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Agenda for Upcoming Jurisdiction Meeting
by Greg Shatan Sept. 27, 2017

Sept. 27, 2017

All, I have attached our Agenda for the upcoming meeting. I will circulate accompanying documents shortly. Please review and reply to my latest email on the OFAC Recommendation; this will help us finalize the OFAC Recommendation on the call. Please note that remaining calls will be 90 minutes. I look forward to our call. Best regards, Greg

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Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
by Seun Ojedeji Sept. 26, 2017

Sept. 26, 2017

Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner(a)icann.org> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles…> Los Angeles, California 90094 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles…> USA <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles…> Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------ *From:* ws2-jurisdiction-bounces(a)icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Seun Ojedeji <seun.ojedeji(a)gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton(a)gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounc es(a)icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br>; Thomas Rickert <rickert(a)anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe(a)sanchez.mx>; Jordan Carter <jordan(a)internetnz.net.nz> *Cc:* ws2-jurisdiction(a)icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim(a)itamaraty.gov.br> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounc es(a)icann.org] Em nome de Jorge.Cancio(a)bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc(a)gmail.com Cc: ws2-jurisdiction(a)icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh(a)gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. 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. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh(a)gmail.com<mailto: kavouss.arasteh(a)gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com<mailto:paul. rosenzweig(a)redbranchconsulting.com> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660 <(202)%20547-0660>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650 <(202)%20329-9650>> VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739 <(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> <http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> > My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> From: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction- bounces(a)icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto: ws2-jurisdiction(a)icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc(a)gmail.com<mailt o:gregshatanipc@gmail.com>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, 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 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Recommendation 2: Applicable Law and Choice of Venue
by Greg Shatan Sept. 26, 2017

Sept. 26, 2017

All, A reminder that we were supposed to spend this week working on our second recommendation, currently at: https://docs.google.com/document/d/1xAyla8FTaL7jZ0D2rYtAzQUr3gEnirTKiAG-kqD… I see that Raphael and Jorge made a number of proposed changes to this recommendation over the past week. It seems that the rest of the group was otherwise engaged. I encourage the rest of us to engage with this document before our upcoming call, where it will be discussed If we do not focus, we will not succeed. Word and PDF versions are attached. Greg

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Fwd: OFAC Rec.s
by Kavouss Arasteh Sept. 24, 2017

