August 2017 - Ws2-jurisdiction

Re: [Ws2-jurisdiction] ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model
by Bartlett Morgan Aug. 22, 2017

Aug. 22, 2017

+1 Milton's comment On Aug 22, 2017 5:47 PM, "Mueller, Milton L" <milton(a)gatech.edu> wrote: Thiago If I understand what you are saying here, I have to totally reject it, and I suspect most others in this group will. What you seem to be saying here: Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. …is that GAC advice should supersede the normal ICANN bottom up multistakeholder policy development process (BUMP) and be subject to a special dispute resolution procedure that applies to ICANN and GAC alone. This is a brazen power play to redesign ICANN in a way that transforms it into an intergovernmental institution. It ain’t ever going to happen, Thiago, except perhaps in your dreams. Let me add that “independent accountability mechanisms” such as the IRP and the empowered community process already exist and no changes need to me made based on jurisdictional issues. Those mechanisms are not subject to arbitrary interference from the USG based on ICANN’s jurisdiction. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Issue 2, Non interference of States in ccTLDs of other States
by Kavouss Arasteh Aug. 22, 2017

Aug. 22, 2017

Dear Greg, Dear Bernard Since yesterday ,I tried several times to post my issues in the Spreadsheet but I have not succeeded. Pls kindly include this issue as my Issue 2 in that Sheet as follows: *Non-interference of States in ccTLDs of other States * Resolution 102 of ITU Plenipotentiary Conference 2014 Busan relating to International public policy issues pertaining to the Internet and the management of Internet resources, including domain names and addresses Which was unanimously adopted by all Governments attending that conference including the United States of America in its recognizing further stipulates Quote *“recognizing further* *h) that Member States represent the interests of the population of the country or territory for which a ccTLD has been delegated;* *i) that countries should not be involved in decisions regarding another country's ccTLD,” * Unquote The Resolution also in its resolve stipulates that Quote * “resolves * * 2 that the sovereign and legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected and ensured, upheld and addressed via flexible and improved frameworks and mechanisms;”* Unquote In view of the above no state should interfere with ccTLDs of other states . *Proposed solution:* ICANN should seek jurisdictional immunities in respect of ICANN's activities relating to the management of ccTLDs. Moreover, it should be included in ICANN Bylaws an exclusive provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer. Such exclusive clause shall be included in the contracts ICANN negotiate with ccTLD managers, where such a contract exists. Regards Kavouss

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Issues 1-6 from ".swiss" and JCancio
by Jorge.Cancio＠bakom.admin.ch Aug. 22, 2017

