October 2017 - Ws2-jurisdiction

Re: [Ws2-jurisdiction] [GAC] Jurisdiction Subgroup. Draft Report. Statement of Brazil. Annex. To be annexed to the draft report. For consideration by the CCWG.
by Jorge.Cancio＠bakom.admin.ch Oct. 15, 2017

Oct. 15, 2017

Dear Thiago, dear all, Thanks for these comments. Personally I'm a bit unclear why some of the issues identified as such by members of the Jurisdiction Subgroup (was it in August, when we lastly did so after being requested doing so?) did not receive the form of draft recommendations in the Subgroup. Regarding tailored or limited immunities (remembering how Thomas Rickert had described this when the scope was last discussed...), we had various debates on it mainly on list that were rather inconclusive (the way I remember it). At the same time when we were asked to identify issues to be discussed, if my recollection is correct, Thiago presented an issue proposal... So I wonder why this did not get into the recommendation debate stage. With this I do not suggest to enter a lengthy procedural discussion. What I would suggest instead is that we request our Brazilian colleagues (and other potentially interested members) to recirculate the issue they had prepared some months ago in the Subgroup and adapt it to a recommendation format. This would allow us to discuss the substance in a focused manner in the Subgroup and get back to the Plenary asap. In a way it would be unfair to all of us not to hold this "final" discussion on this subject after having been presented repeatedly in the CCWG and the Subgroup, when we are still on time (very late I know, but with room to do so). hope this helps kind regards Jorge ________________________________ Von: Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br> Datum: 15. Oktober 2017 um 03:15:05 MESZ An: accountability-cross-community(a)icann.org <accountability-cross-community(a)icann.org> Cc: ws2-jurisdiction <ws2-jurisdiction(a)icann.org>, acct-staff(a)icann.org <acct-staff(a)icann.org>, gac(a)icann.org <gac(a)icann.org>, GAC <gac(a)gac.icann.org> Betreff: [GAC] Jurisdiction Subgroup. Draft Report. Statement of Brazil. Annex. To be annexed to the draft report. For consideration by the CCWG. Dear all, On behalf of the Brazilian Government, I hereby submit the "Statement of Brazil" and its annex, which are to be annexed to the draft report of the jurisdiction subgroup, submitted on 11 October 2017, for consideration by the CCWG plenary. Best regards, Thiago ________________________________ De: ws2-jurisdiction-bounces(a)icann.org [ws2-jurisdiction-bounces(a)icann.org] em nome de Greg Shatan [gregshatanipc(a)gmail.com] Enviado: quinta-feira, 12 de outubro de 2017 23:29 Para: accountability-cross-community(a)icann.org Cc: acct-staff(a)icann.org; ws2-jurisdiction Assunto: Re: [Ws2-jurisdiction] Jurisdiction Subgroup Draft Report for CCWG-Accountability Plenary Review All, One of the Subgroup members pointed out a minor editing error in the document. On pages 13-14, there were several mentions of the RAA, when in fact the language quoted and discussed was from the ICANN Terms and Conditions for Registrar Accreditation Application. (The reference was correct in the Executive Summary.) This has now been fixed in the attached. Greg On Thu, Oct 12, 2017 at 10:10 PM, Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> wrote: All, Some minor formatting errors crept into the Report when it was converted from Word to PDF. A new PDF of the report is attached. I've checked each page to confirm that the formatting errors were resolved. Thank you to Jorge Cancio for catching this problem! Greg On Wed, Oct 11, 2017 at 7:53 PM, Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> wrote: All, I am pleased to submit the Draft Report from the Jurisdiction Subgroup for consideration by the CCWG-Accountability Plenary. It is my understanding that a minority viewpoint is expected to be submitted. In the interests of time, this will be submitted to the Plenary separately from the Draft Report. During the preparation of the OFAC Recommendation, the Subgroup considered an email where a registrar declined to do business with a potential reseller, based on the registrar’s policy of not doing business with people with Iranian passports. The Subgroup also learned that this registrar, which had been registering domains for a number of Iranian nationals, refused to continue to do business with them. The Subgroup has concluded that, to the extent these instances are related to OFAC, the concerns raised by these instances are adequately covered in the Recommendation already without any additional changes. This is not in any way a comment on the validity of these particular concerns. The Subgroup will consider creating "stress tests" based on these scenarios. I look forward to the Plenary's reading of the Draft Report. Best regards, Greg Shatan Rapporteur

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Response Requested: Proposed Changes to OFAC Recommendation
by Greg Shatan Oct. 13, 2017