Sept. 24, 2017

Dear All Greg In anticipation of a further question by Greg or any one else I wish to edit / modify the suggested text 1.In the introductory part of the document, briefly describe the case as reported by me( See my earlier message reporting / describing the case ) 2. in the recommends part insert the following The group in attempting to address the case mentioned above thought that the above situation might have been arised as result of misiterpretation 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 to 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 provisionin in the RAA to allow the registrar to reject / deny the request .The group therefore considered / recommands that there is a need that ICANN further examine the matter with a view to address the silent point in the RAA. Do you agree to act and reflect that minimum information ---------- Forwarded message ---------- From: Kavouss Arasteh <kavouss.arasteh(a)gmail.com> Date: Sun, Sep 24, 2017 at 3:18 AM Subject: Fwd: [Ws2-jurisdiction] OFAC Rec.s To: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> Dear Leon, Thank you very much for your intervention which resulted to put the below message Pls talk to Greg to favourable consider that and ends this boaring exchange of correspondence Regards Kavouss ---------- Forwarded message ---------- From: Kavouss Arasteh <kavouss.arasteh(a)gmail.com> Date: Sun, Sep 24, 2017 at 3:13 AM Subject: Re: [Ws2-jurisdiction] OFAC Rec.s To: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, Greg Shatan < gregshatanipc(a)gmail.com>, ws2-jurisdiction <ws2-jurisdiction(a)icann.org>, Jordan Carter <jordan(a)internetnz.net.nz>, Thomas Rickert <thomas(a)rickert.net > Greg Leon All thanks to all of you reflecting on the matter . I suggest the following 1.In the introductory part of the document, briefly describe the case as reported by me( See my earlier message reporting / describing the case ) 2. in the recommends part insert the following The group in attempting to address the case mentioned above while 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 provisionin the RAA to allow the registrar to reject / deny the request .The group therefore considered that there was a need that ICANN further examine the matter with a view to address the silent point in the RAA. Do are agree to act and reflect that minimum information Kavouss On Sat, Sep 23, 2017 at 10:44 PM, León Felipe Sánchez Ambía < leonfelipe(a)sanchez.mx> wrote: > Dear Kavouss, > > Thanks for your quick reply. My answers below. > > Best regards, > > > León > > El 23/09/2017, a las 17:29, Arasteh <kavouss.arasteh(a)gmail.com> escribió: > > Dear Leon > Thanks > Finally one of the co-/chairs came in after days and days of discussions > > > We try to let discussions flow on their own. We only step in when we > believe there is some facilitation needed. As I believe is the case. So > this was no lack of attention or dedication but a continued exercise of > neutrality. > > Do you believe that a Registrar having RAA could unilaterally refuse to > enter into a business with an individual as it assumes that has had full > freedom to decide as such > > > One thing is what I do or don’t believe, another very different is the > fact that there isn’t anything in the RAA (to the best of my knowledge) > that takes away any Registrars freedom to manage its business as it sees > fit its interests. This last fact is what I would encourage us all to focus > rather than in personal beliefs which, as noble as they may be, are out of > our discussion’s scope. > > Pls as a lawyer tell me the following > If a Registrar could decide ax such what is the purpose and usefulness of > RAA > > Any contract is based in the freedom of contracting of the parties that > agree to it. If one does not agree with what is in a given contract, one > does not enter into it or otherwise proposes changes and if they’re > rejected one keeps away from signing it. > > THROW IT INTO BASKET, > I believe there must be some obligation to positively respond as DNS is > not a personal affairs such as selling potatoes . > > This is not the scope of this subgroup’s discussion in my opinion. RAA is > something shaped through a PDP so if there were any reforms to be made I am > sure they should be ran through the PDP for that end. > > I wonder how you came to the conclusions that Resello has full freedom to > treat Domain Name which is an international resources similar to potatoes > > My knowledge and understanding might not be as good as yours so I > apologize if my limitations led me to conclusions which