Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,...> Los Angeles, California 90094 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,...> USA <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,...> Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------ *From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto: kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul. rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660 <(202)%20547-0660>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650 <(202)%20329-9650>> VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739 <(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction- bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailt o:gregshatanipc@gmail.com>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ 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 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
Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> wrote: Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,...> Los Angeles, California 90094 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,...> USA <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,...> Direct Dial: +1 310 578 8631 <tel:+1%20310-578-8631> From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction
Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu <mailto:milton@gatech.edu>> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
<> 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de <mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660 <tel:+1%20202-547-0660><tel:(202)%20547-0660 <tel:(202)%20547-0660>> M: +1 (202) 329-9650 <tel:+1%20202-329-9650><tel:(202)%20329-9650 <tel:(202)%20329-9650>> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739><tel:(202)%20738-1739 <tel:(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:+1%20310-578-8631> ________________________________ From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660<tel:+1%20202-547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:+1%20202-329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:+1%20202-738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org><mailto: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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631
From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn <mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <tel:+1%20310-578-8631> From:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction
Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
<> 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de <mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps 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 Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn <mailto:tijani.benjemaa@topnet.tn> > Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > Cc: Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org> >, ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <tel:+1%20310-578-8631> _____ From:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> > on behalf of Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu <mailto:milton@gatech.edu> > wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >; Thomas Rickert <rickert@anwaelte.de <mailto:rickert@anwaelte.de> >; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> >; Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> > wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] Em nome de Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> > Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> <mailto:kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> >> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > O: +1 (202) 547-0660 <tel:+1%20202-547-0660> <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:+1%20202-329-9650> <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739> <tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> > My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684[keys.mailvelope.com] From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps 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 <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 <mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631
From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn <mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <tel:+1%20310-578-8631> From:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction
Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
<> 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de <mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660 <tel:+1%20202-547-0660><tel:(202)%20547-0660 <tel:(202)%20547-0660>> M: +1 (202) 329-9650 <tel:+1%20202-329-9650><tel:(202)%20329-9650 <tel:(202)%20329-9650>> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739><tel:(202)%20738-1739 <tel:(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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I feel less equivocal than the rest of the US lawyers on this list, apparently. The OFAC rules apply to “US Persons” and the Treasury Department rules say: All U.S. persons must comply with OFAC regulations, including all U.S. citizens and permanent resident aliens regardless of where they are located, all persons and entities within the United States, all U.S incorporated entities and their foreign branches. In the cases of certain programs, such as those regarding Cuba and North Korea, all foreign subsidiaries owned or controlled by U.S. companies also must comply. Certain programs also require foreign persons in possession of U.S. origin goods to comply. This definition simply does not support application of the OFAC rules to a contracted party solely due to their contracts with ICANN IMHO. J. 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From: <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> Date: Friday, September 22, 2017 at 2:43 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps 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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=78iGoqMxqMVlk-UMbHB888KnBvmXiyGskaPzrSQN3d0&s=XPYkKasWpRF3vHhl8TvIMhYHbSOOeXE2N3RKz79b_ww&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:+1%20310-578-8631> ________________________________ From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660<tel:+1%20202-547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:+1%20202-329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:+1%20202-738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org><mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=78iGoqMxqMVlk-UMbHB888KnBvmXiyGskaPzrSQN3d0&s=bCVij5iZAbtxIp7UlQeBgyxhWgxLoCQXq5uPQ8gI6wk&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=78iGoqMxqMVlk-UMbHB888KnBvmXiyGskaPzrSQN3d0&s=bCVij5iZAbtxIp7UlQeBgyxhWgxLoCQXq5uPQ8gI6wk&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=78iGoqMxqMVlk-UMbHB888KnBvmXiyGskaPzrSQN3d0&s=bCVij5iZAbtxIp7UlQeBgyxhWgxLoCQXq5uPQ8gI6wk&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=78iGoqMxqMVlk-UMbHB888KnBvmXiyGskaPzrSQN3d0&s=bCVij5iZAbtxIp7UlQeBgyxhWgxLoCQXq5uPQ8gI6wk&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=78iGoqMxqMVlk-UMbHB888KnBvmXiyGskaPzrSQN3d0&s=bCVij5iZAbtxIp7UlQeBgyxhWgxLoCQXq5uPQ8gI6wk&e=>
I was just writing to make exactly the same point. It is very clear that OFAC only applies to US entities, including ICANN. ICANN has to get OFAC clearance to do business with entities from listed countries. That doesn't make those foreign entities subject to OFAC. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Fri, Sep 22, 2017 at 11:04 AM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
I feel less equivocal than the rest of the US lawyers on this list, apparently. The OFAC rules apply to “US Persons” and the Treasury Department rules say:
All U.S. persons must comply with OFAC regulations, including all U.S. citizens and permanent resident aliens regardless of where they are located, all persons and entities within the United States, all U.S incorporated entities and their foreign branches. In the cases of certain programs, such as those regarding Cuba and North Korea, all foreign subsidiaries owned or controlled by U.S. companies also must comply. Certain programs also require foreign persons in possession of U.S. origin goods to comply.
This definition simply does not support application of the OFAC rules to a contracted party solely due to their contracts with ICANN IMHO.
