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Jurisdiction Questionnaire response analysis: Ministry of Telecom and Mass Communications of the Russian Federation
by Dr. Tatiana Tropina June 7, 2017

June 7, 2017

Dear all, I would like to submit analysis of two responses to the WS2 Jurisdiction subgroup’s Questionnaire. I am submitting them in two different emails to avoid any confusion, however, I would like to say that these responses have raised the similar concerns related to jurisdiction and I recommend the group to consider these concerns based on the information provided in both of the responses. I would also like to reiterate that I am analysing the responses in my individual capacity. I am not representing my employer - Max Planck Institute. The fact that I am a Russian national has nothing to deal with the fact that I am analysing this response, I am not representing the views of Russian Federation in any capacity or form. So please consider this to be an independent summary with views expressed on my own. *The first response I would like to analyse is the one submitted by the the Ministry of Telecom and Mass Communications of the Russian Federation. *I am attaching the response to the email, but it can also be found at the jurisdiction questionnaire responses page: https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire *Summary of the responses * A note: I am sorry that some of the responses I am referring to rather in lengthy way, because I think as the Ministry of Telecom and Mass Communications of the Russian Federation responded with what we actually wanted - real case that they consider relevant - it is with for the group to consider it in a more detailed way. *Question 1* **The respondent states that their business, privacy or ability to use or purchase domain name-related services been affected by ICANN’s jurisdiction. The response refers to the fact that ICANN, in particular, is a subject of the US regulations on the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. The respondent refers to the provisions of the gTLD Applicant Guidebook and the document governing new registrar accreditation (“Registrar Accreditation: Application”, section 4. “Application Process”) and states that this can affect not only new top-level domain applicants (potential registries after application evaluation), but also companies seeking accreditation as ICANN registrar. To illustrate how this provisions on OFAC sanctions can affect business, the Ministry of Telecom and Mass Communications of the Russian Federation brings up the case of sanctions implemented in accordance with the Executive Order 13685 of U.S. Administration (December 19th, 2014) prohibiting U.S. companies from supplying services and goods in the Republic of Crimea, doing business with individuals and entities located in the Republic of Crimea. This led to: - Notification that Google Apps users located in Crimea access to Google services for accounts located in Crimea will get their services suspended within a week. - Notifications from other U.S. technology companies like Amazon, Apple, Paypal; issuance of the Google chrome browser updates that web-sites and hosting registered by individual residents of this region will be removed. - Announcements from several U.S. registrar companies (e.g., GoDaddy) that domain names of registrants from the Republic of Crimea will be removed from registries .com, .net, .org, .info, and others. The announcements referred to trade restrictions which do not allow registrars to do business with individuals and entities located in the Republic of Crimea. The respondent expressed a strong belief that the WS2 Jurisdiction subgroup shall analyse not only incidents that happened and gather information about actual cases, but also analyse the potential risks related to jurisdiction. *Question 2, Question 3.* - No information provided *Question 4a* The respondent doesn’t provide any material. However, Russian Ministry of Telecom and Mass Communications of the Russian Federation expresses an opinion that since ICANN’s policies and their implementation shall be in compliance with the California law, but top-level domain registries enter into agreements with registrars individually, and registrars enter into agreements with the registrants in compliance with law of other countries, there will be conflicts between ICANN’s policies and national law systems. As one of the examples, the respondent refers to the General Data Protection Regulation – GDPR 2016/679. Lastly, the response suggested to answer the questions why the issues related to domain name system and infrastructure shall be under the jurisdiction of a single state. * **Question 4b* With regard to any alternative jurisdiction solutions, the respondent suggests that the following solutions: - Governance of the DNS by the international law/ treaties - Separate main ICANN’s responsibilities over different jurisdictions - Jurisdictional immunity under the US law *Analysis:* I recommend that every participant of the group reads if not the response, but at least the summary of it, and makes his or her own conclusion. However, I recommend the issue of trade sanctions and OFAC to be discussed in details and assessed by the group, as this issue comes up in more than one response and requires a serious consideration. No matter how we treat the political and geo-political issues that lead to the implementation of sanctions, the cases of the sanctions affecting businesses because OFAC and ICANN’s jurisdiction requires the group to answer at least whether this should be taken into consideration and how. The issue of OFAC is also raised in the response of the IGP, which I am also analysing. As to the alternative jurisdiction solutions: again, it is up to the group to continue the discussion and I think that as this issue being constantly raise we will have to come to it at some point if we realise that there are some serious risks coming from ICANN being incorporated in the US. However, I would like to note - as my personal opinion - that some of the proposed solutions very likely either do not meet the transition requirement (governance by international treaties) or probably impossible - e.g. If I am not mistaken the jurisdictional immunities under the US law could be given only to the international organisation, which, in turn, doesn’t fit the transition requirements. This, however, shall be discussed anyway if the issue of alternative jurisdiction will be raised in the group. Warm regards, Tanya