Aug. 22, 2017

Dear Greg, please find attached for your ease a compilation of the issues from the ".swiss" Registry and those which I had identified before. Hope this helps Regards Jorge -----Ursprüngliche Nachricht----- Von: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Jorge.Cancio(a)bakom.admin.ch Gesendet: Dienstag, 22. August 2017 06:25 An: gregshatanipc(a)gmail.com Cc: acct-staff(a)icann.org; ws2-jurisdiction(a)icann.org Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path Forward Dear Greg, Thanks for this info. I've tried myself to include it into the spreasheet but it turned out not to work properly for me. Nonetheless as I understand, a simple Email was also an accepted means to submit the issues which is what I did. Please rank the issues on the .swiss contribution first and the issues on the Email last. thanks and regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com> Datum: 21. August 2017 um 23:38:35 MESZ An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch> Cc: acct-staff(a)icann.org <acct-staff(a)icann.org>, ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path Forward Jorge, If you want them in the spreadsheet, our method has been to have the participants enter their own issues into the list. Here's the link to the Google doc spreadsheet: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6…. Unfortunately, I do not have the time to enter data for participants, nor does our staff support. If you prefer not to do so, tomorrow, Bernie and I will be collating the issues put forward by participants as requested in the Path Forward approach. I assume you want these to be considered your issue submissions. If that is the case, kindly rank the issues you present in order of priority as requested in the Path Forward Approach. Thank you, Greg On Mon, Aug 21, 2017 at 8:35 AM, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear Greg, I just checked the Google Doc and I saw that the issues I have proposed are apparently not included, although you had mentioned that the Email where I had reiterated these prior issue proposal had "been noted". I would therefore respectfully request their inclusion (see my original Email attached). Thanks and regards >Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:nces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Greg Shatan Gesendet: Montag, 21. August 2017 05:33 An: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: acct-staff(a)icann.org<mailto:acct-staff@icann.org> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The (Revised) Path Forward At our 16 August meeting, we discussed the initial "Path Forward" proposal and various comments from participants. We arrived at the following approach to produce Subgroup recommendations. 11 October Deadline: . Based on the overall timeline for Work Stream 2, the Subgroup has until 11 October to submit a draft report and set of recommendations to the Plenary for first reading. . In other words, we have about seven (7) weeks to develop a draft set of issues and recommendations and come to consensus on these. A Handful of Issues: We will need to select a handful of issues (likely, 2 to 4) which: . Are within our remit. . Will result in recommendations that achieve consensus in the Subgroup. The Challenge: Everyone will have to compromise in order to finalize this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these particular issues. The Method: Participants should each present one or more issues (with proposed solutions) which they believe are in scope for the Subgroup . If you present more than one issue, please prioritize them (e.g., 1, 2, 3) . Post the issue statement(s) to the list by 23:59 on 21 August for discussion at our meeting of 23 August. . Issues should be very specific -- avoid open-ended, abstract or omnibus issues. . All proposed issue statements should include one or more proposed solutions. . Issue and solution descriptions should be succinct -- 12 standard lines maximum (each). . Send your issue statement to the email list or put it on the Google sheet: o Use a new email (not a reply), with the subject ISSUE: [name of issue]. o Google sheet is here: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6… . If you put your issue on the Google sheet, notify the email list. . If another participant proposes an issue you wanted to propose, simply post your support for that issue statement. Thank you. Greg ---------- Forwarded message ---------- From: <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> To: <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>, <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: <thomas(a)rickert.net<mailto:thomas@rickert.net>> Bcc: Date: Wed, 16 Aug 2017 06:56:00 +0000 Subject: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Dear Greg, May I kindly request confirmation that you have read this message and will take the "issues" I mention on the latest document? (a task where staff could certainly lend a hand) Best regards Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 14. August 2017 08:57 An: gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Cc: