Home / Blogs

ICANN vs EPAG: ICANN Seeks Appeal Plus Pushes for ECJ Referral

Michele Neylon

As I predicted ICANN is pursuing its case against EPAG. They're now not only appealing the case to a higher court in Germany but are also trying to get the entire thing referred to the European Court of Justice.

In an announcement late last night ICANN made it very clear what their intentions are. While they're pursuing the appeal in the higher court in the German region, which makes sense at some level, it's also very clear that they're not taking "no" for an answer:

If the Higher Regional Court does not agree with ICANN or is not clear about the scope of the European Union's General Data Protection Regulation (GDPR), ICANN is also asking the Higher Regional Court to refer the issues in ICANN's appeal to the European Court of Justice.

I'm not a lawyer, but it does strike me as slightly odd to tell the higher court that they don't trust the outcome even before it's been made.

The appeal is taking a slightly more nuanced approach to its pleadings with an emphasis not just on the collection of the admin-c and tech-c contacts, but the "legal" collection of same. Jones Day is of the opinion that Epag should be obliged to collect the contacts and attempts to provide a rationale for doing so in what it deems to be a legal way under GDPR. They also make reference to FAQs published on a couple of randomly chosen websites: bestregistrar.com and vcgcorporate.zendesk.com. While the text on those sites might support ICANN's position it's not clear why those sites were chosen, beyond the obvious backing of ICANN's views.

While I could be mistaken, to the best of my knowledge, most ICANN policies do not make specific reference to the tech-c beyond the references in relation to the collection and display. The admin-c is referenced in a couple of policies, for example in the transfer policy, but it is always the registrant contact that is key.

The court filings including a number of affidavits and other exhibits are available here.

Of course, the bigger question is why on earth ICANN is pursuing this so doggedly. If you look at the various outstanding items in the temporary specification there are several areas which will be highly contentious such as providing access to non-public data to "legitimate" interests.

And what about the costs of pursuing this case?

Getting your lawyer to send a threatening letter might only cost a couple of hundred dollars, but pursuing a court case like this will cost thousands, if not, hundreds of thousands of dollars. Wasn't ICANN concerned about its finances?

By Michele Neylon, MD of Blacknight Solutions
Related topics: Domain Names, ICANN, Privacy, Whois
SHARE THIS POST

If you are pressed for time ...

... this is for you. More and more professionals are choosing to publish critical posts on CircleID from all corners of the Internet industry. If you find it hard to keep up daily, consider subscribing to our weekly digest. We will provide you a convenient summary report once a week sent directly to your inbox. It's a quick and easy read.

I make a point of reading CircleID. There is no getting around the utility of knowing what thoughtful people are thinking and saying about our industry.

Vinton Cerf, Co-designer of the TCP/IP Protocols & the Architecture of the Internet

Share your comments

I think the lack of mention of Todd Knarr  –  Jun 14, 2018 7:14 PM PDT

I think the lack of mention of the admin-c and tech-c are because most of the policies are about domain registration and transfer while the need to deal with the admin-c and tech-c are primarily during normal operation of the domain and fall into operation of the global DNS itself rather than ownership of the domain. For a corporate-owned domain registrant-c is likely a PO box or somesuch listed as the legal address of the company, it's admin-c that actually gets you in touch with a human who knows who to route your letter or call to.

But are they talking past each other? David C. Collier-Brown  –  Jun 19, 2018 10:02 AM PDT

From Canada, both the US and the EU can sometimes sound like they're barking mad (;-)) If I were an EU court, I certainly would not appreciate the degree of concern toward free speech of the Americans, and were I an American judge I would have real difficulty conceiving of the Canadian and EIU concern about privacy.  In their universe, free speech is guaranteed in the constitution, but privacy is hung precariously off a constitutional guarantee that you won't have troops billeted in your house.

I'd almost seriously suggest that ICANN hire a Quebecois lawyer to stand in the middle of the atlantic and translate between the two worldviews.

To post comments, please login or create an account.

Related

Topics

New TLDs

Sponsored byAfilias

Cybersecurity

Sponsored byVerisign

DNS Security

Sponsored byAfilias

Domain Names

Sponsored byVerisign

IP Addressing

Sponsored byAvenue4 LLC