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

Sat Sep 19 19:15:45 UTC 2020

ICANN operates under the US jurisdiction and is therefore obliged to comply with US law.
ICANN is also under a lot of pressure for taking actions that, although not bringing any result other than annoying a lot of non-US stakeholders, serve the purpose of projecting the image of US law governing outside its jurisdiction.
The waiver thing is exactly this: European contracted parties have to sign a formal request - therefore formally recognising the “power” upon them of US law - while the reality is that it is Europe who is enforcing its law.
This said, I am not sure that ICANN fully understands how taking positions that appear unreasonable for non-US stakeholders - in particular contracted parties - further challenges its international image.
Cheers,
Roberto

On 19.09.2020, at 20:13, Michele Neylon - Blacknight <michele at blacknight.com<mailto:michele at blacknight.com>> wrote:

Olivier

They could choose not to grant a waiver, but there’s no way that they’ll be able to force a contracted party like ourselves to break our local law. So the waiver system is more like a way for them to note that registrar X won’t be complying

Regards

Michele

--
Mr Michele Neylon
Blacknight Solutions
Hosting, Colocation & Domains
https://www.blacknight.com/
https://blacknight.blog/
Intl. +353 (0) 59  9183072
Direct Dial: +353 (0)59 9183090
Personal blog: https://michele.blog/
Some thoughts: https://ceo.hosting/
-------------------------------
Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
Road,Graiguecullen,Carlow,R93 X265,Ireland  Company No.: 370845

From: Olivier Crepin-Leblond <ocl at gih.com<mailto:ocl at gih.com>>
Date: Friday 18 September 2020 at 17:23
To: Michele Neylon <michele at blacknight.com<mailto:michele at blacknight.com>>, Lutz Donnerhacke <lutz at donnerhacke.de<mailto:lutz at donnerhacke.de>>, "cpwg at icann.org<mailto:cpwg at icann.org>" <cpwg at icann.org<mailto:cpwg at icann.org>>
Subject: Re: [CPWG] ICANN orgs responds to digital Services Act initiative Public Consultation launched by European Commission

Thanks for your follow-up Michele.

So purely under contractual arrangements, in your case the Registrar Accreditation Agreement, which I guess is the one found at https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
the agreement mentions California enough times to be fair to assume that it follows the law of California - especially since dispute resolution in section 5.8 mentions the rules of the International Arbitration Rules of the American Arbitration Association ("AAA").

So of course ICANN cannot ask you to do something which is contrary to Irish Law, but we've seen that it has in the past, for example the Registrar Data Retention Program? You and I know that ICANN has a process for requesting a Waiver of Data Retention, outlined on https://www.icann.org/resources/pages/retention-2013-09-13-en
But ultimately, isn't ICANN the final decider of whether it gives you that waiver or not, according to its rules outlined inhttps://www.icann.org/resources/pages/waiver-request-process-2013-09-13-en? They are not required to do so by US law, are they?

Kindest regards,

Olivier

On 18/09/2020 17:04, Michele Neylon - Blacknight wrote:
Olivier

ICANN is a US entity.

My company is an Irish entity.

ICANN cannot force us to do anything that is not legal under Irish law.

So choosing the jurisdiction is kind of meaningless

Regards

Michele

--
Mr Michele Neylon
Blacknight Solutions
Hosting, Colocation & Domains
https://www.blacknight.com/
https://blacknight.blog/
Intl. +353 (0) 59  9183072
Direct Dial: +353 (0)59 9183090
Personal blog: https://michele.blog/
Some thoughts: https://ceo.hosting/
-------------------------------
Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
Road,Graiguecullen,Carlow,R93 X265,Ireland  Company No.: 370845

From: CPWG <cpwg-bounces at icann.org><mailto:cpwg-bounces at icann.org> on behalf of Olivier Crepin-Leblond <ocl at gih.com><mailto:ocl at gih.com>
Date: Thursday 17 September 2020 at 19:04
To: Lutz Donnerhacke <lutz at donnerhacke.de><mailto:lutz at donnerhacke.de>, "cpwg at icann.org"<mailto:cpwg at icann.org> <cpwg at icann.org><mailto:cpwg at icann.org>
Subject: Re: [CPWG] ICANN orgs responds to digital Services Act initiative Public Consultation launched by European Commission

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?
Kindest regards,

Olivier

--

Olivier MJ Crépin-Leblond, PhD

http://www.gih.com/ocl.html

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