OFAC Recommendation -- Further Suggested Revisions
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
Greg, Thank you very much But the file that I sent you was much more descriptive than the one shown in your message See Attachment beloew Regards Kavouss On Mon, Sep 18, 2017 at 7:42 PM, Greg Shatan <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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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> 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
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 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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <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
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> 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 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 Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <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> 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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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, i**t 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 **i**t 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> 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> 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
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 *Greg Shatan *Sent:* Monday, September 18, 2017 2:13 PM *To:* ws2-jurisdiction <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> 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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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<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 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
Dear Greg, In order to facilitate the work of CCWG pls kindly reconsider the position that you have taken to duly take into account the content of last pargraph -Should you wish to slightly soften that, pls suggest text. However, I have serious difficulties if you remove that Pls kindly appolgize for such request at this stage but we need to work together We need to respect each one's views We should not limit ourselves to some counter proposal ,in particular, if those counter proposals have not been discussed by the group Regards kAVOUSS On Wed, Sep 20, 2017 at 10:09 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
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<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 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
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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<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 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
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< 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 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
Sorry, Kavouss, in the interests of finalizing the statement in a timely manner I have to agree with Greg, that the last paragraph is no longer needed. We do agree strongly with admonitions to registrars not to cut off their customers without warning but it is not so much an ICANN jurisdiction problem but a problem of the jurisdiction of the registrar (US) or a problem caused by the registrar’s own contract. 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. Let’s not hold up the progress we have made by throwing too many things into the pot. 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<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:(202)%20547-0660> M: +1 (202) 329-9650<tel:(202)%20329-9650> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739> www.redbranchconsulting.com<http://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<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
Dear Milton I have with appologies to disagree with you and throw the monkies to the shoulder of thirs party You are free to agree with Greg but I disagree with your argument Vite fait mal fait . We have to address the issue in one way or the other Tks for your kind reconideration of your position to propose a workable solution Regards Kavouss On Wed, Sep 20, 2017 at 5:03 PM, Mueller, Milton L <milton@gatech.edu> wrote:
Sorry, Kavouss, in the interests of finalizing the statement in a timely manner I have to agree with Greg, that the last paragraph is no longer needed.
We do agree strongly with admonitions to registrars not to cut off their customers without warning but it is not so much an ICANN jurisdiction problem but a problem of the jurisdiction of the registrar (US) or a problem caused by the registrar’s own contract.
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. Let’s not hold up the progress we have made by throwing too many things into the pot.
*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 <(202)%20547-0660>> M: +1 (202) 329-9650<tel:(202)%20329-9650 <(202)%20329-9650>> VOIP: +1 (202) 738-1739<tel:(202)%20738-1739 <(202)%20738-1739>> 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 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