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Agenda for Jurisdiction Subgroup Meeting 8 June 2017 at 13:00 UTC
by Greg Shatan June 7, 2017

June 7, 2017

All, Here is the agenda for tomorrow's meeting. Documents will follow shortly (but note that you have received them all previously). I look forward to tomorrow's call. Best regards, Greg

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Domain names 'located' within the US
by Thiago Braz Jardim Oliveira June 7, 2017

June 7, 2017

Dear Greg, dear all, In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location. I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon the point I was raising. As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was considered to be within the US because the registry was a US company. Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction. A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located...". In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned. I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all. Best, Thiago Jardim Thiago Braz Jardim Oliveira Divisão da Sociedade da Informação Ministério das Relações Exteriores +55 61 2030 6389

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Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda
by Greg Shatan June 7, 2017

June 7, 2017

All, I wanted to provide advance notice that we will pick up the discussion of the Subgroup's Mandate and Scope on Tuesday's call, with the goal of settling the issue over this call and the next. After all, we need to know what our mandate is in order to know if we ar fulfilling it. Some notes: 1. It's not up to the Subgroup to define the Subgroup's mandate and Scope. This has been done in the foundational documents -- Charter. WS 1 Report and Transition Bylaw. What we need to do is clarify our understanding of that mandate and Scope. 2. As such, the foundational documents need to form both the basis and the boundary of any such clarification or proposal for clarification. These documents were excerpted in my "straw man" mandate document sent around in the last few weeks. 3. Mandate and Scope (defined in these documents) need to be distinguished from potential issues participants might raise. Such issues, by and large, are not mentioned in the foundational documents. 4. The Mandate and Scope will be used to determine if any potential issue is "in scope". 5. Discussions of the issue on the list in advance of the call will be most helpful, since the call is only an hour. 6. While some have said we have gone in circles on this issue, or avoided resolving it. The goal here and now is to avoid that fate, whatever the outcome might be. Finally, I request broad participation on this issue, even if you have given up on this subject of discussion. Thank you. Greg

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Upcoming Subgroup Meetings
by Greg Shatan June 6, 2017

June 6, 2017

All, The upcoming meetings are as follows: - Thursday, June 8 at 13:00 UTC - Wednesday, June 14 at 13:00 UTC (this is a change; the meeting had been scheduled for Thursday at 05:00; a rescheduled invite will be sent out). Apologies for any confusion regarding this week's call. Greg

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Caption Notes-Recordings-Transcript links for Jurisdiction Meeting #33 - 30 May 2017
by MSSI Secretariat May 31, 2017

