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Notice of Preliminary Determination To Grant Registrar Data Retention Waiver Request for Realtime Register B.V.

Why this matters

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.

ICANN has made a preliminary determination that it is prepared to grant a data retention waiver request submitted by Registrar Realtime Register B.V. 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, Realtime Register B.V. submitted to ICANN a Registrar Data Retention Waiver Request ("Waiver Request") on the basis of Realtime Register B.V.'s contention that compliance with the data collection and/or retention requirements of the Specification violates applicable law in the Netherlands.

The Waiver Request was accompanied by a written legal opinion from a nationally recognized law firm dated 19 December 2013 and a supplementing opinion dated 21 August 2015 citing Articles 7, 10 and 11 of the Rules for the protection of personal data (Personal Data Protection Act) (Wet bescherming persoonsgegevens) (the “PDPA”). These Articles provide as follows (the following is an unofficial English translation from Dutch):

Article 7:

Personal data shall be collected for specific, explicitly defined and legitimate purposes.

 

Article 10 (1):

Personal data shall not be kept in a form which allows the data subject to be identified for any longer than is necessary for achieving the purposes for which they were collected or subsequently processed.

 

Article 11 (1):

Personal data shall only be processed where, given the purposes for which they are collected or subsequently processed, they are adequate, relevant and not excessive.

Following receipt of the Waiver Request, and in accordance with the 2013 RAA, ICANN through its legal counsel and Realtime Register B.V. discussed the matter in good faith in an effort to reach a mutually acceptable resolution of the matter.

The outcome of those discussions is that Realtime Register B.V. is seeking a waiver with respect to the following data elements: log files as referred to in Sections 1.2.2 and 1.2.3 of the Specification as well as telephone numbers, source IP addresses and HTTP headers as referred to in Section 1.2.2 of the Specification. The waiver seeks to exclude these data elements from the obligation stated in Section 1.2 of the Specification according to which such data elements must be retained for no less than one hundred and eighty (180) days following the relevant interaction.

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 Realtime Register B.V. to exclude log files as referred to in Sections 1.2.2 and 1.2.3 of the Specification as well as telephone numbers, source IP addresses and HTTP headers as referred to in Section 1.2.2 of the Specification from the obligation to retain such information for no less than one hundred and eighty (180) days following the relevant interaction. 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 Sections 1.2.2 and 1.2.3 of the Specification would not be applicable to log files and the retention requirement of Section 1.2.2 would not be applicable to telephone numbers, source IP addresses and HTTP headers.

With respect to HTTP headers as referred to in Section 1.2.2 of the Specification, the following exception to the waiver applies: In each instance for which the communication with the Registrant is carried out browser-based (and not via email), Realtime Register B.V. may decide, but is not obliged, to store HTTP requests and responses in order to ensure proof of communication with the Registrant. If HTPP requests and responses are stored in such case, Realtime Register B.V.’s obligations arising from the Specification (as well as any other obligations arising of the 2013 RAA) shall be fully applicable with respect to such information.

With respect to log files as referred to in Sections 1.2.2 and 1.2.3 of the Specification, the following exception to the waiver applies: Date and time stamp information will be stored by Realtime Register B.V. and thus Realtime Register B.V.’s obligations arising from the Specification (as well as any other obligations arising of the 2013 RAA) shall be fully applicable with respect to such information.

If ICANN does make a final determination to grant the Waiver Request sought by Realtime Register B.V., the provisions of Section 3 of the Specification would apply to similar waivers requested by other registrars located in the Netherlands and subject to the laws of the Netherlands. 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, 30 December 2015. Public comments will be available for consideration by ICANN staff and the ICANN Board.

The Registrar's Waiver Request and supporting documents are available here: https://www.icann.org/en/system/files/files/waiver-request-realtime-register-bv-23nov15.pdf [PDF, 624 KB]


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