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From: <ws2-jurisdiction-bounces@icann.org> on behalf of Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> Date: Friday, September 22, 2017 at 2:43 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ ----------------- *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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps 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 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ ----------------- *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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ ----------------- *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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------ *From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction- bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com< mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2- jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com< mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Tijani, Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply). Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract? Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN. Greg On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn
wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ ----------------- *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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps 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 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 <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ ----------------- *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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ ----------------- *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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------ *From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction- bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com< mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2- jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com< mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses. As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account. ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 ________________________________ From: ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Tijani, Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply). Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract? Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN. Greg On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> wrote: Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=dYTtbBIgukseIqTDSE_jTP6FcRo3hGEm3jck9IgSNlI&s=5LOM0e7F4IVRj4YB10BUhCEuJx6mKXl3NBgL0KM8-Nk&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631<tel:(310)%20578-8631> From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:+1%20310-578-8631> ________________________________ From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660<tel:+1%20202-547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:+1%20202-329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:+1%20202-738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org><mailto: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 _______________________________________________ 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
Dear All It is very intresting that one look at the understanding, interpretation and views of all these distinguished American Lawyers on the applicability of OFAC to ICANN cntracted parties, including Registrar I have prepared a compilation of these veiwes in a cut and paste manner See Below *OFAC APPLICATION * *On Sep 20, 2017 4:03 PM, * *From Seun* *We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. * *SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.* *Regards* *From Samantha Eisner* *Hi Seun - * *To your question, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.* *Sam* *From Tijani BEN JEMAA* *You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract * *Tijani BEN JEMAA with ICANN?* *From Tijani * *Thank you Sam,* *You didn’t answer my question which was: * *According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?* *I will very much appreciate a clear and to the point answer.* *Tijani BEN JEMAA* *From Paul Rosenweig* *Hi Tijani* *Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. * *As to California **– OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.* *As to the Federal government**, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is **that they apply to ICANN* *but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).* *Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask* *Hope that helps* *Paul* * Paul Rosenzweig* *From** Tijani BEN JEMAA *via <https://support.google.com/mail/answer/1311182?hl=en>* icann.org <http://icann.org> * *Thank you Paul,* *So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.* *FROM J. Beckwith Burr* *I feel less equivocal than the rest of the US lawyers on this list, apparently. The OFAC rules apply to “US Persons” and the Treasury Department rules say:* *All U.S. persons must comply with OFAC regulations, including all U.S. citizens and permanent resident aliens regardless of where they are located, all persons and entities within the United States, all U.S incorporated entities and their foreign branches. In the cases of certain programs, such as those regarding Cuba and North Korea, all foreign subsidiaries owned or controlled by U.S. companies also must comply. Certain programs also require foreign persons in possession of U.S. origin goods to comply.* *This definition simply does not support application of the OFAC rules to a contracted party solely due to their contracts with ICANN IMHO.* *J. Beckwith Burr* *From Geg Satan* *Tijani,* *Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, **"this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." **He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).* *Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. * *Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so**. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?* *Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.* *Greg* *From Mike Rodenbaugh* *I was just writing to make exactly the same point. It is very clear that OFAC only applies to US entities, including ICANN. ICANN has to get OFAC clearance to do business with entities from listed countries. That doesn't make those foreign entities subject to OFAC.* *Mike Rodenbaugh* *From Paul Rosenweig to Tijani * *Actually I mean the exact opposite. **There is no reason to think OFAC would apply to non US persons.** The absence of law making such an assertion confirms this since the baseline is a presumption against extraterritorial law. There is also no statement that Russian law doesn't apply or any other* *Paul* *From Milton Muller to Tijani and **….* *I don’t understand how you got to that conclusion. As Paul clarified, he meant the exact opposite: “they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).”* * --MM* *From Samantha Eisner to ….* *Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.* *As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. * *Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.* *Samantha Eisner* The only pertinent question to these prominent distinguished American Lawyer is Does OFAC Régulations obligate the ICANN non US Based and Non US nationals contracted parties to apply to or to be bound to these régulations . If yes why? if No are the contracted parties referred to above authorized to adopt an internal Policy to apply OFAC régulations to individuals requesting to get involved in a business with them? Regards Kavouss On Fri, Sep 22, 2017 at 11:52 PM, Samantha Eisner <Samantha.Eisner@icann.org
wrote:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 ------------------------------ *From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ ----------------- *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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps 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[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x 9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ ----------------- *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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ ----------------- *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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------ *From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul. rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660 <(202)%20547-0660>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650 <(202)%20329-9650>> VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739 <(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x 9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Dear all, could it be possible to address Mr Araste's concerns? perhaps producing a new document with references to comments by himself and others? This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing. best regards Olga 2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------ *From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ ----------------- *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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps 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[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x 9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ ----------------- *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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ ----------------- *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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------ *From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul. rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660 <(202)%20547-0660>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650 <(202)%20329-9650>> VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739 <(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation. We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup. 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 Olga Cavalli Sent: Saturday, September 23, 2017 4:42 PM To: Samantha Eisner <Samantha.Eisner@icann.org> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, could it be possible to address Mr Araste's concerns? perhaps producing a new document with references to comments by himself and others? This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing. best regards Olga 2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> >: Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses. As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account. ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <tel:(310)%20578-8631> _____ From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> > on behalf of Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Tijani, Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply). Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract? Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN. Greg On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn <mailto:tijani.benjemaa@topnet.tn> > wrote: Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com] My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [ <mailto:ws2-jurisdiction-bounces@icann.org> mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> Cc: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <tel:(310)%20578-8631> From: Tijani BEN JEMAA < <mailto:tijani.benjemaa@topnet.tn> tijani.benjemaa@topnet.tn> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> Cc: Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org>, ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] Direct Dial: <tel:+1%20310-578-8631> +1 310 578 8631 _____ From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org < <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org> on behalf of Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" < <mailto:milton@gatech.edu> milton@gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira < <mailto:thiago.jardim@itamaraty.gov.br> thiago.jardim@itamaraty.gov.br>; Thomas Rickert < <mailto:rickert@anwaelte.de> rickert@anwaelte.de>; León Felipe Sánchez Ambía < <mailto:leonfelipe@sanchez.mx> leonfelipe@sanchez.mx>; Jordan Carter < <mailto:jordan@internetnz.net.nz> jordan@internetnz.net.nz> Cc: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < <mailto:thiago.jardim@itamaraty.gov.br> thiago.jardim@itamaraty.gov.br> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] Em nome de <mailto:Jorge.Cancio@bakom.admin.ch> Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com Cc: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh < <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh < <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com<mailto: <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig < <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com<mailto: <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com<mailto: <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> O: <tel:+1%20202-547-0660> +1 (202) 547-0660< <tel:(202)%20547-0660> tel:(202)%20547-0660> M: <tel:+1%20202-329-9650> +1 (202) 329-9650< <tel:(202)%20329-9650> tel:(202)%20329-9650> VOIP: <tel:+1%20202-738-1739> +1 (202) 738-1739< <tel:(202)%20738-1739> tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com]< <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> http://www.redbranchconsulting.com/[redbranchconsulting.com]> My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org<mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org> [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org<mailto: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com<mailto: <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list <mailto:Ws2-jurisdiction@icann.org> Ws2-jurisdiction@icann.org<mailto: <mailto:Ws2-jurisdiction@icann.org> Ws2-jurisdiction@icann.org> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list <mailto:Ws2-jurisdiction@icann.org> Ws2-jurisdiction@icann.org <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list <mailto:Ws2-jurisdiction@icann.org> Ws2-jurisdiction@icann.org <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list <mailto:Ws2-jurisdiction@icann.org> Ws2-jurisdiction@icann.org <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list <mailto:Ws2-jurisdiction@icann.org> Ws2-jurisdiction@icann.org <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> 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
