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Plenary Reading of Jurisdiction Subgroup Draft Report
by Greg Shatan Oct. 18, 2017

Oct. 18, 2017

All, I'd like to remind you that at the upcoming CCWG-Accountability Plenary on October 18 at 19:00 UTC, there will be a *first reading of the draft recommendations*. If it passes this first reading, it will be presented for a second reading at the Face-to-face meeting on 27 October. If it fails to pass a second reading at the 27 October meeting, it cannot be included in the final report. If it fails to pass a first reading at the 18 October meeting it would require exceptional circumstances to have it pass a second reading at the 27 October meeting. Please attend the Plenary session so that your views are heard, and so you can hear the views of other members of the Plenary. Greg

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Re: [Ws2-jurisdiction] [CCWG-ACCT] Jurisdiction Subgroup. Draft Report. Statement of Brazil. Annex. To be annexed to the draft report. For consideration by the CCWG.
by Seun Ojedeji Oct. 18, 2017

Oct. 18, 2017

FWIW, I actually don't think a Yes or No response will be applicable to the questions as written. It could have been written as: Do you think that ICANN should seek a general OFAC license for DNS services? ...... Regards Sent from my mobile Kindly excuse brevity and typos On Oct 18, 2017 5:03 PM, "Kavouss Arasteh" <kavouss.arasteh(a)gmail.com> wrote: Dear All, This type of intergation is not legitimate Regards Kavouss On Wed, Oct 18, 2017 at 5:26 PM, Mueller, Milton L <milton(a)gatech.edu> wrote: > Parminder (and Thiago) > > I respond to this with a very simple set of questions. All of which admit > of a simple Yes or No answer: > > > > 1. Do you or do you not think that ICANN should seek a general OFAC > license for DNS services? > > 2. Do you or do you not want non-US registrars to be clearly told > by ICANN that the RAA does not by itself commit them to abiding by OFAC > sanctions? > > 3. Do you or do you not want to require ICANN to seek an OFAC > license for any (non-SDP) registrar who needs it? > > 4. Do you or do you not want there to be a choice of law addition > to the contracted parties’ contracts? > > > > If you answer No to all these question you are indeed disagreeing with the > subgroup recommendations, and you are de facto in favor of upholding the > status quo, because the status quo is the only actual alternative to the > consensus recommendations. > > > > Looking forward to your answers. > > > > --MM > > > > *From:* parminder [mailto:parminder@itforchange.net] > *Sent:* Tuesday, October 17, 2017 9:33 AM > *To:* Mueller, Milton L <milton(a)gatech.edu>; Thiago Braz Jardim Oliveira < > thiago.jardim(a)itamaraty.gov.br>; accountability-cross-community(a)icann.org > > *Cc:* acct-staff(a)icann.org; gac(a)icann.org; GAC <gac(a)gac.icann.org>; > ws2-jurisdiction <ws2-jurisdiction(a)icann.org> > *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Subgroup. Draft Report. > Statement of Brazil. Annex. To be annexed to the draft report. For > consideration by the CCWG. > > > > > > > > On Monday 16 October 2017 11:18 PM, Mueller, Milton L wrote: > > By the way, after additional review of these “dissenting” materials I have > come up with an interesting finding: none of them actually disagree with > the recommendations we did come up with, and neither of them disputes that > there is consensus for the actual recommendations. They simply say that the > recommendations are not enough for them. > > > This is a wrong reading of what is a consensus. Consensus relates to a > whole set of recs, and the whole report, not parts of it. One may not > otherwise disagree, for instance, with a particular motherhood and apple > pie statement (they are meant not be disagreed with), but disagree with it > constituting the whole of recs or the report of a group. That would still > be an absence of consensus for that statement to be the rec of that group. > (Those who are involved with the Working Group on Enhanced Cooperation will > know how its final stages to develop a report suffers from a similar > dilemma.) > > A report is as significant in terms of what it does not say as what it > says...... If there is no consensus on changing the status quo, there isnt > one on keeping it either. And the dissonance is so very significant that > some members would want to dissociate from some weak formulations that have > been compiled as agreed outcomes of the group, which simply do not address > key issues of the mandate given to the group. > > Let me try to explain it another way. Lets say that there has been a great > humanitarian crisis owing to human/ political reasons and a committee is > formed to report on its facts and the required action by the world > community. If some members try to develop a report that greatly > under-reports the nature and extent of the calamity (as is done in this > jurisdiction sub group's report regarding facts of the many very > significant problems about continued US jurisdiction over a key global > governance function) and comes up with some very weak mitigating measures, > like saying that for the next many weeks free water supplies should to > maintained for the whole area, others members may dissent with that report, > without necessarily being against the "water supply" part.... They are apt > to disassociate from and condemn the whole report, doing which would > certainly be a meaningful exercise, in putting emphasis on what the > committee was abdicating from rather than what it was recommending. Similar > is the situation with our dissent notes with respect to the jurisdiction > sub-group's report.. > > parminder > > > > > > So what the dissent is about, really, is that