thomas(a)rickert.net<mailto:thomas@rickert.net> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Dear Greg and all, Here is my feedback: - The ".swiss" input into the questionnaire still stands, which identifies issues and also some possible solutions. (see attached) - In addition, I would like to recall the following inputs I made to the "influence document" (which I found here: https://community.icann.org/display/WEIA/Jurisdiction) "ICANNs main agreements (with registries and registrars) are generally silent on applicable law. This silence may be construed differently by different courts in different jurisdictions, although I feel there is a natural tendency in courts to apply its own laws if the agreement is silent and there are internal/national rules that tilt into a certain direction. This means that the choice of applicable law may be limited nowadays in practice, which in principle may disadvantage stakeholders not familiar with the implicit choice of law. At the same time, registry agreements for IGO/Governmental entities have some flexibilities built in as to applicable law or, to be more precise, as to conflicts arising from diverging obligations coming from the agreement with ICANN and the international law obligations. This is reflected for instance in section 7.16 of the model registry agreement. This flexibility could be extended to other registries confronted with similar conflicts, not only with international law, but also when confronted with conflicts stemming from national law. The flexibility could also take the form of a more wider recognition of freedom to choose the applicable law for the parties in the main agreements ICANN has. The material you mention has, at least at first glance, some relevant rules of choice of law that in a foreigners eye seem to clearly tilt for the "forum" jurisdiction (for instance the "government interest analysis test"). But, what are the rules followed by California? I see that for "contracts" (most relevant to contracting parties) the second restatement is followed apparently which provides the following: "d.Contract: In the first instance, the courts must give effect to the law chosen by the parties. In the absence of any such agreement, the courts are directed to the "significant relationship" test of Section 6. Restatement (Second) of Conflict of Laws § 188. The contacts to take into account in determining those principles are: i.the place of contracting, ii.the place of negotiation of the contract, iii.the place of performance, iv.the location of the subject matter of the contract, and v.the domicile, residence, nationality, place of incorporation and place of business of the parties." It would be interesting to know how these contact points are construed in the relation between ICANN and its contracted parties, i.e. what the place of contracting is, the place of negotiation, place of performance, etc. - how they are intended to be construed by the contracting parties and what have been the actual analysis (if any) in the cases had up to today in disputes. For "torts" (I guess including cases brought for damages by materially harmed parties that are not contractually bound to ICANN) the mentioned "governmental interest analysis" seems to apply ("California uses this test in determining the law applicable to tort claims."). This test means that "the law of the forum is presumed to apply unless a party demonstrates otherwise." I feel this could be seen as a significant tilt. Experiences on how these rules (both on contracts and torts) apply in practice could be of interest and could be contrasted with ICANN, and registries and registrars (and other parties) based in other jurisdictions. That fact-finding exercise would also allow us to see whether and in what instances that "tilting" occurs. A similar fact-finding should be done for what "applicable law" applies in internal mechanisms (such as the IRP). 2) Making sure that the hearings of the IRP are location-neutral 3) In the "multiple layers" doc, under "venue", I had identified the following issues and solutions: "Under venue or venues: multiplicity of venues and of providers of dispute resolution mechanisms (be it judicial or arbitration). Flexibilities as to standards, election of providers, language of proceedings, freedom to choose for the parties.]" and "I guess that under "venue" we would need to consider the IRP and other internal redress mechanisms and how well they address the needs of a global stakeholder community, in terms of their composition, the language of proceedings, the venue(s), the providers, etc.]." I may have missed other important points made before, but I'm sure Secretariat could help in collating all our essential inputs. Kind regards Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: Thomas Rickert <thomas(a)rickert.net<mailto:thomas@rickert.net>> Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: * Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions - if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting. Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Jurisdiction Subgroup: The (Revised) Path Forward
by Greg Shatan Aug. 21, 2017