May 31, 2017

Hello all, The caption notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #33– 30 May 2017 will be available here: https://community.icann.org/x/ygHfAw A copy of the action items and raw caption notes may be found below. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers [cid:image001.png@01D2DA11.BA745110] ______________________________________________________________________ Action Items: * Staff to prepare form letter/email for rapporteur wrt to decision. Raw Captioning Notes Please note that these are the unofficial transcript. Official transcript will be posted 2-3 days after the call * Word Doc<https://community.icann.org/download/attachments/64946634/Jurisdiction_0530…> * PDF<https://community.icann.org/download/attachments/64946634/Jurisdiction_0530…> Decisions: * Review decision to invite respondents to call. Advise respondents once their response has been presented and point them to reference material. If after reviewing this material the respondents wish to clarify or correct any elements with the sub-group they will be invited to contact the sub-group to schedule their participation in a call. Documents Presented * Response of Just Net Coalition<https://community.icann.org/download/attachments/64946634/Just%20Net%20Coal…> * Response of Ministry of Telecom and Mass Communications of the Russian Federation (Tatiana Tropina)<https://community.icann.org/download/attachments/64946634/Russian%20Federat…> * IGP Jurisdiction Q response analysis<https://community.icann.org/download/attachments/64946634/IGP%20Jurisdictio…>

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Agenda for Jurisdiction Subgroup Meeting 30 May 2017 at 19:00 UTC
by Greg Shatan May 30, 2017

May 30, 2017

All, Attached please find the agenda for tomorrow's Jurisdiction Subgroup meeting. Documents will follow shortly. I look forward to tomorrow's call. Greg Shatan

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Re: [Ws2-jurisdiction] Raphel's comments on SWG mandate
by Thiago Braz Jardim Oliveira May 29, 2017

