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ICANN has made a preliminary determination that it is prepared to grant three (3) data retention waiver requests submitted by registrars 1API GmbH, ingenit GmbH & Co. KG and RegistryGate GmbH (the "Registrars") 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, each of the Registrars submitted to ICANN a Registrar Data Retention Waiver Request ("Waiver Request") on the basis of the Registrars' contention that compliance with the data collection and/or retention requirements of the Specification violates applicable law.
Each of the Waiver Requests was accompanied by the same legal opinion from German counsel asserting that compliance with the data collection and/or retention requirements of the Specification violates various applicable provisions of German data protection law. The original legal opinion was later supplemented by a second supplementary legal opinion and by submission of a third document containing further legal analysis from the same German law firm.
The Waiver Requests originally concerned Articles 1.1 and 1.2 of the Specification and sought to exclude any of these data elements from the retention obligation. In subsequent correspondence it has been acknowledged that legitimate purposes exist for the retention of certain specified data elements after the Registrar's sponsorship of the Registration ends; it is asserted that some data elements, however, are after a certain period of time subject to blocking requirements under Sec. 35 para. 3 German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG).
Following review of the materials submitted by the Registrars, and in accordance with the 2013 RAA, ICANN and the Registrars' respective legal counsel discussed the matter in good faith in an effort to reach a mutually acceptable resolution of the matter.
ICANN has determined on a preliminary basis that it is prepared to grant the Waiver Requests in a limited scope as outlined below. 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 Requests.
While the Registrars 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 their respective sponsorship of the Registration and for a period of two (2) additional years thereafter, the scope of the proposed waiver would be to permit the Registrars 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 respective Registrar's sponsorship of the Registration, provided that the rights of data subjects under Sec. 35 para 2 second sentence BDSG shall remain unaffected.
The proposed waiver would further permit the Registrars to exclude from the data retention obligation in the Specification any data elements specified in Articles 1.2.2 and 1.2.3 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. The proposed waiver would further permit the Registrars to 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 respective Registrar's sponsorship of the Registration, provided that the rights of data subjects under Sec. 35 para 2 second sentence BDSG shall remain unaffected.
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.
In all other respects the terms of the Specification would remain AS-IS.
If ICANN does make a final determination to grant the Waiver Request sought by the Registrars, 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 23:59 UTC, 22 June 2014. Public comments will be available for consideration by ICANN staff and the ICANN Board.
The Registrars' Waiver Requests and supporting documents are available here: https://www.icann.org/en/system/files/files/waiver-request-1api-gmbh-22may14-en.pdf [PDF, 483 MB]
Comments can be posted to: email@example.com
Comments can be viewed at: http://forum.icann.org/lists/comments-1api-gmbh-07may14/