[Issue and Solution] ICANN and its obligation to apply for OFAC when necessary
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license? *Solution: (as was suggested by Jeff, Mike, IGP and others) * Currently, the RAA states that: *”** 4. Application Process.* *…..* *Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]* ………………… The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license. Farzaneh *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com> *Cc:* acct-staff@icann.org; Thomas Rickert <thomas@rickert.net>; ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens. One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN". Farzaneh On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote: I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com> wrote: All, Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered. Also, it seems like we have lost some sight of the main points raised during the call. 1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states: *”** 4. Application Process.* *…..* *Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]* ………………… Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited. 1. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance. https://www.icann.org/resources/pages/application-2012-02-25-en *Jeffrey J. Neuman* *Senior Vice President *|*Valideus USA* | *Com Laude USA* 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com T: +1.703.635.7514 <(703)%20635-7514> M: +1.202.549.5079 <(202)%20549-5079> @Jintlaw
I'm instead concerned about the expression "most goods and services". I'm not sure that's correct. Surely "goods and services that are prohibited transactions" ought to be the correct construction?? On 20/08/17 15:22, farzaneh badii wrote:
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFACtead license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license?
*Solution: (as was suggested by Jeff, Mike, IGP and others) *
Currently, the RAA states that:
/”// 4. Application Process./____
/…../____
/Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. //However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license//.” [Emphasis Added]/____
…………………____
The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license.
__
Farzaneh
__ __
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> *Cc:* acct-staff@icann.org <mailto:acct-staff@icann.org>; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]____
__ __
I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens.____
__ __
One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN".____
____
Farzaneh ____
__ __
On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> wrote:____
I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. ____
__ __
Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. ____
__ __
I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement.____
____
Mike Rodenbaugh____
RODENBAUGH LAW____
tel/fax: +1.415.738.8087 <tel:%28415%29%20738-8087>____
__ __
On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> wrote:____
All,____
____
Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered.____
____
Also, it seems like we have lost some sight of the main points raised during the call. ____
____
1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states: ____
____
/”//4. Application Process./____
/…../____
/Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. //However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license//.” [Emphasis Added]/____
…………………____
____
Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited.____
2. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc.____
Thanks again for the information on last weeks call and I look forward to discussing the substance.____
____
____
____
____
https://www.icann.org/resources/pages/application-2012-02-25-en <https://www.icann.org/resources/pages/application-2012-02-25-en> ____
____
*Jeffrey J. Neuman*____
*Senior Vice President *|*Valideus USA***| *Com Laude USA*____
1751 Pinnacle Drive, Suite 600____
Mclean, VA 22102, United States____
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>____
T: +1.703.635.7514 <tel:%28703%29%20635-7514>____
M: +1.202.549.5079 <tel:%28202%29%20549-5079>____
@Jintlaw____
____
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Farzaneh, Does that solve the problem? What will happen if OFAC decides not to issue the requested license? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> a écrit :
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license?
Solution: (as was suggested by Jeff, Mike, IGP and others)
Currently, the RAA states that:
” 4. Application Process. …..
Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added]
…………………
The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license.
Farzaneh
From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of farzaneh badii Sent: Monday, August 7, 2017 4:08 PM To: Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> Cc: acct-staff@icann.org <mailto:acct-staff@icann.org>; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]
I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens.
One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN".
Farzaneh
On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> wrote:
I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details.
Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live.
I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <tel:(415)%20738-8087> http://rodenbaugh.com <http://rodenbaugh.com/>
On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> wrote:
All, <>
Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered.
Also, it seems like we have lost some sight of the main points raised during the call.
One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states:
” 4. Application Process. …..
Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added]
…………………
Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited.
The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance.
https://www.icann.org/resources/pages/application-2012-02-25-en <https://www.icann.org/resources/pages/application-2012-02-25-en>
Jeffrey J. Neuman
Senior Vice President |Valideus USA | Com Laude USA
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 <tel:(703)%20635-7514> M: +1.202.549.5079 <tel:(202)%20549-5079> @Jintlaw
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
On Sunday 20 August 2017 09:35 PM, Tijani BEN JEMAA wrote:
Farzaneh,
Does that solve the problem? What will happen if OFAC decides not to issue the requested license?
Precisely. That is the original OFAC related jurisdiction issue. Not so much ICANN's less than very appropriately worded terms in the gltd application book, which can of course be improved. ICANN's change of language does not substantially change the application of OFAC on ICANN's global governance function. We need a response to that problem.... parminder
----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> a écrit :
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license?
*Solution: (as was suggested by Jeff, Mike, IGP and others) *
Currently, the RAA states that:
/”// 4. Application Process./
/…../
/Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. //However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license//.” [Emphasis Added]/
…………………
The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license.
Farzaneh
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> *Cc:* acct-staff@icann.org <mailto:acct-staff@icann.org>; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]
I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens.
One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN".
Farzaneh
On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> wrote:
I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details.
Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live.
I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <tel:%28415%29%20738-8087>
http://rodenbaugh.com <http://rodenbaugh.com/>
On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> wrote:
All,
Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered.
