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ICANN Grants Data Retention Waiver to 1API GmbH

7 August 2014

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DATA RETENTION WAIVER
1API GmbH

1API GmbH ("Registrar") submitted to ICANN a Registrar Data Retention Waiver Request ("Waiver Request") on the basis of Registrar's contention that compliance with the data collection and/or retention requirements of the Data Retention Specification in the 2013 RAA (the "Specification") violates applicable law in Germany.

ICANN hereby grants Registrar a limited waiver from compliance with certain provisions of the 2013 RAA on the following terms:

  1. ICANN agrees as follows:

    (a) The Registrar shall remain obliged to retain all data elements specified in Articles 1.1.1 through 1.1.8 of the Specification for the duration of its sponsorship of the Registration and for a period of two (2) additional years thereafter; however, Registrar will be permitted to block the data elements specified in Articles 1.1.1 through 1.1.8 of the Specification in accordance with blocking requirements under applicable law (see Sec. 35 para. 3 German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG) at the earliest after one year following the end of the Registrar's sponsorship of the Registration, provided that the rights of data subjects under Sec. 35 para 2 second sentence BDSG shall remain unaffected.

    (b) Registrar may exclude from the data retention obligation in the Specification any data elements specified in Articles 1.2.2 and 1.2.3 of the Specification which constitute usage data in the meaning of Sec. 13 para. 4 no. 2 German Telemedia Act (Telemediengesetz – TMG), unless those data are subject to retention periods prescribed by law or statutes or agreed by contract between Registrar and registrant and retained in accordance with Sec. 13 para. 4 no. 2, sentence 2 TMG.

    (c) Registrar may block the data elements specified in Articles 1.2.1, 1.2.2 and 1.2.3 in accordance with blocking requirements under applicable law (see Sec. 35 para. 3 BDSG) at the earliest after one year following the end of the Registrar's sponsorship of the Registration, provided that the rights of data subjects under Sec. 35 para 2 second sentence BDSG shall remain unaffected.

    (d) It is acknowledged that a transfer of any retained blocked data elements without consent of the data subject is permissible, if the requirements of the exception in Sec. 35 para. 8 BDSG are met.

  2. In all other respects the terms of the Specification will remain AS IS. The waiver granted to Registrar applies only to the post-sponsorship period of retention of the data listed in Articles 1.1.1 through 1.1.8 and Articles 1.2.1 through 1.2.3 inclusive of the Specification, and it does not constitute a waiver of any other provisions of the 2013 RAA or other ICANN policies applicable to registrars. Without limiting the foregoing, nothing in this waiver limits Registrar's obligation to comply with Consensus Policies or Temporary Policies developed and adopted in accordance with ICANN's Bylaws ("ICANN Policies") or limits Registrar's obligation to comply with any amendment, supplement or modification of the 2013 RAA approved and adopted in accordance with the terms of the 2013 RAA ("RAA Amendments"). In the event of any inconsistency between this waiver and the terms of any ICANN Policy or RAA Amendment, the terms of the ICANN Policy or RAA Amendment will control.

  3. The waiver granted to Registrar shall remain in effect for the duration of the term of the 2013 RAA signed by Registrar.

ICANN notes that the provisions of Section 3 of the Specification will apply to similar waivers requested by other registrars that are located in Germany and subject to German law.