Dear all, dear Paul, I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation… Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. September 2017 16:12 An: 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' <Samantha.Eisner@icann.org> Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation. We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup. 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 Olga Cavalli Sent: Saturday, September 23, 2017 4:42 PM To: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, could it be possible to address Mr Araste's concerns? perhaps producing a new document with references to comments by himself and others? This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing. best regards Olga 2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>>: Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses. As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account. ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631<tel:(310)%20578-8631> ________________________________ From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Tijani, Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply). Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract? Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN. Greg On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> wrote: Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=dYTtbBIgukseIqTDSE_jTP6FcRo3hGEm3jck9IgSNlI&s=5LOM0e7F4IVRj4YB10BUhCEuJx6mKXl3NBgL0KM8-Nk&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631<tel:(310)%20578-8631> From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:+1%20310-578-8631> ________________________________ From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660<tel:+1%20202-547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:+1%20202-329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:+1%20202-738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org><mailto: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 _______________________________________________ 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
Jorge, I have said this multiple times. We have addressed the chilling effect. Please read the recommendations. Best Farzaneh On Mon, Sep 25, 2017 at 10:24 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
Paul Rosenzweig
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------
*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
Paul Rosenzweig
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
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Deputy General Counsel, ICANN
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction- bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com< mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2- jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com< mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired. 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: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Monday, September 25, 2017 10:25 AM To: paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org Cc: ws2-jurisdiction@icann.org Subject: AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, dear Paul, I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation… Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. September 2017 16:12 An: 'Olga Cavalli' <olgacavalli@gmail.com <mailto:olgacavalli@gmail.com> >; 'Samantha Eisner' <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Betreff: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation. We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup. 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 Olga Cavalli Sent: Saturday, September 23, 2017 4:42 PM To: Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, could it be possible to address Mr Araste's concerns? perhaps producing a new document with references to comments by himself and others? This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing. best regards Olga 2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> >: Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses. As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account. ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <tel:(310)%20578-8631> _____ From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> > on behalf of Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Tijani, Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply). Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract? Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN. Greg On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn <mailto:tijani.benjemaa@topnet.tn> > wrote: Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com] My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [ <mailto:ws2-jurisdiction-bounces@icann.org> mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> Cc: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <tel:(310)%20578-8631> From: Tijani BEN JEMAA < <mailto:tijani.benjemaa@topnet.tn> tijani.benjemaa@topnet.tn> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> Cc: Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org>, ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] Direct Dial: <tel:+1%20310-578-8631> +1 310 578 8631 _____ From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org < <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org> on behalf of Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" < <mailto:milton@gatech.edu> milton@gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira < <mailto:thiago.jardim@itamaraty.gov.br> thiago.jardim@itamaraty.gov.br>; Thomas Rickert < <mailto:rickert@anwaelte.de> rickert@anwaelte.de>; León Felipe Sánchez Ambía < <mailto:leonfelipe@sanchez.mx> leonfelipe@sanchez.mx>; Jordan Carter < <mailto:jordan@internetnz.net.nz> jordan@internetnz.net.nz> Cc: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < <mailto:thiago.jardim@itamaraty.gov.br> thiago.jardim@itamaraty.gov.br> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] Em nome de <mailto:Jorge.Cancio@bakom.admin.ch> Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com Cc: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh < <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh < <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com<mailto: <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig < <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com<mailto: <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com<mailto: <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> O: <tel:+1%20202-547-0660> +1 (202) 547-0660< <tel:(202)%20547-0660> tel:(202)%20547-0660> M: <tel:+1%20202-329-9650> +1 (202) 329-9650< <tel:(202)%20329-9650> tel:(202)%20329-9650> VOIP: <tel:+1%20202-738-1739> +1 (202) 738-1739< <tel:(202)%20738-1739> tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com]< <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> http://www.redbranchconsulting.com/[redbranchconsulting.com]> My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org<mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org> [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org<mailto: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com<mailto: <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. 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Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Monday, September 25, 2017 10:25 AM To: paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org Cc: ws2-jurisdiction@icann.org Subject: AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. September 2017 16:12 An: 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' <Samantha.Eisner@icann.org> Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 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] On Behalf Of Olga Cavalli Sent: Saturday, September 23, 2017 4:42 PM To: Samantha Eisner <Samantha.Eisner@icann.org> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>: Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631
From: ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> wrote: Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com[redbranchconsulting.com] My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631
From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com> Cc: Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] Los Angeles, California 90094[maps.google.com] USA[maps.google.com] Direct Dial: +1 310 578 8631 From:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction
Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
From:ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> wrote: Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<http://www.redbranchconsulting.com/[redbranchconsulting.com]> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Kavouss, It might help Paul and others to understand your point if you could explain your three points, specifically: a) Why it is necessary to include this case/anecdote in the OFAC Recommendation b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement Best regards, Greg On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
Paul Rosenzweig
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O: +1 (202) 547-0660 <(202)%20547-0660>
M: +1 (202) 329-9650 <(202)%20329-9650>
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <(202)%20547-0660>
M: +1 (202) 329-9650 <(202)%20329-9650>
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------
*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction- bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com< mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2- jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com< mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Dear Greg Thanks The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case . If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation. Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate Regards Kavouss On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically: a) Why it is necessary to include this case/anecdote in the OFAC Recommendation b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss
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On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300____+Los+Angeles...>
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*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ican n.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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>
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Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300____+Los+Angeles...>
Los Angeles, California 90094 <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300____+Los+Angeles...>
USA <https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300____+Los+Angeles...>
Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
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*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------
*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only? Becky Burr Sent from my iPhone On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Greg Thanks The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case . If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation. Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate Regards Kavouss On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Kavouss, It might help Paul and others to understand your point if you could explain your three points, specifically: a) Why it is necessary to include this case/anecdote in the OFAC Recommendation b) Why it is relevant to the OFAC Recommendation that Resello's decision could not be attributed to OFAC applicability c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement Best regards, Greg On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss Sent from my iPhone On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=QZg6_N_7tZaDa5yi_94NMsyDiQhAX1f-AGdeWkzBOJY&e=> From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Monday, September 25, 2017 10:25 AM To: paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>; olgacavalli@gmail.com<mailto:olgacavalli@gmail.com>; Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, dear Paul, I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation… Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. September 2017 16:12 An: 'Olga Cavalli' <olgacavalli@gmail.com<mailto:olgacavalli@gmail.com>>; 'Samantha Eisner' <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation. We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=QZg6_N_7tZaDa5yi_94NMsyDiQhAX1f-AGdeWkzBOJY&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Olga Cavalli Sent: Saturday, September 23, 2017 4:42 PM To: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, could it be possible to address Mr Araste's concerns? perhaps producing a new document with references to comments by himself and others? This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing. best regards Olga 2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>>: Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses. As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account. ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:(310)%20578-8631> ________________________________ From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Tijani, Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply). Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract? Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN. Greg On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> wrote: Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=dYTtbBIgukseIqTDSE_jTP6FcRo3hGEm3jck9IgSNlI&s=5LOM0e7F4IVRj4YB10BUhCEuJx6mKXl3NBgL0KM8-Nk&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:(310)%20578-8631> From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- 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<tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:+1%20310-578-8631> ________________________________ From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660<tel:+1%20202-547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:+1%20202-329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:+1%20202-738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. 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Does Kavouss's explanation help anybody in their decision whether or not to include this suggested change in the report? Becky, here is all that the Registrar wrote: *Unfortunately our policy restricts doing business with Iranian customers/resellers, even if they aren't living in Iran, but have an Iranian passport.* Any connection to OFAC would be an assumption only. Greg On Tue, Sep 26, 2017 at 8:05 AM Burr, Becky <Becky.Burr@team.neustar> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically: a) Why it is necessary to include this case/anecdote in the OFAC Recommendation b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