Aug. 21, 2017

At our 16 August meeting, we discussed the initial “Path Forward” proposal and various comments from participants. We arrived at the following approach to produce Subgroup recommendations. *11 October Deadline*: · Based on the overall timeline for Work Stream 2, the Subgroup has until *11 October* to submit a draft report and set of recommendations to the Plenary for first reading. · In other words, we have about *seven (7) weeks* to develop a draft set of issues and recommendations and come to consensus on these. *A Handful of Issues:* We will need to select *a handful of issues (likely, 2 to 4) *which*:* · Are within our *remit*. · Will result in *recommendations that achieve consensus in the Subgroup*. *The Challenge: *Everyone will have to *compromise* in order to finalize this *limited number of issues* over the *next very few weeks* and *work diligently at meetings and on the list* to develop recommendations for these particular issues. *The Method: Participants* should each present *one or more issues (with proposed solutions)* which they believe are *in scope* for the Subgroup · If you present more than one issue, please prioritize them (e.g., 1, 2, 3) · Post the issue statement(s) to the list by *23:59 on 21 August* for discussion at our meeting of *23 August*. · Issues should be* very specific* -- avoid open-ended, abstract or omnibus issues. · All proposed issue statements should *include one or more proposed solutions*. · Issue and solution descriptions should be* succinct *-- 12 standard lines maximum (each). · Send your issue statement to the *email list* or put it on the *Google sheet*: o *Use a new email *(not a reply)*, *with the* subject ISSUE: [name of issue].* o Google sheet is here: https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6… § If you put your issue on the Google sheet, notify the email list. · If another participant proposes an issue you wanted to propose, simply post your support for that issue statement. Thank you. Greg

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ISSUE: "US jurisdiction over ICANN's policy development and policy implementation activities performed in the global public interest"
by Thiago Braz Jardim Oliveira Aug. 21, 2017