they could not achieve > consensus on their own position regarding a much broader take on > jurisdiction and immunity. And yet we all know that their position could > never achieve consensus. So their disputing the consensus basis of this > report amounts to a block what most of us could agree on > > > > *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounc > es(a)icann.org <ws2-jurisdiction-bounces(a)icann.org>] *On Behalf Of * > parminder > *Sent:* Monday, October 16, 2017 3:40 AM > *To:* Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br> > <thiago.jardim(a)itamaraty.gov.br>; accountability-cross-community(a)icann.org > *Cc:* acct-staff(a)icann.org; gac(a)icann.org; GAC <gac(a)gac.icann.org> > <gac(a)gac.icann.org>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org> > <ws2-jurisdiction(a)icann.org> > *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Subgroup. Draft Report. > Statement of Brazil. Annex. To be annexed to the draft report. For > consideration by the CCWG. > > > > Dear All > > Enclosed is the complete document of my dissenting opinion, which now > includes part 2 as well (with some modifications in part 1) as a single > document. Please ignore the earlier submitted document. > > This is for CCWG's consideration. Also for jurisdiction sub-group, > assuming that it continues to function. > > Best regards > > parminder > > > > On Sunday 15 October 2017 11:51 PM, parminder wrote: > > Dear All > > I fully support the excellent "statement of Brazil", which makes the > required point very well. The sub-group should consider the draft > recommendations made in the statement. In default, the CCWG should directly > consider them. > > My own dissenting opinion is enclosed. It is in two parts, part 1 is about > what was the group's mandate to do but it failed to do. This part first > expresses support to Brazil's statement, and then makes additional points, > detailing how there has been a miscarriage of due process, and thus > justifying why Brazil's draft recs must be considered, in the required > elaborate manner. Part one is enclosed herewith. > > Part two will present some comments on and disagreements with regard to > the two sets of draft recs that have been submitted on the sub-group's > behalf. I am still to write them, so allow me to submit them in the next 12 > hours, which will still be the weekend in some parts of the world, and thus > within the deadline I hope. > > Best regards, parminder > > > > On Sunday 15 October 2017 06:43 AM, Thiago Braz Jardim Oliveira wrote: > > Dear all, > > > > On behalf of the Brazilian Government, I hereby submit the "Statement of > Brazil" and its annex, which are to be annexed to the draft report of the > jurisdiction subgroup, submitted on 11 October 2017, for consideration by > the CCWG plenary. > > > > Best regards, > > > > Thiago > > > > > > > ------------------------------ > > *De:* ws2-jurisdiction-bounces(a)icann.org [ws2-jurisdiction-bounces@ican > n.org] em nome de Greg Shatan [gregshatanipc(a)gmail.com] > *Enviado:* quinta-feira, 12 de outubro de 2017 23:29 > *Para:* accountability-cross-community(a)icann.org > *Cc:* acct-staff(a)icann.org; ws2-jurisdiction > *Assunto:* Re: [Ws2-jurisdiction] Jurisdiction Subgroup Draft Report for > CCWG-Accountability Plenary Review > > All, > > > > One of the Subgroup members pointed out a minor editing error in the > document. On pages 13-14, there were several mentions of the RAA, when in > fact the language quoted and discussed was from the ICANN Terms and > Conditions for Registrar Accreditation Application. (The reference was > correct in the Executive Summary.) This has now been fixed in the attached. > > > > Greg > > > > On Thu, Oct 12, 2017 at 10:10 PM, Greg Shatan <gregshatanipc(a)gmail.com> > wrote: > > All, > > > > Some minor formatting errors crept into the Report when it was converted > from Word to PDF. A new PDF of the report is attached. I've checked each > page to confirm that the formatting errors were resolved. > > > > Thank you to Jorge Cancio for catching this problem! > > > > Greg > > > > On Wed, Oct 11, 2017 at 7:53 PM, Greg Shatan <gregshatanipc(a)gmail.com> > wrote: > > All, > > > > I am pleased to submit the Draft Report from the Jurisdiction Subgroup for > consideration by the CCWG-Accountability Plenary. > > > > It is my understanding that a minority viewpoint is expected to be > submitted. In the interests of time, this will be submitted to the Plenary > separately from the Draft Report. > > > > *During the preparation of the OFAC Recommendation, the Subgroup > considered an email where a registrar declined to do business with a > potential reseller, based on the registrar’s policy of not doing business > with people with Iranian passports. The Subgroup also learned that this > registrar, which had been registering domains for a number of Iranian > nationals, refused to continue to do business with them. The Subgroup has > concluded that, to the extent these instances are related to OFAC, the > concerns raised by these instances are adequately covered in the > Recommendation already without any additional changes. This is not in any > way a comment on the validity of these particular concerns. The Subgroup > will consider creating "stress tests" based on these scenarios.* > > > > I look forward to the Plenary's reading of the Draft Report. > > > > Best regards, > > > > Greg Shatan > > *Rapporteur* > > > > > > > > > > _______________________________________________ > > 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 > > > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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CCWG plenary. Jurisdiction Subgroup Draft Report - Minority viewpoint
by Benedicto Fonseca Filho Oct. 18, 2017