Kavouss et al., First, if you would explain how the suggested text, past the first two sentences, fits as part of a *recommendation* on the *General License*, that would be helpful. The remaining suggested text is a series of claims that actions have been taken by US and non-US registrars to exclude registrants from sanctioned countries, without any recommendation text. *How does this fit in General License recommendation?* The suggested paragraph was put there, but it does not fit in that context. To be clear, each *recommendation* section discusses actual actions to be taken by ICANN organization to resolve an issue if it accepts the CCWG recommendation, or that we would suggest other ICANN structures or stakeholders take to resolve an issue. The remaining proposed text does not perform this function and thus seems to have no place as part of the *General License Recommendation*. To the extent these claims relate to concerns about the activities of non-US registrars, they are addressed in the section discussing application of OFAC sanctions by non-US registrars who are not required to do so. It was agreed on the call that this section would be focused on actual or apparent mistaken application of OFAC sanctions, with corresponding recommendations to resolve that issue. We have never discussed an issue with regard to the activities of US registrars, who are required to comply with OFAC regulations. As such, mentioning activities of US registrars (or broadly claimed to be activities of all registrars) does not seem to be appropriate. Second, if you would respond to and try to resolve the substance of the specific concerns I raised, that would be helpful. Otherwise, there does not seem to be any substantive basis for accepting any of these suggestions. I don't think it is helpful or accurate to describe this as a removal of text, as it was never accepted into the text in the first place. It was a very late suggested addition to a document that has been worked on for a number of weeks, which was provided scant hours before the call. Vite fait, mal fait, as you say. To accept the remainder of the text into the document, the Subgroup would need to support: - The idea that activities of US-based registrars raise a concern for this group to address, and that this group has accepted this concern as an Issue. - That new Issues should be introduced to this document at this point. - That issues should be put into the document without corresponding recommendations. - That "media reports" should be cited in the document without being seen by the Subgroup. - That the business and legal judgement of registrars, beyond the issue of mistaken application of OFAC sanctions, is an appropriate topic for this group and an issue that this group has agreed should be addressed in the document. If there is broad support for these concepts in the Subgroup and if the concerns about the suggested text can be resolved, it would be good to hear it now, so the document can be revised appropriately. Best regards, Greg On Wed, Sep 20, 2017 at 10:48 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com
wrote:
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<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 <(202)%20547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650 <(202)%20329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <(202)%20738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684
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
Greg I read your comments To clarify the matter and to some extent comply with your questions .I have prepared the following reply. Pls kindly consider then favourable as they are now fitting the text either in the recommands part or in the preamble to the recommand Regards Kavouss 1.The last sentence reads” unless the results of the study demonstrate that it would be inappropriate for ICANN to pursue these licenses.”To this effect the first sentensce below “ what Criteria……inappropriate Because you qualify the study by being inappropriate and I did suggest what criteria will be use to make the judgement Thus the first sentence would fir .You may include my comment by modifying the sentence as follows UNLESS, USING APPROPRIATE CRITERIA, THE RESULTS OF STUDY DEMONSTRATE THAT IT WOULD BE INAPPROPRIATE FOR ICANN TO PURSUE THESE STUDIES. 2. Generally, ICANN should pursue the application for general license at earliest time and should remind the registries not to copy and paste the general agreements found in US-based registrars. This also fits 3. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This part is talking about awareness that was extensively discussed and thus fits 4. 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 could be included in appropriate part .if it does not fit with the recommends part 5.Examples of that are related to Godaddy and Online Nic, which made pressure against registrants having citizenship of Sanction coountries. This could be included in the introductory part of the OFAC sanctions and registrar 6 Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC. This could be included either in the recommends part or preamble of the recommend part Regards Kavouss On Wed, Sep 20, 2017 at 5:53 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss et al.,
First, if you would explain how the suggested text, past the first two sentences, fits as part of a *recommendation* on the *General License*, that would be helpful. The remaining suggested text is a series of claims that actions have been taken by US and non-US registrars to exclude registrants from sanctioned countries, without any recommendation text. *How does this fit in General License recommendation?* The suggested paragraph was put there, but it does not fit in that context.
To be clear, each *recommendation* section discusses actual actions to be taken by ICANN organization to resolve an issue if it accepts the CCWG recommendation, or that we would suggest other ICANN structures or stakeholders take to resolve an issue. The remaining proposed text does not perform this function and thus seems to have no place as part of the *General License Recommendation*.
To the extent these claims relate to concerns about the activities of non-US registrars, they are addressed in the section discussing application of OFAC sanctions by non-US registrars who are not required to do so. It was agreed on the call that this section would be focused on actual or apparent mistaken application of OFAC sanctions, with corresponding recommendations to resolve that issue.
We have never discussed an issue with regard to the activities of US registrars, who are required to comply with OFAC regulations. As such, mentioning activities of US registrars (or broadly claimed to be activities of all registrars) does not seem to be appropriate.
Second, if you would respond to and try to resolve the substance of the specific concerns I raised, that would be helpful. Otherwise, there does not seem to be any substantive basis for accepting any of these suggestions.
