ICANN has been sent a letter by the European Data Protection Supervisor calling them out with respect to both data collection, retention and privacy within the context of the 2013 Registrar contract (RAA).

The letter is the first instance of one, to my knowledge, which makes reference to the ECJ’s recent ruling that rendered the data retention directive null and void.

While the letter is very polite, as they always are, they make it very clear that they consider the RAA’s default requirements to be in breach of EU law. (Of course they’re not the first entity to tell ICANN this, but obviously ICANN is a bit hard of hearing...). It’s almost understandable at this stage why one GAC representative from the EU referred to ICANN as “deaf or stupid” a few years ago.

Here’s the “meat” of the letter:

... the 2013 RAA and the Draft Specification continue to fall short of compliance with European data protection law.

The Draft Specification should only require collection of personal data, which is genuinely necessary for the performance of the contract between the Registrar and the Registrant (e.g. billing) or for other compatible purposes such as fighting fraud related to domain name registration. This data should be retained for no longer than is necessary for these purposes. It would not be acceptable for the data to be retained for longer periods or for other, incompatible purposes, such as law enforcement purposes or to enforce copyright.

Processing contrary to these recommendations would be contrary to three key principles of European data protection law set forth in Directive 95/46/EC. It would violate the principle of purpose limitation under Article 6(1)(b) of Directive 95/46/EC, which prohibits the processing of personal data for incompatible purposes4, the requirement under Article 7 of the Directive to have an appropriate legal ground for the processing of data, such as contract, consent or the legitimate interest of the controller, and the requirement of proportionality, including the requirement not to retain data ‘longer than is necessary for the purposes for which the data were collected or for which they are further processed’ (Article 6(1)(e)). These provisions are specifications of the fundamental rights to privacy and the protection of personal data laid down in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

Retention of personal data originally collected for commercial purposes, and subsequently retained for law enforcement purposes, has been the subject of a recent landmark ruling by the European Court of Justice, which held Directive 2006/24/EC to be invalid, as an unjustified interference with those rights.6 The Court recognised that the retention of personal data might be considered appropriate for the purposes of the detection, investigation and prosecution of serious crime, but judged that the Directive ‘exceeded the limits imposed by compliance with the principle of proportionality’. It is reasonable to expect requirements for retaining personal data to be subject to increasing scrutiny and legal challenges in the EU.

And the full letter is here.