ICANN has made a preliminary determination that it is prepared to grant a data retention waiver request submitted by Registrar OVH SAS under the 2013 Registrar Accreditation Agreement (the "2013 RAA"). Section 2 of the Data Retention Specification (the "Specification") of 2013 RAA provides that prior to granting any exemption under the Specification, ICANN will post its determination on the ICANN website for a period of thirty (30) calendar days.
Pursuant to Section 2 of the Specification, OVH SAS submitted to ICANN a Registrar Data Retention Waiver Request ("Waiver Request") on the basis of OVH SAS's contention that compliance with the data collection and/or retention requirements of the Specification violates applicable law.
The Waiver Request was accompanied by a legal opinion from French counsel asserting that compliance with the data collection and/or retention requirements of the Specification violates Article 6-5 de la loi du 6 janvier 1978 ainsi que la Directive 95/46/CE (Article 6-5 of the law of January 6th 1978, as the European directive 95/46/CE).
The Waiver Request concerns Articles 1.1.1 through 1.1.8 of the Specification and seeks to reduce from two years to one year the period for which these specified data elements must be retained after the Registrar's sponsorship of the Registration ends.
Following review of the materials submitted by OVH SAS, ICANN has determined on a preliminary basis that it is prepared to grant the data retention waiver request. ICANN is posting this preliminary determination for a period of thirty (30) days to seek feedback and input from the community on the proposed data retention waiver. After the thirty (30) day period following this posting has expired, ICANN will consider all feedback and input received before making a final determination on whether to grant the Waiver Request.
The scope of the proposed waiver would be to permit OVH SAS to maintain the information 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 one (1) additional year thereafter rather than two (2) additional years thereafter. In all other respects the terms of the Specification would remain AS-IS.
The specific change to the Specification would be that, for the duration of the Waiver, the retention requirement of Paragraph 1.1 of the Data Retention Specification be changed from "two additional years" to "one additional year."
If ICANN does make a final determination to grant the Waiver Request sought by OVH SAS, the provisions of Section 3 of the Specification would apply to similar waivers requested by other registrars located in the same jurisdiction. Section 3 of the Specification provides as follows:
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 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.
A public comment period will remain open until 5:00 p.m. PDT/California, 27 February 2014. Public comments will be available for consideration by ICANN staff and the ICANN Board.
OVH SAS' Waiver Request and supporting documents are available here: OVH SAS Data Retention Request and Supporting Materials
Comments can be posted to: email@example.com
Comments can be viewed at: http://forum.icann.org/lists/comments-ovh-sas-27jan14