Why Registrars require an EU based Escrow provider

Domain names, registrant data and data protection, they all have a long history in the ICANN universe. Let’s do some time traveling and let me take you back in time, starting a decade ago…

March 2007
ICANN de-accredits RegistryFly, this disaster demonstrates clearly that Registrars should escrow registrant data to an escrow provider in case a registrar goes “down.”

To counter the RegistryFly disaster, ICANN introduced escrow requirements, ICANN picks up the bill, but of course, indirectly the registrars are paying for it, how much is unknown though, as we do not know how much ICANN is paying Iron Mountain USA.

October 2015
The escrow of data to the USA went on for years without problems, until October 2015, when the CJEU invalidated Safe Harbor. Most companies, registrars included relied on Safe Harbor to transfer data to the USA. But all of the sudden this was no longer an option.

This raised awareness among registrars. Our contractual ICANN obligation to escrow data was no longer an option as it was deemed illegal by the CJEU.

ICANN had appointed more escrow providers during the years including the EU. The problem, these escrow providers are not funded directly by ICANN. The prices are high, up to 2500 Euros a month.

This means that registrars using another provider would pay twice, first the provider of their choice and second Iron mountain through the ICANN fees. Effectively this means you’re sponsoring the competition, which is insane.

Further developments………

November 2015
The invalidation of Safe Harbor demonstrated another issue; legal agreements could be here today and gone tomorrow.
Realtime Register entered into a contract with Iron Mountain using a so-called SCC aka Model Contract. This solution provided us an option to continue our escrow obligations.

July 12, 2016
The European Commission deemed the EU-U.S. Privacy Shield Framework adequate to enable data transfers under EU law.

Realtime Register continued to use the SCC as it provided more safeguards for registrants compared to Privacy Shield, which was deemed invalid by legal experts the moment it was released.

August 2017
Denic the German ccTLD Registry for .DE informs ICANN registrars their far developed plans to become an ICANN designated escrow agent. ICANN acknowledged that EU Escrow providers would get the same treatment funding wise like Iron Mountain USA. Next year this treatment will be available to other escrow providers like for example China, China has very strict privacy laws.

Most recent developments……………

October 3, 2017
The Irish High Court rules on Facebook surveillance case:
Irish DPC has “well-founded concerns” over US surveillance of Facebook.
EU-US data transfer complaint referred to European Court of Justice for the second time.
The court found that the DPC has “well-founded concerns” that the SCC Decision by the European Commission (2010/87/EU) may be invalid.

11 October 2017
Realtime Register submits a letter of intent supporting Denic and urges ICANN to make haste.letter of intent

Looking ahead…………

Future
Most likely the CJEU will rule that SCC’s can no longer be used in the future. Privacy Shield will most likely be invalidated (again), causing massive operational and legal problems for registrars. ICANN should push forward with the Denic proposal as soon as possible.

GDPR and domain name resellers, 20 million reasons to read this.

Companies will face very harsh punishments for infringements under the GDPR. Art. 83 Paragraph 5 of the GDPR offers the supervising authorities the possibility of imposing fines of up to 20 million Euro or, for corporations, up to 4% of the worldwide turnover of the preceding financial year.

 

Tick tock, tick tock, goes the clock
The EU GDPR will go into effect May 25th, 2018. It looks like there is still a lot of time, but actually, there is not much time left to prep your organization for the GDPR!

Most of your company’s operations will be affected by the GDPR, from your human resources to your marketing department. Policies and processes need to be reviewed, altered and communicated. Privacy by design will be key.

From a wholesale registrar perspective, the impact of the GDPR in combination with domain names is relatively low.
However, the impact for you as a reseller is a massive one.
In respect to registering domain names, your company, as the data collector, sends a lot of Personally Identifiable Information (PII) all over the globe. Be it a ccTLD registration or a gTLD registration.
The GDPR will affect all of our resellers who deal with European citizens as customers even if you, as a reseller are not located in the EU.

We at Realtime Register will, however, assist you in the upcoming struggle.

Privacy protect
As you may have read in one of our previous blog posts, we will offer our privacy protect services for free for our resellers.
This will make sure that you can comply with the EU GDPR and ICANN regulations without too much hassle. We strongly suggest to evaluate your customers and see who will require this service. The easiest and safest way is to use Privacy protect by default for your customers.
For Dutch resellers, who have so-called ZZPers as customers, by law they are exempt from the demanded privacy. However, the GDPR did not take into account how these self-employed business owners should be treated, as the lines between being a professional and a natural person often cross each other.
If you make mistakes here and you forget to enable privacy protect and your customers PII is unprotected, you will be risking the high fines as mentioned earlier. Forgetting about (overlooking) a customer or customers could result in a data breach.

Currently, we are working with a leading juristically advice agency to set up a deal for several services including the new agreements and privacy statement you will need; more details will follow soon.

Some aspects of exporting PII data outside the EU and ccTLD registries (and several others) are still not clear. We will inform you about this as soon as there is more clarity on this subject.

The bottom line, when it comes concerning the GDPR to the GDPR, think twice about how you deal with PII. Be prepared the GDPR will be affecting your business in more ways than you expect.

Other geographical areas
China already introduced severe privacy laws, and companies need to comply early 2018. Overall there are over 100 countries with data protection laws, and 46 countries are currently drafting data protection laws similar to the GDPR.

It is a shame that ICANN and a lot of Registries do not support the privacy by design principle, at the moment, this would have made our lives a lot easier. Perhaps ICANN and Registries should consider the following.

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.

Article 12:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

So let us be sensible about privacy.