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<https://maps.google.com/?q=12025%0D+Waterfront+Drive,+Suite+300____%0D+%0D+L...>
<https://maps.google.com/?q=12025%0D+Waterfront+Drive,+Suite+300____%0D+%0D+L...>
*From:* ws2-jurisdiction-bounces@icann.org < ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan < gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
-----------------------------------------------------------------------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
-----------------------------------------------------------------------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
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<https://maps.google.com/?q=12025%0D+Waterfront+Drive,+Suite+300____%0D+%0D+%...>
<https://maps.google.com/?q=12025%0D+Waterfront+Drive,+Suite+300____%0D+%0D+%...>
<https://maps.google.com/?q=12025%0D+Waterfront+Drive,+Suite+300____%0D+%0D+%...>
<https://maps.google.com/?q=12025%0D+Waterfront+Drive,+Suite+300____%0D+%0D+%...>
<https://maps.google.com/?q=12025%0D+Waterfront+Drive,+Suite+300____%0D+%0D+%...>
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
-----------------------------------------------------------------------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
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*From:*ws2-jurisdiction-bounces@icann.org < ws2-jurisdiction-bounces@icann.org> on behalf of Seun Ojedeji < seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto: paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto: ws2-jurisdiction-bounces@icann.org> [mailto: ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Some of the answers to Iranians inquiries express that the halt of offering domain registration and services is due to sanctions of "international community" against Iran. I don't know where they picked up that line from to be honest but that is out of the scope of this group. So no they don't cite OFAC sanctions. This following link is in Farsi but the answer is quoted in English you can also search the issue and find reports on the issue in English. https://goo.gl/5TKag3 But Resello history is interesting to know. Reseller Club was a US-India entity. Many businesses and other registrants in Iran had registered their domain name with them. 4 years ago Reseller club decided to move completely to the US. When it moved, it specifically stated OFAC for stopping services to the Iranians and a bunch of other countries. So it transferred all the Iranian domain names to the Dutch company Resello. Some argue that Resello has transactions or business relations with the US and hence is taking this measure to avoid breaking US laws. What sort of action should ICANN take in this situation, if any? Should ICANN obligate registrars to do business with registrants (i.e. register their domain names) if it is not in violation applicable laws? In other words, should the RAA obligate the registrars to provide services to registrants when they are not prohibited legally to do so? I think ICANN legal answer to the above questions would be a swift "no". If that is the case then we have to find other venues to discuss this issue. Perhaps create a hall of shame for registrars that take arbitrary actions. As participants of this group know by now, this is a very serious issue for domain name registrants in Iran. A high number of Iranian businesses had domain names with Resello and now have to transfer. Farzaneh On Tue, Sep 26, 2017 at 8:04 AM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically: a) Why it is necessary to include this case/anecdote in the OFAC Recommendation b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
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Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------
*From:* ws2-jurisdiction-bounces@icann.org < ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan < gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Dear Beckie Yes pls read the text as he said " *based on our national Policy *......" Kavouss On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr@team.neustar> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically: a) Why it is necessary to include this case/anecdote in the OFAC Recommendation b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
Paul Rosenzweig
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
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Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------
*From:* ws2-jurisdiction-bounces@icann.org < ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan < gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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As I read it they said “our policy” not “our national policy” – and in any event “our national policy” might very well mean “the policy we follow nation-wide” and not “the policy our national government imposes.” P 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 Kavouss Arasteh Sent: Tuesday, September 26, 2017 8:51 AM To: Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear Beckie Yes pls read the text as he said " based on our national Policy ......" Kavouss On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr@team.neustar <mailto:Becky.Burr@team.neustar> > wrote: Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only? Becky Burr Sent from my iPhone On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> > wrote: Dear Greg Thanks The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case . If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation. Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate Regards Kavouss On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > wrote: Kavouss, It might help Paul and others to understand your point if you could explain your three points, specifically: a) Why it is necessary to include this case/anecdote in the OFAC Recommendation b) Why it is relevant to the OFAC Recommendation that Resello's decision could not be attributed to OFAC applicability c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement Best regards, Greg On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> > wrote: Paul You have never ever Been at loss This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal I hope it is clear Tks Kavouss Sent from my iPhone On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Monday, September 25, 2017 10:25 AM To: paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> ; olgacavalli@gmail.com <mailto:olgacavalli@gmail.com> ; Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, dear Paul, I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation… Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. September 2017 16:12 An: 'Olga Cavalli' <olgacavalli@gmail.com <mailto:olgacavalli@gmail.com> >; 'Samantha Eisner' <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Betreff: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation. We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> 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 Olga Cavalli Sent: Saturday, September 23, 2017 4:42 PM To: Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Dear all, could it be possible to address Mr Araste's concerns? perhaps producing a new document with references to comments by himself and others? This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing. best regards Olga 2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> >: Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses. As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account. ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <tel:(310)%20578-8631> _____ From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> > on behalf of Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Tijani, Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply). Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive. Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract? Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN. Greg On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn <mailto:tijani.benjemaa@topnet.tn> > wrote: Thank you Paul, So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com] My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [ <mailto:ws2-jurisdiction-bounces@icann.org> mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> Cc: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631 <tel:(310)%20578-8631> From: Tijani BEN JEMAA < <mailto:tijani.benjemaa@topnet.tn> tijani.benjemaa@topnet.tn> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> Cc: Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org>, ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- 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 <tel:+216%2052%20385%20114> ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> 12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com] Direct Dial: <tel:+1%20310-578-8631> +1 310 578 8631 _____ From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org < <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org> on behalf of Seun Ojedeji < <mailto:seun.ojedeji@gmail.com> seun.ojedeji@gmail.com> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" < <mailto:milton@gatech.edu> milton@gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira < <mailto:thiago.jardim@itamaraty.gov.br> thiago.jardim@itamaraty.gov.br>; Thomas Rickert < <mailto:rickert@anwaelte.de> rickert@anwaelte.de>; León Felipe Sánchez Ambía < <mailto:leonfelipe@sanchez.mx> leonfelipe@sanchez.mx>; Jordan Carter < <mailto:jordan@internetnz.net.nz> jordan@internetnz.net.nz> Cc: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < <mailto:thiago.jardim@itamaraty.gov.br> thiago.jardim@itamaraty.gov.br> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] Em nome de <mailto:Jorge.Cancio@bakom.admin.ch> Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com Cc: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh < <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh < <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com<mailto: <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig < <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com<mailto: <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com<mailto: <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> O: <tel:+1%20202-547-0660> +1 (202) 547-0660< <tel:(202)%20547-0660> tel:(202)%20547-0660> M: <tel:+1%20202-329-9650> +1 (202) 329-9650< <tel:(202)%20329-9650> tel:(202)%20329-9650> VOIP: <tel:+1%20202-738-1739> +1 (202) 738-1739< <tel:(202)%20738-1739> tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com]< <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> http://www.redbranchconsulting.com/[redbranchconsulting.com]> My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org<mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org> [mailto: <mailto:ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction < <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org<mailto: <mailto:ws2-jurisdiction@icann.org> ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com<mailto: <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. 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Dear all, Based on the background recently provided, it seem resello is a US based entity so one would expect OFAC to apply just like it does for ICANN. Should ICANN then be the one to ask for a waiver for resello? I don't think so. Regards Sent from my mobile Kindly excuse brevity and typos On Sep 26, 2017 2:13 PM, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
As I read it they said “our policy” not “our national policy” – and in any event “our national policy” might very well mean “the policy we follow nation-wide” and not “the policy our national government imposes.”
P
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, September 26, 2017 8:51 AM *To:* Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear Beckie
Yes pls read the text as he said " *based on our national Policy *......"