your higher > knowledge may lead differently. However, with my limited knowledge and > understanding, I came to that conclusion based on the contractual freedom > that the parties have as a matter of legal principle. I could, of course, > be wrong. > > Moreover ,In your .view what is the difficulty to I include this actual > and real case reported in the document > Because one or some .,,,individual do not wish to do so on a non founded > ground > > I have no problem in including whatever the subgroup and the plenary wish > to include in the report. Remember that anyone can also add a dissenting > view to whatever conclusions the subgroup arrives to. > > Regards > Kavouss > > > > Sent from my iPhone > > On 23 Sep 2017, at 23:58, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> > wrote: > > Dear Kavouss, > > It seems to me there is some miscommunication here between Greg and > yourself. > > If I understand well, you are asking under what basis could Resellor > refuse to enter into business with any person, company or country. Is that > right Kavouss? > > On the other hand, I believe Greg has stated that being no contractual > obligation for Resellor to be forced to enter into business with persons, > companies or countries with which it does not want to do business with, > then Resellor is free to chose, freely, who to do business with. Is that > right Greg? > > I hope this helps us bridge this communication gap I feel we’re having. > > > Best regards, > > > León > > El 23/09/2017, a las 16:52, Arasteh <kavouss.arasteh(a)gmail.com> escribió: > > Dear Greg > You turn my question around and around > I am asking you under what terms and conditions of RAA , Resellor could > deny to get involve in a business with a reseller of domain name under RAS . > It is not a private business of selling chocolate . It is Domain Name. > I know you naught have some sympathy with them ad you believe they are > free to act relating to domain name under a global interest such as they > could deal with selling chocolate > Pls be realistic > Pls do not confuse . > I request you and appeal you not to counter argue on something that has no > logic > They can not deny to deal with a domain name without any valid reason > What is your personal problem to include that in the introduction as a > real and actual case formally reported to the group > Why you dispute with me on a fact and reality > Why you authorise yourself to be a judge > We have not given you such authority > You self volunteered and we gave not objected to that provided that you do > not disputes with us > You have no right to disputed > We are on equal fooling > There is no superiority between we two > Pls once again and again and again mention this fact and reality in the > introduction as reported since you can not deny that > You have formally asked me on two consecutive calls to provide you with > example and now it is a full week that you disputed and disputed with us > Is there any other motivation that you continue to reject my proposal > I will not give up > I will continue to ask and ask à faire treatment > > > Sent from my iPhone > > On 23 Sep 2017, at 22:32, Greg Shatan <gregshatanipc(a)gmail.com> wrote: > > It's their business. I assume they can run it as they see fit, unless they > violate their contract or the law. As such there would be no need for a > provision of the sort you envision. Frankly, I've never seen such a > provision in a contract of any sort. > > I'm sure it's not your intention, but it seems as if you just turned my > question around without attempting to answer it. > > In any event, if there is no provision governing the company's discretion > to enter into Reseller agreements with the parties of their choosing, then > their decision would not be contrary to the terms and conditions of their > RAA. > > In any event, if you could review the RAA and see how it might apply to > this situation, that would help the Subgroup evaluate the RAA element of > your proposal. > > Best regards, > > Greg > > > On Sat, Sep 23, 2017 at 2:19 PM Arasteh <kavouss.arasteh(a)gmail.com> wrote: > >> I have no specific section in mind >> I just want to know which section of RAA give such authority to resello >> to deny service? >> Regards >> Kavouss >> >> Sent from my iPhone >> >> On 23 Sep 2017, at 21:54, Greg Shatan <gregshatanipc(a)gmail.com> wrote: >> >> Kavouss, >> >> I am out for the day, so I will give this a more detailed review later. >> One quick question -- what section of the RAA are you referring to? That >> will help the Subgroup understand your proposal