I don't think it is helpful or accurate to describe this as a removal of text, as it was never accepted into the text in the first place. It was a very late suggested addition to a document that has been worked on for a number of weeks, which was provided scant hours before the call. Vite fait, mal fait, as you say.
To accept the remainder of the text into the document, the Subgroup would need to support:
- The idea that activities of US-based registrars raise a concern for this group to address, and that this group has accepted this concern as an Issue. - That new Issues should be introduced to this document at this point. - That issues should be put into the document without corresponding recommendations. - That "media reports" should be cited in the document without being seen by the Subgroup. - That the business and legal judgement of registrars, beyond the issue of mistaken application of OFAC sanctions, is an appropriate topic for this group and an issue that this group has agreed should be addressed in the document.
If there is broad support for these concepts in the Subgroup and if the concerns about the suggested text can be resolved, it would be good to hear it now, so the document can be revised appropriately.
Best regards,
Greg
On Wed, Sep 20, 2017 at 10:48 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
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<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.rosenzwe ig@redbranchconsulting.com> O: +1 (202) 547-0660 <(202)%20547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650 <(202)%20329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <(202)%20738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-b ounces@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
Dear Greg I replied to your message. I modified that paragraph to fit in the text . I suggested to transfer part of the paragraph to the relevant part of the doc. I am waiting for that Pls kindly be positive, contructive and objective and do not put obstacle in every suggestions made. This is not a private group and you MUST prperly act Regards Kavouss On Wed, Sep 20, 2017 at 7:30 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Greg I read your comments To clarify the matter and to some extent comply with your questions .I have prepared the following reply. Pls kindly consider then favourable as they are now fitting the text either in the recommands part or in the preamble to the recommand Regards Kavouss
1.The last sentence reads” unless the results of the study demonstrate that it would be inappropriate for ICANN to pursue these licenses.”To this effect the first sentensce below “ what Criteria……inappropriate Because you qualify the study by being inappropriate and I did suggest what criteria will be use to make the judgement
Thus the first sentence would fir .You may include my comment by modifying the sentence as follows
UNLESS, USING APPROPRIATE CRITERIA, THE RESULTS OF STUDY DEMONSTRATE THAT IT WOULD BE INAPPROPRIATE FOR ICANN TO PURSUE THESE STUDIES.
2.
Generally, ICANN should pursue the application for general license at earliest time and should remind the registries not to copy and paste the general agreements found in US-based registrars.
This also fits
3. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This part is talking about awareness that was extensively discussed and thus fits
4. 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 could be included in appropriate part .if it does not fit with the recommends part
5.Examples of that are related to Godaddy and Online Nic, which made pressure against registrants having citizenship of Sanction coountries. This could be included in the introductory part of the OFAC sanctions and registrar
6 Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC. This could be included either in the recommends part or preamble of the recommend part Regards Kavouss
On Wed, Sep 20, 2017 at 5:53 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss et al.,
First, if you would explain how the suggested text, past the first two sentences, fits as part of a *recommendation* on the *General License*, that would be helpful. The remaining suggested text is a series of claims that actions have been taken by US and non-US registrars to exclude registrants from sanctioned countries, without any recommendation text. *How does this fit in General License recommendation?* The suggested paragraph was put there, but it does not fit in that context.
To be clear, each *recommendation* section discusses actual actions to be taken by ICANN organization to resolve an issue if it accepts the CCWG recommendation, or that we would suggest other ICANN structures or stakeholders take to resolve an issue. The remaining proposed text does not perform this function and thus seems to have no place as part of the *General License Recommendation*.
To the extent these claims relate to concerns about the activities of non-US registrars, they are addressed in the section discussing application of OFAC sanctions by non-US registrars who are not required to do so. It was agreed on the call that this section would be focused on actual or apparent mistaken application of OFAC sanctions, with corresponding recommendations to resolve that issue.