Kavouss
On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr@team.neustar> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr
Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically:
a) Why it is necessary to include this case/anecdote in the OFAC Recommendation
b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability
c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul
You have never ever Been at loss
This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal
I hope it is clear
Tks
Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
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*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
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Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction- bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com< mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2- jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com< mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Seun, It seemed clear to me, from both Kavouss's and Farzaneh's emails, that Resello is a Dutch entity. Can you point to the language you are relying on? In any event, if it were a US-based entity, I believe your position is consistent with the Subgroup's view. Greg On Tue, Sep 26, 2017 at 10:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Dear all,
Based on the background recently provided, it seem resello is a US based entity so one would expect OFAC to apply just like it does for ICANN.
Should ICANN then be the one to ask for a waiver for resello? I don't think so.
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 26, 2017 2:13 PM, "Paul Rosenzweig" <paul.rosenzweig@ redbranchconsulting.com> wrote:
As I read it they said “our policy” not “our national policy” – and in any event “our national policy” might very well mean “the policy we follow nation-wide” and not “the policy our national government imposes.”
P
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, September 26, 2017 8:51 AM *To:* Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear Beckie
Yes pls read the text as he said " *based on our national Policy *......"
Kavouss
On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr@team.neustar> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr
Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically:
a) Why it is necessary to include this case/anecdote in the OFAC Recommendation
b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability
c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul
You have never ever Been at loss
This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal
I hope it is clear
Tks
Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
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*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ican n.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Hello Greg, Sent from my mobile Kindly excuse brevity and typos On Sep 26, 2017 3:27 PM, "Greg Shatan" <gregshatanipc@gmail.com> wrote: Seun, It seemed clear to me, from both Kavouss's and Farzaneh's emails, that Resello is a Dutch entity. Can you point to the language you are relying on? SO: Here is the text I was relying on: "...But Resello history is interesting to know. Reseller Club was a *US-India entity*. Many businesses and other registrants in Iran had registered their domain name with them. 4 years ago Reseller club decided *to move completely to the US*...." In any event, if it were a US-based entity, I believe your position is consistent with the Subgroup's view. SO: If indeed it were US based then Yes. My rationale is that ICANN is globally unique hence should be OFAC immune. Resello isn't unique as there are other options, so if US decides to limit business of her tax payers as such so be it. Registrants can "easily" look for a non-US entity to do business with and indirectly pay tax to such entity's country of incoporation. Regards Greg On Tue, Sep 26, 2017 at 10:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Dear all,
Based on the background recently provided, it seem resello is a US based entity so one would expect OFAC to apply just like it does for ICANN.
Should ICANN then be the one to ask for a waiver for resello? I don't think so.
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 26, 2017 2:13 PM, "Paul Rosenzweig" <paul.rosenzweig@redbranchcons ulting.com> wrote:
As I read it they said “our policy” not “our national policy” – and in any event “our national policy” might very well mean “the policy we follow nation-wide” and not “the policy our national government imposes.”
P
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, September 26, 2017 8:51 AM *To:* Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear Beckie
Yes pls read the text as he said " *based on our national Policy *......"
Kavouss
On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr@team.neustar> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr
Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically:
a) Why it is necessary to include this case/anecdote in the OFAC Recommendation
b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability
c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul
You have never ever Been at loss
This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal
I hope it is clear
Tks
Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
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*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ican n.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Resello is not Reseller Club. On Tue, Sep 26, 2017 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Greg,
Sent from my mobile Kindly excuse brevity and typos
On Sep 26, 2017 3:27 PM, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
It seemed clear to me, from both Kavouss's and Farzaneh's emails, that Resello is a Dutch entity. Can you point to the language you are relying on?
SO: Here is the text I was relying on:
"...But Resello history is interesting to know. Reseller Club was a *US-India entity*. Many businesses and other registrants in Iran had registered their domain name with them. 4 years ago Reseller club decided *to move completely to the US*...."
In any event, if it were a US-based entity, I believe your position is consistent with the Subgroup's view.
SO: If indeed it were US based then Yes. My rationale is that ICANN is globally unique hence should be OFAC immune. Resello isn't unique as there are other options, so if US decides to limit business of her tax payers as such so be it. Registrants can "easily" look for a non-US entity to do business with and indirectly pay tax to such entity's country of incoporation.
Regards
Greg
On Tue, Sep 26, 2017 at 10:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Dear all,
Based on the background recently provided, it seem resello is a US based entity so one would expect OFAC to apply just like it does for ICANN.
Should ICANN then be the one to ask for a waiver for resello? I don't think so.
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 26, 2017 2:13 PM, "Paul Rosenzweig" <paul.rosenzweig@redbranchcons ulting.com> wrote:
As I read it they said “our policy” not “our national policy” – and in any event “our national policy” might very well mean “the policy we follow nation-wide” and not “the policy our national government imposes.”
P
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*From:* ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, September 26, 2017 8:51 AM *To:* Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear Beckie
Yes pls read the text as he said " *based on our national Policy * ......"
Kavouss
On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr@team.neustar> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr
Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically:
a) Why it is necessary to include this case/anecdote in the OFAC Recommendation
b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability
c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul
You have never ever Been at loss
This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal
I hope it is clear
Tks
Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
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Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------
*From:* ws2-jurisdiction-bounces@icann.org < ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan < gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
Paul Rosenzweig
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300 <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Wew! Now am lost on all the Res* :-) Anyway my general view on OFAC is that I am strongly for an OFAC immune ICANN but don't care much about OFAC immune Registry[1] Regards 1. Except the root maintainer. Sent from my mobile Kindly excuse brevity and typos On Sep 26, 2017 4:06 PM, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Resello is not Reseller Club.
On Tue, Sep 26, 2017 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Greg,
Sent from my mobile Kindly excuse brevity and typos
On Sep 26, 2017 3:27 PM, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
It seemed clear to me, from both Kavouss's and Farzaneh's emails, that Resello is a Dutch entity. Can you point to the language you are relying on?
SO: Here is the text I was relying on:
"...But Resello history is interesting to know. Reseller Club was a *US-India entity*. Many businesses and other registrants in Iran had registered their domain name with them. 4 years ago Reseller club decided *to move completely to the US*...."
In any event, if it were a US-based entity, I believe your position is consistent with the Subgroup's view.
SO: If indeed it were US based then Yes. My rationale is that ICANN is globally unique hence should be OFAC immune. Resello isn't unique as there are other options, so if US decides to limit business of her tax payers as such so be it. Registrants can "easily" look for a non-US entity to do business with and indirectly pay tax to such entity's country of incoporation.
Regards
Greg
On Tue, Sep 26, 2017 at 10:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Dear all,
Based on the background recently provided, it seem resello is a US based entity so one would expect OFAC to apply just like it does for ICANN.
Should ICANN then be the one to ask for a waiver for resello? I don't think so.
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 26, 2017 2:13 PM, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
As I read it they said “our policy” not “our national policy” – and in any event “our national policy” might very well mean “the policy we follow nation-wide” and not “the policy our national government imposes.”
P
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*From:* ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, September 26, 2017 8:51 AM *To:* Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear Beckie
Yes pls read the text as he said " *based on our national Policy * ......"
Kavouss
On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr@team.neustar> wrote:
Could someone clarify one point for me? Did the Registrar affirmatively state that it was unwilling to work with Iranian reseller because of OFAC? Or it that an assumption only?