Oct. 18, 2017

Dear all, I have been following carefully the discussions in the list. I do not intend to respond to the many points that were raised, but I think it is important to bear in mind the following, in preparation for tomorrow´s call: 1 - Our rules of engagement provide that "In the absence of full consensus, the Chair(s) should allow for the submission of minority viewpoint(s) and these, along with the consensus view, shall be included in the report" This is exactly the situation we are experiencing here. There is no full consensus in regard to the report, as there are formal objections. Those who, similarly to Brazil, object to the report, should be allowed to submit their minority viewpoint(s) and these shall be included in the report. It is as simple as that. Needless to say that those who have minority views should be free to choose the way they wish to make their views known, the rationale they are following, the reasons why they can´t accept the proposed recommendations or why they think those recommendations are insufficient, etc. There is no pre-determined format or template to be followed. In other words, the drafting of the minority viewpoints should be the responsibility of those those who hold such minority views and not be subject to collective deliberation. 2 - I acknowledge, on the other hand, that the "Statement" we circulated last Saturday might have included elements that we may consider to withdraw or reformulate without undermining the essence of our reasoning. I would think it would be appropriate, for example, for us to consider deletion of some portions of text included in the last paragraph of the first page of our "Statement" (Finally, Brazil objects to the portrayal of the report of a consensus document...") as they have elicited unnecessary controversy in regard to the process. Similarly, we could entertain changing, as per the results of discussions at the CCWG meeting, the way we have presented recommendations we would like to have seen in the report (the absence of which makes the whole report unacceptable to us), in order to make sure our document is duly formatted as a minority viewpoint and not be seen as additional input for further work at this stage. In that case, we could reformulate, for example, the introductory paragraph of point 6 ("Brazil calls upon the CCWG to include in a final report on jurisdiction recommendations to the effect that..." 3 - I wish to further clarify that both the Statement and its annex should be read as a single document. Both are needed to clarify the context and the substance of our objection. As stated above, however, we could agree to change the final outline of the document as a whole provided it is duly included in the report as a minority view. 4 - Finally, I should state that several comments that were posted on the list - some of them ironical or even outright disrespectful - seem to be guided by a very poor and narrow view of what should be the essence of the multistakeholder approach to Internet governance. At this point, I would like to state that what takes place in ICANN - although unique - is not dissociated from the rest of the ecosystem. If we want to put in place and improve an operational environment in which all stakeholders can exercise their roles and responsibilities, as per the Tunis Agenda for the Information Society, mutual respect and mutal recognition are needed. One of the main concerns that has guided our participation throughout this exercise was the attempt to explore a formula that would be aligned with the principle of sovereign equality among States. This is an un-negotiable principle and we cannot endorse any framework (either at ICANN or beyond) that would not adequately address this topic. This is not incompatible with maintaining ICANN's multistakeholder character nor should it be interpreted - as some maliciously do - as defending that ICANN becomes a government-led organisation. Finally, may I just recall that NETMundial, which Brazil is proud to have hosted, has called for the process of globalization of ICANN should lead up to a "truly international and global organization". I don´t recall at the time no one ridiculing that notion nor saying it was unrealistic or politically unachievable. I assume there is a long way towards that ultimate goal and that times are not favorable, however I would strongly advocate against losing sight of the vision that NETMundial provided us with. This should lead us to look into the challenges surrounding jurisdiction in a much bolder and comprehensive way than we were able to do. That´s why, in essence, we cannot agree with a report that shows the way for some "quick fixes" that, although important, are not sufficient to meet the expectations that led to the incorporation of that particular stream in WS2. Best regards, Benedicto -- This message has been scanned by E.F.A. Project and is believed to be clean.