Oct. 13, 2017

All, Please take a few minutes to *read and respond* to this email, and the *proposed changes* discussed here, so that we can finalize the OFAC Recommendation and send it to the Plenary. There are three remaining proposed changes as far as I can tell. These changes are below. *Please indicate whether you support adding any of proposed changes 1, 2 and/or 3 to the OFAC Recommendation. * To make it easy, please respond along the lines of “I [support/do not support] adding change 1” or “I would support change 1 with the following revisions.” If you think it would help others, please explain your conclusion. In addition to the changes, I have attached two documents: · A draft of the OFAC Recommendation that incorporates the proposed changes suggested by Kavouss. Where unclear, I placed a change where it seemed most likely intended to be. · A document with virtually all of the emails devoted to these proposed changes, arranged chronologically by topic. *The proposed changes suggested by Kavouss are as follows:* 1. The first proposed change appears intended to be added to the Issue and Recommendation “Application of OFAC Limitations by Non-US Registrars.” The first part reads: *There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.* *Examples of that are related to Godaddy*[1]* and Online Nic,*[2]* which made pressure against registrants having citizenship of Sanction countries.* Kavouss asked that the second part be inserted into the corresponding Recommendation: Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC. 2. The second proposed change relates to an action taken by Resello, a Dutch registrar. It’s also unclear where this would go (it does not seem to fit in the section “Application of OFAC Limitations by Non-US Registrars.”) Perhaps it would go into a new section, possibly entitled “Policy of not Doing Business with Iranian Customers/Resellers (Unconnected to OFAC/Sanctions) by a Non-US Registrar”: *An individual domain Name Iranian National reseller residing outside Iran sent a request to <sales(a)resello.com <sales(a)resello.com>> in an online form, asking to become reseller of Domain Name in Iran (to sell domains to Iranian people).* *He received the following reply:* *Quote* *“On Tue, Sep 19, 2017 at 9:48 PM, Resello Sales <sales(a)resello.com <sales(a)resello.com>> wrote:* *Dear reseller (XXX)* *Unfortunately our policy restricts doing business with Iranian customers/resellers, even if they aren't living in Iran, but have an Iranian passport.* *Kind regards,* *Mark Assenberg”* *It is worth mentioning that Resello is a subsidiary company for following holding:* *Yourholding* *Ceintuurbaan 28* *8024 AA Zwolle* *+31 38 453 0752* *The name is Yourholding and they are based in Netherlands. So they are not US-Based company.* *They do not want to explain why they don't want to provide service to Iranian. They say, they is our internal policy decision.* *It is important to make it clear that none of Registrars and service providers which are not US Nationals or not based in USA cannot make internal policies to avoid giving services to a given citizens. This is a global business not a personal decision of a company or its managers. They must fully observe the expected behaviour and responses.* *It is important to emphasize that non-US based companies should not to replicate the rules inside USA.* *[Recommendation]* *The group in attempting to address the case mentioned above thought that the above situation might have been arised as result of misinterpretation of applicability of OFAC Regulation to the case.* *The Group concluded that there was no relation between the case and OFAC Regulation and its applicability.* *The Group also did not find any provision in RAA to obligate the Resello to get into a business with the domain name reseller to provide the requested domain name did not find also any provision in the RAA to allow the registrar to reject / deny the request.[3] The group therefore considered / recommends that there is a need that ICANN further examine the matter with a view to address the silent point in the RAA.* 3. The third suggested change is intended to change the Recommendation relating to General Licenses. After Kavouss suggested several changes (including the language in blue), I added the red language to reflect Kavouss’s changes in a way that seemed to read better in the text. After the red language was added, Kavouss continued to request that the language in blue be added as well. ICANN should then pursue one or more OFAC general licenses at the earliest possible time, unless significant obstacles were discovered in the “study” process. If there are significant obstacles, ICANN should report them to the [empowered] community and seek its advice on how to proceed. If unsuccessful, ICANN would need to find other ways to accomplish the ultimate goal -- enabling transactions between ICANN and residents of sanctioned countries to be consummated with a minimum of “friction.” It is critical that ICANN communicate regularly about progress toward securing general licenses, in order to raise awareness in the ICANN community and with affected parties. * The role of ICANN, to make awareness about such situation is critical and should not be undermined.* Finally, there have been a number of questions asked about each of these suggested changes, which have largely gone unanswered. I’ve rephrased and listed them here, since it could be helpful for the Subgroup to consider them (or see if any members might answer them). (I am not suggesting these questions need to be answered to evaluate the proposed changes.) *On suggested change 1*: 1. Do you have the “reports in the media” referred to in the proposed change? a. If the Subgroup has not seen the reports in the media, can the Subgroup Report refer to them, or the activities reported in them? b. For US registrars, considering that they have to comply with OFAC, is this an issue for this Subgroup? c. For non-US registrars, why isn’t the current text of this section of the OFAC Recommendation sufficient? (It discusses possible mistaken application of OFAC sanctions by non-US registrars because they think contracting with ICANN imposes OFAC compliance obligations on them)*.* 2. Since GoDaddy and OnlineNIC are both US-based registrars, does it make sense to refer to them?who are required to comply with OFAC sanctions. a. Do you know what “made pressure against” refers to? b. Are there any example of this “pressure”? With non-US registrars? 3. What does it mean to say “Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC”? a. If this refers to the exercise of business or legal judgment of registrars, do you believe it is appropriate for the Subgroup Report to comment on this? b. What proposed issue does this Recommendation resolve/remediate? *On suggested change 2*: 1. Is this an example of a non-US Registrar complying with OFAC sanctions? Where is the connection to OFAC? 2. What section of the RAA is being violated by this business decision (i.e., a registrar deciding not to do business with citizens of a given country (whether it is Canada, Haiti, Iran or otherwise))? 3. If Resello's business decision does not seem to be related to OFAC, US jurisdiction or to any ICANN-related jurisdiction, does the Subgroup approve this as an “Issue” or our group to make a Recommendation on? If so, what recommendation? 4. Is this possibly an EU sanctions issue (the registrar is Dutch) 5. If this is possibly an EU sanctions issue, should we get into interpreting EU sanctions? 6. Why is the current language of the Recommendation insufficient? It reads: a. "ICANN needs to bring awareness of these issues to registrars. ICANN should clarify to registrars that the mere existence of their RAA with ICANN does not cause them to be required to comply with OFAC sanctions. ICANN should also explore various tools to remind registrars to understand the applicable laws under which they operate and to accurately reflect those laws in their customer relationships." 7. What connection does this have to OFAC sanctions or to ICANN's "jurisdiction" -- in the US or elsewhere? *On suggested change3:* 1. Why is the language already added to the text (in red) insufficient? 2. What situation does “make awareness about such situation” refer to? 3. Is there a concern that something will be “undermined”? What does this refer to? ------------------------------ [1] NOTE TO SUBGROUP: GoDaddy is a U.S.-based registrar incorporated in Delaware as GoDaddy, LLC and headquartered in Scottsdale, Arizona. [2] NOTE TO SUBGROUP: OnlineNIC is a U.S.-based registrar incorporated in California as OnlineNIC, Inc. and headquartered in San Leandro, California. [3] Resello’s “General Terms and Conditions,” for resellers state in Article 1.1 that “acceptance by Resello … may be refused without reason.” https://www.resello.com/agreement

