One of the jurisdictional issues that were discussed is that some non-US based registrars apply OFAC even when they are not obliged to and merely based on their assumption that because of their contract with ICANN they have to apply OFAC. One solution could be for ICANN to clarify to the registrars that this is not the case and they do not have "to follow OFAC solely on the basis of their having a contract with ICANN". Is it possible to make such clarification? Farzaneh ---------- Forwarded message ---------- From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Date: Tue, Aug 8, 2017 at 10:28 AM Subject: RE: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] To: farzaneh badii <farzaneh.badii@gmail.com>, Mike Rodenbaugh < mike@rodenbaugh.com> Cc: acct-staff@icann.org, Thomas Rickert <thomas@rickert.net>, ws2-jurisdiction <ws2-jurisdiction@icann.org> This is a good idea. The question then is one of implementation. How would that be made clear to the contracted parties. I suppose ICANN (through Sam or someone else) could publish its interpretation to that effect. I doubt, however, that ICANN would be willing to warranty the correctness of this and hold any one harmless if it was in error. 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] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike@rodenbaugh.com> *Cc:* acct-staff@icann.org; Thomas Rickert <thomas@rickert.net>; ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens. One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN". Farzaneh On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote: I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman@comlaude.com> wrote: All, Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered. Also, it seems like we have lost some sight of the main points raised during the call. 1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states: *”** 4. Application Process.* *…..* *Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]* ………………… Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited. 1. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance. https://www.icann.org/resources/pages/application-2012-02-25-en *Jeffrey J. Neuman* *Senior Vice President *|*Valideus USA* | *Com Laude USA* 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com T: +1.703.635.7514 <(703)%20635-7514> M: +1.202.549.5079 <(202)%20549-5079> @Jintlaw *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Monday, August 7, 2017 7:51 AM *To:* Benedicto Fonseca Filho <benedicto.fonseca@itamaraty.gov.br>; Kavouss Arasteh <kavouss.arasteh@gmail.com>; Greg Shatan <gregshatanipc@gmail.com>; ws2-jurisdiction <ws2-jurisdiction@icann.org>; acct-staff@icann.org; Thomas Rickert <thomas@rickert.net>; Samantha Eisner <Samantha.Eisner@icann.org>; Bernard Turcotte <turcotte.bernard@gmail.com>; Jordan Carter < jordan@internetnz.net.nz>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> *Subject:* Re: [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL The question I would ask you, Benedicto, and all others suggesting a rather elaborate documentation process, is this: Would you rather this WG develops a final report, or spend most of its remaining time documenting the results of a conference call, the transcript of which is readily available? If you choose the latter, are you then going to complain that we did not finish our work? *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Benedicto Fonseca Filho *Sent:* Thursday, August 3, 2017 8:23 PM *To:* Kavouss Arasteh <kavouss.arasteh@gmail.com>; Greg Shatan < gregshatanipc@gmail.com>; ws2-jurisdiction <ws2-jurisdiction@icann.org>; acct-staff@icann.org; Thomas Rickert <thomas@rickert.net>; Samantha Eisner < Samantha.Eisner@icann.org>; Bernard Turcotte <turcotte.bernard@gmail.com>; Jordan Carter <jordan@internetnz.net.nz>; León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> *Subject:* [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL Dear all, Let me endorse Kavouss' request - also supported by Seun and Jorge - that answers be provided in written form, with whatever disclaimer might be necessary to ensure they are not in the form of any official legal advice or the like. Judging from the last call's transcript, not all questions formulated upon the rapporteur´s invitation were systematically covered during the call, so it is only fair to have the unanswered questions also addressed, preferably in written form. I'd also reiterate the views expressed by others: for the sake of clarity and to allow and promote further participation, it would be necessary to have also in written form (even if succinct) the answers to the questions that were supposedly covered during last call as the transcript does not allow to clearly correlate each question to each comment/answer. Further, several questions were asked during last call, some of which may have been questions that were only asked at that time. It seems that none of them had to pass the test of consensus either to be asked or to be answered. So it would be unfair now to ask for support for certain questions to be asked and then answered, particularly those questions that were only asked following the rapporteur's invitation in the mailing list. Finally, I believe that no one would ever feel their views are systematically disregarded if their requests or suggestions were subjected to the same test that is applied to other´s proposals… Best regards, Benedicto ------------------------------ *De:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de Kavouss Arasteh [kavouss.arasteh@gmail.com] *Enviado:* quinta-feira, 3 de agosto de 2017 13:48 *Para:* Greg Shatan; ws2-jurisdiction; acct-staff@icann.org; Thomas Rickert; Samantha Eisner; Bernard Turcotte; Jordan Carter; León Felipe Sánchez Ambía *Assunto:* Re: [Ws2-jurisdiction] WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL Greg I do not understand what you are talking ABOUT Samantha, during her presentation, three times emphasized that if we had questions we could raise them with her. Read the Transcript. Two of these three times she referred to me. Pls do not be so formalistic. Let us do our work. pls do not complain to anyone about me as it would have negative IMPACT . This issue is important. Then I was formally invited to raise my questions with her, pls read transcript after I was so invited. What do you want to prove? We are not to be treated like student We should be respected. The tone of your message is offensive even though you have used diplomatic offensive language .That does not work We are part of a group and must understand each other’s problems What you stated is quasi preventing me to speak freely? Why there is prohibition to reply to the invitation that she launched to us and to me? Why I should not address my question to ICANN STAFF? She does not work for you. She is working for ICANN and we are all part of ICANN i replied to Sam’s invitation that is all. Why I need the approval of the group in which over represented by those that do not wish that I talk at all ? Cheers On Tue, Aug 1, 2017 at 9:55 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: Kavouss, Kindly direct your request to the Subgroup, and not to Sam. This is a matter for the Subgroup to consider, rather than any individual participant. The Subgroup can take up your request and decide whether to ask for written responses to questions (and if so, which questions). Thank you. Best regards, Greg On Tue, Aug 1, 2017 at 10:15 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote: Dear Sam, With tks to your presentation, pls kindly note that I nned written answers to the questions raised before the meeting and those during the meeing either as intervention or in the chat. Regards Kavouss _______________________________________________ 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