Aug. 21, 2017

Dear all, For your consideration: Issue 1: "Jurisdiction over ICANN's policy development and policy implementation activities which ICANN performs in the global public interest" Description: The courts and enforcement agencies of the US are in a unique position to both exercise jurisdiction and enforce rules (i.e. jurisdiction to prescribe, to adjudicate and, most importantly, to enforce) against policy-related activities ICANN performs in the global public interest. They are activities relating to the management of the Domain Name System and, currently, are subject to the exclusive enforcement jurisdiction of the territorial State. But according to the principle of equal participation of all stakeholders in their respective roles and responsibilities, no single country should be able to single-handedly impact on the activities ICANN performs in the global public interest, notably ICANN's policy development and policy implementation activities relating to the management of the Domain Name System. Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for all such disputes relating to ICANN's activities performed in the global public interest. Once a compulsory dispute settlement mechanism has been agreed to for such disputes, ICANN shall seek jurisdictional immunities from the local courts in their respect. In addition, ICANN should include in its agreements an exclusive choice of forum clause, whereby disputes relating to such activities shall be settled exclusively through recourse to the agreed and compulsory dispute settlement mechanism referred to above. Finally, ICANN shall seek immunity from enforcement measures that affect the activities it performs in the global public interest, notably ICANN's policy development and policy implementation activities relating to the management of the Domain Name System. Looking forward to more substantive discussion on this, further to the exchanges we've already had today. Best regards, Thiago

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Re: [Ws2-jurisdiction] Partial immunity
by Schweighofer Erich Aug. 21, 2017

Aug. 21, 2017

Greg, the issues are: * Acceptance of ICANN’s decisions in its core competences by international actors, mostly States and Supranational Organisations (e.g. blocking of some gTLDs by States or EU Commission statement not to accept ICANN decisions in the New gTLD process if it considers such decisions against EU competition law) * Non-interference of international actors in ICANN’s core activities (e.g. “closing” of registrars in some countries due to OFAC decisions; establishing a mostly national internet system) * Securing the enforceability of the multi-stakeholder model and the accountability process (presently by California law and as such so far without alternatives). * Securing the enforceability of ICANN’s registry contracts by choosing the appropriate law and forum “Partial immunity” as a remedy means that ICANN and the ICANN Community are seeking for necessary exceptions from national jurisdiction, mostly in a case-by-case process (e.g. the OFAC issue). A full immunity arrangement is possible in some countries but difficult to achieve nowadays. For the U.S. jurisdiction, it is impossible because it would close down the enforceability of the multi-stakeholder model and we have to find a new one under international law that may be very challenging. Best regards, Erich Von: parminder<mailto:parminder@itforchange.net> Gesendet: Mittwoch, 16. August 2017 15:01 An: ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Partial immunity On Wednesday 16 August 2017 06:26 PM, Greg Shatan wrote: Erich, Partial Immunity is a remedy. I described it, in the statement of the issue I raised, which is exemplified in terms of various kinds of ramifications in the docs that are linked (and submitted to the group) and also a longer description of the issue is contained in the 5 points that I recently cut pasted from the old "influence of jurisdiction" doc.. parminder Can you describe in somewhat more detail the specific issue you are trying to resolve? That way we can consider the various potential remedies for that issue. Thanks! Greg On Wed, Aug 16, 2017 at 8:38 AM Kavouss Arasteh <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Nigel Thank you very much for your comments. Pls kindly describe your concerns in a more comprehensive manner . What was the unfortunate approach? Pls kindly recognize that some people residing in those countries under OFAC sanctions are suffering a lot .we need to think of those people as well internet plays a crucial role in their daily life thus any burden should be shared.ICANN should avoid being politicized. Regards Kavouss On Wed, Aug 16, 2017 at 2:07 PM, Nigel Roberts <nigel(a)channelisles.net<mailto:nigel@channelisles.net>> wrote: I must take the opportunity to highlight that a number of ccTLDs may object to any form of immunity for ICANN and/or PTI. Some of us still remember the early days of ICANN, and while we trust the current management and Board, we do not want there to be a possibility that a future set of incumbents could return that unfortunate approach. On 16/08/17 12:47, Schweighofer Erich wrote: Dear all, I propose to work on the issue on partial immunity. The core functions of ICANN should not be only decided by the multi-stakeholder community, covering legislation, administration and dispute settlement. States (and International Organisations) should refrain from exercising its concurrent jurisdiction, respecting ICANN's special role and governance model. As quick and clear solutions are not easily at hand (e.g. unilateral acceptance of immunity by States or a treaty), problems of interference of States should be settled by negotations or judicial dicisions, depending on the relevant jurisdiction (e.g. OFAC). This solution is cumbersome but may result in sufficient immunity of ICANN, being in line of present international policy of restricting immunities for international entities. Argumentation could be diverse, e.g. granting partial immunity for ICANN's special role or no interference in third party rights. Administrations and courts must accept that only the multi-stakeholder model is the appropriate forum for such questions. Best, Erich ________________________________________ Von: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] im Auftrag von Greg Shatan [gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>] Gesendet: Samstag, 12. August 2017 01:13 An: ws2-jurisdiction Cc: Thomas Rickert Betreff: [Ws2-jurisdiction] Jurisdiction Subgroup: The Path Forward Jurisdiction Subgroup Members, As explained by Staff at our last meeting on 9 August, we have until 11 October to submit a draft set of recommendations to the Plenary for consideration as a first reading if any such recommendations are to be accepted by the Plenary, published for Public Consultation and included in the Final WS2 Report. In other words, we have about 8 weeks to develop a draft set of recommendations and come to consensus on these. Obviously, given this time-frame, we have to accept that we will not be able to address all issues. In fact, the only realistic approach, if we want to deliver any recommendations, is to pick a handful of issues (2 to 4) on which we can all agree and for which we believe we can propose recommendations that will achieve consensus. I remain optimistic that we can do this if we can agree, meaning everyone will have to compromise, to select this limited number of issues over the next very few weeks and work diligently at meetings and on the list to develop recommendations for these. To reach this objective I would propose the following approach: * Each participant should pick one issue which they believe is in scope for us and post that issue to the list prior to our meeting of 23 August. More specifically: * Issues should be very specific -- avoid open-ended, abstract or omnibus issues * Issue description should be succinct -- 12 standard lines maximum * Proposed solutions – if you have a possible solution or recommendation which should be considered, please include it (again, being succinct). * Put your issue in a new email (not a reply), with the subject ISSUE: [name of issue] * The sooner, the better I look forward to discussing this proposal at our next meeting of 16 August and I would encourage participants to comment on this proposal in response to this email prior to that meeting. Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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[Issue and Solution] Seeking an OFAC License process
by farzaneh badii Aug. 21, 2017