We have never discussed an issue with regard to the activities of US registrars, who are required to comply with OFAC regulations. As such, mentioning activities of US registrars (or broadly claimed to be activities of all registrars) does not seem to be appropriate.
Second, if you would respond to and try to resolve the substance of the specific concerns I raised, that would be helpful. Otherwise, there does not seem to be any substantive basis for accepting any of these suggestions.
I don't think it is helpful or accurate to describe this as a removal of text, as it was never accepted into the text in the first place. It was a very late suggested addition to a document that has been worked on for a number of weeks, which was provided scant hours before the call. Vite fait, mal fait, as you say.
To accept the remainder of the text into the document, the Subgroup would need to support:
- The idea that activities of US-based registrars raise a concern for this group to address, and that this group has accepted this concern as an Issue. - That new Issues should be introduced to this document at this point. - That issues should be put into the document without corresponding recommendations. - That "media reports" should be cited in the document without being seen by the Subgroup. - That the business and legal judgement of registrars, beyond the issue of mistaken application of OFAC sanctions, is an appropriate topic for this group and an issue that this group has agreed should be addressed in the document.
If there is broad support for these concepts in the Subgroup and if the concerns about the suggested text can be resolved, it would be good to hear it now, so the document can be revised appropriately.
Best regards,
Greg
On Wed, Sep 20, 2017 at 10:48 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
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<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
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzwe ig@redbranchconsulting.com> O: +1 (202) 547-0660 <(202)%20547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650 <(202)%20329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <(202)%20738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pk s/lookup?op=get&search=0x9A830097CA066684
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-b ounces@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
Kavouss, Thank you for your email, clarifying your earlier points. This is very helpful. I have incorporated certain of your points into the General License recommendation, so that it now reads (new language in red): ICANN should take steps to pursue one or more OFAC “general licenses” with the U.S. Department of Treasury in connection with DNS-related transactions. Initially, ICANN should make it a priority to study the costs, benefits, timeline and details of seeking and securing one or more general licenses for DNS-related transactions. ICANN should then pursue one or more OFAC general licenses *at the earliest possible time* , unless significant obstacles were discovered in the “study” process. If there are significant obstacles, ICANN should report them to the [empowered] community and seek its advice on how to proceed. If unsuccessful, ICANN would need to find other ways to accomplish the ultimate goal -- enabling transactions between ICANN and residents of sanctioned countries to be consummated with a minimum of “friction.” *It is critical that ICANN communicate regularly about progress toward securing general licenses, in order to raise awareness in the ICANN community and with affected parties.* Thank you again for your input. I hope you will agree that this is an appropriate way to take your concerns into account within the structure and focus of the Subgroup document For a more detailed discussion, please see my inline responses below. Best regards, Greg On Wed, Sep 20, 2017 at 1:30 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Greg I read your comments To clarify the matter and to some extent comply with your questions .I have prepared the following reply. Pls kindly consider then favourable as they are now fitting the text either in the recommands part or in the preamble to the recommand Regards Kavouss
1.The last sentence reads” unless the results of the study demonstrate that it would be inappropriate for ICANN to pursue these licenses.”
You seem to be looking at an old version of the document. The current version was circulated at 5:18 AM UTC (20 September). A copy is attached for your convenience. The sentence you refer to was removed from the Recommendation as a result of Monday's call, which was reflected in the versions circulated 19 September and 20 September. As it now reads, ICANN no longer has discretion to decide that it is "inappropriate" to seek a general license, and thus there is no reference to "criteria" for ICANN to apply. The recommendation now reads: ICANN should take steps to pursue one or more OFAC “general licenses” with the U.S. Department of Treasury in connection with DNS-related transactions. Initially, ICANN should make it a priority to study the costs, benefits, timeline and details of seeking and securing one or more general licenses for DNS-related transactions. CANN should then pursue one or more OFAC general licenses , unless significant obstacles were discovered in the “study” process. If there are significant obstacles, ICANN should report them to the [empowered] community and seek its advice on how to proceed. If unsuccessful, ICANN would need to find other ways to accomplish the ultimate goal -- enabling transactions between ICANN and residents of sanctioned countries to be consummated with a minimum of “friction.”
