Dear Greg, Thank You very much for the draft I was unable to attend the last meeting as I was on the Plane However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. The inclusion of that bolded paragraph, has a negative connotation as it negate and neutralize the action(s) described / required in that paragraph. I therefore suggest the following amendment which convey the same message but in positive sense See Below * ” 4. Application Process.* Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. While ICANN ,in principle, is under no obligations to seek such licenses and, in any given case, and OFAC may decide not to issue a requested license, nevertheless ICANN, is required to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as a registrar (and is not on the SDN List). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar. Moreover, I saw that you referring to the comments from Non Commerciale Stakeholder that you want to consider for which I have no objection but, Why you have not taken into account comments from Russia, Italy, France into account It seems you have totally ignore these comments that formally requested you to briefly refer to the French, Italian, Russian comments in the introductory part Regards . Kavouss
Kavouss, The Paragraph 4 you refer to is a quote from the current "ICANN Terms and Conditions for the Registrar Accreditation Application" found at https://www.icann.org/resources/pages/application-2012-02-25-en. The last sentence is bolded for emphasis only. Since it is in the Report to show the current facts, we cannot amend it. The Report text that follows this quote states: "*The last sentence should be amended to require ICANN to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as qualified to be a registrar (and is not on the SDN List)." I believe this takes care of your concern.* *I express no view regarding whether the Subgroup should change its consensus based on the NCSG comment. This was the last comment reviewed on the prior call, during our second reading of the comments. There was general interest in considering whether to change the Recommendation referred to. No conclusions were reached, and the discussion was not finished. I suggested that the consideration of the comment would be easier if an NCSG representative provided a proposed revision to the Recommendation implementing the Comment.* *We have taken all comments into account in our work. If a comment and the ensuing discussion cause the group to develop a consensus that text should be changed, then the relevant text in the Report is changed. Specific comments are not referred to here or in any other part of the CCWG Report. This was the subject of discussion at the beginning of the last call, with Thomas Rickert joining us specifically to discuss this point. In case you have not reviewed the transcript/captions, I'll paste the relevant text at the end of the email. * Based on the prior call, text was added to the "Overview of the Work of the Subgroup" referring to the public comment process generally and including a link to where the comments may be found. This new text reads: *The Subgroup’s proposed recommendations were submitted to the CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting on 27 October 2017 included a discussion focused on jurisdiction issues. A transcript of these discussions included as Annex [F] to this Report.* *The draft Report was approved by consensus as defined in the CCWG-Accountability charter, and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex [E] of the Report.* *The draft Report was published for Public Comment on November 14, 2017. The Public Comment period closed on January 14, 2018. Fifteen comments were received. These comments may be found at https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. These comments were summarized by ICANN staff in a “comment tool” spreadsheet, which may be found at [insert link]. These comments were duly considered and discussed by the Subgroup. Where this led to a change to the Subgroup’s consensus, the draft Report was then changed to reflect the new consensus.* I look forward to comments from you and the rest of the subgroup on this and the other proposed changes in the revised Report. Best regards, Greg *EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*
THOMAS RICKERT: Sorry I was double muted. I had unmuted my phone and I had to unmute
myself in addition to the Adobe room. This is Thomas Rickert speaking. Thank you Greg for handing it over to me. Good afternoon, morning, evening to all of you. I'm very grateful to Greg for allowing me to speak for a little bit. Because I made an observation when looking at the public comments that I think you know, gave me the opportunity to speak to this group for a moment. And I would suggest that if you have a different opinion to what I'm proposing right now, we should try to sort this out up front. But I guess if we are aligned on the principles that I'm going the share with you, then I think we should apply those principles when we are looking at the public comment. This is something that doesn't only go for the jurisdiction sub-team but it would go for all public comment analysis in the CCWGN and it's sub-teams. And sub-teams reports, all of them have been prepared by the perspective sub-teams and adopted by the respective sub-teams and presented to the plenary and the plenary has adopted the report and then the public comment is there to serve as a vetting process, if you wish. With the wider community to see when there's anything in our recommendations that we forgot had that, and we would look at this comment to see yeah, this is something that was already discussed or this is a new aspect. And then this new aspect might warrant that the report is amended or it might not warrant that the report is amended. Because what the public comment period is not really designed for is to give members and for pants of the -- of the sub-teams or CCWG that have already in part of the consensus forming during the preparation of the recommendations in the past another opportunity to chime in and increase the weight of their statement or position. So don't get me wrong, certainly it's most welcome for everyone to identify positive comment and positive or negative comments do help everyone understand better where we are with the recommendations much but for those that have chimed in already during the deliberations, you know, their views have already been amalgamated into the findings of the sub-team. Therefore these would not get additional weight or second would it of the apple as we tend to say in this environment as when I goes to recognizing the views and adopting them in the report. So let me just check with everyone whether that's a long the lines of your thinking as well. And let me pause here. Greg is chiming in don't be excessive. That's a good point. And for those that have haven't been part 1 there's some historical fun that we seem to have and still have. So thanks for bringing that up Steve.
CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah I'm saying I'm very comfortable with that. I think we need to make the difference however between an individual and entities. I for example would think that the ILAC and at large, if they represent is by 5 members for example on various things, members and participants often operate without the full con silence use of the ALAC and the total at large obviously. So I think we need to have that ruling, but recognize there may be a difference between a consensus voted upon statement from a support organization or advisory committee. And from a participants during the process. Thanks.
THOMAS RICKERT: Thanks very much Cheryl. And that's a excellent point that you make. And I think it's a perfect and true that there may be an incomers between the person that is participating in the sub-team and actually the views that are presented by the group that that person might happen to work with. But we did have cases where the views of a group have been injected into the sub-teams work already. So I'm talking about the cases where you have coumarinsy during the input that was given during the deliberations of the recommendations and comments during the public comment period. So thanks for pointing that out. I don't see any other hand, accept for David's. David, the floor is yours please.
DAVID McAULEY: Thomas thank you it's David McAuley for the record. I'm going to weigh in even though I missed a little bit of what you said as my phone sort of broke away. I had a little bit of connection difficulty. But in any event and listening to the later part of what you said and what Cheryl said, I think one of the things we will struggle with in this working group and perhaps others where the comments coming in or the discussion of the comments really centers not so much on the initial input but rather on the matter of clarification and let me illustrate here in jurisdiction. In jurisdiction we recommend that on governing law issues there would be a menu approach but we also couch that in terms of saying we are not recommending -- what we are doing is saying the ICANN and contracted parties, the GNSO should consider this. And then the government of Denmark came in with a comment saying in a menu approach it should be a matter of choice by the registrar or registry issue. It should note be a matter of issue to choosing the government law.
The clarification would be if you have a menu approach and done regionally could someone in North America choose governing law from Asia and were not things decided. It would be clarification, natural clarification that comes from the consequence of someone's comments. I think we can get through it but I think it's going to be difficult. Anyway that's the nature of my comment. Thanks Thomas.
THOMAS RICKERT: Thanks so much David that's a excellent point. I want to make sure we are all aligned in term of expectations. And I guess
that if there are comments by somebody who has represented a view in the course of the work of the sub-team already, and if that point is repeated during the public comment period, that will not give that voice additional weight. That's it in a nutshell. Greg you have your hand raised and I think it's quite convenient because I was about to hand it back over to you anyway. Thanks for your time.
GREG SHATAN: Thank you Thomas. I think one corollary and Thomas correct me if I'm wrong if I'm not getting this right, but a corollary to what you were saying about comments and how they are treated here and elsewhere in the subgroups and in the plenary for that matter is that comments are reviewed by the group and if there's a consensus in the group that the report needs to change, having taken on consideration of the comments. Then the report will be changed. Based on that new consensus. But the existence of comments or if you will, the raw material of any particular comment won't be reflected in the report. I think the comment list rather the mail list to which the comment was sent will continue to exist. And I think we can put a link to that mail list into the report. Acknowledging the comments are there. But other than that, unless the group as a whole or has brought agreement that we didn't get it right the first time and comments have shown us the error of our ways, that the report doesn't get changed.
Is that your understanding as well Thomas? As how it's being handled over all.
THOMAS RICKERT: Yes that's my understanding. That's a good point related to the one I was mentioning. So I guess that what I'm mentioning is we have a what you typically do is you make a link to the public comment and the public comment analysis -- public comment review to us as it's called at least in the GNSO where everything is collected. And this particular case our suggestion would be however to have a slightly different language not only pointing to the public comment review tool but making things a little bit more explicit and, also, with respect to the meetings and to meeting minutes of the extensive jurisdiction debate that we had in Abui Dubaiy as well a the minority statement that we got. We are going the frame it slightly differently here but the substance of the report will only be amended in the circumstances that you also outlined Greg.
GREG SHATAN: Okay thank you for that clarification Thomas.
Or for clarifying that my clarification was correct. And, also, for the additional suggestion of how we should refer to other important materials from our deliberations. On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com
wrote:
Dear Greg, Thank You very much for the draft I was unable to attend the last meeting as I was on the Plane However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. The inclusion of that bolded paragraph, has a negative connotation as it negate and neutralize the action(s) described / required in that paragraph. I therefore suggest the following amendment which convey the same message but in positive sense See Below * ” 4. Application Process.* Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. While ICANN ,in principle, is under no obligations to seek such licenses and, in any given case, and OFAC may decide not to issue a requested license, nevertheless ICANN, is required to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as a registrar (and is not on the SDN List). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar. Moreover, I saw that you referring to the comments from Non Commerciale Stakeholder that you want to consider for which I have no objection but, Why you have not taken into account comments from Russia, Italy, France into account It seems you have totally ignore these comments that formally requested you to briefly refer to the French, Italian, Russian comments in the introductory part Regards . Kavouss
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment? there were other occasions in which the group modified its conclusions based on public comments,Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
The Paragraph 4 you refer to is a quote from the current "ICANN Terms and Conditions for the Registrar Accreditation Application" found at https://www.icann.org/resources/pages/application-2012-02-25-en. The last sentence is bolded for emphasis only. Since it is in the Report to show the current facts, we cannot amend it. The Report text that follows this quote states: "*The last sentence should be amended to require ICANN to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as qualified to be a registrar (and is not on the SDN List)." I believe this takes care of your concern.*
*I express no view regarding whether the Subgroup should change its consensus based on the NCSG comment. This was the last comment reviewed on the prior call, during our second reading of the comments. There was general interest in considering whether to change the Recommendation referred to. No conclusions were reached, and the discussion was not finished. I suggested that the consideration of the comment would be easier if an NCSG representative provided a proposed revision to the Recommendation implementing the Comment.*
*We have taken all comments into account in our work. If a comment and the ensuing discussion cause the group to develop a consensus that text should be changed, then the relevant text in the Report is changed. Specific comments are not referred to here or in any other part of the CCWG Report. This was the subject of discussion at the beginning of the last call, with Thomas Rickert joining us specifically to discuss this point. In case you have not reviewed the transcript/captions, I'll paste the relevant text at the end of the email. *
Based on the prior call, text was added to the "Overview of the Work of the Subgroup" referring to the public comment process generally and including a link to where the comments may be found. This new text reads:
*The Subgroup’s proposed recommendations were submitted to the CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting on 27 October 2017 included a discussion focused on jurisdiction issues. A transcript of these discussions included as Annex [F] to this Report.*
*The draft Report was approved by consensus as defined in the CCWG-Accountability charter, and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex [E] of the Report.*
*The draft Report was published for Public Comment on November 14, 2017. The Public Comment period closed on January 14, 2018. Fifteen comments were received. These comments may be found at https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. These comments were summarized by ICANN staff in a “comment tool” spreadsheet, which may be found at [insert link]. These comments were duly considered and discussed by the Subgroup. Where this led to a change to the Subgroup’s consensus, the draft Report was then changed to reflect the new consensus.*
I look forward to comments from you and the rest of the subgroup on this and the other proposed changes in the revised Report.
Best regards,
Greg
*EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*
THOMAS RICKERT: Sorry I was double muted. I had unmuted my phone and I had to unmute
myself in addition to the Adobe room. This is Thomas Rickert speaking. Thank you Greg for handing it over to me. Good afternoon, morning, evening to all of you.
I'm very grateful to Greg for allowing me to speak for a little bit. Because I made an observation when looking at the public comments that I think you know, gave me the opportunity to speak to this group for a moment. And I would suggest that if you have a different opinion to what I'm proposing right now, we should try to sort this out up front. But I guess if we are aligned on the principles that I'm going the share with you, then I think we should apply those principles when we are looking at the public comment. This is something that doesn't only go for the jurisdiction sub-team but it would go for all public comment analysis in the CCWGN and it's sub-teams. And sub-teams reports, all of them have been prepared by the perspective sub-teams and adopted by the respective sub-teams and presented to the plenary and the plenary has adopted the report and then the public comment is there to serve as a vetting process, if you wish. With the wider community to see when there's anything in our recommendations that we forgot had that, and we would look at this comment to see yeah, this is something that was already discussed or this is a new aspect. And then this new aspect might warrant that the report is amended or it might not warrant that the report is amended.
Because what the public comment period is not really designed for is to give members and for pants of the -- of the sub-teams or CCWG that have already in part of the consensus forming during the preparation of the recommendations in the past another opportunity to chime in and increase the weight of their statement or position. So don't get me wrong, certainly it's most welcome for everyone to identify positive comment and positive or negative comments do help everyone understand better where we are with the recommendations much but for those that have chimed in already during the deliberations, you know, their views have already been amalgamated into the findings of the sub-team. Therefore these would not get additional weight or second would it of the apple as we tend to say in this environment as when I goes to recognizing the views and adopting them in the report.
So let me just check with everyone whether that's a long the lines of your thinking as well. And let me pause here. Greg is chiming in don't be excessive. That's a good point. And for those that have haven't been part 1 there's some historical fun that we seem to have and still have. So thanks for bringing that up Steve.
CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah I'm saying I'm very comfortable with that. I think we need to make the difference however between an individual and entities. I for example would think that the ILAC and at large, if they represent is by 5 members for example on various things, members and participants often operate without the full con silence use of the ALAC and the total at large obviously. So I think we need to have that ruling, but recognize there may be a difference between a consensus voted upon statement from a support organization or advisory committee. And from a participants during the process. Thanks.
THOMAS RICKERT: Thanks very much Cheryl. And that's a excellent point that you make. And I think it's a perfect and true that there may be an incomers between the person that is participating in the sub-team and actually the views that are presented by the group that that person might happen to work with. But we did have cases where the views of a group have been injected into the sub-teams work already. So I'm talking about the cases where you have coumarinsy during the input that was given during the deliberations of the recommendations and comments during the public comment period. So thanks for pointing that out. I don't see any other hand, accept for David's. David, the floor is yours please.
DAVID McAULEY: Thomas thank you it's David McAuley for the record. I'm going to weigh in even though I missed a little bit of what you said as my phone sort of broke away. I had a little bit of connection difficulty. But in any event and listening to the later part of what you said and what Cheryl said, I think one of the things we will struggle with in this working group and perhaps others where the comments coming in or the discussion of the comments really centers not so much on the initial input but rather on the matter of clarification and let me illustrate here in jurisdiction. In jurisdiction we recommend that on governing law issues there would be a menu approach but we also couch that in terms of saying we are not recommending -- what we are doing is saying the ICANN and contracted parties, the GNSO should consider this. And then the government of Denmark came in with a comment saying in a menu approach it should be a matter of choice by the registrar or registry issue. It should note be a matter of issue to choosing the government law.
The clarification would be if you have a menu approach and done regionally could someone in North America choose governing law from Asia and were not things decided. It would be clarification, natural clarification that comes from the consequence of someone's comments. I think we can get through it but I think it's going to be difficult. Anyway that's the nature of my comment. Thanks Thomas.
THOMAS RICKERT: Thanks so much David that's a excellent point. I want to make sure we are all aligned in term of expectations. And I guess
that if there are comments by somebody who has represented a view in the course of the work of the sub-team already, and if that point is repeated during the public comment period, that will not give that voice additional weight. That's it in a nutshell. Greg you have your hand raised and I think it's quite convenient because I was about to hand it back over to you anyway. Thanks for your time.
GREG SHATAN: Thank you Thomas. I think one corollary and Thomas correct me if I'm wrong if I'm not getting this right, but a corollary to what you were saying about comments and how they are treated here and elsewhere in the subgroups and in the plenary for that matter is that comments are reviewed by the group and if there's a consensus in the group that the report needs to change, having taken on consideration of the comments. Then the report will be changed. Based on that new consensus. But the existence of comments or if you will, the raw material of any particular comment won't be reflected in the report. I think the comment list rather the mail list to which the comment was sent will continue to exist. And I think we can put a link to that mail list into the report. Acknowledging the comments are there. But other than that, unless the group as a whole or has brought agreement that we didn't get it right the first time and comments have shown us the error of our ways, that the report doesn't get changed.
Is that your understanding as well Thomas? As how it's being handled over all.
THOMAS RICKERT: Yes that's my understanding. That's a good point related to the one I was mentioning. So I guess that what I'm mentioning is we have a what you typically do is you make a link to the public comment and the public comment analysis -- public comment review to us as it's called at least in the GNSO where everything is collected. And this particular case our suggestion would be however to have a slightly different language not only pointing to the public comment review tool but making things a little bit more explicit and, also, with respect to the meetings and to meeting minutes of the extensive jurisdiction debate that we had in Abui Dubaiy as well a the minority statement that we got. We are going the frame it slightly differently here but the substance of the report will only be amended in the circumstances that you also outlined Greg.
GREG SHATAN: Okay thank you for that clarification Thomas.
Or for clarifying that my clarification was correct. And, also, for the additional suggestion of how we should refer to other important materials from our deliberations.
On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank You very much for the draft I was unable to attend the last meeting as I was on the Plane However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. The inclusion of that bolded paragraph, has a negative connotation as it negate and neutralize the action(s) described / required in that paragraph. I therefore suggest the following amendment which convey the same message but in positive sense See Below * ” 4. Application Process.* Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. While ICANN ,in principle, is under no obligations to seek such licenses and, in any given case, and OFAC may decide not to issue a requested license, nevertheless ICANN, is required to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as a registrar (and is not on the SDN List). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar. Moreover, I saw that you referring to the comments from Non Commerciale Stakeholder that you want to consider for which I have no objection but, Why you have not taken into account comments from Russia, Italy, France into account It seems you have totally ignore these comments that formally requested you to briefly refer to the French, Italian, Russian comments in the introductory part Regards . Kavouss
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment? there were other occasions in which the group modified its conclusions based on public comments, Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments Regards Kavouss On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments,Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments
On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
The Paragraph 4 you refer to is a quote from the current "ICANN Terms and Conditions for the Registrar Accreditation Application" found at https://www.icann.org/resources/pages/application-2012-02-25-en. The last sentence is bolded for emphasis only. Since it is in the Report to show the current facts, we cannot amend it. The Report text that follows this quote states: "*The last sentence should be amended to require ICANN to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as qualified to be a registrar (and is not on the SDN List)." I believe this takes care of your concern.*
*I express no view regarding whether the Subgroup should change its consensus based on the NCSG comment. This was the last comment reviewed on the prior call, during our second reading of the comments. There was general interest in considering whether to change the Recommendation referred to. No conclusions were reached, and the discussion was not finished. I suggested that the consideration of the comment would be easier if an NCSG representative provided a proposed revision to the Recommendation implementing the Comment.*
*We have taken all comments into account in our work. If a comment and the ensuing discussion cause the group to develop a consensus that text should be changed, then the relevant text in the Report is changed. Specific comments are not referred to here or in any other part of the CCWG Report. This was the subject of discussion at the beginning of the last call, with Thomas Rickert joining us specifically to discuss this point. In case you have not reviewed the transcript/captions, I'll paste the relevant text at the end of the email. *
Based on the prior call, text was added to the "Overview of the Work of the Subgroup" referring to the public comment process generally and including a link to where the comments may be found. This new text reads:
*The Subgroup’s proposed recommendations were submitted to the CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting on 27 October 2017 included a discussion focused on jurisdiction issues. A transcript of these discussions included as Annex [F] to this Report.*
*The draft Report was approved by consensus as defined in the CCWG-Accountability charter, and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex [E] of the Report.*
*The draft Report was published for Public Comment on November 14, 2017. The Public Comment period closed on January 14, 2018. Fifteen comments were received. These comments may be found at https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. These comments were summarized by ICANN staff in a “comment tool” spreadsheet, which may be found at [insert link]. These comments were duly considered and discussed by the Subgroup. Where this led to a change to the Subgroup’s consensus, the draft Report was then changed to reflect the new consensus.*
I look forward to comments from you and the rest of the subgroup on this and the other proposed changes in the revised Report.
Best regards,
Greg
*EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*
THOMAS RICKERT: Sorry I was double muted. I had unmuted my phone and I had to unmute
myself in addition to the Adobe room. This is Thomas Rickert speaking. Thank you Greg for handing it over to me. Good afternoon, morning, evening to all of you.
I'm very grateful to Greg for allowing me to speak for a little bit. Because I made an observation when looking at the public comments that I think you know, gave me the opportunity to speak to this group for a moment. And I would suggest that if you have a different opinion to what I'm proposing right now, we should try to sort this out up front. But I guess if we are aligned on the principles that I'm going the share with you, then I think we should apply those principles when we are looking at the public comment. This is something that doesn't only go for the jurisdiction sub-team but it would go for all public comment analysis in the CCWGN and it's sub-teams. And sub-teams reports, all of them have been prepared by the perspective sub-teams and adopted by the respective sub-teams and presented to the plenary and the plenary has adopted the report and then the public comment is there to serve as a vetting process, if you wish. With the wider community to see when there's anything in our recommendations that we forgot had that, and we would look at this comment to see yeah, this is something that was already discussed or this is a new aspect. And then this new aspect might warrant that the report is amended or it might not warrant that the report is amended.
Because what the public comment period is not really designed for is to give members and for pants of the -- of the sub-teams or CCWG that have already in part of the consensus forming during the preparation of the recommendations in the past another opportunity to chime in and increase the weight of their statement or position. So don't get me wrong, certainly it's most welcome for everyone to identify positive comment and positive or negative comments do help everyone understand better where we are with the recommendations much but for those that have chimed in already during the deliberations, you know, their views have already been amalgamated into the findings of the sub-team. Therefore these would not get additional weight or second would it of the apple as we tend to say in this environment as when I goes to recognizing the views and adopting them in the report.
So let me just check with everyone whether that's a long the lines of your thinking as well. And let me pause here. Greg is chiming in don't be excessive. That's a good point. And for those that have haven't been part 1 there's some historical fun that we seem to have and still have. So thanks for bringing that up Steve.
CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah I'm saying I'm very comfortable with that. I think we need to make the difference however between an individual and entities. I for example would think that the ILAC and at large, if they represent is by 5 members for example on various things, members and participants often operate without the full con silence use of the ALAC and the total at large obviously. So I think we need to have that ruling, but recognize there may be a difference between a consensus voted upon statement from a support organization or advisory committee. And from a participants during the process. Thanks.
THOMAS RICKERT: Thanks very much Cheryl. And that's a excellent point that you make. And I think it's a perfect and true that there may be an incomers between the person that is participating in the sub-team and actually the views that are presented by the group that that person might happen to work with. But we did have cases where the views of a group have been injected into the sub-teams work already. So I'm talking about the cases where you have coumarinsy during the input that was given during the deliberations of the recommendations and comments during the public comment period. So thanks for pointing that out. I don't see any other hand, accept for David's. David, the floor is yours please.
DAVID McAULEY: Thomas thank you it's David McAuley for the record. I'm going to weigh in even though I missed a little bit of what you said as my phone sort of broke away. I had a little bit of connection difficulty. But in any event and listening to the later part of what you said and what Cheryl said, I think one of the things we will struggle with in this working group and perhaps others where the comments coming in or the discussion of the comments really centers not so much on the initial input but rather on the matter of clarification and let me illustrate here in jurisdiction. In jurisdiction we recommend that on governing law issues there would be a menu approach but we also couch that in terms of saying we are not recommending -- what we are doing is saying the ICANN and contracted parties, the GNSO should consider this. And then the government of Denmark came in with a comment saying in a menu approach it should be a matter of choice by the registrar or registry issue. It should note be a matter of issue to choosing the government law.
The clarification would be if you have a menu approach and done regionally could someone in North America choose governing law from Asia and were not things decided. It would be clarification, natural clarification that comes from the consequence of someone's comments. I think we can get through it but I think it's going to be difficult. Anyway that's the nature of my comment. Thanks Thomas.
THOMAS RICKERT: Thanks so much David that's a excellent point. I want to make sure we are all aligned in term of expectations. And I guess
that if there are comments by somebody who has represented a view in the course of the work of the sub-team already, and if that point is repeated during the public comment period, that will not give that voice additional weight. That's it in a nutshell. Greg you have your hand raised and I think it's quite convenient because I was about to hand it back over to you anyway. Thanks for your time.
GREG SHATAN: Thank you Thomas. I think one corollary and Thomas correct me if I'm wrong if I'm not getting this right, but a corollary to what you were saying about comments and how they are treated here and elsewhere in the subgroups and in the plenary for that matter is that comments are reviewed by the group and if there's a consensus in the group that the report needs to change, having taken on consideration of the comments. Then the report will be changed. Based on that new consensus. But the existence of comments or if you will, the raw material of any particular comment won't be reflected in the report. I think the comment list rather the mail list to which the comment was sent will continue to exist. And I think we can put a link to that mail list into the report. Acknowledging the comments are there. But other than that, unless the group as a whole or has brought agreement that we didn't get it right the first time and comments have shown us the error of our ways, that the report doesn't get changed.
Is that your understanding as well Thomas? As how it's being handled over all.
THOMAS RICKERT: Yes that's my understanding. That's a good point related to the one I was mentioning. So I guess that what I'm mentioning is we have a what you typically do is you make a link to the public comment and the public comment analysis -- public comment review to us as it's called at least in the GNSO where everything is collected. And this particular case our suggestion would be however to have a slightly different language not only pointing to the public comment review tool but making things a little bit more explicit and, also, with respect to the meetings and to meeting minutes of the extensive jurisdiction debate that we had in Abui Dubaiy as well a the minority statement that we got. We are going the frame it slightly differently here but the substance of the report will only be amended in the circumstances that you also outlined Greg.
GREG SHATAN: Okay thank you for that clarification Thomas.
Or for clarifying that my clarification was correct. And, also, for the additional suggestion of how we should refer to other important materials from our deliberations.