Becky Burr
Sent from my iPhone
On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg
Thanks
The issue is that the Registrar refusal to get involved in the business apparently and perhaps actually resulted from misinterpretation of OFAC Regulations as that Registrar was over prudent to totally exclude any likelihood of application of OFAC by US to the case .
If in the view of the group , see the compilation of views by all of you as conveyed to you as a cut and paste text , there is no link between the request and OFAC then it should be explained that such irrelevance of the refusal to OFAC as the refusal seemed to have been based on the misinterpretation of the Registrar that there might have been a relation thereto
Then, the group while confirming that inapplicability of OFAC to the case needs to (to be mentioned in the document to clarify the matter for the case and for any future misinterpretation.
Moreover, the group needs to mention that the need to verify whether there is a clear provision in the RAA to obligate the Registrar to enter into business with registrant or there is no provision to authorise it to refuse ,i.e. silent situation in RAA . In that case the Group while excluding the applicability or relation between the request and OFAC recommend ICANN to examine the matter and take necessary action, as appropriate
Regards
Kavouss
On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss,
It might help Paul and others to understand your point if you could explain your three points, specifically:
a) Why it is necessary to include this case/anecdote in the OFAC Recommendation
b) Why it is relevant to the OFAC Recommendation that Resello's decision could *not* be attributed to OFAC applicability
c) Why it is relevant to the OFAC Recommendation that the RAA has no obligation for the Registrar to enter into the requested Reseller agreement
Best regards,
Greg
On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh@gmail.com> wrote:
Paul
You have never ever Been at loss
This addition is necessary to address the case as contained in my suggestion as further elaborated in the sense a) to include the case as reported , b) to mention that the refusal of Resello could not be attributed to the likelihood of OFAC applicability and c) to Mention that RAA is silent in obligation of Registrar to enter into business with requérant of domain name purchase as well as its refusal
I hope it is clear
Tks
Kavouss
Sent from my iPhone
On 26 Sep 2017, at 00:57, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
We already have .. at some length. I confess in this instance I really am at a loss as to what more is desired.
Paul
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*From:* Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch>] *Sent:* Monday, September 25, 2017 10:25 AM *To:* paul.rosenzweig@redbranchconsulting.com; olgacavalli@gmail.com; Samantha.Eisner@icann.org *Cc:* ws2-jurisdiction@icann.org *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Montag, 25. September 2017 16:12 *An:* 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' < Samantha.Eisner@icann.org> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
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*From:* ws2-jurisdiction-bounces@icann.org < ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan < gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn ’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
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*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
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*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzw eig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Dear all + 1 to Jorge and Kavouss comments best Olga
El 25 sept 2017, a las 11:24, <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> escribió:
Dear all, dear Paul,
I guess what is being highlighted is a potential „chilling effect“ that could be addressed through improved awareness and communication – something we may well mention in this recommendation…
Kind regards
Jorge
Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Montag, 25. September 2017 16:12 An: 'Olga Cavalli' <olgacavalli@gmail.com>; 'Samantha Eisner' <Samantha.Eisner@icann.org> Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
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From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Olga Cavalli Sent: Saturday, September 23, 2017 4:42 PM To: Samantha Eisner <Samantha.Eisner@icann.org> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>: Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631
From: ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Sent: Friday, September 22, 2017 11:09 AM To: Tijani BEN JEMAA Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> wrote: Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com[redbranchconsulting.com] My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631
From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com> Cc: Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] Los Angeles, California 90094[maps.google.com] USA[maps.google.com] Direct Dial: +1 310 578 8631 From:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction
Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
From:ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> wrote: Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<http://www.redbranchconsulting.com/[redbranchconsulting.com]> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Dear Paul, I understand your point. But the RAAn question ,in reality is frightened that OFAC Régulations may apply to him You have mentioned that it does not apply to NON US/ Non US BASED entities. We know that RAA is governed by PDP. but if you read my compromised message you will note that SubGroup is invited to just acknowledge recipt of the case as requested by Greg on 13 and 20Sept ( kavouss is requested to provide evidence of what he informed 9 I did inform the Group and I request that the case be briefly referred to in the introductory part and in the Recommands it say, that a) it is unrealted to OFAC and b) There seems to be no provisions in RAA obligating the RAA to get into discussion or business with a reseller of the Domain Name residing .... but there is also no provisions in RAA by which the RAA could deny the request The issue thus requires to be examined by ICANN with a view to take necessary action, as appropriate. I hope you would not reject this balance and sift language because raised by me Regards Kavouss On Mon, Sep 25, 2017 at 4:12 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
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] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM
*To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------
*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
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>
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
Los Angeles, California 90094[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
USA[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------
*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction- bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com< mailto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@ redbranchconsulting.com> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660 <(202)%20547-0660>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650 <(202)%20329-9650>>
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From: ws2-jurisdiction-bounces@icann.org<mailto:ws2- jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com< mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Kavouss, Would it be possible to tell us why this paragraph in the OFAC recommendation not satisfy you and why you think it is not enough and does not address the case you are mentioning? It addresses exactly the point you are making because we have made similar examples and discuss the implications with the group multiple times. So would be grateful if you could tell me why this does not satisfy you. *Application of OFAC Limitations by Non-US Registrars* It appears that some registrars might be following the rules of OFAC sanctions in their dealings with registrants and potential registrants, even when they are not based in the U.S and it would appear they are not required to do so. In particular, it seems that some non-US registrars may be applying OFAC restrictions even when they are not obliged to do so, merely based on an assumption that because they have a contract with ICANN, they have to apply OFAC sanctions. If registrars that are not based in the U.S. and do not have OFAC compliance obligations are nonetheless prohibiting registrants in sanctioned countries from using their services based on a mistaken belief that OFAC sanctions apply, that raises concerns with the availability of Internet resources on a global and neutral basis. There may be other ways that non-U.S. registrars give the impression that these registrars are following OFAC sanctions. For example, the Subgroup was provided examples of two non-US registrars with registrant agreements that stated that persons located in sanctioned countries could not use their services due to OFAC sanctions.[1] <#_ftn1> Both registrars apparently used a registrant agreement “cut and pasted” from other sources. [2] <#_ftn2> One of the two registrars (Gesloten) has since revised its registrant agreement significantly, and removed any mention of OFAC restrictions. OFAC restrictions could have been included in these registrant agreements as a “cut and paste” error or because the registrar believed (rightly or wrongly) that OFAC sanctions applied to it. In either case, the conclusion is the same: registrars should understand which laws apply to their businesses, and they should make sure that their registrant agreements accurately reflect those laws. ICANN cannot provide legal advice to registrars. Each registrar must make their own legal determination of how and whether OFAC restrictions apply. However, ICANN could provide a clarification to registrars that registrars do not have to follow OFAC sanctions solely based on the existence of their contract with ICANN. ICANN is not a party to the registrant agreements, so there is nothing that ICANN can do directly. Nonetheless, non-U.S. registrars could also be encouraged to seek advice on applicable law and to accurately reflect the applicable law in their registrant agreements. *Recommendation* ICANN needs to bring awareness of these issues to registrars. ICANN should clarify to registrars that the mere existence of their RAA with ICANN does not cause them to be required to comply with OFAC sanctions. ICANN should also explore various tools to remind registrars to understand the applicable laws under which they operate and to accurately reflect those laws in their customer relationships. ------------------------------ [1] <#_ftnref1> One was Gesloten.cw ( http://www.gesloten.cw/support/legal.php?requestfor=registraragreement&from=...), a Curacao (Netherlands Antilles) registrar; the other was Olipso ( https://www.olipso.com/en/domain-registration-agreement), a Turkish registrar (Atak Domain Hosting). For [2] <#_ftnref2> For example, both agreements used “ Mumbai time” as a standard even though neither is in India, located in that time zone, or has any particular contacts with India. Farzaneh On Mon, Sep 25, 2017 at 10:33 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com
wrote:
Dear Paul, I understand your point. But the RAAn question ,in reality is frightened that OFAC Régulations may apply to him You have mentioned that it does not apply to NON US/ Non US BASED entities. We know that RAA is governed by PDP. but if you read my compromised message you will note that SubGroup is invited to just acknowledge recipt of the case as requested by Greg on 13 and 20Sept ( kavouss is requested to provide evidence of what he informed 9 I did inform the Group and I request that the case be briefly referred to in the introductory part and in the Recommands it say, that a) it is unrealted to OFAC and b) There seems to be no provisions in RAA obligating the RAA to get into discussion or business with a reseller of the Domain Name residing .... but there is also no provisions in RAA by which the RAA could deny the request The issue thus requires to be examined by ICANN with a view to take necessary action, as appropriate. I hope you would not reject this balance and sift language because raised by me Regards Kavouss
On Mon, Sep 25, 2017 at 4:12 PM, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> wrote:
In the end, the problem is that the question of RAA implementation is a completely differerent issue from OFAC. The real reason this is problematic is that an unreleated issue is being shoehorned into an existing, otherwise complete, recommendation.