To this effect the first sentensce below “ what Criteria……inappropriate Because you qualify the study by being inappropriate and I did suggest what criteria will be use to make the judgement
Thus the first sentence would fir .You may include my comment by modifying the sentence as follows
UNLESS, USING APPROPRIATE CRITERIA, THE RESULTS OF STUDY DEMONSTRATE THAT IT WOULD BE INAPPROPRIATE FOR ICANN TO PURSUE THESE STUDIES.
Please review the Recommendation. I believe you will see that sentence above no longer applies.
2.
Generally, ICANN should pursue the application for general license at earliest time and should remind the registries not to copy and paste the general agreements found in US-based registrars.
This also fits
In order to fit the first part in, I would suggest revising the third sentence of the General License Recommendation so that it reads (added language in *red*) " ICANN should then pursue one or more OFAC general licenses *at the earliest possible time* , unless significant obstacles were discovered in the “study” process. " On the second part, I can't see the connection between (1) existing non-US registrars "copying and pasting" registrant agreements and (2) general licenses allowing ICANN to enter into Registrar Accreditation Agreements with registrars from sanctioned countries.
3. The role of ICANN, to make awareness about such situation is critical and should not be undermined.
This part is talking about awareness that was extensively discussed and thus fits
In order to fit this in, I would suggest revising this slightly and adding the following new sentence to the end of the General License Recommendat ion: *It is critical that ICANN communicate regularly about progress toward securing general licenses, in order to raise awareness in the ICANN community and with affected parties.*
4. 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 could be included in appropriate part .if it does not fit with the recommends part
This issue (relating to current registrars) does not appear to relate to the General License, so it would not fit in the General License recommendation. Also, we do not have an issue that relates to US registrars, because they do in fact have OFAC compliance obligations, so there is no appropriate part in connection with US registrars. As for non-US registrars, if the Subgroup reviewed these media reports and confirmed the transfers demands were related to (possibly mistaken) OFAC concerns, then this could be added to the section on "Application of OFAC sanctions by Non-US Registrars." But right now, we do not have enough to go on.
5.Examples of that are related to Godaddy and Online Nic, which made pressure against registrants having citizenship of Sanction coountries. This could be included in the introductory part of the OFAC sanctions and registrar
These are both US registrars. As noted above, we do not have an issue that relates to US registrars, because they do in fact have OFAC compliance obligations.
6 Registrars should be reminded that they should not normally examine zero risk policy in regard of penalties imposed by OFAC.
This could be included either in the recommends part or preamble of the
recommend part
The Report is now limited to clarifying that non US registrars do not have to comply with OFAC sanctions merely because they have a contract with ICANN. Some broader statements were removed on the last call based on general agreement. This is a new issue, which relates to legal/business judgment by individual registrars. The Subgroup has repeatedly said that it will not give legal advice and that it is up to each registrar to determine whether they have OFAC compliance obligations and, if so, what compliance requires. Therefore it does not seem to fit in the Report.
Regards Kavouss
On Wed, Sep 20, 2017 at 5:53 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kavouss et al.,
First, if you would explain how the suggested text, past the first two sentences, fits as part of a *recommendation* on the *General License*, that would be helpful. The remaining suggested text is a series of claims that actions have been taken by US and non-US registrars to exclude registrants from sanctioned countries, without any recommendation text. *How does this fit in General License recommendation?* The suggested paragraph was put there, but it does not fit in that context.
To be clear, each *recommendation* section discusses actual actions to be taken by ICANN organization to resolve an issue if it accepts the CCWG recommendation, or that we would suggest other ICANN structures or stakeholders take to resolve an issue. The remaining proposed text does not perform this function and thus seems to have no place as part of the *General License Recommendation*.