May 29, 2017

Dear Raphael, Thank you for your comments. I'll just make two brief observations about one suggestion you make. That is, in your words, "we should agree not to consider that specific point" (that specific point being, as I understood it, "where else [ICANN's place of incorporation or headquarters' location] could be better" ). Let's say this is fine. But if we were to assume that ICANN's place of incorporation cannot be changed, still we cannot ignore the fact that ICANN's localisation does have an impact on the actual operation of policies and functions by ICANN. And according to the Jurisdiction section of Annex 12 of the CCWG-Accountability Final Report, where the mandate of the SWG is set in detail, the influence of that very fact (ICANN's location) appears among the "main issues" to be investigated by the SWG (- it is certainly not excluded from it). This is how the relevant part reads: "the main issues that need to be investigated within Work Stream 2 relate to the influence that ICANN´s existing jurisdiction may have on the actual operation of policies and accountability mechanisms." Now, assuming as we may that ICANN's headquarters are not going to move anywhere in the world, it is still within our mandate to examine the consequences of ICANN's physical presence within California (and particularly the presence there of its main business activities and the like) on ICANN's ability to perform its functions. It is only once this impact and the related problems have been duly identified and assessed, that we can start considering how to solve or mitigate them. The solutions, obviously, may not require a change of ICANN's place of incorporation, for example, and that's indeed why some people have started considering ideas as the granting of jurisdictional immunities to ICANN, etc. So, even if we were to assume that a change of ICANN's place of incorporation cannot happen, this does not preclude the SWG from examining other solutions to the problems it is mandated to identify and assess, nor for that matter does it preclude the SWG from identifying and assessing these problems. The above is consistent with the approach the SWG appears to be following, which is to identify problems before proposing the remedies. So, again, the alleged impossibility of changing ICANN's main place of business, among other things, in no way limits our mandate. A second remark I would like to make is this: I think you are right, Raphael, when you say that it would take agreement among the SWG members to exclude from our mandate "that specific point" related to ICANN's location. In fact, to the extent the SWG is mandated to consider among other things "that specific point", an agreement to change and limit the group's mandate perhaps should not even come from the SWG, but from the CCWG-Accountability or even higher instances. Avec mes meilleures salutations, Thiago Thiago Braz Jardim Oliveira Divisão da Sociedade da Informação Ministério das Relações Exteriores +55 61 2030 6389 -----Mensagem original----- De: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de ws2-jurisdiction-request(a)icann.org Enviada em: quinta-feira, 25 de maio de 2017 14:15 Para: ws2-jurisdiction(a)icann.org Assunto: Ws2-jurisdiction Digest, Vol 11, Issue 27 Send Ws2-jurisdiction mailing list submissions to ws2-jurisdiction(a)icann.org To subscribe or unsubscribe via the World Wide Web, visit https://mm.icann.org/mailman/listinfo/ws2-jurisdiction or, via email, send a message with subject or body 'help' to ws2-jurisdiction-request(a)icann.org You can reach the person managing the list at ws2-jurisdiction-owner(a)icann.org When replying, please edit your Subject line so it is more specific than "Re: Contents of Ws2-jurisdiction digest..." Today's Topics: 1. Continuation of the discussion on SWG mandate (Rapha?l BEAUREGARD-LACROIX) 2. Questionnaire analysis (Thiago Braz Jardim Oliveira) 3. Re: Questionnaire analysis (Arasteh) ---------------------------------------------------------------------- Message: 1 Date: Thu, 25 May 2017 16:50:11 +0200 From: Rapha?l BEAUREGARD-LACROIX <raphael.beauregardlacroix(a)sciencespo.fr> To: ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Subject: [Ws2-jurisdiction] Continuation of the discussion on SWG mandate Message-ID: <CANu+Qfzy83h5gU9oPb=DQ_BnVtuPbZOAc2gmpn8WbGoGdn-EcA(a)mail.gmail.com> Content-Type: text/plain; charset="utf-8" Dear all, I could not attend last call, but I had a look at the transcript and here are my 2c. This is also meant to serve as a start a discussion, so feel free to debate, challenge, refute, ... I don't have the ICANN experience that some of you have, but from what I understand it is preferable to keep ourselves focused on our precise task, which means *excluding *from consideration re/incorporation (or whatever you want to call it) of ICANN outside of California and/or US. Not because this precise issue is not an issue. I am convinced it is, and should certainly be discussed, especially considering long term. However we will not "square" this "circle" in this subgroup. I think if we want to produce something that will see some use, we should focus on how jurisdiction issues interact with the accountability of ICANN, assuming that ICANN stays as it is roughly speaking, so with the current organisational setup. It is true that in jurisdiction we can include the location where ICANN is incorporated. This has an effect on accountability, to the extent of California corporations law and any other Californian or US federal law I might not be aware of. However I don't think we are there to consider *where else *could be better, because the options are just too many, too different and entail radical change in the foundations of ICANN which are just beyond what we are supposed to do, I think. So rather than radical changes, we should aim at improvements of "the existing," so mechanisms, structures, contracts... So to conclude on that point, we should not overly restrict what layers of jurisdiction we consider, but I think we should agree not to consider that specific one. Thiago in the last call rightly mentioned that "accountability" is an open and equivocal concept. I think we should interpret it broadly. In that sense and referring to the CCWG charter that Greg circulated before, accountability can be framed as a system of "checks and balances." While this concept is distinctively American, I think we can agree that accountability evokes responsibility and justification for action. I would conceive improving ICANN's accountability as a process that would improve *predictability *of ICANN's actions as well as improve the understanding stakeholders have of ICANN's interests, motives, reasons for doing A and not B, etc. In that sense accountable shares some meaning with transparent, but not completely. Transparency is one component of accountability. "Raw" transparency is rather useless, to the extent that the ordinary person involved with ICANN at volunteer level is not able to sift through the mass of documents or understand what is going on. If we now consider jurisdiction, which is also a broad and equivocal concept, it may intersect accountability at several levels (the "layers" of jurisdiction). I don't think it is possible to realise the extent of this intersection just as a reflection exercise. In that regard I think that both the questionnaire and the case studies are useful so to distinguish what these intersection points may be. These two things (cases and questionnaires) are pretty much the only "empirical" means that we have at our disposal and they are certainly better than just abstract reflections on the question of jurisdiction and accountability... And finally to contribute to something that was discussed in the call, I think it is a good idea to further inquire on the questionnaire responses with the respondent, when such inquiry can shed further light on the response. So these discussions should not be a debate with the respondent over their answers, but more us listening to what they have to say (again when relevant; if answers are just straight no's then whatever) Best, -- Rapha?l Beauregard-Lacroix Sciences Po Law School 2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15