On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank You very much for the draft I was unable to attend the last meeting as I was on the Plane However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. The inclusion of that bolded paragraph, has a negative connotation as it negate and neutralize the action(s) described / required in that paragraph. I therefore suggest the following amendment which convey the same message but in positive sense See Below * ” 4. Application Process.* Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. While ICANN ,in principle, is under no obligations to seek such licenses and, in any given case, and OFAC may decide not to issue a requested license, nevertheless ICANN, is required to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as a registrar (and is not on the SDN List). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar. Moreover, I saw that you referring to the comments from Non Commerciale Stakeholder that you want to consider for which I have no objection but, Why you have not taken into account comments from Russia, Italy, France into account It seems you have totally ignore these comments that formally requested you to briefly refer to the French, Italian, Russian comments in the introductory part Regards . Kavouss
Kavouss, Thank you for your feedback. Thomas was speaking on behalf of the co-chairs, whatever his personal views might be. I have already stated that the group could modify its conclusions based on public comments. This is one of the core reasons for public comments, but the decision to revise consensus is always that of the Subgroup. There is at least one significant proposal to do so in the current draft — to move from a neutral statement about options for picking the “choice of law” from a menu (contracted party choice and negotiation with ICANN), to a statement favoring the contracted party choice. Another possible modification relates to the OFAC General License recommendation, where the Subgroup is still considering a “stiffer” approach for ICANN vs. the one set out in our draft report. That is based on the NCSG Comment you mentioned earlier. Adopting modifications like these (or smaller modifications that serve to improve the text) is the way in which public comments are manifested in Working Group report. While the Subgroup has duly taken into account all of the comments submitted, it is only through causing the Subgroup to decide to change the text that a comment will be manifested. And even then, the comment is not directly mentioned in the Report. Finally, I don’t understand your statement regarding some (majority?) part of the group not wishing to address OFAC. We probably spent more time on OFAC than any other aspect of our work, and half our report covers OFAC/sanctions related issues. So I see no evidence of our Subgroup, or any part of it, not wishing to address OFAC issues. Best regards, Greg On Wed, Feb 14, 2018 at 2:26 AM Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments, Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments Regards Kavouss
On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments,Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments
On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
The Paragraph 4 you refer to is a quote from the current "ICANN Terms and Conditions for the Registrar Accreditation Application" found at https://www.icann.org/resources/pages/application-2012-02-25-en. The last sentence is bolded for emphasis only. Since it is in the Report to show the current facts, we cannot amend it. The Report text that follows this quote states: "*The last sentence should be amended to require ICANN to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as qualified to be a registrar (and is not on the SDN List)." I believe this takes care of your concern.*
*I express no view regarding whether the Subgroup should change its consensus based on the NCSG comment. This was the last comment reviewed on the prior call, during our second reading of the comments. There was general interest in considering whether to change the Recommendation referred to. No conclusions were reached, and the discussion was not finished. I suggested that the consideration of the comment would be easier if an NCSG representative provided a proposed revision to the Recommendation implementing the Comment.*
*We have taken all comments into account in our work. If a comment and the ensuing discussion cause the group to develop a consensus that text should be changed, then the relevant text in the Report is changed. Specific comments are not referred to here or in any other part of the CCWG Report. This was the subject of discussion at the beginning of the last call, with Thomas Rickert joining us specifically to discuss this point. In case you have not reviewed the transcript/captions, I'll paste the relevant text at the end of the email. *
Based on the prior call, text was added to the "Overview of the Work of the Subgroup" referring to the public comment process generally and including a link to where the comments may be found. This new text reads:
*The Subgroup’s proposed recommendations were submitted to the CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting on 27 October 2017 included a discussion focused on jurisdiction issues. A transcript of these discussions included as Annex [F] to this Report.*
*The draft Report was approved by consensus as defined in the CCWG-Accountability charter, and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex [E] of the Report.*
*The draft Report was published for Public Comment on November 14, 2017. The Public Comment period closed on January 14, 2018. Fifteen comments were received. These comments may be found at https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. These comments were summarized by ICANN staff in a “comment tool” spreadsheet, which may be found at [insert link]. These comments were duly considered and discussed by the Subgroup. Where this led to a change to the Subgroup’s consensus, the draft Report was then changed to reflect the new consensus.*
I look forward to comments from you and the rest of the subgroup on this and the other proposed changes in the revised Report.
Best regards,
Greg
*EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*
THOMAS RICKERT: Sorry I was double muted. I had unmuted my phone and I had to unmute
myself in addition to the Adobe room. This is Thomas Rickert speaking. Thank you Greg for handing it over to me. Good afternoon, morning, evening to all of you.
I'm very grateful to Greg for allowing me to speak for a little bit. Because I made an observation when looking at the public comments that I think you know, gave me the opportunity to speak to this group for a moment. And I would suggest that if you have a different opinion to what I'm proposing right now, we should try to sort this out up front. But I guess if we are aligned on the principles that I'm going the share with you, then I think we should apply those principles when we are looking at the public comment. This is something that doesn't only go for the jurisdiction sub-team but it would go for all public comment analysis in the CCWGN and it's sub-teams. And sub-teams reports, all of them have been prepared by the perspective sub-teams and adopted by the respective sub-teams and presented to the plenary and the plenary has adopted the report and then the public comment is there to serve as a vetting process, if you wish. With the wider community to see when there's anything in our recommendations that we forgot had that, and we would look at this comment to see yeah, this is something that was already discussed or this is a new aspect. And then this new aspect might warrant that the report is amended or it might not warrant that the report is amended.
Because what the public comment period is not really designed for is to give members and for pants of the -- of the sub-teams or CCWG that have already in part of the consensus forming during the preparation of the recommendations in the past another opportunity to chime in and increase the weight of their statement or position. So don't get me wrong, certainly it's most welcome for everyone to identify positive comment and positive or negative comments do help everyone understand better where we are with the recommendations much but for those that have chimed in already during the deliberations, you know, their views have already been amalgamated into the findings of the sub-team. Therefore these would not get additional weight or second would it of the apple as we tend to say in this environment as when I goes to recognizing the views and adopting them in the report.
So let me just check with everyone whether that's a long the lines of your thinking as well. And let me pause here. Greg is chiming in don't be excessive. That's a good point. And for those that have haven't been part 1 there's some historical fun that we seem to have and still have. So thanks for bringing that up Steve.
CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah I'm saying I'm very comfortable with that. I think we need to make the difference however between an individual and entities. I for example would think that the ILAC and at large, if they represent is by 5 members for example on various things, members and participants often operate without the full con silence use of the ALAC and the total at large obviously. So I think we need to have that ruling, but recognize there may be a difference between a consensus voted upon statement from a support organization or advisory committee. And from a participants during the process. Thanks.
THOMAS RICKERT: Thanks very much Cheryl. And that's a excellent point that you make. And I think it's a perfect and true that there may be an incomers between the person that is participating in the sub-team and actually the views that are presented by the group that that person might happen to work with. But we did have cases where the views of a group have been injected into the sub-teams work already. So I'm talking about the cases where you have coumarinsy during the input that was given during the deliberations of the recommendations and comments during the public comment period. So thanks for pointing that out. I don't see any other hand, accept for David's. David, the floor is yours please.
DAVID McAULEY: Thomas thank you it's David McAuley for the record. I'm going to weigh in even though I missed a little bit of what you said as my phone sort of broke away. I had a little bit of connection difficulty. But in any event and listening to the later part of what you said and what Cheryl said, I think one of the things we will struggle with in this working group and perhaps others where the comments coming in or the discussion of the comments really centers not so much on the initial input but rather on the matter of clarification and let me illustrate here in jurisdiction. In jurisdiction we recommend that on governing law issues there would be a menu approach but we also couch that in terms of saying we are not recommending -- what we are doing is saying the ICANN and contracted parties, the GNSO should consider this. And then the government of Denmark came in with a comment saying in a menu approach it should be a matter of choice by the registrar or registry issue. It should note be a matter of issue to choosing the government law.
The clarification would be if you have a menu approach and done regionally could someone in North America choose governing law from Asia and were not things decided. It would be clarification, natural clarification that comes from the consequence of someone's comments. I think we can get through it but I think it's going to be difficult. Anyway that's the nature of my comment. Thanks Thomas.
THOMAS RICKERT: Thanks so much David that's a excellent point. I want to make sure we are all aligned in term of expectations. And I guess
that if there are comments by somebody who has represented a view in the course of the work of the sub-team already, and if that point is repeated during the public comment period, that will not give that voice additional weight. That's it in a nutshell. Greg you have your hand raised and I think it's quite convenient because I was about to hand it back over to you anyway. Thanks for your time.
GREG SHATAN: Thank you Thomas. I think one corollary and Thomas correct me if I'm wrong if I'm not getting this right, but a corollary to what you were saying about comments and how they are treated here and elsewhere in the subgroups and in the plenary for that matter is that comments are reviewed by the group and if there's a consensus in the group that the report needs to change, having taken on consideration of the comments. Then the report will be changed. Based on that new consensus. But the existence of comments or if you will, the raw material of any particular comment won't be reflected in the report. I think the comment list rather the mail list to which the comment was sent will continue to exist. And I think we can put a link to that mail list into the report. Acknowledging the comments are there. But other than that, unless the group as a whole or has brought agreement that we didn't get it right the first time and comments have shown us the error of our ways, that the report doesn't get changed.
Is that your understanding as well Thomas? As how it's being handled over all.
THOMAS RICKERT: Yes that's my understanding. That's a good point related to the one I was mentioning. So I guess that what I'm mentioning is we have a what you typically do is you make a link to the public comment and the public comment analysis -- public comment review to us as it's called at least in the GNSO where everything is collected. And this particular case our suggestion would be however to have a slightly different language not only pointing to the public comment review tool but making things a little bit more explicit and, also, with respect to the meetings and to meeting minutes of the extensive jurisdiction debate that we had in Abui Dubaiy as well a the minority statement that we got. We are going the frame it slightly differently here but the substance of the report will only be amended in the circumstances that you also outlined Greg.
GREG SHATAN: Okay thank you for that clarification Thomas.
Or for clarifying that my clarification was correct. And, also, for the additional suggestion of how we should refer to other important materials from our deliberations.
On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank You very much for the draft I was unable to attend the last meeting as I was on the Plane However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. The inclusion of that bolded paragraph, has a negative connotation as it negate and neutralize the action(s) described / required in that paragraph. I therefore suggest the following amendment which convey the same message but in positive sense See Below * ” 4. Application Process.* Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. While ICANN ,in principle, is under no obligations to seek such licenses and, in any given case, and OFAC may decide not to issue a requested license, nevertheless ICANN, is required to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as a registrar (and is not on the SDN List). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar. Moreover, I saw that you referring to the comments from Non Commerciale Stakeholder that you want to consider for which I have no objection but, Why you have not taken into account comments from Russia, Italy, France into account It seems you have totally ignore these comments that formally requested you to briefly refer to the French, Italian, Russian comments in the introductory part Regards . Kavouss
Greg, Further to the last night discussion on " REASONABLE BEST EFFORTS " or other wise footnoted text, I suggest to use the term" Best feasible efforts" There is difference between "Reasonable " and "feasible" thus the latter coiuld better suit with the best efforts Regards Kavouss On Wed, Feb 14, 2018 at 7:03 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
Thank you for your feedback.
Thomas was speaking on behalf of the co-chairs, whatever his personal views might be.
I have already stated that the group could modify its conclusions based on public comments. This is one of the core reasons for public comments, but the decision to revise consensus is always that of the Subgroup.
There is at least one significant proposal to do so in the current draft — to move from a neutral statement about options for picking the “choice of law” from a menu (contracted party choice and negotiation with ICANN), to a statement favoring the contracted party choice.
Another possible modification relates to the OFAC General License recommendation, where the Subgroup is still considering a “stiffer” approach for ICANN vs. the one set out in our draft report. That is based on the NCSG Comment you mentioned earlier.
Adopting modifications like these (or smaller modifications that serve to improve the text) is the way in which public comments are manifested in Working Group report. While the Subgroup has duly taken into account all of the comments submitted, it is only through causing the Subgroup to decide to change the text that a comment will be manifested. And even then, the comment is not directly mentioned in the Report.
Finally, I don’t understand your statement regarding some (majority?) part of the group not wishing to address OFAC. We probably spent more time on OFAC than any other aspect of our work, and half our report covers OFAC/sanctions related issues. So I see no evidence of our Subgroup, or any part of it, not wishing to address OFAC issues.
Best regards,
Greg
On Wed, Feb 14, 2018 at 2:26 AM Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments, Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments Regards Kavouss
On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments,Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments
On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
The Paragraph 4 you refer to is a quote from the current "ICANN Terms and Conditions for the Registrar Accreditation Application" found at https://www.icann.org/resources/pages/application-2012-02-25-en. The last sentence is bolded for emphasis only. Since it is in the Report to show the current facts, we cannot amend it. The Report text that follows this quote states: "*The last sentence should be amended to require ICANN to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as qualified to be a registrar (and is not on the SDN List)." I believe this takes care of your concern.*
*I express no view regarding whether the Subgroup should change its consensus based on the NCSG comment. This was the last comment reviewed on the prior call, during our second reading of the comments. There was general interest in considering whether to change the Recommendation referred to. No conclusions were reached, and the discussion was not finished. I suggested that the consideration of the comment would be easier if an NCSG representative provided a proposed revision to the Recommendation implementing the Comment.*
*We have taken all comments into account in our work. If a comment and the ensuing discussion cause the group to develop a consensus that text should be changed, then the relevant text in the Report is changed. Specific comments are not referred to here or in any other part of the CCWG Report. This was the subject of discussion at the beginning of the last call, with Thomas Rickert joining us specifically to discuss this point. In case you have not reviewed the transcript/captions, I'll paste the relevant text at the end of the email. *
Based on the prior call, text was added to the "Overview of the Work of the Subgroup" referring to the public comment process generally and including a link to where the comments may be found. This new text reads:
*The Subgroup’s proposed recommendations were submitted to the CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting on 27 October 2017 included a discussion focused on jurisdiction issues. A transcript of these discussions included as Annex [F] to this Report.*
*The draft Report was approved by consensus as defined in the CCWG-Accountability charter, and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex [E] of the Report.*
*The draft Report was published for Public Comment on November 14, 2017. The Public Comment period closed on January 14, 2018. Fifteen comments were received. These comments may be found at https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. These comments were summarized by ICANN staff in a “comment tool” spreadsheet, which may be found at [insert link]. These comments were duly considered and discussed by the Subgroup. Where this led to a change to the Subgroup’s consensus, the draft Report was then changed to reflect the new consensus.*
I look forward to comments from you and the rest of the subgroup on this and the other proposed changes in the revised Report.
