Notice of Potential Grant of Registrar Data Retention Waiver Request
Blacknight Internet Solutions Ltd. ("Blacknight") submitted a data retention waiver request under the 2013 Registrar Accreditation Agreement (the "2013 RAA") on the basis of its 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 Irish counsel asserting that compliance with the data collection and/or retention requirements of the Specification violates Ireland Data Retention Acts 1998 – 2003.
Following receipt of the Waiver Request, and in accordance with the 2013 RAA, ICANN, through its staff and legal counsel, and Blacknight, through its staff and legal counsel, 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 Blacknight is seeking a waiver with respect to Sections 1.1.1 through 1.1.8 of the Specification that would reduce from two years to one year the period for which those specified data elements must be retained after the Registrar's sponsorship of the Registration ends, and is seeking a waiver with respect to Sections 1.2.1 through 1.2.3 of the Specification that would reduce from 180 days to 90 days the period for which those specified data elements must be retained following the relevant interaction.
ICANN is posting Blacknight's proposed waiver 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 Blacknight to maintain the information specified in Sections 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, and to maintain the information specified in Sections 1.2.1 through 1.2.3 of the Specification for a period of 90 days after the relevant interaction rather than for 180 days 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 Section 1.1 of the Data Retention Specification be changed from "two additional years" to "one additional year" and the retention requirement of Section 1.2 of the Data Retention Specification would be changed from "one hundred eighty (180) days" to "ninety (90) days."
If ICANN does make a final determination to grant the Waiver Request sought by Blacknight, 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, 7 June 2014. Public comments will be available for consideration by ICANN staff and the ICANN Board.
Blacknight's Waiver Request and supporting documents are available here: Blacknight Data Retention Waiver Request and Supporting Materials [PDF, 1.73 MB]
Comments can be posted to: firstname.lastname@example.org
Comments can be viewed at: http://forum.icann.org/lists/comments-blacknight-07may14/