better. >> >> Thank you. >> >> Greg >> >> On Sat, Sep 23, 2017 at 2:21 AM Kavouss Arasteh < >> kavouss.arasteh(a)gmail.com> wrote: >> >>> De ar Greg, >>> Sorry for misinterpretation .I did not make any allegatiuon at all >>> I just reflected my impression of the way the matter is treated. >>> The statement you made above, could only be interpreted that the >>> suggestion made is not favoured by you according to your reasoning and or >>> your judgement . >>> In my view when Something is not pursued it is blocked.My be the term >>> blocked was not a correct one but in reality it did not carried forward >>> Sorry ,if the term " Blocked " boithered you then I replaced it by " is >>> not currently being carried forward " >>> Now back to the issue Under discussion >>> Yes , it does not have direct relation with OFAC but why not you mention >>> what you said in your last reply as follows >>> >>> >>> *"It was reported to the Group that a registrar ( RESELLO) has developed >>> / used a business policy of not doing business with Iranian passport >>> holders, independent of any sanctions, US or otherwise. This may be a bad >>> policy, .The group did not conclude that it has any direct ( or indirect >>> ) connection to sanctions (US or otherwise) or ICANN's jurisdiction.The >>> Group inferred from Resello's decision that there are reasons, unrelated to >>> OFAC, for declining to do business with nationals of an OFAC-sanctioned >>> country. There seems to be legitimate that ICANN investigate the matter >>> carefully and remind RESELLO that such course of action would be >>> counterproductive as it is contray to the terms and conditions specified7 >>> stipulated in the RAA".* >>> >>> As you know I have raised this matter, independently from the activities >>> of the Jurisdiction Group with Chairman,and CEO of ICANN and chair of the >>> GNSO Council copied to to CCWG co-chairs and you . >>> >>> Now may I kindly request you to consider the language that I proposed >>> you and include it in appropriate / relevant part of the Report with >>> ,possibly, some cross refernce in the body of recommands part . >>> Awaiting your kind consideration and quick reply >>> Kavouss >>> >>> On Fri, Sep 22, 2017 at 7:24 PM, Greg Shatan <gregshatanipc(a)gmail.com> >>> wrote: >>> >>>> Kavouss, >>>> >>>> I am not "blocking" anything, either. >>>> >>>> It is a very serious allegation to say that a rapporteur is blocking >>>> something that they "do not like." You have absolutely no idea what I >>>> "like" and "do not like." >>>> >>>> The "problem" with "indicating" the Resello situation "in the >>>> introductory part of the Report" is that it has absolutely no connection, >>>> direct or indirect, to OFAC sanctions or to ICANN's "jurisdiction" -- in >>>> the US or elsewhere. >>>> >>>> You have chosen to infer that Resello's policy is somehow related to >>>> OFAC, even though they are a non-US registrar and they have made absolutely >>>> no reference to OFAC or US law or ICANN. There is no basis for that >>>> inference. Without a basis, there is no reason for the Subgroup to include >>>> the Resello situation in the Recommendations on US sanctions or sanctions >>>> generally. >>>> >>>> Without any connection to OFAC, sanctions regime or ICANN's >>>> jurisdiction, "Resello" only shows us that a registrar has a business >>>> policy of not entering into reseller agreements with Iranian passport >>>> holders. Personally, I do not like this policy (so now you have some idea >>>> what I "do not like"), though I would want more facts before making a final >>>> judgment. >>>> >>>> But why would it be in our Report? It shows that a registrar developed >>>> a business policy of not doing business with Iranian passport holders, >>>> independent of any sanctions, US or otherwise. This may be a bad policy, >>>> but we can't say it has any connection to sanctions (US or otherwise) or >>>> ICANN's jurisdiction. Putting this in the Report would not support any >>>> Issues or Recommendation the Subgroup has identified. If anything, it >>>> would be counterproductive, as it could infer from Resello's decision that >>>> there are reasons, unrelated to OFAC, for declining to do business with >>>> nationals of an OFAC-sanctioned country. Why would we want that in this >>>> Report? >>>> >>>> I look forward to your response to these concerns. >>>> >>>> Best regards, >>>> >>>> Greg Shatan >>>> >>>> On Wed, Sep 20, 2017 at 5:32 PM, Erika Mann <erika(a)erikamann.com> >>>> wrote: >>>> >>>>> Dear Kavouss - >>>>> I'm not blocking anything. Just making a comment with regard to the >>>>> point you raised in