Best regards,
Greg
*EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*
THOMAS RICKERT: Sorry I was double muted. I had unmuted my phone and I had to unmute
myself in addition to the Adobe room. This is Thomas Rickert speaking. Thank you Greg for handing it over to me. Good afternoon, morning, evening to all of you.
I'm very grateful to Greg for allowing me to speak for a little bit. Because I made an observation when looking at the public comments that I think you know, gave me the opportunity to speak to this group for a moment. And I would suggest that if you have a different opinion to what I'm proposing right now, we should try to sort this out up front. But I guess if we are aligned on the principles that I'm going the share with you, then I think we should apply those principles when we are looking at the public comment. This is something that doesn't only go for the jurisdiction sub-team but it would go for all public comment analysis in the CCWGN and it's sub-teams. And sub-teams reports, all of them have been prepared by the perspective sub-teams and adopted by the respective sub-teams and presented to the plenary and the plenary has adopted the report and then the public comment is there to serve as a vetting process, if you wish. With the wider community to see when there's anything in our recommendations that we forgot had that, and we would look at this comment to see yeah, this is something that was already discussed or this is a new aspect. And then this new aspect might warrant that the report is amended or it might not warrant that the report is amended.
Because what the public comment period is not really designed for is to give members and for pants of the -- of the sub-teams or CCWG that have already in part of the consensus forming during the preparation of the recommendations in the past another opportunity to chime in and increase the weight of their statement or position. So don't get me wrong, certainly it's most welcome for everyone to identify positive comment and positive or negative comments do help everyone understand better where we are with the recommendations much but for those that have chimed in already during the deliberations, you know, their views have already been amalgamated into the findings of the sub-team. Therefore these would not get additional weight or second would it of the apple as we tend to say in this environment as when I goes to recognizing the views and adopting them in the report.
So let me just check with everyone whether that's a long the lines of your thinking as well. And let me pause here. Greg is chiming in don't be excessive. That's a good point. And for those that have haven't been part 1 there's some historical fun that we seem to have and still have. So thanks for bringing that up Steve.
CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah I'm saying I'm very comfortable with that. I think we need to make the difference however between an individual and entities. I for example would think that the ILAC and at large, if they represent is by 5 members for example on various things, members and participants often operate without the full con silence use of the ALAC and the total at large obviously. So I think we need to have that ruling, but recognize there may be a difference between a consensus voted upon statement from a support organization or advisory committee. And from a participants during the process. Thanks.
THOMAS RICKERT: Thanks very much Cheryl. And that's a excellent point that you make. And I think it's a perfect and true that there may be an incomers between the person that is participating in the sub-team and actually the views that are presented by the group that that person might happen to work with. But we did have cases where the views of a group have been injected into the sub-teams work already. So I'm talking about the cases where you have coumarinsy during the input that was given during the deliberations of the recommendations and comments during the public comment period. So thanks for pointing that out. I don't see any other hand, accept for David's. David, the floor is yours please.
DAVID McAULEY: Thomas thank you it's David McAuley for the record. I'm going to weigh in even though I missed a little bit of what you said as my phone sort of broke away. I had a little bit of connection difficulty. But in any event and listening to the later part of what you said and what Cheryl said, I think one of the things we will struggle with in this working group and perhaps others where the comments coming in or the discussion of the comments really centers not so much on the initial input but rather on the matter of clarification and let me illustrate here in jurisdiction. In jurisdiction we recommend that on governing law issues there would be a menu approach but we also couch that in terms of saying we are not recommending -- what we are doing is saying the ICANN and contracted parties, the GNSO should consider this. And then the government of Denmark came in with a comment saying in a menu approach it should be a matter of choice by the registrar or registry issue. It should note be a matter of issue to choosing the government law.
The clarification would be if you have a menu approach and done regionally could someone in North America choose governing law from Asia and were not things decided. It would be clarification, natural clarification that comes from the consequence of someone's comments. I think we can get through it but I think it's going to be difficult. Anyway that's the nature of my comment. Thanks Thomas.
THOMAS RICKERT: Thanks so much David that's a excellent point. I want to make sure we are all aligned in term of expectations. And I guess
that if there are comments by somebody who has represented a view in the course of the work of the sub-team already, and if that point is repeated during the public comment period, that will not give that voice additional weight. That's it in a nutshell. Greg you have your hand raised and I think it's quite convenient because I was about to hand it back over to you anyway. Thanks for your time.
GREG SHATAN: Thank you Thomas. I think one corollary and Thomas correct me if I'm wrong if I'm not getting this right, but a corollary to what you were saying about comments and how they are treated here and elsewhere in the subgroups and in the plenary for that matter is that comments are reviewed by the group and if there's a consensus in the group that the report needs to change, having taken on consideration of the comments. Then the report will be changed. Based on that new consensus. But the existence of comments or if you will, the raw material of any particular comment won't be reflected in the report. I think the comment list rather the mail list to which the comment was sent will continue to exist. And I think we can put a link to that mail list into the report. Acknowledging the comments are there. But other than that, unless the group as a whole or has brought agreement that we didn't get it right the first time and comments have shown us the error of our ways, that the report doesn't get changed.
Is that your understanding as well Thomas? As how it's being handled over all.
THOMAS RICKERT: Yes that's my understanding. That's a good point related to the one I was mentioning. So I guess that what I'm mentioning is we have a what you typically do is you make a link to the public comment and the public comment analysis -- public comment review to us as it's called at least in the GNSO where everything is collected. And this particular case our suggestion would be however to have a slightly different language not only pointing to the public comment review tool but making things a little bit more explicit and, also, with respect to the meetings and to meeting minutes of the extensive jurisdiction debate that we had in Abui Dubaiy as well a the minority statement that we got. We are going the frame it slightly differently here but the substance of the report will only be amended in the circumstances that you also outlined Greg.
GREG SHATAN: Okay thank you for that clarification Thomas.
Or for clarifying that my clarification was correct. And, also, for the additional suggestion of how we should refer to other important materials from our deliberations.
On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank You very much for the draft I was unable to attend the last meeting as I was on the Plane However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. The inclusion of that bolded paragraph, has a negative connotation as it negate and neutralize the action(s) described / required in that paragraph. I therefore suggest the following amendment which convey the same message but in positive sense See Below * ” 4. Application Process.* Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. While ICANN ,in principle, is under no obligations to seek such licenses and, in any given case, and OFAC may decide not to issue a requested license, nevertheless ICANN, is required to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as a registrar (and is not on the SDN List). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar. Moreover, I saw that you referring to the comments from Non Commerciale Stakeholder that you want to consider for which I have no objection but, Why you have not taken into account comments from Russia, Italy, France into account It seems you have totally ignore these comments that formally requested you to briefly refer to the French, Italian, Russian comments in the introductory part Regards . Kavouss
I will see if there is any other support for this suggestion, or any other views. In the meantime, not being quite sure of the definition of feasible, I turned to two well-respected dictionaries. The Oxford English Dictionary defines feasible (in US English) as "Possible to do easily or conveniently." The Merriam-Webster Dictionary defines feasible as "capable of being done or carried out." So, in one case the word covers only that which can be done easily or conveniently, which is an even lower standard than "reasonable" efforts. In the other case, the word covers all that can possibly be done, which is a higher standard than "reasonable" efforts. If there is a standard definition of "best feasible efforts" (in law or otherwise) it would be helpful to know. Without it, I have concerns that this would be considerably less well understood than "reasonable best efforts." A Google search for "best feasible efforts" returns 113 results, and none on the first few pages define the term. Most on the first page of results refer to the same two license agreements. "Reasonable best efforts" returns 152,000 results, a number of which on the first few pages are discussions of definition or application of the term while others are uses of the term. I will also note that the "reasonableness" standard is apparently a feature of German law (see https://www.trans-lex.org/124800/_/joachim-willi-e-the-reasonable-man-in-uni...) and English law ( http://www.law.nyu.edu/sites/default/files/upload_documents/The%20Many%20Fac...), with essentially the same meaning. This does not, o course, make it a universal legal principle, but it does dispel the notion that it is a uniquely U.S. legal standard. Greg On Thu, Feb 15, 2018 at 6:11 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Greg, Further to the last night discussion on " REASONABLE BEST EFFORTS " or other wise footnoted text, I suggest to use the term" Best feasible efforts" There is difference between "Reasonable " and "feasible" thus the latter coiuld better suit with the best efforts Regards Kavouss
On Wed, Feb 14, 2018 at 7:03 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
Thank you for your feedback.
Thomas was speaking on behalf of the co-chairs, whatever his personal views might be.
I have already stated that the group could modify its conclusions based on public comments. This is one of the core reasons for public comments, but the decision to revise consensus is always that of the Subgroup.
There is at least one significant proposal to do so in the current draft — to move from a neutral statement about options for picking the “choice of law” from a menu (contracted party choice and negotiation with ICANN), to a statement favoring the contracted party choice.
Another possible modification relates to the OFAC General License recommendation, where the Subgroup is still considering a “stiffer” approach for ICANN vs. the one set out in our draft report. That is based on the NCSG Comment you mentioned earlier.
Adopting modifications like these (or smaller modifications that serve to improve the text) is the way in which public comments are manifested in Working Group report. While the Subgroup has duly taken into account all of the comments submitted, it is only through causing the Subgroup to decide to change the text that a comment will be manifested. And even then, the comment is not directly mentioned in the Report.
Finally, I don’t understand your statement regarding some (majority?) part of the group not wishing to address OFAC. We probably spent more time on OFAC than any other aspect of our work, and half our report covers OFAC/sanctions related issues. So I see no evidence of our Subgroup, or any part of it, not wishing to address OFAC issues.
Best regards,
Greg
On Wed, Feb 14, 2018 at 2:26 AM Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments, Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments Regards Kavouss
On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments,Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments
On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
The Paragraph 4 you refer to is a quote from the current "ICANN Terms and Conditions for the Registrar Accreditation Application" found at https://www.icann.org/resources/pages/application-2012-02-25-en. The last sentence is bolded for emphasis only. Since it is in the Report to show the current facts, we cannot amend it. The Report text that follows this quote states: "*The last sentence should be amended to require ICANN to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as qualified to be a registrar (and is not on the SDN List)." I believe this takes care of your concern.*
*I express no view regarding whether the Subgroup should change its consensus based on the NCSG comment. This was the last comment reviewed on the prior call, during our second reading of the comments. There was general interest in considering whether to change the Recommendation referred to. No conclusions were reached, and the discussion was not finished. I suggested that the consideration of the comment would be easier if an NCSG representative provided a proposed revision to the Recommendation implementing the Comment.*
*We have taken all comments into account in our work. If a comment and the ensuing discussion cause the group to develop a consensus that text should be changed, then the relevant text in the Report is changed. Specific comments are not referred to here or in any other part of the CCWG Report. This was the subject of discussion at the beginning of the last call, with Thomas Rickert joining us specifically to discuss this point. In case you have not reviewed the transcript/captions, I'll paste the relevant text at the end of the email. *
Based on the prior call, text was added to the "Overview of the Work of the Subgroup" referring to the public comment process generally and including a link to where the comments may be found. This new text reads:
*The Subgroup’s proposed recommendations were submitted to the CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting on 27 October 2017 included a discussion focused on jurisdiction issues. A transcript of these discussions included as Annex [F] to this Report.*
*The draft Report was approved by consensus as defined in the CCWG-Accountability charter, and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex [E] of the Report.*
*The draft Report was published for Public Comment on November 14, 2017. The Public Comment period closed on January 14, 2018. Fifteen comments were received. These comments may be found at https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. These comments were summarized by ICANN staff in a “comment tool” spreadsheet, which may be found at [insert link]. These comments were duly considered and discussed by the Subgroup. Where this led to a change to the Subgroup’s consensus, the draft Report was then changed to reflect the new consensus.*
I look forward to comments from you and the rest of the subgroup on this and the other proposed changes in the revised Report.
Best regards,
Greg
*EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*
> THOMAS RICKERT: Sorry I was double muted. I had unmuted my phone and I had to unmute
myself in addition to the Adobe room. This is Thomas Rickert speaking. Thank you Greg for handing it over to me. Good afternoon, morning, evening to all of you.
I'm very grateful to Greg for allowing me to speak for a little bit. Because I made an observation when looking at the public comments that I think you know, gave me the opportunity to speak to this group for a moment. And I would suggest that if you have a different opinion to what I'm proposing right now, we should try to sort this out up front. But I guess if we are aligned on the principles that I'm going the share with you, then I think we should apply those principles when we are looking at the public comment. This is something that doesn't only go for the jurisdiction sub-team but it would go for all public comment analysis in the CCWGN and it's sub-teams. And sub-teams reports, all of them have been prepared by the perspective sub-teams and adopted by the respective sub-teams and presented to the plenary and the plenary has adopted the report and then the public comment is there to serve as a vetting process, if you wish. With the wider community to see when there's anything in our recommendations that we forgot had that, and we would look at this comment to see yeah, this is something that was already discussed or this is a new aspect. And then this new aspect might warrant that the report is amended or it might not warrant that the report is amended.
Because what the public comment period is not really designed for is to give members and for pants of the -- of the sub-teams or CCWG that have already in part of the consensus forming during the preparation of the recommendations in the past another opportunity to chime in and increase the weight of their statement or position. So don't get me wrong, certainly it's most welcome for everyone to identify positive comment and positive or negative comments do help everyone understand better where we are with the recommendations much but for those that have chimed in already during the deliberations, you know, their views have already been amalgamated into the findings of the sub-team. Therefore these would not get additional weight or second would it of the apple as we tend to say in this environment as when I goes to recognizing the views and adopting them in the report.
So let me just check with everyone whether that's a long the lines of your thinking as well. And let me pause here. Greg is chiming in don't be excessive. That's a good point. And for those that have haven't been part 1 there's some historical fun that we seem to have and still have. So thanks for bringing that up Steve.
> CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah I'm saying I'm very comfortable with that. I think we need to make the difference however between an individual and entities. I for example would think that the ILAC and at large, if they represent is by 5 members for example on various things, members and participants often operate without the full con silence use of the ALAC and the total at large obviously. So I think we need to have that ruling, but recognize there may be a difference between a consensus voted upon statement from a support organization or advisory committee. And from a participants during the process. Thanks.
> THOMAS RICKERT: Thanks very much Cheryl. And that's a excellent point that you make. And I think it's a perfect and true that there may be an incomers between the person that is participating in the sub-team and actually the views that are presented by the group that that person might happen to work with. But we did have cases where the views of a group have been injected into the sub-teams work already. So I'm talking about the cases where you have coumarinsy during the input that was given during the deliberations of the recommendations and comments during the public comment period. So thanks for pointing that out. I don't see any other hand, accept for David's. David, the floor is yours please.
> DAVID McAULEY: Thomas thank you it's David McAuley for the record. I'm going to weigh in even though I missed a little bit of what you said as my phone sort of broke away. I had a little bit of connection difficulty. But in any event and listening to the later part of what you said and what Cheryl said, I think one of the things we will struggle with in this working group and perhaps others where the comments coming in or the discussion of the comments really centers not so much on the initial input but rather on the matter of clarification and let me illustrate here in jurisdiction. In jurisdiction we recommend that on governing law issues there would be a menu approach but we also couch that in terms of saying we are not recommending -- what we are doing is saying the ICANN and contracted parties, the GNSO should consider this. And then the government of Denmark came in with a comment saying in a menu approach it should be a matter of choice by the registrar or registry issue. It should note be a matter of issue to choosing the government law.
The clarification would be if you have a menu approach and done regionally could someone in North America choose governing law from Asia and were not things decided. It would be clarification, natural clarification that comes from the consequence of someone's comments. I think we can get through it but I think it's going to be difficult. Anyway that's the nature of my comment. Thanks Thomas.
> THOMAS RICKERT: Thanks so much David that's a excellent point. I want to make sure we are all aligned in term of expectations. And I guess
that if there are comments by somebody who has represented a view in the course of the work of the sub-team already, and if that point is repeated during the public comment period, that will not give that voice additional weight. That's it in a nutshell. Greg you have your hand raised and I think it's quite convenient because I was about to hand it back over to you anyway. Thanks for your time.
> GREG SHATAN: Thank you Thomas. I think one corollary and Thomas correct me if I'm wrong if I'm not getting this right, but a corollary to what you were saying about comments and how they are treated here and elsewhere in the subgroups and in the plenary for that matter is that comments are reviewed by the group and if there's a consensus in the group that the report needs to change, having taken on consideration of the comments. Then the report will be changed. Based on that new consensus. But the existence of comments or if you will, the raw material of any particular comment won't be reflected in the report. I think the comment list rather the mail list to which the comment was sent will continue to exist. And I think we can put a link to that mail list into the report. Acknowledging the comments are there. But other than that, unless the group as a whole or has brought agreement that we didn't get it right the first time and comments have shown us the error of our ways, that the report doesn't get changed.
Is that your understanding as well Thomas? As how it's being handled over all.
> THOMAS RICKERT: Yes that's my understanding. That's a good point related to the one I was mentioning. So I guess that what I'm mentioning is we have a what you typically do is you make a link to the public comment and the public comment analysis -- public comment review to us as it's called at least in the GNSO where everything is collected. And this particular case our suggestion would be however to have a slightly different language not only pointing to the public comment review tool but making things a little bit more explicit and, also, with respect to the meetings and to meeting minutes of the extensive jurisdiction debate that we had in Abui Dubaiy as well a the minority statement that we got. We are going the frame it slightly differently here but the substance of the report will only be amended in the circumstances that you also outlined Greg.
> GREG SHATAN: Okay thank you for that clarification Thomas.
Or for clarifying that my clarification was correct. And, also, for the additional suggestion of how we should refer to other important materials from our deliberations.
On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank You very much for the draft I was unable to attend the last meeting as I was on the Plane However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. The inclusion of that bolded paragraph, has a negative connotation as it negate and neutralize the action(s) described / required in that paragraph. I therefore suggest the following amendment which convey the same message but in positive sense See Below * ” 4. Application Process.* Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. While ICANN ,in principle, is under no obligations to seek such licenses and, in any given case, and OFAC may decide not to issue a requested license, nevertheless ICANN, is required to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as a registrar (and is not on the SDN List). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar. Moreover, I saw that you referring to the comments from Non Commerciale Stakeholder that you want to consider for which I have no objection but, Why you have not taken into account comments from Russia, Italy, France into account It seems you have totally ignore these comments that formally requested you to briefly refer to the French, Italian, Russian comments in the introductory part Regards . Kavouss
From Kavouss Arasteh to
Thanks for the search. It seems that every reasonable best effort made by you to reject any other suggestion/ Alternative and just stick to your own proposal emanated from one public comment proposal “Reasonable Best Effort. Attempts are made to have a unilateral judgment/insistence on the appropriateness of Reasonable best effort. However, I am becoming familiar to the ICANN working method that a group of individual views to block views and suggestions of other individual, if it is 100%correct. I have no problem to use reasonable in the correct context but I have serious difficulties to use that term in combination of best effort. Effort combined by best signifies a superlative expression, which should be remain superlative and not combined with qualifying adjective like reasonable. It is clear that the intention here is to weaken the action be taken by ICANN .The reason is quite clear as the overwhelming majority of the participants are silent and others against addressing the bottle neck of OFAC One cannot shape a cold piece of iron to make a good hummer, as a cold iron remains resilient to be shaped During your entire leading period of this group n, you have very often recourse to some sort of implicit voting action which is not appropriate. Rather insisting on your own suggestion and continuing to defend that personal view you were expected to take initiative and find a compromise to satisfy everybody. It is quite clear that the victims of OFAC are in minority but it is unfair to marginalize them through recourse to implicit voting. I just wanted to demonstrate my entire frustration and disappointment. This group has always acted like this .Homeless to expect a fair and neutral treatment. Once again, reasonable is an inappropriate qualifier to be combined with a superlative action like best effort as it is incoherent and inconsistent with that superlative On Fri, Feb 16, 2018 at 7:01 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I will see if there is any other support for this suggestion, or any other views.
In the meantime, not being quite sure of the definition of feasible, I turned to two well-respected dictionaries. The Oxford English Dictionary defines feasible (in US English) as "Possible to do easily or conveniently." The Merriam-Webster Dictionary defines feasible as "capable of being done or carried out." So, in one case the word covers only that which can be done easily or conveniently, which is an even lower standard than "reasonable" efforts. In the other case, the word covers all that can possibly be done, which is a higher standard than "reasonable" efforts. If there is a standard definition of "best feasible efforts" (in law or otherwise) it would be helpful to know. Without it, I have concerns that this would be considerably less well understood than "reasonable best efforts."
A Google search for "best feasible efforts" returns 113 results, and none on the first few pages define the term. Most on the first page of results refer to the same two license agreements. "Reasonable best efforts" returns 152,000 results, a number of which on the first few pages are discussions of definition or application of the term while others are uses of the term.
I will also note that the "reasonableness" standard is apparently a feature of German law (see https://www.trans-lex. org/124800/_/joachim-willi-e-the-reasonable-man-in-united- states-and-german-commercial-law-15-complybint-l-bus-1992-at-341-et-seq/) and English law (http://www.law.nyu.edu/sites/default/files/upload_ documents/The%20Many%20Faces%20of%20the%20Reasonable%20Person.pdf), with essentially the same meaning. This does not, o course, make it a universal legal principle, but it does dispel the notion that it is a uniquely U.S. legal standard.
Greg
On Thu, Feb 15, 2018 at 6:11 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Greg, Further to the last night discussion on " REASONABLE BEST EFFORTS " or other wise footnoted text, I suggest to use the term" Best feasible efforts" There is difference between "Reasonable " and "feasible" thus the latter coiuld better suit with the best efforts Regards Kavouss
On Wed, Feb 14, 2018 at 7:03 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
Thank you for your feedback.
Thomas was speaking on behalf of the co-chairs, whatever his personal views might be.
I have already stated that the group could modify its conclusions based on public comments. This is one of the core reasons for public comments, but the decision to revise consensus is always that of the Subgroup.
There is at least one significant proposal to do so in the current draft — to move from a neutral statement about options for picking the “choice of law” from a menu (contracted party choice and negotiation with ICANN), to a statement favoring the contracted party choice.
Another possible modification relates to the OFAC General License recommendation, where the Subgroup is still considering a “stiffer” approach for ICANN vs. the one set out in our draft report. That is based on the NCSG Comment you mentioned earlier.
Adopting modifications like these (or smaller modifications that serve to improve the text) is the way in which public comments are manifested in Working Group report. While the Subgroup has duly taken into account all of the comments submitted, it is only through causing the Subgroup to decide to change the text that a comment will be manifested. And even then, the comment is not directly mentioned in the Report.
Finally, I don’t understand your statement regarding some (majority?) part of the group not wishing to address OFAC. We probably spent more time on OFAC than any other aspect of our work, and half our report covers OFAC/sanctions related issues. So I see no evidence of our Subgroup, or any part of it, not wishing to address OFAC issues.
Best regards,
Greg
On Wed, Feb 14, 2018 at 2:26 AM Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments, Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments Regards Kavouss
On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments,Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments
On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
The Paragraph 4 you refer to is a quote from the current "ICANN Terms and Conditions for the Registrar Accreditation Application" found at https://www.icann.org/resources/pages/application-2012-02-25-en. The last sentence is bolded for emphasis only. Since it is in the Report to show the current facts, we cannot amend it. The Report text that follows this quote states: "*The last sentence should be amended to require ICANN to apply for and use reasonable best efforts to secure an OFAC license if the other party is otherwise acceptable as qualified to be a registrar (and is not on the SDN List)." I believe this takes care of your concern.*
*I express no view regarding whether the Subgroup should change its consensus based on the NCSG comment. This was the last comment reviewed on the prior call, during our second reading of the comments. There was general interest in considering whether to change the Recommendation referred to. No conclusions were reached, and the discussion was not finished. I suggested that the consideration of the comment would be easier if an NCSG representative provided a proposed revision to the Recommendation implementing the Comment.*
*We have taken all comments into account in our work. If a comment and the ensuing discussion cause the group to develop a consensus that text should be changed, then the relevant text in the Report is changed. Specific comments are not referred to here or in any other part of the CCWG Report. This was the subject of discussion at the beginning of the last call, with Thomas Rickert joining us specifically to discuss this point. In case you have not reviewed the transcript/captions, I'll paste the relevant text at the end of the email. *
Based on the prior call, text was added to the "Overview of the Work of the Subgroup" referring to the public comment process generally and including a link to where the comments may be found. This new text reads:
*The Subgroup’s proposed recommendations were submitted to the CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting on 27 October 2017 included a discussion focused on jurisdiction issues. A transcript of these discussions included as Annex [F] to this Report.*
*The draft Report was approved by consensus as defined in the CCWG-Accountability charter, and not by full consensus. The Government of Brazil, which did not support approving the report, has prepared a dissenting opinion which is supported by several other participants and can be found in Annex [E] of the Report.*
*The draft Report was published for Public Comment on November 14, 2017. The Public Comment period closed on January 14, 2018. Fifteen comments were received. These comments may be found at https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. These comments were summarized by ICANN staff in a “comment tool” spreadsheet, which may be found at [insert link]. These comments were duly considered and discussed by the Subgroup. Where this led to a change to the Subgroup’s consensus, the draft Report was then changed to reflect the new consensus.*
I look forward to comments from you and the rest of the subgroup on this and the other proposed changes in the revised Report.
Best regards,
Greg
*EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*
>> THOMAS RICKERT: Sorry I was double muted. I had unmuted my phone and I had to unmute
myself in addition to the Adobe room. This is Thomas Rickert speaking. Thank you Greg for handing it over to me. Good afternoon, morning, evening to all of you.
I'm very grateful to Greg for allowing me to speak for a little bit. Because I made an observation when looking at the public comments that I think you know, gave me the opportunity to speak to this group for a moment. And I would suggest that if you have a different opinion to what I'm proposing right now, we should try to sort this out up front. But I guess if we are aligned on the principles that I'm going the share with you, then I think we should apply those principles when we are looking at the public comment. This is something that doesn't only go for the jurisdiction sub-team but it would go for all public comment analysis in the CCWGN and it's sub-teams. And sub-teams reports, all of them have been prepared by the perspective sub-teams and adopted by the respective sub-teams and presented to the plenary and the plenary has adopted the report and then the public comment is there to serve as a vetting process, if you wish. With the wider community to see when there's anything in our recommendations that we forgot had that, and we would look at this comment to see yeah, this is something that was already discussed or this is a new aspect. And then this new aspect might warrant that the report is amended or it might not warrant that the report is amended.
Because what the public comment period is not really designed for is to give members and for pants of the -- of the sub-teams or CCWG that have already in part of the consensus forming during the preparation of the recommendations in the past another opportunity to chime in and increase the weight of their statement or position. So don't get me wrong, certainly it's most welcome for everyone to identify positive comment and positive or negative comments do help everyone understand better where we are with the recommendations much but for those that have chimed in already during the deliberations, you know, their views have already been amalgamated into the findings of the sub-team. Therefore these would not get additional weight or second would it of the apple as we tend to say in this environment as when I goes to recognizing the views and adopting them in the report.
So let me just check with everyone whether that's a long the lines of your thinking as well. And let me pause here. Greg is chiming in don't be excessive. That's a good point. And for those that have haven't been part 1 there's some historical fun that we seem to have and still have. So thanks for bringing that up Steve.
>> CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah I'm saying I'm very comfortable with that. I think we need to make the difference however between an individual and entities. I for example would think that the ILAC and at large, if they represent is by 5 members for example on various things, members and participants often operate without the full con silence use of the ALAC and the total at large obviously. So I think we need to have that ruling, but recognize there may be a difference between a consensus voted upon statement from a support organization or advisory committee. And from a participants during the process. Thanks.
>> THOMAS RICKERT: Thanks very much Cheryl. And that's a excellent point that you make. And I think it's a perfect and true that there may be an incomers between the person that is participating in the sub-team and actually the views that are presented by the group that that person might happen to work with. But we did have cases where the views of a group have been injected into the sub-teams work already. So I'm talking about the cases where you have coumarinsy during the input that was given during the deliberations of the recommendations and comments during the public comment period. So thanks for pointing that out. I don't see any other hand, accept for David's. David, the floor is yours please.
>> DAVID McAULEY: Thomas thank you it's David McAuley for the record. I'm going to weigh in even though I missed a little bit of what you said as my phone sort of broke away. I had a little bit of connection difficulty. But in any event and listening to the later part of what you said and what Cheryl said, I think one of the things we will struggle with in this working group and perhaps others where the comments coming in or the discussion of the comments really centers not so much on the initial input but rather on the matter of clarification and let me illustrate here in jurisdiction. In jurisdiction we recommend that on governing law issues there would be a menu approach but we also couch that in terms of saying we are not recommending -- what we are doing is saying the ICANN and contracted parties, the GNSO should consider this. And then the government of Denmark came in with a comment saying in a menu approach it should be a matter of choice by the registrar or registry issue. It should note be a matter of issue to choosing the government law.
The clarification would be if you have a menu approach and done regionally could someone in North America choose governing law from Asia and were not things decided. It would be clarification, natural clarification that comes from the consequence of someone's comments. I think we can get through it but I think it's going to be difficult. Anyway that's the nature of my comment. Thanks Thomas.
>> THOMAS RICKERT: Thanks so much David that's a excellent point. I want to make sure we are all aligned in term of expectations. And I guess
that if there are comments by somebody who has represented a view in the course of the work of the sub-team already, and if that point is repeated during the public comment period, that will not give that voice additional weight. That's it in a nutshell. Greg you have your hand raised and I think it's quite convenient because I was about to hand it back over to you anyway. Thanks for your time.
>> GREG SHATAN: Thank you Thomas. I think one corollary and Thomas correct me if I'm wrong if I'm not getting this right, but a corollary to what you were saying about comments and how they are treated here and elsewhere in the subgroups and in the plenary for that matter is that comments are reviewed by the group and if there's a consensus in the group that the report needs to change, having taken on consideration of the comments. Then the report will be changed. Based on that new consensus. But the existence of comments or if you will, the raw material of any particular comment won't be reflected in the report. I think the comment list rather the mail list to which the comment was sent will continue to exist. And I think we can put a link to that mail list into the report. Acknowledging the comments are there. But other than that, unless the group as a whole or has brought agreement that we didn't get it right the first time and comments have shown us the error of our ways, that the report doesn't get changed.
Is that your understanding as well Thomas? As how it's being handled over all.
>> THOMAS RICKERT: Yes that's my understanding. That's a good point related to the one I was mentioning. So I guess that what I'm mentioning is we have a what you typically do is you make a link to the public comment and the public comment analysis -- public comment review to us as it's called at least in the GNSO where everything is collected. And this particular case our suggestion would be however to have a slightly different language not only pointing to the public comment review tool but making things a little bit more explicit and, also, with respect to the meetings and to meeting minutes of the extensive jurisdiction debate that we had in Abui Dubaiy as well a the minority statement that we got. We are going the frame it slightly differently here but the substance of the report will only be amended in the circumstances that you also outlined Greg.
>> GREG SHATAN: Okay thank you for that clarification Thomas.
Or for clarifying that my clarification was correct. And, also, for the additional suggestion of how we should refer to other important materials from our deliberations.
On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
> Dear Greg, > Thank You very much for the draft > I was unable to attend the last meeting as I was on the Plane > However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. > The inclusion of that bolded paragraph, has a negative connotation > as it negate and neutralize the action(s) described / required in that > paragraph. > I therefore suggest the following amendment which convey the same > message but in positive sense > See Below > * ” 4. Application Process.* > Applicant acknowledges that ICANN must comply with all U.S. laws, > rules, and regulations. One such set of regulations is the economic and > trade sanctions program administered by the Office of Foreign Assets > Control ("OFAC") of the U.S. Department of the Treasury. These sanctions > have been imposed on certain countries, as well as individuals and entities > that appear on OFAC's List of Specially Designated Nationals and Blocked > Persons (the "SDN List"). ICANN is prohibited from providing most goods or > services to residents of sanctioned countries or their governmental > entities or to SDNs without an applicable U.S. government authorization or > exemption. ICANN generally will not seek a license to provide goods or > services to an individual or entity on the SDN List. In the past, when > ICANN has been requested to provide services to individuals or entities > that are not SDNs, but are residents of sanctioned countries, ICANN has > sought and been granted licenses as required. While ICANN ,in > principle, is under no obligations to seek such licenses and, in any given > case, and OFAC may decide not to issue a requested license, nevertheless > ICANN, is required to apply for and use reasonable best efforts to > secure an OFAC license if the other party is otherwise acceptable as a > registrar (and is not on the SDN List). During the licensing > process, ICANN should be helpful and transparent with regard to the > licensing process and ICANN’s efforts, including ongoing communication with > the potential registrar. > Moreover, I saw that you referring to the comments from Non > Commerciale Stakeholder that you want to consider for which I have no > objection but, > Why you have not taken into account comments from Russia, Italy, > France into account > It seems you have totally ignore these comments that formally > requested you to briefly refer to the French, Italian, Russian comments in > the introductory part > Regards . > Kavouss > > >
Dear Kavouss, all As mentioned during the call, best efforts alone is construed, as far as legal interpretation is concerned (and at least in the US, but possibly in other legal systems too), to mean all efforts including eventual bankruptcy. So reasonable best efforts has a specific meaning in contractual interpretation which is not the same as the common meaning we may attribute to that expression. I was myself somewhat skeptical at first, but following the explanations of Greg on the meaning of that expression in the context of interpretation of contracts, I believe it is both adjusted to our needs *and *will also not elicit a knee-jerk reaction from ICANN's in-house or external legal counsels who may eventually have a look at the recommendation at the implementation stage (or before.) It is still a high standard of behaviour and requires ICANN to do everything up to acts that would endanger its own existence. Best, 2018-02-16 8:19 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
From Kavouss Arasteh to
Thanks for the search.
It seems that every reasonable best effort made by you to reject any other suggestion/ Alternative and just stick to your own proposal emanated from one public comment proposal “Reasonable Best Effort.
Attempts are made to have a unilateral judgment/insistence on the appropriateness of Reasonable best effort.
However, I am becoming familiar to the ICANN working method that a group of individual views to block views and suggestions of other individual, if it is 100%correct.
I have no problem to use reasonable in the correct context but I have serious difficulties to use that term in combination of best effort.
Effort combined by best signifies a superlative expression, which should be remain superlative and not combined with qualifying adjective like reasonable. It is clear that the intention here is to weaken the action be taken by ICANN .The reason is quite clear as the overwhelming majority of the participants are silent and others against addressing the bottle neck of OFAC
One cannot shape a cold piece of iron to make a good hummer, as a cold iron remains resilient to be shaped
During your entire leading period of this group n, you have very often recourse to some sort of implicit voting action which is not appropriate.
Rather insisting on your own suggestion and continuing to defend that personal view you were expected to take initiative and find a compromise to satisfy everybody. It is quite clear that the victims of OFAC are in minority but it is unfair to marginalize them through recourse to implicit voting.
I just wanted to demonstrate my entire frustration and disappointment.
This group has always acted like this .Homeless to expect a fair and neutral treatment.
Once again, reasonable is an inappropriate qualifier to be combined with a superlative action like best effort as it is incoherent and inconsistent with that superlative
On Fri, Feb 16, 2018 at 7:01 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I will see if there is any other support for this suggestion, or any other views.
In the meantime, not being quite sure of the definition of feasible, I turned to two well-respected dictionaries. The Oxford English Dictionary defines feasible (in US English) as "Possible to do easily or conveniently." The Merriam-Webster Dictionary defines feasible as "capable of being done or carried out." So, in one case the word covers only that which can be done easily or conveniently, which is an even lower standard than "reasonable" efforts. In the other case, the word covers all that can possibly be done, which is a higher standard than "reasonable" efforts. If there is a standard definition of "best feasible efforts" (in law or otherwise) it would be helpful to know. Without it, I have concerns that this would be considerably less well understood than "reasonable best efforts."
A Google search for "best feasible efforts" returns 113 results, and none on the first few pages define the term. Most on the first page of results refer to the same two license agreements. "Reasonable best efforts" returns 152,000 results, a number of which on the first few pages are discussions of definition or application of the term while others are uses of the term.
I will also note that the "reasonableness" standard is apparently a feature of German law (see https://www.trans-lex.org /124800/_/joachim-willi-e-the-reasonable-man-in-united-state s-and-german-commercial-law-15-complybint-l-bus-1992-at-341-et-seq/) and English law (http://www.law.nyu.edu/sites/default/files/upload_documents /The%20Many%20Faces%20of%20the%20Reasonable%20Person.pdf), with essentially the same meaning. This does not, o course, make it a universal legal principle, but it does dispel the notion that it is a uniquely U.S. legal standard.
Greg
On Thu, Feb 15, 2018 at 6:11 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Greg, Further to the last night discussion on " REASONABLE BEST EFFORTS " or other wise footnoted text, I suggest to use the term" Best feasible efforts" There is difference between "Reasonable " and "feasible" thus the latter coiuld better suit with the best efforts Regards Kavouss
On Wed, Feb 14, 2018 at 7:03 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
Thank you for your feedback.
Thomas was speaking on behalf of the co-chairs, whatever his personal views might be.
I have already stated that the group could modify its conclusions based on public comments. This is one of the core reasons for public comments, but the decision to revise consensus is always that of the Subgroup.
There is at least one significant proposal to do so in the current draft — to move from a neutral statement about options for picking the “choice of law” from a menu (contracted party choice and negotiation with ICANN), to a statement favoring the contracted party choice.
Another possible modification relates to the OFAC General License recommendation, where the Subgroup is still considering a “stiffer” approach for ICANN vs. the one set out in our draft report. That is based on the NCSG Comment you mentioned earlier.
Adopting modifications like these (or smaller modifications that serve to improve the text) is the way in which public comments are manifested in Working Group report. While the Subgroup has duly taken into account all of the comments submitted, it is only through causing the Subgroup to decide to change the text that a comment will be manifested. And even then, the comment is not directly mentioned in the Report.
Finally, I don’t understand your statement regarding some (majority?) part of the group not wishing to address OFAC. We probably spent more time on OFAC than any other aspect of our work, and half our report covers OFAC/sanctions related issues. So I see no evidence of our Subgroup, or any part of it, not wishing to address OFAC issues.