Aug. 21, 2017

Seeking an OFAC license has been reported to be lengthy and not very transparent. Also as Mr. Rodenbaugh explained below, OFAC licenses are time-limited and require a periodic application. It can hamper registries/registrars businesses. ICANN has reportedly been untransparent about the application of OFAC license process. Solution: ICANN should commit to apply for an OFAC license and be transparent about the application process and its actions with regards to application. As to the lengthy nature of the process, perhaps attempting to receive a general OFAC license for ICANN functions would be a solution for all this. On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike(a)rodenbaugh.com> wrote: I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com Farzaneh

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Re: [Ws2-jurisdiction] [Issue and Solution] Seeking an OFAC License process
by Seun Ojedeji Aug. 20, 2017

Aug. 20, 2017

I read Progress in this thread!!! Thanks Sent from my mobile Kindly excuse brevity and typos On Aug 21, 2017 4:55 AM, "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: It appears to me that creation of a general license involves a regulatory process, which is in the purview of the executive branch (more specifically, the U.S. Treasury, of which OFAC is a part). Indeed, 31 CFR § 595.305 defines a general license as “any license or authorization the terms of which are set forth in this part.” In other words, the general license is a part of the OFAC regulations. General licenses apply to classes of persons and types of transactions. By contrast, a specific license is sought through an application to OFAC and the license is issued by OFAC. Individual licenses are party-specific and transaction-specific. Greg On Sun, Aug 20, 2017 at 10:48 PM, Mueller, Milton L <milton(a)gatech.edu> wrote: > It’s not clear to me that a general license requires legislation. It might > be something that the executive branch can do. Also, while getting > recognition for a general license might take time, once it was done it > would be done, whereas every individual application has to be handled again > and again and again…. > > > > --MM > > > > However lengthy the OFAC license application process, I am quite confident > that seeking a legislative immunity solution in the US would be even > lengthier ☹ > > > > Paul > > > > Paul Rosenzweig > > paul.rosenzweig(a)redbranchconsulting.com > > O: +1 (202) 547-0660 <(202)%20547-0660> > > M: +1 (202) 329-9650 <(202)%20329-9650> > > VOIP: +1 (202) 738-1739 <(202)%20738-1739> > > www.redbranchconsulting.com > > My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 > 097CA066684 > > > > *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounc > es(a)icann.org <ws2-jurisdiction-bounces(a)icann.org>] *On Behalf Of *farzaneh > badii > *Sent:* Sunday, August 20, 2017 10:36 AM > *To:* ws2-jurisdiction <ws2-jurisdiction(a)icann.org> > *Subject:* [Ws2-jurisdiction] [Issue and Solution] Seeking an OFAC > License process > > > > Seeking an OFAC license has been reported to be lengthy and not very > transparent. Also as Mr. Rodenbaugh explained below, OFAC licenses are > time-limited and require a periodic application. It can hamper > registries/registrars businesses. > > ICANN has reportedly been untransparent about the application of OFAC > license process. > > > > Solution: ICANN should commit to apply for an OFAC license and be > transparent about the application process and its actions with regards to > application. > > > > As to the lengthy nature of the process, perhaps attempting to receive a > general OFAC license for ICANN functions would be a solution for all this. > > > > > > > On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike(a)rodenbaugh.com> > wrote: > > I agree with Jeff's proposal that ICANN be required to make a good faith > application for OFAC license whenever it is necessary to fulfill the > purpose of registry and/or registrar agreements. And I support his 2d > question, requesting details. > > > > Note that OFAC doesn't just hamper registries and registrars located or > formed in sanctioned countries, but also registries and registrars with > officers, directors or significant shareholders from any of the sanctioned > countries (regardless where the business is located or formed). Note > further that OFAC licenses are time-limited, requiring periodic > reapplication. And ICANN legal has told me that they were not required to > seek an OFAC license for my client, even though that client had executed > registry agreements with ICANN. I disputed that, and they got the license; > but there is no guarantee they will seek it again when it expires, even > though the registries are live. > > > > I can't see any good reason why ICANN should not be required at least to > make a good faith effort to get a license. It seems at least to be implied > in the registry agreement anyway, via the covenant of good faith and fair > dealing inherent in every contract (at least under California law). If > ICANN refused to seek a license, it would frustrate the purpose of the > entire agreement. > > > Mike Rodenbaugh > > RODENBAUGH LAW > > tel/fax: +1.415.738.8087 <(415)%20738-8087> > > http://rodenbaugh.com > > > > > > > > Farzaneh > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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[Issue and Solution] ICANN and its obligation to apply for OFAC when necessary
by farzaneh badii Aug. 20, 2017

Aug. 20, 2017

ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license? *Solution: (as was suggested by Jeff, Mike, IGP and others) * Currently, the RAA states that: *”** 4. Application Process.* *…..* *Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]* ………………… The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license. Farzaneh *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike(a)rodenbaugh.com> *Cc:* acct-staff(a)icann.org; Thomas Rickert <thomas(a)rickert.net>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens. One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN". Farzaneh On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike(a)rodenbaugh.com> wrote: I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman(a)comlaude.com> wrote: All, Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered. Also, it seems like we have lost some sight of the main points raised during the call. 1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states: *”** 4. Application Process.* *…..* *Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]* ………………… Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited. 1. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance. https://www.icann.org/resources/pages/application-2012-02-25-en *Jeffrey J. Neuman* *Senior Vice President *|*Valideus USA* | *Com Laude USA* 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman(a)valideus.com or jeff.neuman(a)comlaude.com T: +1.703.635.7514 <(703)%20635-7514> M: +1.202.549.5079 <(202)%20549-5079> @Jintlaw

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OFAC
by Kavouss Arasteh Aug. 20, 2017

Aug. 20, 2017

Dear Greg, Pls find attached my comment on the issue of OFSC, Apologize if I have exceeded the limit Regards Kavouss

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