relation to the Dutch case, insofar that I was saying >>>>> the Dutch decision might relate to an EU restriction and not to an US >>>>> restriction. >>>>> >>>>> Kind regards, >>>>> Erika >>>>> >>>>> On Wed, Sep 20, 2017 at 10:09 PM, Kavouss Arasteh < >>>>> kavouss.arasteh(a)gmail.com> wrote: >>>>> >>>>>> Dear Greg >>>>>> Dear Erika$ >>>>>> What is the problem that you indicate that in the introductory part >>>>>> of the Report. >>>>>> You have asked me on 13 and 18 of September to provide you with the >>>>>> factual evidence on this type of discrimination or restriction and I have >>>>>> provided that to you. >>>>>> You you are blocking it. You are are expected to reflect the report >>>>>> on this type of restriction whether directly or indirectly related to OFAC. >>>>>> Your action is not to decide what is right and what is wrong. There >>>>>> is no veto right given to you .I insist to reflect that . >>>>>> Pls kindly do not further block this >>>>>> You blocking whatever, you do not like >>>>>> Pls kindly, ionce again. be helpful, fair and collaborative >>>>>> Regards >>>>>> Kavouss >>>>>> >>>>>> On Wed, Sep 20, 2017 at 8:06 PM, Greg Shatan <gregshatanipc(a)gmail.com >>>>>> > wrote: >>>>>> >>>>>>> Kavouss, >>>>>>> >>>>>>> As a factual happening, I don't see why this should be reflected in >>>>>>> our report. Resello's business decision does not seem to be related to >>>>>>> OFAC, US jurisdiction or to any ICANN-related jurisdiction. >>>>>>> >>>>>>> I asked you whether Resello's agreement with ICANN (the Registrar >>>>>>> Accreditation Agreement (RAA)) prohibits Resello from establishing the >>>>>>> policy you have mentioned. If ICANN does not prohibit this policy, and it >>>>>>> is not triggered by OFAC or some other connection to ICANN's jurisdictions, >>>>>>> then it seems to be unconnected to our work. >>>>>>> >>>>>>> I don't know whether there is an EU or Dutch law that requires this >>>>>>> policy, or whether there is one that prohibits it. If there is one that >>>>>>> requires it, that is not an "ICANN jurisdiction" issue. If there is one >>>>>>> that prohibits it and Resello is violating Dutch law, then it may be that >>>>>>> Resello is violating the RAA requirement (Section 3.7.2) that Registrars >>>>>>> abide by applicable law. But again, that's a Compliance issue. >>>>>>> >>>>>>> Best regards, >>>>>>> >>>>>>> Greg >>>>>>> >>>>>>> On Wed, Sep 20, 2017 at 1:46 PM, Kavouss Arasteh < >>>>>>> kavouss.arasteh(a)gmail.com> wrote: >>>>>>> >>>>>>>> Dear Greg >>>>>>>> I do not know what question you raised. >>>>>>>> If you believe that >>>>>>>> *Mark Assenberg from Resello which is a subsidiary company for * >>>>>>>> *Yourholding** holding:* >>>>>>>> >>>>>>>> *with the below address Ceintuurbaan 28 >>>>>>>> <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&sourc…>,8024 >>>>>>>> AA Zwolle >>>>>>>> <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&sourc…>, >>>>>>>> +31 38 453 0752 <+31%2038%20453%200752>* >>>>>>>> *based in Netherlands.being a non US-Based company on the basis >>>>>>>> of which *section of the RAA refrain such a 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)? >>>>>>>> May you address this issue as a factual happening . >>>>>>>> Pls kindly advise how you trest and reflect that in the report >>>>>>>> Regards >>>>>>>> Kavouss >>>>>>>> >>>>>>>> On Wed, Sep 20, 2017 at 7:28 PM, Nigel Roberts < >>>>>>>> nigel(a)channelisles.net> wrote: >>>>>>>> >>>>>>>>> >>>>>>>>> >>>>>>>>> On 20/09/17 18:19, Greg Shatan wrote: >>>>>>>>> >>>>>>>>> Can you please guide me to the section of the RAA that would >>>>>>>>>> prevent >>>>>>>>>> such a 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)? >>>>>>>>>> >>>>>>>>>> >>>>>>>>> In the United Kingdom, never mind the RAA, >>>>>>>>> <https://maps.google.com/?q=Ceintuurbaan+28,8024+AA+Zwolle+%3Chttps://maps.g…> >>>>>>>>> this would be quite illegal (see s.13, prohibited conduct) unless such >>>>>>>>> treatment is required by law (e.g. required by legally binding sanctions). >>>>>>>>> >>>>>>>>> How can anyone in the 21st century believe that any "business >>>>>>>>> decision" doctrine could allow making decisions on the basis of >>>>>>>>> race/citizenship (or any other protected characteristic) is quite alien >>>>>>>>> over here and incomprehensible. >>>>>>>>> >>>>>>>>> http://www.legislation.gov.uk/ukpga/2010/15 >>>>>>>>> >>>>>>>>> >>>>>>>>> >>>>>>>>> >>>>>>>>> _______________________________________________ >>>>>>>>> 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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OFAC Rec.s
by Kavouss Arasteh Sept. 24, 2017