Best regards,
Greg
On Wed, Feb 14, 2018 at 2:26 AM Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments, Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments Regards Kavouss
On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments,Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments
On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc@gmail.com > wrote:
> Kavouss, > > The Paragraph 4 you refer to is a quote from the current "ICANN > Terms and Conditions for the Registrar Accreditation Application" found at > https://www.icann.org/resources/pages/application-2012-02-25-en. > The last sentence is bolded for emphasis only. Since it is in the Report > to show the current facts, we cannot amend it. The Report text that > follows this quote states: "*The last sentence should be amended > to require ICANN to apply for and use reasonable best efforts to secure an > OFAC license if the other party is otherwise acceptable as qualified to be > a registrar (and is not on the SDN List)." I believe this takes care of > your concern.* > > *I express no view regarding whether the Subgroup should change its > consensus based on the NCSG comment. This was the last comment reviewed on > the prior call, during our second reading of the comments. There was > general interest in considering whether to change the Recommendation > referred to. No conclusions were reached, and the discussion was not > finished. I suggested that the consideration of the comment would be easier > if an NCSG representative provided a proposed revision to the > Recommendation implementing the Comment.* > > *We have taken all comments into account in our work. If a comment > and the ensuing discussion cause the group to develop a consensus that text > should be changed, then the relevant text in the Report is changed. > Specific comments are not referred to here or in any other part of the CCWG > Report. This was the subject of discussion at the beginning of the last > call, with Thomas Rickert joining us specifically to discuss this point. In > case you have not reviewed the transcript/captions, I'll paste the relevant > text at the end of the email. * > > Based on the prior call, text was added to the "Overview of the Work > of the Subgroup" referring to the public comment process generally and > including a link to where the comments may be found. This new text reads: > > *The Subgroup’s proposed recommendations were submitted to the > CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting > on 27 October 2017 included a discussion focused on jurisdiction issues. A > transcript of these discussions included as Annex [F] to this Report.* > > *The draft Report was approved by consensus as defined in the > CCWG-Accountability charter, and not by full consensus. The Government of > Brazil, which did not support approving the report, has prepared a > dissenting opinion which is supported by several other participants and can > be found in Annex [E] of the Report.* > > *The draft Report was published for Public Comment on November 14, > 2017. The Public Comment period closed on January 14, 2018. Fifteen > comments were received. These comments may be found at > https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ > <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. > These comments were summarized by ICANN staff in a “comment tool” > spreadsheet, which may be found at [insert link]. These comments were duly > considered and discussed by the Subgroup. Where this led to a change to the > Subgroup’s consensus, the draft Report was then changed to reflect the new > consensus.* > > > I look forward to comments from you and the rest of the subgroup on > this and the other proposed changes in the revised Report. > > Best regards, > > Greg > > *EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:* > > > >> THOMAS RICKERT: Sorry I was double muted. I had unmuted my > phone and I had to unmute > > myself in addition to the Adobe room. This is Thomas Rickert > speaking. Thank you Greg for handing it over to me. Good > afternoon, morning, evening to all of you. > > I'm very grateful to Greg for allowing me to speak for a little bit. > Because I made an observation when looking at the public comments > that I think you know, gave me the opportunity to speak to this group for a > moment. And I would suggest that if you have a different opinion > to what I'm proposing right now, we should try to sort this out up front. > But I guess if we are aligned on the principles that I'm going the > share with you, then I think we should apply those principles when we are > looking at the public comment. This is something that doesn't only > go for the jurisdiction sub-team but it would go for all public comment > analysis in the CCWGN and it's sub-teams. And sub-teams reports, > all of them have been prepared by the perspective sub-teams and adopted by > the respective sub-teams and presented to the plenary and the plenary has > adopted the report and then the public comment is there to serve as a > vetting process, if you wish. With the wider community to see when > there's anything in our recommendations that we forgot had that, and we > would look at this comment to see yeah, this is something that was already > discussed or this is a new aspect. And then this new aspect might > warrant that the report is amended or it might not warrant that the report > is amended. > > Because what the public comment period is not really designed for is > to give members and for pants of the -- of the sub-teams or CCWG that have > already in part of the consensus forming during the preparation of the > recommendations in the past another opportunity to chime in and > increase the weight of their statement or position. So don't get > me wrong, certainly it's most welcome for everyone to identify positive > comment and positive or negative comments do help everyone understand > better where we are with the recommendations much but for those that have > chimed in already during the deliberations, you know, their views have > already been amalgamated into the findings of the sub-team. Therefore > these would not get additional weight or second would it of the apple as we > tend to say in this environment as when I goes to recognizing the views and > adopting them in the report. > > So let me just check with everyone whether that's a long the lines > of your thinking as well. And let me pause here. Greg is chiming > in don't be excessive. That's a good point. And for those that > have haven't been part 1 there's some historical fun that we seem to have > and still have. So thanks for bringing that up Steve. > > >> CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah > I'm saying I'm very comfortable with that. I think we need to make > the difference however between an individual and entities. I for > example would think that the ILAC and at large, if they represent is by 5 > members for example on various things, members and participants often > operate without the full con silence use of the ALAC and the total at large > obviously. So I think we need to have that ruling, but recognize > there may be a difference between a consensus voted upon statement from a > support organization or advisory committee. And from a > participants during the process. Thanks. > > >> THOMAS RICKERT: Thanks very much Cheryl. And that's a > excellent point that you make. And I think it's a perfect and true > that there may be an incomers between the person that is participating in > the sub-team and actually the views that are presented by the group that > that person might happen to work with. But we did have cases where > the views of a group have been injected into the sub-teams work already. > So I'm talking about the cases where you have coumarinsy during the > input that was given during the deliberations of the recommendations and > comments during the public comment period. So thanks for pointing > that out. I don't see any other hand, accept for David's. David, > the floor is yours please. > > >> DAVID McAULEY: Thomas thank you it's David McAuley for the > record. I'm going to weigh in even though I missed a little bit of > what you said as my phone sort of broke away. I had a little bit > of connection difficulty. But in any event and listening to the > later part of what you said and what Cheryl said, I think one of the things > we will struggle with in this working group and perhaps others > where the comments coming in or the discussion of the comments really > centers not so much on the initial input but rather on the matter of > clarification and let me illustrate here in jurisdiction. In > jurisdiction we recommend that on governing law issues there would be a > menu approach but we also couch that in terms of saying we are not > recommending -- what we are doing is saying the ICANN and contracted > parties, the GNSO should consider this. And then the government > of Denmark came in with a comment saying in a menu approach it should be a > matter of choice by the registrar or registry issue. It should > note be a matter of issue to choosing the government law. > > The clarification would be if you have a menu approach and done > regionally could someone in North America choose governing law from Asia > and were not things decided. It would be clarification, natural > clarification that comes from the consequence of someone's comments. > I think we can get through it but I think it's going to be difficult. > Anyway that's the nature of my comment. Thanks Thomas. > > >> THOMAS RICKERT: Thanks so much David that's a excellent point. I > want to make sure we are all aligned in term of expectations. And > I guess > > that if there are comments by somebody who has represented a view in > the course of the work of the sub-team already, and if that point is > repeated during the public comment period, that will not give that voice > additional weight. That's it in a nutshell. Greg you have your > hand raised and I think it's quite convenient because I was about to hand > it back over to you anyway. Thanks for your time. > > >> GREG SHATAN: Thank you Thomas. I think one corollary and > Thomas correct me if I'm wrong if I'm not getting this right, but a > corollary to what you were saying about comments and how they are treated > here and elsewhere in the subgroups and in the plenary for that matter is > that comments are reviewed by the group and if there's a consensus in the > group that the report needs to change, having taken on consideration of the > comments. Then the report will be changed. Based on that new > consensus. But the existence of comments or if you will, the raw > material of any particular comment won't be reflected in the report. > I think the comment list rather the mail list to which the comment > was sent will continue to exist. And I think we can put a link to > that mail list into the report. Acknowledging the comments are > there. But other than that, unless the group as a whole or has > brought agreement that we didn't get it right the first time and comments > have shown us the error of our ways, that the report doesn't get changed. > > Is that your understanding as well Thomas? As how it's being > handled over all. > > >> THOMAS RICKERT: Yes that's my understanding. That's a good > point related to the one I was mentioning. So I guess that what > I'm mentioning is we have a what you typically do is you make a link to the > public comment and the public comment analysis -- public comment review to > us as it's called at least in the GNSO where everything is collected. > And this particular case our suggestion would be however to have a > slightly different language not only pointing to the public comment review > tool but making things a little bit more explicit and, also, with respect > to the meetings and to meeting minutes of the extensive jurisdiction debate > that we had in Abui Dubaiy as well a the minority statement that we got. > We are going the frame it slightly differently here but the > substance of the report will only be amended in the circumstances that you > also outlined Greg. > > >> GREG SHATAN: Okay thank you for that clarification Thomas. > > Or for clarifying that my clarification was correct. And, also, > for the additional suggestion of how we should refer to other important > materials from our deliberations. > > > > On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < > kavouss.arasteh@gmail.com> wrote: > >> Dear Greg, >> Thank You very much for the draft >> I was unable to attend the last meeting as I was on the Plane >> However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. >> The inclusion of that bolded paragraph, has a negative connotation >> as it negate and neutralize the action(s) described / required in that >> paragraph. >> I therefore suggest the following amendment which convey the same >> message but in positive sense >> See Below >> * ” 4. Application Process.* >> Applicant acknowledges that ICANN must comply with all U.S. laws, >> rules, and regulations. One such set of regulations is the economic and >> trade sanctions program administered by the Office of Foreign Assets >> Control ("OFAC") of the U.S. Department of the Treasury. These sanctions >> have been imposed on certain countries, as well as individuals and entities >> that appear on OFAC's List of Specially Designated Nationals and Blocked >> Persons (the "SDN List"). ICANN is prohibited from providing most goods or >> services to residents of sanctioned countries or their governmental >> entities or to SDNs without an applicable U.S. government authorization or >> exemption. ICANN generally will not seek a license to provide goods or >> services to an individual or entity on the SDN List. In the past, when >> ICANN has been requested to provide services to individuals or entities >> that are not SDNs, but are residents of sanctioned countries, ICANN has >> sought and been granted licenses as required. While ICANN ,in >> principle, is under no obligations to seek such licenses and, in any given >> case, and OFAC may decide not to issue a requested license, nevertheless >> ICANN, is required to apply for and use reasonable best efforts to >> secure an OFAC license if the other party is otherwise acceptable as a >> registrar (and is not on the SDN List). During the licensing >> process, ICANN should be helpful and transparent with regard to the >> licensing process and ICANN’s efforts, including ongoing communication with >> the potential registrar. >> Moreover, I saw that you referring to the comments from Non >> Commerciale Stakeholder that you want to consider for which I have no >> objection but, >> Why you have not taken into account comments from Russia, Italy, >> France into account >> It seems you have totally ignore these comments that formally >> requested you to briefly refer to the French, Italian, Russian comments in >> the introductory part >> Regards . >> Kavouss >> >> >> > >
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Raphael thanks Please note that The reasonable best efforts are less stringent than that imposed by the ‘best efforts’ clauses contained in some agreements. A business may give reasonable consideration to its own interests, exercising discretion within its good faith business, judgment, in devising a strategy for achieving its ultimate goal. Reasonable reasonable efforts should be consistent with good faith business judgments. Some definition of reasonable Best Efforts 1. agreeable to reason <http://www.dictionary.com/browse/reason> or sound judgment; logical: a reasonable choice for chairman. 2. not exceeding the limit prescribed by reason <http://www.dictionary.com/browse/reason>; not excessive: reasonable terms. 3. moderate, especially in price; not expensive: The coat was reasonable but not cheap. 4. endowed with reason <http://www.dictionary.com/browse/reason>. 5. capable of rational behavior, decision, etc Tks Kavouss On Sat, Feb 17, 2018 at 4:25 PM, Raphaël BEAUREGARD-LACROIX < raphael.beauregardlacroix@sciencespo.fr> wrote:
Dear Kavouss, all
As mentioned during the call, best efforts alone is construed, as far as legal interpretation is concerned (and at least in the US, but possibly in other legal systems too), to mean all efforts including eventual bankruptcy.
So reasonable best efforts has a specific meaning in contractual interpretation which is not the same as the common meaning we may attribute to that expression.
I was myself somewhat skeptical at first, but following the explanations of Greg on the meaning of that expression in the context of interpretation of contracts, I believe it is both adjusted to our needs *and *will also not elicit a knee-jerk reaction from ICANN's in-house or external legal counsels who may eventually have a look at the recommendation at the implementation stage (or before.) It is still a high standard of behaviour and requires ICANN to do everything up to acts that would endanger its own existence.
Best,
2018-02-16 8:19 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
From Kavouss Arasteh to
Thanks for the search.
It seems that every reasonable best effort made by you to reject any other suggestion/ Alternative and just stick to your own proposal emanated from one public comment proposal “Reasonable Best Effort.
Attempts are made to have a unilateral judgment/insistence on the appropriateness of Reasonable best effort.
However, I am becoming familiar to the ICANN working method that a group of individual views to block views and suggestions of other individual, if it is 100%correct.
I have no problem to use reasonable in the correct context but I have serious difficulties to use that term in combination of best effort.
Effort combined by best signifies a superlative expression, which should be remain superlative and not combined with qualifying adjective like reasonable. It is clear that the intention here is to weaken the action be taken by ICANN .The reason is quite clear as the overwhelming majority of the participants are silent and others against addressing the bottle neck of OFAC
One cannot shape a cold piece of iron to make a good hummer, as a cold iron remains resilient to be shaped
During your entire leading period of this group n, you have very often recourse to some sort of implicit voting action which is not appropriate.
Rather insisting on your own suggestion and continuing to defend that personal view you were expected to take initiative and find a compromise to satisfy everybody. It is quite clear that the victims of OFAC are in minority but it is unfair to marginalize them through recourse to implicit voting.
I just wanted to demonstrate my entire frustration and disappointment.
This group has always acted like this .Homeless to expect a fair and neutral treatment.
Once again, reasonable is an inappropriate qualifier to be combined with a superlative action like best effort as it is incoherent and inconsistent with that superlative
On Fri, Feb 16, 2018 at 7:01 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I will see if there is any other support for this suggestion, or any other views.
In the meantime, not being quite sure of the definition of feasible, I turned to two well-respected dictionaries. The Oxford English Dictionary defines feasible (in US English) as "Possible to do easily or conveniently." The Merriam-Webster Dictionary defines feasible as "capable of being done or carried out." So, in one case the word covers only that which can be done easily or conveniently, which is an even lower standard than "reasonable" efforts. In the other case, the word covers all that can possibly be done, which is a higher standard than "reasonable" efforts. If there is a standard definition of "best feasible efforts" (in law or otherwise) it would be helpful to know. Without it, I have concerns that this would be considerably less well understood than "reasonable best efforts."
A Google search for "best feasible efforts" returns 113 results, and none on the first few pages define the term. Most on the first page of results refer to the same two license agreements. "Reasonable best efforts" returns 152,000 results, a number of which on the first few pages are discussions of definition or application of the term while others are uses of the term.
I will also note that the "reasonableness" standard is apparently a feature of German law (see https://www.trans-lex.org /124800/_/joachim-willi-e-the-reasonable-man-in-united-state s-and-german-commercial-law-15-complybint-l-bus-1992-at-341-et-seq/) and English law (http://www.law.nyu.edu/sites/ default/files/upload_documents/The%20Many%20Faces%20of%20the %20Reasonable%20Person.pdf), with essentially the same meaning. This does not, o course, make it a universal legal principle, but it does dispel the notion that it is a uniquely U.S. legal standard.
Greg
On Thu, Feb 15, 2018 at 6:11 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Greg, Further to the last night discussion on " REASONABLE BEST EFFORTS " or other wise footnoted text, I suggest to use the term" Best feasible efforts" There is difference between "Reasonable " and "feasible" thus the latter coiuld better suit with the best efforts Regards Kavouss
On Wed, Feb 14, 2018 at 7:03 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
Thank you for your feedback.
Thomas was speaking on behalf of the co-chairs, whatever his personal views might be.
I have already stated that the group could modify its conclusions based on public comments. This is one of the core reasons for public comments, but the decision to revise consensus is always that of the Subgroup.
There is at least one significant proposal to do so in the current draft — to move from a neutral statement about options for picking the “choice of law” from a menu (contracted party choice and negotiation with ICANN), to a statement favoring the contracted party choice.