To the extent these claims relate to concerns about the activities of non-US registrars, they are addressed in the section discussing application of OFAC sanctions by non-US registrars who are not required to do so. It was agreed on the call that this section would be focused on actual or apparent mistaken application of OFAC sanctions, with corresponding recommendations to resolve that issue.
We have never discussed an issue with regard to the activities of US registrars, who are required to comply with OFAC regulations. As such, mentioning activities of US registrars (or broadly claimed to be activities of all registrars) does not seem to be appropriate.
Second, if you would respond to and try to resolve the substance of the specific concerns I raised, that would be helpful. Otherwise, there does not seem to be any substantive basis for accepting any of these suggestions.
I don't think it is helpful or accurate to describe this as a removal of text, as it was never accepted into the text in the first place. It was a very late suggested addition to a document that has been worked on for a number of weeks, which was provided scant hours before the call. Vite fait, mal fait, as you say.
To accept the remainder of the text into the document, the Subgroup would need to support:
- The idea that activities of US-based registrars raise a concern for this group to address, and that this group has accepted this concern as an Issue. - That new Issues should be introduced to this document at this point. - That issues should be put into the document without corresponding recommendations. - That "media reports" should be cited in the document without being seen by the Subgroup. - That the business and legal judgement of registrars, beyond the issue of mistaken application of OFAC sanctions, is an appropriate topic for this group and an issue that this group has agreed should be addressed in the document.
If there is broad support for these concepts in the Subgroup and if the concerns about the suggested text can be resolved, it would be good to hear it now, so the document can be revised appropriately.
Best regards,
Greg
On Wed, Sep 20, 2017 at 10:48 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
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<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
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzwe ig@redbranchconsulting.com> O: +1 (202) 547-0660 <(202)%20547-0660><tel:(202)%20547-0660> M: +1 (202) 329-9650 <(202)%20329-9650><tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <(202)%20738-1739><tel:(202)%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pk s/lookup?op=get&search=0x9A830097CA066684
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-b ounces@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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_______________________________________________ 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
Dear Greg Tks for the doc. Surprisingly I saw that that you have unilaterally removed the last paragraph that I have added and commented by Paul Rosenweig As I mentioned we can soften the langauge such as replacement of "MUST" by "should" as well as few other area to soften the language but I do not agree that you reomove that entire paragraph since somebody did not like that. This is a multistakeholder approach and view of everybody must be taken into account. Consequently there is no consensus in the draft you have declared as finalized pls reconsider the matter. Regards kvouss On Mon, Sep 18, 2017 at 7:42 PM, Greg Shatan <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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Greg, TOP URGENT I disagree with your course of action removing the pargraph that was included in the final draft. We have not made such decision for removal One participant who was not attending the 16 Sept later on did not like the language but he did not proposed its removal Moreover, based on comments reveived after the meeting you were not authorized to unilaterlly remove a paragraph which was included - If the language in that pargraph to be softened , I am reay to discuss that but not unilateral removal of the full paragraph. Your authority is limited to conduc the meeting but bnot to decide for evry b ody. Pls immediate re insert that pargraph and either redicuss it or send it to CCWG Plenary Regards Kavouss On Wed, Sep 20, 2017 at 8:15 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Greg Tks for the doc. Surprisingly I saw that that you have unilaterally removed the last paragraph that I have added and commented by Paul Rosenweig As I mentioned we can soften the langauge such as replacement of "MUST" by "should" as well as few other area to soften the language but I do not agree that you reomove that entire paragraph since somebody did not like that. This is a multistakeholder approach and view of everybody must be taken into account. Consequently there is no consensus in the draft you have declared as finalized pls reconsider the matter. Regards kvouss
On Mon, Sep 18, 2017 at 7:42 PM, Greg Shatan <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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (7)
-
Arasteh -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh
-
Mueller, Milton L -
Paul Rosenzweig -
Thiago Braz Jardim Oliveira