[Issue and Solution] Seeking an OFAC License process
Seeking an OFAC license has been reported to be lengthy and not very transparent. Also as Mr. Rodenbaugh explained below, OFAC licenses are time-limited and require a periodic application. It can hamper registries/registrars businesses. ICANN has reportedly been untransparent about the application of OFAC license process. Solution: ICANN should commit to apply for an OFAC license and be transparent about the application process and its actions with regards to application. As to the lengthy nature of the process, perhaps attempting to receive a general OFAC license for ICANN functions would be a solution for all this. 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 Farzaneh
However lengthy the OFAC license application process, I am quite confident that seeking a legislative immunity solution in the US would be even lengthier ☹ 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 farzaneh badii Sent: Sunday, August 20, 2017 10:36 AM To: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] [Issue and Solution] Seeking an OFAC License process Seeking an OFAC license has been reported to be lengthy and not very transparent. Also as Mr. Rodenbaugh explained below, OFAC licenses are time-limited and require a periodic application. It can hamper registries/registrars businesses. ICANN has reportedly been untransparent about the application of OFAC license process. Solution: ICANN should commit to apply for an OFAC license and be transparent about the application process and its actions with regards to application. As to the lengthy nature of the process, perhaps attempting to receive a general OFAC license for ICANN functions would be a solution for all this. 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/> Farzaneh
It’s not clear to me that a general license requires legislation. It might be something that the executive branch can do. Also, while getting recognition for a general license might take time, once it was done it would be done, whereas every individual application has to be handled again and again and again…. --MM However lengthy the OFAC license application process, I am quite confident that seeking a legislative immunity solution in the US would be even lengthier ☹ Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, August 20, 2017 10:36 AM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ws2-jurisdiction] [Issue and Solution] Seeking an OFAC License process Seeking an OFAC license has been reported to be lengthy and not very transparent. Also as Mr. Rodenbaugh explained below, OFAC licenses are time-limited and require a periodic application. It can hamper registries/registrars businesses. ICANN has reportedly been untransparent about the application of OFAC license process. Solution: ICANN should commit to apply for an OFAC license and be transparent about the application process and its actions with regards to application. As to the lengthy nature of the process, perhaps attempting to receive a general OFAC license for ICANN functions would be a solution for all this. 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/> Farzaneh
It appears to me that creation of a general license involves a regulatory process, which is in the purview of the executive branch (more specifically, the U.S. Treasury, of which OFAC is a part). Indeed, 31 CFR § 595.305 defines a general license as “any license or authorization the terms of which are set forth in this part.” In other words, the general license is a part of the OFAC regulations. General licenses apply to classes of persons and types of transactions. By contrast, a specific license is sought through an application to OFAC and the license is issued by OFAC. Individual licenses are party-specific and transaction-specific. Greg On Sun, Aug 20, 2017 at 10:48 PM, Mueller, Milton L <milton@gatech.edu> wrote:
It’s not clear to me that a general license requires legislation. It might be something that the executive branch can do. Also, while getting recognition for a general license might take time, once it was done it would be done, whereas every individual application has to be handled again and again and again….
--MM
However lengthy the OFAC license application process, I am quite confident that seeking a legislative immunity solution in the US would be even lengthier ☹
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <(202)%20547-0660>
M: +1 (202) 329-9650 <(202)%20329-9650>
VOIP: +1 (202) 738-1739 <(202)%20738-1739>
www.redbranchconsulting.com
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *farzaneh badii *Sent:* Sunday, August 20, 2017 10:36 AM *To:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] [Issue and Solution] Seeking an OFAC License process
Seeking an OFAC license has been reported to be lengthy and not very transparent. Also as Mr. Rodenbaugh explained below, OFAC licenses are time-limited and require a periodic application. It can hamper registries/registrars businesses.
ICANN has reportedly been untransparent about the application of OFAC license process.
Solution: ICANN should commit to apply for an OFAC license and be transparent about the application process and its actions with regards to application.
As to the lengthy nature of the process, perhaps attempting to receive a general OFAC license for ICANN functions would be a solution for all this.
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>
Farzaneh
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That’s what I meant – OFAC is a regulatory process. That’s hard, but it is a LOT easier than a legislative process which would be what is necessary for formal immunity from this law. 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: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Sunday, August 20, 2017 10:49 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] [Issue and Solution] Seeking an OFAC License process It’s not clear to me that a general license requires legislation. It might be something that the executive branch can do. Also, while getting recognition for a general license might take time, once it was done it would be done, whereas every individual application has to be handled again and again and again…. --MM However lengthy the OFAC license application process, I am quite confident that seeking a legislative immunity solution in the US would be even lengthier ☹ 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> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, August 20, 2017 10:36 AM To: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: [Ws2-jurisdiction] [Issue and Solution] Seeking an OFAC License process Seeking an OFAC license has been reported to be lengthy and not very transparent. Also as Mr. Rodenbaugh explained below, OFAC licenses are time-limited and require a periodic application. It can hamper registries/registrars businesses. ICANN has reportedly been untransparent about the application of OFAC license process. Solution: ICANN should commit to apply for an OFAC license and be transparent about the application process and its actions with regards to application. As to the lengthy nature of the process, perhaps attempting to receive a general OFAC license for ICANN functions would be a solution for all this. 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/> Farzaneh
participants (4)
-
farzaneh badii -
Greg Shatan -
Mueller, Milton L -
Paul Rosenzweig