[CPWG] ICANN orgs responds to digital Services Act initiative Public Consultation launched by European Commission

[Lutz Donnerhacke]

Von: CPWG <cpwg-bounces at icann.org> Im Auftrag von Olivier MJ Crépin-Leblond
> On 17/09/2020 10:04, Lutz Donnerhacke wrote:
>>> The one strong point of a centralised system is that the centraliser can chose the jurisdiction.
>> No, he can't. That's the whole point.
> So if the centraliser was ICANN, you are saying that ICANN cannot choose to use US jurisdiction?

Please have a look at the hierarchy of contracts:
 1) ICANN with Registry
 2) Registry with Registrar
 3) Registrar with Registrant (via optional chain of Resellers)

GDPR (and other local law) applies to the contracts of the registrant only.
Can you please explain, in which way the jurisdiction of ICANN plays any role here?

An now back to the centralized whois model: ICANN insists, that registries run a centralized whois, hence require them to collect contractual data of step 3) into the jurisdiction of step 1). This should be done by require analogous requirements into the registrar contracts, but it's illegal to influence contracts between third parties in step 2). Based on those indirect contractual requirements, ICANN insists on analogous requirements in the reseller and registrant contracts (illegal, too).

In consequence ICANN seeks to break the law two times in order to break local law in the jurisdiction of the registrant (by copying data outside of the jurisdiction) for no real reason. I already numbered the beneficiaries: Law breaking LEAs, Law breaking IP-law-companies, and marketing industry. 

If ICANN really want to keep a centralized whois, there is only one way to achieve this: Get rid of the registries, registrars, and resellers. Build an hierarchical reseller system using the same entities to ensure, that every registants domain contract is directly with ICANN. All the resellers on the way down only act as money collectors like in a pyramid scheme.

Personally, I'd take the "ultra thin whois" approach and just publish the contractual relationships step by step under the appropriate local law. There is nothing to invent, as whois.iana.org does already operates in this mode.