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REVISED DRAFT OF SUBGROUP REPORT
by Greg Shatan Oct. 13, 2017

Oct. 13, 2017

All, I have received no comments on the Draft Subgroup Report. I have added a summary of the Choice of Law and Choice of Venue Recommendation to the Executive Summary, based on the current state of that Recommendation in the Google doc. The Draft Report is attached in Word and PDF versions. The Google doc is (still) at https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtR… I will circulate that Recommendation next, in Word and PDF versions, as it now stands. These documents will be discussed on tomorrow's call. An agenda will be circulated shortly. Greg

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Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #50 | 11 October 2017
by MSSI Secretariat Oct. 11, 2017

Oct. 11, 2017

Hello all, You may find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #50 – 11 October 2017 posted at https://community.icann.org/x/QC4hB The transcript will be posted on when it becomes available (usually in 3 to 5 business days after the call). A copy of the DAIRs and raw caption notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [cid:image001.png@01D342B4.3C2D13D0] Action Items: * GS to submit draft recommendation report for plenary consideration by 23:59 UTC 11 October. * .Brazil to submit its statement by 23:59 UTC Sunday 15 October for it to be considered. Raw Captioning Notes Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. * Word Doc<https://community.icann.org/download/attachments/69283392/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/69283392/CCWG-Accountabili…> Decisions: * Choice of Law recommendation – approved by consensus and no objections. * Draft Recommendations Report – approved by consensus with a single objection. * Brazil requested an extension to the October 11 23:59 deadline to file a dissenting opinion. The subgroup agreed that such a statement should be on the subgroup list by 23:59UTC Sunday 15 October which was agreed to by Brazil. * There are no further Jurisdiction subgroup calls scheduled pending review of the draft recommendations report by the plenary. Requests: * (none)

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Documents for Review and Approval in Today's Meeting
by Greg Shatan Oct. 11, 2017