Also, it seems like we have lost some sight of the main points raised during the call.
1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states:
/”//4. Application Process./
/…../
/Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. //However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license//.” [Emphasis Added]/
…………………
Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited.
2. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc.
Thanks again for the information on last weeks call and I look forward to discussing the substance.
https://www.icann.org/resources/pages/application-2012-02-25-en <https://www.icann.org/resources/pages/application-2012-02-25-en>
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA***| *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com>or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>
T: +1.703.635.7514 <tel:%28703%29%20635-7514>
M: +1.202.549.5079 <tel:%28202%29%20549-5079>
@Jintlaw
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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I suggest you start a thread on the issue of what will happen if OFAC is not granted. Lets focus here on the issue of ICANN commitment to seek an OFAC license. Farzaneh On Sun, Aug 20, 2017 at 12:47 PM, parminder <parminder@itforchange.net> wrote:
On Sunday 20 August 2017 09:35 PM, Tijani BEN JEMAA wrote:
Farzaneh,
Does that solve the problem? What will happen if OFAC decides not to issue the requested license?
Precisely. That is the original OFAC related jurisdiction issue. Not so much ICANN's less than very appropriately worded terms in the gltd application book, which can of course be improved. ICANN's change of language does not substantially change the application of OFAC on ICANN's global governance function. We need a response to that problem.... parminder
------------------------------------------------------------ ----------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 <+216%2098%20330%20114> +216 52 385 114 ------------------------------------------------------------ -----------------
Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii@gmail.com> a écrit :
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license?
*Solution: (as was suggested by Jeff, Mike, IGP and others) *
Currently, the RAA states that:
*”** 4. Application Process.*
*…..*
*Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]*
…………………
The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license.
Farzaneh
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com> *Cc:* acct-staff@icann.org; Thomas Rickert <thomas@rickert.net>; ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]
I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens.
One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN".
Farzaneh
On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details.
Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live.
I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <%28415%29%20738-8087>
On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
All,
Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered.
Also, it seems like we have lost some sight of the main points raised during the call.
1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states:
*”** 4. Application Process.*
*…..*
*Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]*
…………………
Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited.
1. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc.
Thanks again for the information on last weeks call and I look forward to discussing the substance.
https://www.icann.org/resources/pages/application-2012-02-25-en
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA* | *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com
T: +1.703.635.7514 <%28703%29%20635-7514>
M: +1.202.549.5079 <%28202%29%20549-5079>
@Jintlaw
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear All Yes I agree with Farzaneh who has been working on this issue for years and has a deep understanding of various scenarios to be explored Regards Kavouss Sent from my iPhone
On 20 Aug 2017, at 19:11, farzaneh badii <farzaneh.badii@gmail.com> wrote:
I suggest you start a thread on the issue of what will happen if OFAC is not granted. Lets focus here on the issue of ICANN commitment to seek an OFAC license.
Farzaneh
On Sun, Aug 20, 2017 at 12:47 PM, parminder <parminder@itforchange.net> wrote:
On Sunday 20 August 2017 09:35 PM, Tijani BEN JEMAA wrote: Farzaneh,
Does that solve the problem? What will happen if OFAC decides not to issue the requested license?
Precisely. That is the original OFAC related jurisdiction issue. Not so much ICANN's less than very appropriately worded terms in the gltd application book, which can of course be improved. ICANN's change of language does not substantially change the application of OFAC on ICANN's global governance function. We need a response to that problem.... parminder
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii@gmail.com> a écrit :
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license?
Solution: (as was suggested by Jeff, Mike, IGP and others)
Currently, the RAA states that:
” 4. Application Process. …..
Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added]
…………………
The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license.
Farzaneh
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of farzaneh badii Sent: Monday, August 7, 2017 4:08 PM To: Mike Rodenbaugh <mike@rodenbaugh.com> Cc: acct-staff@icann.org; Thomas Rickert <thomas@rickert.net>; ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]
I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens.
One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN".
Farzaneh
On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details.
Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live.
I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
All,
Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered.
Also, it seems like we have lost some sight of the main points raised during the call.
One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states:
” 4. Application Process. …..
Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added]
…………………
Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited.
The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance.