We should move consideration of the RAA issue raised to a new issue subhead in the Subgroup.
Paul
Paul Rosenzweig
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *Olga Cavalli *Sent:* Saturday, September 23, 2017 4:42 PM
*To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Dear all,
could it be possible to address Mr Araste's concerns?
perhaps producing a new document with references to comments by himself and others?
This could be very useful for us following the discussion as the thread of emails sometimes becomes confusing.
best regards
Olga
2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner@icann.org>:
Sorry for the delay in responding - I'm traveling internationally and have not been able to stay fully on top of the email traffic. Greg and Paul, thank you for your responses on the issue and for also recognizing that the question does reach into providing legal advice that ICANN is not in a position to give. I agree with your analyses.
As noted, I've previously stated that ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN.
Contracted parties each need to assess for themselves whether they must comply with the OFAC regulations based on whatever business factors they choose to take into account.
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631> ------------------------------
*From:* ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@ican n.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> *Sent:* Friday, September 22, 2017 11:09 AM *To:* Tijani BEN JEMAA *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Tijani,
Paul is being a bit lawyerly and careful and emphasizing that there is no positive statement in the law or regulations that one can point to and say, "this says OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN." He has also explained that there would not be, because that's not how laws work (or regulations, except if there were a general license -- but a general license would only be needed if the sanctions would otherwise apply).
Sam is also being careful (and has to be, because ICANN cannot give legal advice on OFAC compliance to contracted parties), when she confirms that "ICANN cannot and does not obligate its contracted parties to follow OFAC regulations." But consider that Sam also said that "*ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN*." Considering how careful ICANN has to be in not giving legal advice on OFAC compliance, this should be highly persuasive.
Consider also that all contracting parties would be in breach of their ICANN contracts if US law required them all to comply with OFAC because they have an ICANN contract and they did not do so. Do you think ICANN or the US government would tolerate such widespread violation of law and breach of contract?
Like Becky I'll be a little less lawyerly, and say that I can find absolutely no basis for concern that OFAC applies to any of ICANN's contracted parties solely because they have entered into a contract with ICANN.
Greg
On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA < tijani.benjemaa@topnet.tn> wrote:
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
------------------------------------------------------------ -----------------
*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 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com> a écrit :
Hi Tijani
Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts.
As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising.
As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).
Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask
Hope that helps
Paul
Paul Rosenzweig
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdi ction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Thursday, September 21, 2017 4:22 PM *To:* Samantha Eisner <Samantha.Eisner@icann.org> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Sam,
You didn’t answer my question which was:
According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN?
I will very much appreciate a clear and to the point answer.
------------------------------------------------------------ -----------------
*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 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631 <(310)%20578-8631>
*From: *Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> *Date: *Wednesday, September 20, 2017 at 3:20 PM *To: *Seun Ojedeji <seun.ojedeji@gmail.com> *Cc: *Samantha Eisner <samantha.eisner@icann.org>, ws2-jurisdiction < ws2-jurisdiction@icann.org> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Thank you Samantha,
You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN?
------------------------------------------------------------ -----------------
*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 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :
Thanks a lot for that helpful response Samantha!
Regards
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:
Hi Seun -
To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations.
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300[maps.google.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...>
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Direct Dial: +1 310 578 8631 <+1%20310-578-8631> ------------------------------
*From:*ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bo unces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> *Sent:* Wednesday, September 20, 2017 1:17 PM *To:* Mueller, Milton L *Cc:* ws2-jurisdiction
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Sent from my mobile Kindly excuse brevity and typos
On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu> wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important.
SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic.
Regards
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdic tion-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Thomas Rickert <rickert@anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Deaar Thiago, Dear Jorge,
Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue.
I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual.
We should be transparent
We should listen to each other.We should consider problems of others
Tks
Regards
Kavouss
On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I add my voice to Jorge's suggestion and look forward to an agreeable solution.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdict ion-bounces@icann.org] Em nome de Jorge.Cancio@bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
Dear Greg,
would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding?
I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board.
kind regards
Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
All,
I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics.
Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This is now covered in the section on General Licenses, so this is not needed here.
There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions.
This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included.
Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations).
Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship.
These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included.
To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC.
This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included.
Best regards,
Greg
On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mai lto:kavouss.arasteh@gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss
Sent from my iPhone
On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchcons ulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
All
Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it:
First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether"
Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul. rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660 <(202)%20547-0660>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650 <(202)%20329-9650>>
VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739 <(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com/[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x 9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdic tion-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions
CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text.
Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc).
Greg
On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: All,
I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well.
I look forward to our call.
Best regards,
Greg
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Actually a mean the exact opposite. There is no reason to think OFAC would apply to non US persons. The absence of law making such an assertion confirms this since the baseline is a presumption against extraterritorial law. There is also no statement that Russian law doesn't apply or any other P -- Paul Sent from myMail app for Android Friday, 22 September 2017, 01:43PM -04:00 from Tijani BEN JEMAA tijani.benjemaa@topnet.tn :
Thank you Paul,
So, since no firm answer can be given, it is not sure that OFAC doesn ’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations ( FMAI ) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 22 sept. 2017 à 13:13, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 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 ] On Behalf Of Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner < Samantha.Eisner@icann.org > Cc: ws2-jurisdiction < ws2-jurisdiction@icann.org > Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations ( FMAI ) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 21 sept. 2017 à 20:45, Samantha Eisner < Samantha.Eisner@icann.org > a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 From: Tijani BEN JEMAA < tijani.benjemaa@topnet.tn > Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji < seun.ojedeji@gmail.com > Cc: Samantha Eisner < samantha.eisner@icann.org >, ws2-jurisdiction < ws2-jurisdiction@icann.org > Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations ( FMAI ) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 sept. 2017 à 21:44, Seun Ojedeji < seun.ojedeji@gmail.com > a écrit : Thanks a lot for that helpful response Samantha!
Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" < Samantha.Eisner@icann.org > wrote:
Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com] Los Angeles, California 90094[maps.google.com] USA[maps.google.com] Direct Dial: +1 310 578 8631 ---------------------------------------------------------------------- From: ws2-jurisdiction-bounces@icann.org < ws2-jurisdiction-bounces@icann.org > on behalf of Seun Ojedeji < seun.ojedeji@gmail.com > Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction
Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" < milton@gatech.edu > wrote:
We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards From: ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org ] On Behalf Of Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br >; Thomas Rickert < rickert@anwaelte.de >; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx >; Jordan Carter < jordan@internetnz.net.nz > Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br > wrote: >Dear Greg, > >I add my voice to Jorge's suggestion and look forward to an agreeable solution. > >Best, > >Thiago > > >-----Mensagem original----- >De: ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org ] Em nome de Jorge.Cancio@bakom.admin.ch >Enviada em: quarta-feira, 20 de setembro de 2017 05:10 >Para: gregshatanipc@gmail.com >Cc: ws2-jurisdiction@icann.org >Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions > > >Dear Greg, > >would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? > >I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. > >kind regards > >Jorge > > >________________________________ > >Von: Greg Shatan < gregshatanipc@gmail.com > >Datum: 20. September 2017 um 07:25:56 MESZ >An: Arasteh < kavouss.arasteh@gmail.com > >Cc: ws2-jurisdiction < ws2-jurisdiction@icann.org > >Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions > >All, > >I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. > >Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. > >This is now covered in the section on General Licenses, so this is not needed here. > >There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. > >This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. > >Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). > >Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. > >These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. > >To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. > >This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. > >Best regards, > >Greg > >On Tue, Sep 19, 2017 at 1:30 AM, Arasteh < kavouss.arasteh@gmail.com <mailto: kavouss.arasteh@gmail.com >> wrote: >Dear Paul >Thank you very much for your comments >I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. >I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss > >Sent from my iPhone > >On 19 Sep 2017, at 02:16, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com <mailto: paul.rosenzweig@redbranchconsulting.com >> wrote: > >All > >Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: > >First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" > >Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). > >Paul > >Paul Rosenzweig >paul.rosenzweig@redbranchconsulting.com <mailto: paul.rosenzweig@redbranchconsulting.com > >O: +1 (202) 547-0660 < tel:(202)%20547-0660 > >M: +1 (202) 329-9650 < tel:(202)%20329-9650 > >VOIP: +1 (202) 738-1739 < tel:(202)%20738-1739 > www.redbranchconsulting.com[redbranchconsulting.com] < http://www.redbranchconsulting.com/[redbranchconsulting.com] > >My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] > > >From: ws2-jurisdiction-bounces@icann.org <mailto: ws2-jurisdiction-bounces@icann.org > [mailto: ws2-jurisdiction-bounces@icann.org ] On Behalf Of Greg Shatan >Sent: Monday, September 18, 2017 2:13 PM >To: ws2-jurisdiction < ws2-jurisdiction@icann.org <mailto: ws2-jurisdiction@icann.org >> >Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions > >CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. > >Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). > >Greg > > > >On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan < gregshatanipc@gmail.com <mailto: gregshatanipc@gmail.com >> wrote: >All, > >I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. > >I look forward to our call. > >Best regards, > >Greg > >_______________________________________________ >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 >https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >_______________________________________________ >Ws2-jurisdiction mailing list >Ws2-jurisdiction@icann.org >https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >
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I don’t understand how you got to that conclusion. As Paul clarified, he meant the exact opposite: “they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC).” --MM So, since no firm answer can be given, it is not sure that OFAC doesn’t apply to any of ICANN's contracted parties solely due to their contracts with ICANN, which is a concern in my opinion. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Hi Tijani Let me try. You ask “According to the California or US jurisdictions” I assume you mean EITHER the executive branches of those areas or their courts. As to California – OFAC is a Federal law, so the California state government would have no authority to construe the law or enforce it. As a result, no action to enforce OFAC requirements has ever been brought by California or adjudicated by California courts. Since the law is outside of their scope of reference this is not surprising. As to the Federal government, its rules regarding the scope of OFAC are set forth in regulations that are discussed in detail in the draft report the group put together. Those regulations do not directly address ICANN (or any other specific business entity) but describe widely the categories and types of people and institutions to which it applies. The US government through the Department of Treasury has never been asked about ICANN’s contracted parties directly and if asked they probably would refuse to answer a hypothetical. So we are left only with the regulations – and as to those, I agree with Sam that the best reading of them is that they apply to ICANN but not the contracted parties (unless the contracted parties are themselves US companies independently subject to OFAC). Since no enforcement action has ever been brought against ICANN or a contracted party in a US court, no US court has ever answered the question you ask Hope that helps 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 Tijani BEN JEMAA Sent: Thursday, September 21, 2017 4:22 PM To: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Sam, You didn’t answer my question which was: According to the California and US jurisdictions, does OFAC apply to any of ICANN's contracted parties solely due to their contracts with ICANN? I will very much appreciate a clear and to the point answer. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : ICANN cannot and does not obligate its contracted parties to follow OFAC regulations. ICANN requires them to follow applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 From: Tijani BEN JEMAA <tijani.benjemaa@topnet.tn<mailto:tijani.benjemaa@topnet.tn>> Date: Wednesday, September 20, 2017 at 3:20 PM To: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Thank you Samantha, You said « ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. ». Does that mean that according to the California and US jurisdictions, OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN? ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> a écrit : Thanks a lot for that helpful response Samantha! Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Seun - To your question below, and as noted in my presentation to the Jurisdiction group below, ICANN agrees that OFAC does not apply to any of ICANN's contracted parties solely due to a contract with ICANN. However, ICANN cannot provide any advice to a contracted party as to which laws and regulations are (or are not) applicable, and each contracted party is responsible for understanding that as part of their business operations. Sam ____ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Los Angeles, California 90094[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> USA[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D...> Direct Dial: +1 310 578 8631<tel:+1%20310-578-8631> ________________________________ From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Sent: Wednesday, September 20, 2017 1:17 PM To: Mueller, Milton L Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards 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 Kavouss Arasteh Sent: Wednesday, September 20, 2017 10:48 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com><mailto:kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> O: +1 (202) 547-0660<tel:+1%20202-547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650<tel:+1%20202-329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:+1%20202-738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=><http://www.redbranchconsulting.com/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto: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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org><mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org><mailto: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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (13)
-
Arasteh -
Burr, Becky -
farzaneh badii -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh
-
Mike Rodenbaugh -
Mueller, Milton L -
Olga Cavalli -
Paul Rosenzweig -
Samantha Eisner -
Seun Ojedeji -
Tijani BEN JEMAA