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SGT Jurisdiction. Final Report. Statement from Brazil.
by Benedicto Fonseca Filho Oct. 16, 2017

Oct. 16, 2017

Dear Greg, Dear all, Could you please make sure the message below appears in the e-mail you will send to the CCWG plenary with the report? "Brazil expresses its opposition to the "Final Report" on Jurisdiction that is being submitted to the CCWG plenary. The report does not address the concerns Brazil and others repeatedly raised during the work of the subgroup, nor does it duly take into account the contributions Brazil and others timely submitted on jurisdictional issues that motivated the launching of Work Stream 2. Furthermore, the report falls short of the objectives envisaged for Work Stream 2 – in particular the need to ensure that ICANN is accountable towards all stakeholders –, by not tackling the issue of ICANN's subjection to US jurisdiction, as well as leaving untouched the unsatisfactory situation where US authorities (tribunals, enforcement agencies, regulatory bodies, etc.) can possibly interfere with the activities ICANN performs in the global public interest. As we have stated from day one of Work Stream 1 back in 2014, Brazil cannot accept this state of affairs – where Governments are not placed on an equal footing vis-à-vis the country of incorporation as regards their ability to participate in ICANN's management of Internet global resources –, which is not in line with the rules and principles embodied in the Tunis Agenda for the Information Society nor with the fundamental tenets of the multi-stakeholder approach, which we uphold and support. In this respect, Brazil recalls that its non-opposition to the conclusion and outcome of Work Stream 1 was made in good faith based on the understanding that a satisfactory settlement of the jurisdictional issues, as identified during the transition process, would be addressed in a satisfactory manner. We are saddened to notice that the report does not live up to that expectation. Finally, Brazil objects to the portrayal of the report as a consensus document, which we understand is due to an incorrect consensus-level designation made by the Chair, as well as the fact that many views and contributions made during the process – including in some cases our own - were systematically disregarded or ignored, with no effort being made in order to build consensus and bridge differences with respect to these views and contributions. Brazil will submit within the agreed deadline a document to be attached to report with the points we consider should have been included therein." Best regards, Benedicto ________________________________ De: ws2-jurisdiction-bounces(a)icann.org [ws2-jurisdiction-bounces(a)icann.org] em nome de Greg Shatan [gregshatanipc(a)gmail.com] Enviado: quarta-feira, 11 de outubro de 2017 15:42 Para: ws2-jurisdiction Cc: acct-staff(a)icann.org Assunto: [Ws2-jurisdiction] Documents for Review and Approval in Today's Meeting All, I attach the current drafts of the Draft Report (including the OFAC Recommendations) and the Choice of Law and Venue Recommendation, as Word and PDF documents. The current drafts are also available as Google Docs. In order to keep the drafts synchronized, I have changed the sharing status of the Draft Report to "view only" and copied the Choice of Law and Venue draft into a new Google Doc, with view only status. Links are below: Draft Report: MailScanner has detected definite fraud in the website at "docs.google.com". Do not trust this website: https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtR…<https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtR…> Choice of Law and Venue: MailScanner has detected definite fraud in the website at "docs.google.com". Do not trust this website: https://docs.google.com/document/d/1Z7A233KiPQV2ijVgWzxWOv3eePTy9rSPIMFxbiZ…<https://docs.google.com/document/d/1Z7A233KiPQV2ijVgWzxWOv3eePTy9rSPIMFxbiZ…> There is only one suggested change to look at at in the Draft Report. There are a number of suggested changes in the Choice of Law and Venue Recommendation. Unless the Subgroup decides otherwise, these changes will be made final after the meeting. (Note that other text is still open for suggested changes even if not marked in the document, but these changes will need to be finalized on the call. There are also a number of "Comments" in the documents. These are left in so you can see them, but they will be taken out when the document is finalized for submission to the Plenary. (Note: It's easier to see the comments on the PDF but some are truncated. In the Word doc, you'll need to click on each one to expand it. It's easiest to see them all in the Google Doc.) THESE DOCUMENTS MUST BE SENT TO THE PLENARY BY 23:59 UTC TODAY IN ORDER TO BE PART OF THE CCWG REPORT. I look forward to our upcoming call. Greg

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

Oct. 15, 2017

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

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

Oct. 13, 2017

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

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

Oct. 13, 2017

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

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

Oct. 11, 2017

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

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

Oct. 11, 2017

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

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

Oct. 11, 2017

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

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