https://www.icann.org/resources/pages/application-2012-02-25-en
Jeffrey J. Neuman
Senior Vice President |Valideus USA | Com Laude USA
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I am overjoyed to be able to say that I agree with Kavouss and Farzaneh. 😊 Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Arasteh Sent: Sunday, August 20, 2017 2:20 PM To: farzaneh badii <farzaneh.badii@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Issue and Solution] ICANN and its obligation to apply for OFAC when necessary Dear All Yes I agree with Farzaneh who has been working on this issue for years and has a deep understanding of various scenarios to be explored Regards Kavouss Sent from my iPhone On 20 Aug 2017, at 19:11, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com> > wrote: I suggest you start a thread on the issue of what will happen if OFAC is not granted. Lets focus here on the issue of ICANN commitment to seek an OFAC license. Farzaneh On Sun, Aug 20, 2017 at 12:47 PM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> > wrote: On Sunday 20 August 2017 09:35 PM, Tijani BEN JEMAA wrote: Farzaneh, Does that solve the problem? What will happen if OFAC decides not to issue the requested license? Precisely. That is the original OFAC related jurisdiction issue. Not so much ICANN's less than very appropriately worded terms in the gltd application book, which can of course be improved. ICANN's change of language does not substantially change the application of OFAC on ICANN's global governance function. We need a response to that problem.... parminder ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 <tel:+216%2098%20330%20114> +216 52 385 114 ----------------------------------------------------------------------------- Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com> > a écrit : ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license? Solution: (as was suggested by Jeff, Mike, IGP and others) Currently, the RAA states that: ” 4. Application Process. ….. Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added] ………………… The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license. Farzaneh From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] On Behalf Of farzaneh badii Sent: Monday, August 7, 2017 4:08 PM To: Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > Cc: acct-staff@icann.org <mailto:acct-staff@icann.org> ; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net> >; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens. One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN". Farzaneh On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > wrote: I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <tel:%28415%29%20738-8087> http://rodenbaugh.com <http://rodenbaugh.com/> On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > wrote: All, Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered. Also, it seems like we have lost some sight of the main points raised during the call. 1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states: ” 4. Application Process. ….. Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added] ………………… Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited. 2. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance. https://www.icann.org/resources/pages/application-2012-02-25-en Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 <tel:%28703%29%20635-7514> M: +1.202.549.5079 <tel:%28202%29%20549-5079> @Jintlaw _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Farzaneh, Does that solve the problem? What will happen if OFAC decides not to issue the requested license? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> a écrit :
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license?
Solution: (as was suggested by Jeff, Mike, IGP and others)
Currently, the RAA states that:
” 4. Application Process. …..
Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added]
…………………
The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license.
Farzaneh
From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of farzaneh badii Sent: Monday, August 7, 2017 4:08 PM To: Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> Cc: acct-staff@icann.org <mailto:acct-staff@icann.org>; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]
I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens.
One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN".
Farzaneh
On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> wrote:
I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details.
Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live.
I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <tel:(415)%20738-8087> http://rodenbaugh.com <http://rodenbaugh.com/>
On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> wrote:
All, <>
Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered.
Also, it seems like we have lost some sight of the main points raised during the call.
One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states:
” 4. Application Process. …..
Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license.” [Emphasis Added]
…………………
Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited.
The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance.
https://www.icann.org/resources/pages/application-2012-02-25-en <https://www.icann.org/resources/pages/application-2012-02-25-en>
Jeffrey J. Neuman
Senior Vice President |Valideus USA | Com Laude USA
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 <tel:(703)%20635-7514> M: +1.202.549.5079 <tel:(202)%20549-5079> @Jintlaw
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
Hi Tijani, That is another issue which should be discussed and tackled with but in another thread. The problem that ICANN does not obligate itself to seek a license can be solved relatively easily through a change of ICANN contract with the registrars. If OFAC does not grant a license is a grander issue which needs other solutions. One of the solutions could be that OFAC issues a general license for ICANN functions. But I suggest that in this thread we actually talk about how we can get ICANN to change RAA and also be required to seek an OFAC license. Best Farzaneh Farzaneh On Sun, Aug 20, 2017 at 12:05 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Farzaneh,
Does that solve the problem? What will happen if OFAC decides not to issue the requested license?
------------------------------------------------------------ ----------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 <+216%2098%20330%20114> +216 52 385 114 <+216%2052%20385%20114> ------------------------------------------------------------ -----------------
Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii@gmail.com> a écrit :
ICANN RAA says it is under "no obligation" to seek an OFAC license (see below) With ICANN stating that it is under no obligation to apply for OFAC license for applicants residing in sanctioned countries, ICANN provides a way for jurisdiction to interfere with providing domain name services. Why, given its commitment to global interoperability of the DNS, should it be discretionary for ICANN to apply for an OFAC license?
*Solution: (as was suggested by Jeff, Mike, IGP and others) *
Currently, the RAA states that:
*”** 4. Application Process.*
*…..*
*Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]*
…………………
The red part should be changed to require ICANN to applying for an OFAC license. with the clarification that OFAC could decide not to issue a requested license.
Farzaneh
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com> *Cc:* acct-staff@icann.org; Thomas Rickert <thomas@rickert.net>; ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]
I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens.
One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN".
Farzaneh
On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details.
Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live.
I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <(415)%20738-8087>
On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
All,
Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered.
Also, it seems like we have lost some sight of the main points raised during the call.
1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states:
*”** 4. Application Process.*
*…..*
*Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]*
…………………
Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited.
1. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc.
Thanks again for the information on last weeks call and I look forward to discussing the substance.
https://www.icann.org/resources/pages/application-2012-02-25-en
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA* | *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com
T: +1.703.635.7514 <(703)%20635-7514>
M: +1.202.549.5079 <(202)%20549-5079>
@Jintlaw
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participants (6)
-
Arasteh -
farzaneh badii -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Tijani BEN JEMAA