013 Registrar Accreditation Agreement, saying it would be illegal for registrars based in the EU to comply with it.

The Article 29 Working Party, which comprises privacy regulators from the 27 European Union nations, had harsh words for the part of the contract that requires registrars to store data about registrants for two years after their domains expire.

In a letter (pdf) to ICANN last month, Article 29 states plainly that such provisions would be illegal in the EU:

The fact that these personal data can be useful for law enforcement does not legitimise the retention of these personal data after termination of the contract. Because there is no legal ground for the data processing, the proposed data retention requirement violates data protection law in Europe.

The 2013 RAA allows any registrar to opt out of the data retention provisions if it can prove that to comply would be illegal its own jurisdiction.

The Article 29 letter has been sent to act as blanket proof of this for all EU-based registrars, but it’s not yet clear if ICANN will treat it as such.

The letter goes on to sharply criticize ICANN for allowing itself to be used by governments (and big copyright interests) to circumvent their own legislative processes. It says:

The fact that these data may be useful for law enforcement (including copyright enforcement by private parties) does not equal a necessity to retain these data after termination of the contract.

the Working Party reiterates its strong objection to the introduction of data retention by means of a contract issued by a private corporation in order to facilitate (public) law enforcement.

If there is a pressing social need for specific collections of personal data to be available for law enforcement, and the proposed data retention is proportionate to the legitimate aim pursued, it is up to national governments to introduce legislation

So why is ICANN trying to get many of its registrars to break the law?

While it’s tempting to follow the Article 29 WP’s reasoning and blame law enforcement agencies and the Governmental Advisory Committee, which pushed for the new RAA to be created in the first place, the illegal data retention provisions appear to be entirely ICANN’s handiwork.

The original law enforcement demands (pdf) say registrars should “securely collect and store” data about registrants, but there’s no mention of the period for which it should be stored.

And while the GAC has expressly supported the LEA recommendations since 2010, it has always said that ICANN should comply with privacy laws in their implementation.

The GAC does not appear to have added any of its own recommendations relating to data retention.

ICANN can’t claim it was unaware that the new RAA might be illegal for some registrars either. The Article 29 WP told it so last September, causing ICANN to introduce the idea of exemptions.

However, the European Commission’s GAC representative then seemed to dismiss the WP’s concerns during ICANN’s public meeting in Toronto last October.

Perhaps ICANN was justifiably confused by these mixed messages.

According to Michele Neylon, chair of the Registrars Stakeholder Group, it has yet to respond to European registrars’ inquiries about the Article 29 letter, which was sent June 6.

“We hope that ICANN staff will take the letter into consideration, as it is clear that the data protection authorities do not want create extra work either for themselves or for registrars,” Neylon said.

“For European registrars, and non-European registrars with a customer base in the EU, we look forward to ICANN staff providing us with clarity on how we can deal with this matter and respect EU and national law,” he said.

EU plays down “unlawful” Whois data worries

Kevin Murphy, October 17, 2012, Domain Policy

The European Commission yesterday gave short shrift to recent claims that ICANN’s proposed Whois data retention requirements would be “unlawful” in the EU.

A recent letter from the Article 29 Working Party — an EU data protection watchdog — had said that the next version of the Registrar Accreditation Agreement may force EU registrars to break the law.

The concerns were later echoed by the Council of Europe.

But the EC stressed at a session between the ICANN board of directors and Governmental Advisory Committee yesterday that Article 29 does not represent the official EU position.

That’s despite the fact that the Article 29 group is made up of privacy commissioners from each EU state.

Asked about the letter, the EC’s GAC representative said:

Just to put everyone at ease, this is a formal advisory group concerning EU data privacy protection.

They’re there to give advice and they themselves, and we as well, are very clear that they are independent of the European Union. That gives you an idea that this is not an EU position as such but the position of the advisory committee.

The session then quickly moved on to other matters, dismaying privacy advocates in the room.

Milton Mueller of the Internet Governance Project tweeted:

By telling ICANN that it can ignore Art 29 WG opinion on privacy, European commission is telling ICANN it can ignore their national DP [data privacy] laws

Registrars hopeful that the Article 29 letter would put another nail into the coffin of some of ICANN’s more unpalatable and costly RAA demands also expressed dismay.

ICANN’s current position, based on input from law enforcement and the GAC, is that the RAA should contain new more stringent requirements on Whois data retention and verification.

It proposes an opt-out process for registrars that believe these requirements would put them in violation of local law.

But registrars from outside the EU say this would create a two-tier RAA, which they find unacceptable.

With apparently no easy compromise in sight the RAA negotiations, originally slated to be wrapped up in the first half of this year, look set to continue for many weeks or months to come.