Sept. 24, 2017

Dear Greg. At the call on 13 Sept as well as on 18 Sept you asked to provide examples that NON US BASED Registrar should not replicate Rules established by OFAC in regard with request from registrant or reseller for domain name Here is the example that you are looking for . This is a real and actual case *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 <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&sourc…> 8024 AA Zwolle <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&sourc…> +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. * *Regards* *Kavouss *

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Further actions on my latest MODIFIED /Softened SUGGESTIONS
by Kavouss Arasteh Sept. 23, 2017

Sept. 23, 2017

Greg In addition to the elements of my last proposal that you have included in the last version you have posted quite recently , I have had other proposal which I did ask you to look at them and include them either in the itroduction ,as relevant, or preamble to the Recommendation . See below Greg *1.The last sentence reads” unless the results of the study demonstrate that it would be inappropriate for ICANN to pursue these licenses.”To this effect the first sentensce below “ what Criteria……inappropriate Because you qualify the study by being inappropriate and I did suggest what criteria will be use to make the judgement * *Thus the first sentence would fir .You may include my comment by modifying the sentence as follows * *UNLESS ,USING APPROPRIATE CRITERIA, THE RESULTS OF STUDY DEMONSTRATE THAT IT WOULD BE INAPPROPRIATE FOR ICANN TO PURSUE THESE STUDIES*. This has been covered in part 2. *Generally, ICANN should pursue the application for general license at arliest time and should remind the registries not to copy and paste the general agreements found in US-based registrars. * *This also fits* This has been covered in part 3. The role of ICANN, to make awareness about such situation is critical and should not be undermined. *This part is talking about awareness that was extensively discussed and thus fits * This has been covered in part *4. 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* *This could be included in appropriate part .if it does not fit with the recommends part * This has NOT been covered in part *5.Examples of that are related to Godaddy and Online Nic, which made pressure against registrants having citizenship of Sanction coountries. This could be included in the introductory part of the OFAC sanctions and registrar* This has NOT been covered in part *6 Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC.* *This could be included either in the recommends part or preamble of the recommend part * This seems not covered. Pls kindly advise about those which are not covered in any part of the report or if covered , I have nor seen it I am grateful to you for that guidance Regards Kavouss

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Fwd: [Internet Policy] FYI - ISOC statement about on Internet blocking measures in Catalonia, Spain
by Greg Shatan Sept. 22, 2017

Sept. 22, 2017

FYI, in connection with the .cat issues being discussed on our list. Greg ---------- Forwarded message ---------- From: Dan York <york(a)isoc.org> Date: Fri, Sep 22, 2017 at 11:44 AM Subject: [Internet Policy] FYI - ISOC statement about on Internet blocking measures in Catalonia, Spain To: ISOC Internet Policy <internetpolicy(a)elists.isoc.org> Internetpolicy subscribers, FYI, yesterday we published a statement expressing our concern about measures taken in Spain to block access to certain websites and, perhaps more concerning, to require a top-level domain (TLD) operator to engage in content monitoring and blocking. This is a tense time politically in Spain with an independence referendum having been called for October 1 in the Catalonia region which the central Spanish government views as illegal. We do not want to get involved in the politics of the situation, but are concerned by the manner in which the Internet is being restricted. As we have repeatedly stated, we do not see Internet blocking / shutdowns as effective measures and believe they cause far more collateral damage to the economy and society. Please do read and share our statement: https://www.internetsociety.org/news/statements/2017/ internet-society-statement-internet-blocking-measures-catalonia-spain/ https://www.internetsociety.org/es/news/declarationes/ 2017/declaracion-de-internet-society-sobre-medidas-de- bloqueo-de-internet-en-cataluna-espana/ Shared on social at: https://twitter.com/internetsociety/status/910995196405518336 https://www.facebook.com/InternetSociety/posts/10154627959548239 Regards, Dan -- Dan York Senior Manager, Content & Web Strategy, Internet Society york(a)isoc.org +1-802-735-1624 <(802)%20735-1624> Jabber: york(a)jabber.isoc.org Skype: danyork http://twitter.com/danyork http://www.internetsociety.org/ _______________________________________________ To manage your ISOC subscriptions or unsubscribe, please log into the ISOC Member Portal: https://portal.isoc.org/ Then choose Interests & Subscriptions from the My Account menu.