Oct. 11, 2017

All, I attach the current drafts of the Draft Report (including the OFAC Recommendations) and the Choice of Law and Venue Recommendation, as Word and PDF documents. The current drafts are also available as Google Docs. In order to keep the drafts synchronized, I have changed the sharing status of the Draft Report to "view only" and copied the Choice of Law and Venue draft into a new Google Doc, with view only status. Links are below: Draft Report: https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtR… Choice of Law and Venue: https://docs.google.com/document/d/1Z7A233KiPQV2ijVgWzxWOv3eePTy9rSPIMFxbiZ… There is only one suggested change to look at at in the Draft Report. There are a number of suggested changes in the Choice of Law and Venue Recommendation. Unless the Subgroup decides otherwise, these changes will be made final after the meeting. (Note that other text is still open for suggested changes even if not marked in the document, but these changes will need to be finalized on the call. There are also a number of "Comments" in the documents. These are left in so you can see them, but they will be taken out when the document is finalized for submission to the Plenary. (Note: It's easier to see the comments on the PDF but some are truncated. In the Word doc, you'll need to click on each one to expand it. It's easiest to see them all in the Google Doc.) *THESE DOCUMENTS MUST BE SENT TO THE PLENARY BY 23:59 UTC TODAY IN ORDER TO BE PART OF THE CCWG REPORT.* I look forward to our upcoming call. Greg

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Agenda for Jurisdiction Subgroup Meeting 1900 UTC 11 October 2017
by Greg Shatan Oct. 11, 2017

Oct. 11, 2017

All, I attach the agenda for our meeting at 1900 UTC on 11 October 2017. The latest versions of the two documents under review -- the Draft Subgroup Report and the Choice of Law and Choice of Venue Recommendation -- have just recently been sent to the list. Rather than attach them again to this email, I will keep the Google docs open for further suggestions until 16:00 UTC tomorrow, at which point I will pull down stable drafts for our discussion tomorrow. Please review the versions I have recently circulated and see if you have any further comments or changes. *Assume that all proposed changes in the latest drafts of both documents will be "accepted" unless the Subgroup decides otherwise tomorrow.* *THE SUBGROUP REPORT (INCLUDING THE CHOICE OF LAW AND CHOICE OF VENUE RECOMMENDATION) MUST BE SUBMITTED FOR PLENARY REVIEW BY 23:59 UTC ON 11 OCTOBER 2017, OR IT WILL NOT BE IN THE CCWG REPORT.* I look forward to our meeting. Greg

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RECOMMENDATION REGARDING CHOICE OF LAW AND CHOICE OF VENUE IN ICANN AGREEMENTS
by Greg Shatan Oct. 11, 2017

Oct. 11, 2017

All, I attach the current version of the Choice of Law and Choice of Venue Recommendation. I have tried to "accept" and "resolve" any open edits that have either been around for a few days or appeared non-substantive or non-controversial. I've left in the most recent edits, as well as a few that I felt the group should expressly see as edits before finalizing the document. Of course, any part of the document is still open for comment for a little while longer (keeping in mind the deadline for submission is 23:59 UTC on Wednesday, October 11). The Google doc is at https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD… Please make every effort to review (and if necessary, comment) before our meeting tomorrow. Greg

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FOR YOUR REVIEW Draft Subgroup Report
by Greg Shatan Oct. 10, 2017

Oct. 10, 2017

All, I'm attaching the draft report for your review. This still needs the Choice of Law and Venue recommendation summarized for the "Executive Summary" and the Choice of Law and Venue Recommendation will be dropped into the document where marked. *THIS DOCUMENT NEEDS TO BE SUBMITTED TO THE PLENARY FOR REVIEW BY 23:59 PM UTC ON 11 OCTOBER 2017.* Please review the attached or at this Google Doc: https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtR… The OFAC recommendation is identical to the draft sent to the Plenary, so please concentrate on the remainder of the document. Thanks! Greg

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FOR YOUR REVIEW: CHOICE OF LAW AND CHOICE OF VENUE RECOMMENDATION
by Greg Shatan Oct. 10, 2017

Oct. 10, 2017

All, Please review the Choice of Law and Choice of Venue Recommendation as soon as possible. In about 24 hours, I will turn another version of the document, accepting as many edits as possible. If there are parts of the text or the edits that you strongly object to, please say so now. The Google Doc is at https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD… Word and PDF versions are attached. (In the PDF, the blue changes are by Raphael, the pink ones by David McAuley and the purple ones by me.) *A VERSION OF THIS WILL BE REVIEWED IN OUR MEETING OF OCTOBER 11 AT 19:00 UTC ON OCTOBER 11, 2017* *THIS MUST BE SUBMITTED (AS PART OF OUR REPORT) BY 23:59 UTC ON OCTOBER 11, 2017.* Thank you for taking the time to review this. Greg

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REMINDER TO EDIT/REVIEW Applicable Law and Choice of Venue_Draft Recommendation
by Greg Shatan Oct. 6, 2017

Oct. 6, 2017

All, I went to the Google Doc to see what new changes, edits, responses to questions, etc. had been made since I last circulated the draft document. I found that there were none, as far as I could tell. This recommendation truly needs everyone's review and attention. Please take a look and make any suggested changes you believe necessary. There are also a few questions in the document that should be answered. We only have a few days left to get this finalized, so every minute counts. The Google Doc is here: https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD… Word and PDF versions are also attached. Thank you for your attention to this document. Greg

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