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Jurisdiction Questionnaire response analysis: Internet Governance Project
by Dr. Tatiana Tropina May 29, 2017

May 29, 2017

Dear all, This is my second submission of the analysis of the response the WS2 Jurisdiction subgroup’s Questionnaire. This email analyses the response submitted by the *Internet Governance Project*. I am attaching the response to the email, but it can also be found at the jurisdiction questionnaire responses page: https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire With the risk of sound annoying, I would also like to reiterate that I am analysing the responses in my personal capacity. I am not representing my employer - Max Planck Institute. *Summary of the responses * *Question 1* IGP raises three issues: 1) Application for new gTLD registration for residents from countries subject to the US sanctions (OFAC issues). IGP raises the issues of the possibility of the OFAC license for providing services to specially designated nationals (SDNs) not being granted or non-transparency or delays in ICANN’s processes of applying for such license and the absence of ICANN’s commitment to transparency and responsiveness with regards to these issues. 2) Some registrars follow OFAC sanctions and regulation in the legal agreements with registrants even if they are not based in the US: the IGP makes an example of Gesloten.cw, a registrar based in Curacao and Olipso, a registrar based in Turkey. 3) The issue of high costs of money transfers between ICANN and countries under the sanctions. *Question 2* IGP refers to the court case brought by a group of terrorist victims in the US that had a writ of attachment against the state of Iran to show how the .IR, .SY and .KP can be affected by the ICANN’s current jurisdiction. In the case the litigants asked for the seizure of ccTLDs as attachable property. During the litigation, those registered domain with .IR were felt like their businesses were at risk. OGP provides the analysis of the case with regard to the outcome: “the court showed deference to ICANN’s mission which is to serve an international community. The court, while affirmed the district court judgment not to attach .IR, first respected the third party rights”. The respondent also raises the issue of awareness of ccTLDs about the ICANN’s jurisdiction with regard to the law applicable to the ICANN organisation. *Question 3* IGP refers to the blog post, where more information and analysis is provided: http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-… The blog post provides more detailed analysis of the OFAC sanctions issues and ICANN jurisdiction and suggests some solutions, like for example, a general OFAC waiver, or contractually obliging registrars to investigate the possibility of receiving an OFAC license for providing services to sanctioned countries, prohibiting registrars from arbitrarily cancelling domain names without notice, clarification whether registrars based in other countries need to comply with OFAC and US laws. *Question 4 *- No information provided *Analysis:* ** I strongly believe that the response from the IGP (as well as blog post the response refers to) provides several points that the Jurisdiction subgroup has to explore and give special attention to: - OFAC sanctions (this was also raised in the reply from the Russian Telecom Ministry) and uncertainty and concerns associated with this issue. - The case of .IR, .SY and .KP - The possible solutions suggested in the IGP blogs post (see summary of the response to the Question 3). I am not in a position to recommend any conclusions to the issues raised because the discussion shall be a group exercise. However, as a rapporteur for this response, I strongly recommend the issues to go through the group discussion. Warm regards, Tanya

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Summary and Analysis of the Questionnaire Responses with very short answers
by Greg Shatan May 29, 2017

May 29, 2017

All, I have completed my review of the questionnaire responses with very short answers. I have attached the following: 1. An excerpt from our "Review Tool" showing only the relevant responses. 2. A summary and analysis covering all eight responses. Note: I'd like to suggest using this form or a variation of it for the other evaluations. The "freestyle" approach will make it difficult to use these Summary and Analysis documents in our work. Note that I have added three questions for the reviewer to answer, which I would like the other reviewers to answer, if there is no objection from the Subgroup: - Did any specific case, situation or incident mentioned by respondent raise a “Proposed Issue” that could be considered by the Subgroup? If yes, briefly restate the case, situation or incident. Briefly state the Proposed Issue. - Did respondent provide any case or situation that could be used as a “Stress Test” by the Subgroup? If yes, briefly state the “Stress Test”. - Did respondent mention anything else relevant to the Subgroup’s work? I look forward to discussing this with you all on an upcoming call and to any comments in reply. Greg

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