Another possible modification relates to the OFAC General License recommendation, where the Subgroup is still considering a “stiffer” approach for ICANN vs. the one set out in our draft report. That is based on the NCSG Comment you mentioned earlier.
Adopting modifications like these (or smaller modifications that serve to improve the text) is the way in which public comments are manifested in Working Group report. While the Subgroup has duly taken into account all of the comments submitted, it is only through causing the Subgroup to decide to change the text that a comment will be manifested. And even then, the comment is not directly mentioned in the Report.
Finally, I don’t understand your statement regarding some (majority?) part of the group not wishing to address OFAC. We probably spent more time on OFAC than any other aspect of our work, and half our report covers OFAC/sanctions related issues. So I see no evidence of our Subgroup, or any part of it, not wishing to address OFAC issues.
Best regards,
Greg
On Wed, Feb 14, 2018 at 2:26 AM Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear Greg, Thank you very much for the file and explanation. However, views of Thomas Rickert is views of Thomas Rickert. He does not have any privilege nor and supremacy with respect to other views to others comments If we do not take into account, according to Thomas Rickert then what is the usefulness of public comment?
there were other occasions in which the group modified its conclusions based on public comments, Example of that is IOT, Human Rights where the conclusions were modified. It is quite clear that the majority pro ....do not wish to address the OFAC but it is the core issue of jurisdiction. I look forward to see how you could take into account the views submitted by Public comments Regards Kavouss
On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
> Dear Greg, > Thank you very much for the file and explanation. > However, views of Thomas Rickert is views of Thomas Rickert. He does > not have any privilege nor and supremacy with respect to other views to > others comments > If we do not take into account, according to Thomas Rickert then > what is the usefulness of public comment? > > there were other occasions in which the group modified its > conclusions based on public comments,Example of that is IOT, Human Rights > where the conclusions were modified. > It is quite clear that the majority pro ....do not wish to address > the OFAC but it is the core issue of jurisdiction. > I look forward to see how you could take into account the views > submitted by Public comments > > On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan < > gregshatanipc@gmail.com> wrote: > >> Kavouss, >> >> The Paragraph 4 you refer to is a quote from the current "ICANN >> Terms and Conditions for the Registrar Accreditation Application" found at >> https://www.icann.org/resources/pages/application-2012-02-25-en. >> The last sentence is bolded for emphasis only. Since it is in the Report >> to show the current facts, we cannot amend it. The Report text that >> follows this quote states: "*The last sentence should be amended >> to require ICANN to apply for and use reasonable best efforts to secure an >> OFAC license if the other party is otherwise acceptable as qualified to be >> a registrar (and is not on the SDN List)." I believe this takes care of >> your concern.* >> >> *I express no view regarding whether the Subgroup should change its >> consensus based on the NCSG comment. This was the last comment reviewed on >> the prior call, during our second reading of the comments. There was >> general interest in considering whether to change the Recommendation >> referred to. No conclusions were reached, and the discussion was not >> finished. I suggested that the consideration of the comment would be easier >> if an NCSG representative provided a proposed revision to the >> Recommendation implementing the Comment.* >> >> *We have taken all comments into account in our work. If a comment >> and the ensuing discussion cause the group to develop a consensus that text >> should be changed, then the relevant text in the Report is changed. >> Specific comments are not referred to here or in any other part of the CCWG >> Report. This was the subject of discussion at the beginning of the last >> call, with Thomas Rickert joining us specifically to discuss this point. In >> case you have not reviewed the transcript/captions, I'll paste the relevant >> text at the end of the email. * >> >> Based on the prior call, text was added to the "Overview of the >> Work of the Subgroup" referring to the public comment process generally and >> including a link to where the comments may be found. This new text reads: >> >> *The Subgroup’s proposed recommendations were submitted to the >> CCWG-Accountability Plenary. The CCWG-Accountability WS2 plenary meeting >> on 27 October 2017 included a discussion focused on jurisdiction issues. A >> transcript of these discussions included as Annex [F] to this Report.* >> >> *The draft Report was approved by consensus as defined in the >> CCWG-Accountability charter, and not by full consensus. The Government of >> Brazil, which did not support approving the report, has prepared a >> dissenting opinion which is supported by several other participants and can >> be found in Annex [E] of the Report.* >> >> *The draft Report was published for Public Comment on November 14, >> 2017. The Public Comment period closed on January 14, 2018. Fifteen >> comments were received. These comments may be found at >> https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/ >> <https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>. >> These comments were summarized by ICANN staff in a “comment tool” >> spreadsheet, which may be found at [insert link]. These comments were duly >> considered and discussed by the Subgroup. Where this led to a change to the >> Subgroup’s consensus, the draft Report was then changed to reflect the new >> consensus.* >> >> >> I look forward to comments from you and the rest of the subgroup >> on this and the other proposed changes in the revised Report. >> >> Best regards, >> >> Greg >> >> *EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:* >> >> >> >> THOMAS RICKERT: Sorry I was double muted. I had unmuted my >> phone and I had to unmute >> >> myself in addition to the Adobe room. This is Thomas Rickert >> speaking. Thank you Greg for handing it over to me. Good >> afternoon, morning, evening to all of you. >> >> I'm very grateful to Greg for allowing me to speak for a little bit. >> Because I made an observation when looking at the public comments >> that I think you know, gave me the opportunity to speak to this group for a >> moment. And I would suggest that if you have a different opinion >> to what I'm proposing right now, we should try to sort this out up front. >> But I guess if we are aligned on the principles that I'm going the >> share with you, then I think we should apply those principles when we are >> looking at the public comment. This is something that doesn't >> only go for the jurisdiction sub-team but it would go for all public >> comment analysis in the CCWGN and it's sub-teams. And sub-teams >> reports, all of them have been prepared by the perspective sub-teams and >> adopted by the respective sub-teams and presented to the plenary and the >> plenary has adopted the report and then the public comment is there to >> serve as a vetting process, if you wish. With the wider community >> to see when there's anything in our recommendations that we forgot had >> that, and we would look at this comment to see yeah, this is something that >> was already discussed or this is a new aspect. And then this new >> aspect might warrant that the report is amended or it might not warrant >> that the report is amended. >> >> Because what the public comment period is not really designed for >> is to give members and for pants of the -- of the sub-teams or CCWG that >> have already in part of the consensus forming during the preparation of the >> recommendations in the past another opportunity to chime in and >> increase the weight of their statement or position. So don't get >> me wrong, certainly it's most welcome for everyone to identify positive >> comment and positive or negative comments do help everyone understand >> better where we are with the recommendations much but for those that have >> chimed in already during the deliberations, you know, their views have >> already been amalgamated into the findings of the sub-team. Therefore >> these would not get additional weight or second would it of the apple as we >> tend to say in this environment as when I goes to recognizing the views and >> adopting them in the report. >> >> So let me just check with everyone whether that's a long the lines >> of your thinking as well. And let me pause here. Greg is chiming >> in don't be excessive. That's a good point. And for those that >> have haven't been part 1 there's some historical fun that we seem to have >> and still have. So thanks for bringing that up Steve. >> >> >> CHERYL LANGDON-ORR: I'm certainly -- [voices overlapping] yeah >> I'm saying I'm very comfortable with that. I think we need to >> make the difference however between an individual and entities. I >> for example would think that the ILAC and at large, if they represent is by >> 5 members for example on various things, members and participants often >> operate without the full con silence use of the ALAC and the total at large >> obviously. So I think we need to have that ruling, but recognize >> there may be a difference between a consensus voted upon statement from a >> support organization or advisory committee. And from a >> participants during the process. Thanks. >> >> >> THOMAS RICKERT: Thanks very much Cheryl. And that's a >> excellent point that you make. And I think it's a perfect and >> true that there may be an incomers between the person that is participating >> in the sub-team and actually the views that are presented by the group that >> that person might happen to work with. But we did have cases >> where the views of a group have been injected into the sub-teams work >> already. So I'm talking about the cases where you have coumarinsy >> during the input that was given during the deliberations of the >> recommendations and comments during the public comment period. So >> thanks for pointing that out. I don't see any other hand, accept >> for David's. David, the floor is yours please. >> >> >> DAVID McAULEY: Thomas thank you it's David McAuley for the >> record. I'm going to weigh in even though I missed a little bit >> of what you said as my phone sort of broke away. I had a little >> bit of connection difficulty. But in any event and listening to >> the later part of what you said and what Cheryl said, I think one of the >> things we will struggle with in this working group and perhaps >> others where the comments coming in or the discussion of the comments >> really centers not so much on the initial input but rather on the matter of >> clarification and let me illustrate here in jurisdiction. In >> jurisdiction we recommend that on governing law issues there would be a >> menu approach but we also couch that in terms of saying we are not >> recommending -- what we are doing is saying the ICANN and contracted >> parties, the GNSO should consider this. And then the government >> of Denmark came in with a comment saying in a menu approach it should be a >> matter of choice by the registrar or registry issue. It should >> note be a matter of issue to choosing the government law. >> >> The clarification would be if you have a menu approach and done >> regionally could someone in North America choose governing law from Asia >> and were not things decided. It would be clarification, natural >> clarification that comes from the consequence of someone's comments. >> I think we can get through it but I think it's going to be >> difficult. Anyway that's the nature of my comment. Thanks Thomas. >> >> >> THOMAS RICKERT: Thanks so much David that's a excellent point. I >> want to make sure we are all aligned in term of expectations. And >> I guess >> >> that if there are comments by somebody who has represented a view >> in the course of the work of the sub-team already, and if that point is >> repeated during the public comment period, that will not give that voice >> additional weight. That's it in a nutshell. Greg you have your >> hand raised and I think it's quite convenient because I was about to hand >> it back over to you anyway. Thanks for your time. >> >> >> GREG SHATAN: Thank you Thomas. I think one corollary and >> Thomas correct me if I'm wrong if I'm not getting this right, but a >> corollary to what you were saying about comments and how they are treated >> here and elsewhere in the subgroups and in the plenary for that matter is >> that comments are reviewed by the group and if there's a consensus in the >> group that the report needs to change, having taken on consideration of the >> comments. Then the report will be changed. Based on that new >> consensus. But the existence of comments or if you will, the raw >> material of any particular comment won't be reflected in the report. >> I think the comment list rather the mail list to which the comment >> was sent will continue to exist. And I think we can put a link to >> that mail list into the report. Acknowledging the comments are >> there. But other than that, unless the group as a whole or has >> brought agreement that we didn't get it right the first time and comments >> have shown us the error of our ways, that the report doesn't get changed. >> >> Is that your understanding as well Thomas? As how it's being >> handled over all. >> >> >> THOMAS RICKERT: Yes that's my understanding. That's a good >> point related to the one I was mentioning. So I guess that what >> I'm mentioning is we have a what you typically do is you make a link to the >> public comment and the public comment analysis -- public comment review to >> us as it's called at least in the GNSO where everything is collected. >> And this particular case our suggestion would be however to have a >> slightly different language not only pointing to the public comment review >> tool but making things a little bit more explicit and, also, with respect >> to the meetings and to meeting minutes of the extensive jurisdiction debate >> that we had in Abui Dubaiy as well a the minority statement that we got. >> We are going the frame it slightly differently here but the >> substance of the report will only be amended in the circumstances that you >> also outlined Greg. >> >> >> GREG SHATAN: Okay thank you for that clarification Thomas. >> >> Or for clarifying that my clarification was correct. And, also, >> for the additional suggestion of how we should refer to other important >> materials from our deliberations. >> >> >> >> On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh < >> kavouss.arasteh@gmail.com> wrote: >> >>> Dear Greg, >>> Thank You very much for the draft >>> I was unable to attend the last meeting as I was on the Plane >>> However, on page 16 .Section/ Paragraph 4,I have noted a paragraph in bold. >>> The inclusion of that bolded paragraph, has a negative >>> connotation as it negate and neutralize the action(s) described / required >>> in that paragraph. >>> I therefore suggest the following amendment which convey the same >>> message but in positive sense >>> See Below >>> * ” 4. Application Process.* >>> Applicant acknowledges that ICANN must comply with all U.S. laws, >>> rules, and regulations. One such set of regulations is the economic and >>> trade sanctions program administered by the Office of Foreign Assets >>> Control ("OFAC") of the U.S. Department of the Treasury. These sanctions >>> have been imposed on certain countries, as well as individuals and entities >>> that appear on OFAC's List of Specially Designated Nationals and Blocked >>> Persons (the "SDN List"). ICANN is prohibited from providing most goods or >>> services to residents of sanctioned countries or their governmental >>> entities or to SDNs without an applicable U.S. government authorization or >>> exemption. ICANN generally will not seek a license to provide goods or >>> services to an individual or entity on the SDN List. In the past, when >>> ICANN has been requested to provide services to individuals or entities >>> that are not SDNs, but are residents of sanctioned countries, ICANN has >>> sought and been granted licenses as required. While ICANN ,in >>> principle, is under no obligations to seek such licenses and, in any given >>> case, and OFAC may decide not to issue a requested license, nevertheless >>> ICANN, is required to apply for and use reasonable best efforts >>> to secure an OFAC license if the other party is otherwise acceptable as a >>> registrar (and is not on the SDN List). During the licensing >>> process, ICANN should be helpful and transparent with regard to the >>> licensing process and ICANN’s efforts, including ongoing communication with >>> the potential registrar. >>> Moreover, I saw that you referring to the comments from Non >>> Commerciale Stakeholder that you want to consider for which I have no >>> objection but, >>> Why you have not taken into account comments from Russia, Italy, >>> France into account >>> It seems you have totally ignore these comments that formally >>> requested you to briefly refer to the French, Italian, Russian comments in >>> the introductory part >>> Regards . >>> Kavouss >>> >>> >>> >> >> >
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participants (3)
-
Greg Shatan -
Kavouss Arasteh -
Raphaël BEAUREGARD-LACROIX