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Re: [Ws2-jurisdiction] [Ws2-hr] RES: .cat
by Nigel Roberts Sept. 21, 2017

Sept. 21, 2017

The EU doesn't have a human rights court. The European Court of Justice in Lux. is the highest court on matters of EU law. The European Court of Human Rights in Strasbourg is not an EU institution. It provides declaratory judgments on infringements by signatories (47 countries, see http://www.coe.int/en/web/about-us/our-member-states ). As a condition of opening a case in the ECHR one must have exhausted domestic legal remedies first. > > It appears that many of their judgments are not enforced by national > governments but it would still be good to get the judgment anyway, > wouldn’t it? > > > > Hard to see how ICANN could enforce a Human Rights violation by an EU > government. Squarely in the realm of the EU Court of HR I would think. > > > > Anne > > > > *Anne E. Aikman-Scalese* > > Of Counsel > > 520.629.4428 office > > 520.879.4725 fax > > AAikman(a)lrrc.com <mailto:AAikman@lrrc.com> > > _____________________________ > > Lewis Roca Rothgerber Christie LLP > > One South Church Avenue, Suite 700 > > Tucson, Arizona 85701-1611 > > lrrc.com <http://lrrc.com/> > > > > *From:*ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] *On > Behalf Of *Paul Rosenzweig > *Sent:* Wednesday, September 20, 2017 6:57 AM > *To:* 'Thiago Braz Jardim Oliveira'; 'farzaneh badii'; 'Nigel Roberts' > *Cc:* 'ws2-jurisdiction'; ws2-hr(a)icann.org > *Subject:* Re: [Ws2-hr] [Ws2-jurisdiction] RES: .cat > > > > Actually, that’s wrong Thiago, but you know that. The facts are that > .cat has physical offices in Spain – hence its offices could be raided. > That is true irrespective of whether or not the .cat owners are > corporate domiciled in Spain or in France or anywhere else in the > world. The same is true of ICANN’s offices in Turkey, which have not > been raided by Turkish police and (we all fervently hope never will be). > > > > While I join everyone in dismay at the action of the Spanish authorities > they prove my point, as Nigel said. > > > > Paul > > > > > > Paul Rosenzweig > > paul.rosenzweig(a)redbranchconsulting.com > <mailto:paul.rosenzweig@redbranchconsulting.com> > > O: +1 (202) 547-0660 > > M: +1 (202) 329-9650 > > VOIP: +1 (202) 738-1739 > > www.redbranchconsulting.com <http://www.redbranchconsulting.com/> > > My PGP Key: > https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 > > > > *From:*ws2-jurisdiction-bounces@icann.org > <mailto:ws2-jurisdiction-bounces@icann.org> > [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz > Jardim Oliveira > *Sent:* Wednesday, September 20, 2017 8:47 AM > *To:* 'farzaneh badii' <farzaneh.badii(a)gmail.com > <mailto:farzaneh.badii@gmail.com>>; Nigel Roberts > <nigel(a)channelisles.net <mailto:nigel@channelisles.net>> > *Cc:* ws2-jurisdiction <ws2-jurisdiction(a)icann.org > <mailto:ws2-jurisdiction@icann.org>>; ws2-hr(a)icann.org > <mailto:ws2-hr@icann.org> > *Subject:* [Ws2-jurisdiction] RES: [Ws2-hr] .cat > > > > Dear all, > > > > Farzaneh is right in disagreeing with Nigel. > > > > The .CAT case only confirms that the territorial State, that is the > State in which territory a legal entity is based (in this case the .CAT > registry), is in the unique position to enforce its prescriptions > against that legal entity. > > > > Notice that the action of "raiding" the .CAT registry was undertaken by > Spanish law enforcers, and only they could have undertaken it (at least > until such time as Spain consents to foreign officials' exercising > forceful actions within Spanish territory). In sum, the "police raid" by > Spain happened because the .CAT registry, being located in Spain, was > subject to the territorial jurisdiction of Spain, notably its exclusive > enforcement jurisdiction. > > > > In the case of ICANN, the lessons the .CAT case teaches us (as if anyone > really needed this case to be convinced of the following) is that the > United States, the country in whose territory ICANN is based (as well as > where are located its DNS management activities), is in the unique > position to enforce law prescriptions against ICANN, to enforce its > sanctions regime against ICANN, to shutdown ICANN, to interfere with > ICANN's DNS management activities. No other country is in a position to > do so, and this should be remedied. > > > > Best regards, > > > > Thiago > > > > > > > > *De:*ws2-jurisdiction-bounces@icann.org > <mailto:ws2-jurisdiction-bounces@icann.org> > [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *farzaneh badii > *Enviada em:* quarta-feira, 20 de setembro de 2017 08:51 > *Para:* Nigel Roberts > *Cc:* ws2-jurisdiction; ws2-hr(a)icann.org <mailto:ws2-hr@icann.org> > *Assunto:* Re: [Ws2-jurisdiction] [Ws2-hr] .cat > > > > > > > Farzaneh > > > > On Wed, Sep 20, 2017 at 6:24 AM, Nigel Roberts <nigel(a)channelisles.net > <mailto:nigel@channelisles.net>> wrote: > > > > I think this all clearly proves Paul Rosenzweig's point that ICANN's > jurisdiction is irrelevant as national police forces and judicial > authorities can apply national law to particular registries. > > Under the Treaty of Rome, incidentally, the .CAT registry has the > complete right to move it's operations to any of the other 27 Member > states (soon to be 26) of the Union. If it did that, would ICANN itself > then come in the firing line from the Spanish courts, perhaps? > > > > > > > > I disagree. ICANN's jurisdiction is the most relevant when it comes to > delegation-redelegation of ccTLDs and accreditation of regirars and > approval of registries. This case does not prove the point that ICANN's > jurisdiction is totally irrelenat under all circumstances.As we clearly > demonstrated at the jurisdiction group. > > > > > > > > > On 20/09/17 09:58, Thomas Rickert wrote: > > Hi all, > you might find this article interesting. > > https://www.internetnews.me/2017/09/20/dotcat-registry-offices-raided-spani… > > Best, > Thomas > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > > _______________________________________________ > Ws2-hr mailing list > Ws2-hr(a)icann.org <mailto:Ws2-hr@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-hr > > > > > ------------------------------------------------------------------------ > > This message and any attachments are intended only for the use of the > individual or entity to which they are addressed. If the reader of this > message or an attachment is not the intended recipient or the employee > or agent responsible for delivering the message or attachment to the > intended recipient you are hereby notified that any dissemination, > distribution or copying of this message or any attachment is strictly > prohibited. If you have received this communication in error, please > notify us immediately by replying to the sender. The information > transmitted in this message and any attachments may be privileged, is > intended only for the personal and confidential use of the intended > recipients, and is covered by the Electronic Communications Privacy Act, > 18 U.S.C. §2510-2521.

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Proposed Final OFAC Recommendation for Plenary
by Greg Shatan Sept. 21, 2017

Sept. 21, 2017

As discussed on Monday's call, the plan is to submit the OFAC Recommendation for consideration by the Plenary in next week's call. The document deadline for next week's plenary is 23:59 UTC on Wednesday, September 20. As promised on Monday's call, I revised the draft recommendation in Google Docs to reflect the discussions on the call and then circulated PDF and Word copies to the list for review and comment. I received comments from Milton Mueller on the list, which were consistent with the Monday call, and the draft has been updated with these comments. I am attaching PDF and Word copies of the latest version of the OFAC Recommendation, which I believe is very close to final form. I have included a clean copy of the proposed final version, and a version with track changes, showing the changes to the pre-call version of the Recommendations. IF you want to read the Recommendation, I think the clean version is much easier to follow. The track changes version is useful if you want to see what changes are made. So that we may have a Google Doc that shows the proposed final OFAC Recommendation as it will be submitted (i.e., without revisions and comments), I have created a new Google Doc, which I encourage you all to read over one more time before it goes to the plenary. The link is: https://docs.google.com/document/d/1xLDx7IevK2s7yQ1naD3cjnlPGnO7oPrRUN61RKE… The marked-up version and all prior drafts are still available at the link previously circulated. If there are any further refinements, corrections, etc., please put them into new, clean version on Google Docs, or add them to the clean document attached here and send it back to the list. Thanks! Greg

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.cat
by Thomas Rickert Sept. 21, 2017

Sept. 21, 2017

Hi all, you might find this article interesting. https://www.internetnews.me/2017/09/20/dotcat-registry-offices-raided-spani… Best, Thomas

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