[Acct-Legal] Fwd: ICANN Accountability /Sanctions/Membership model

Thu Apr 16 20:00:40 UTC 2015

Whatever relationship the individuals in various countries now have to ICANN -- which is a California nonprofit corporation -- will be essentially the same as their future relationships to the unincorporated nonprofit associations we proposed to establish from the existing structures/bodies internal to ICANN,  The individuals will continue to have a relationship with ICANN, and will be adding a very similar relationship to one of the new entities.  So if individuals from those countries of concern can participate in ICANN now, then they can participate in the exact same way in the unincorporated nonprofit associations.  If these individuals already have some sort of special dispensation from OFAC for their ICANN activities, a similar arrangement would be needed.  If not, then either you already have an OFAC problem for these individuals with their relationship to ICANN, or there's no problem with an essentially identical relationship to the new unincorporated nonprofits.

We would need to create the unincorporated nonprofit associations for either the membership or designator model.

Rosemary

-----Original Message-----
From: ccwg-accountability5-bounces at icann.org [mailto:ccwg-accountability5-bounces at icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam
Sent: Thursday, April 16, 2015 11:30 AM
To: ccwg-accountability5 at icann.org
Subject: Re: [Acct-Legal] Fwd: ICANN Accountability /Sanctions/Membership model

I have asked one of our OFAC colleagues to write a brief response.  The short answer is that OFAC restrictions do need to be respected by US-based entities, but mechanisms can be created to address the issue.  More to follow shortly.

Ed

EDWARD R. MCNICHOLAS
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, DC 20005
Direct:   202.736.8010
emcnicholas at sidley.com
www.sidley.com/infolaw

-----Original Message-----
From: ccwg-accountability5-bounces at icann.org [mailto:ccwg-accountability5-bounces at icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam
Sent: Thursday, April 16, 2015 2:19 PM
To: ccwg-accountability5 at icann.org
Subject: Re: [Acct-Legal] Fwd: ICANN Accountability /Sanctions/Membership model

Dear Robin,

Thanks for this question. It is indeed a great question.

Does the OFAC deals strictly with commercial/economic affairs? How would that affect non-commercial interest?

I think this is a whole new thread to explore.

Best regards,

León

> El 16/04/2015, a las 12:42, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org> escribió:
>
> Dear Legal Sub-Team,
>
> I've received the below question from a stakeholder group member about the implications of the US law, Office of Foreign Assets Control (OFAC) under the Membership Model under consideration that I believe warrants an answer from our legal experts.
>
> Note: OFAC acts to prevent "prohibited transactions", which are considered trade or financial transactions and other dealings in which US persons [such as ICANN] may not engage unless authorized by OFAC or expressly exempted by statute.  OFAC enforces economic sanctions against countries, businesses, or groups of individuals, using the blocking of assets and trade restrictions to achieve US foreign policy and national security goals.
>
> Will it be more difficult for participants in countries that are on the US's naughty list (like Iran, Cuba, Syria) to be able to participate in the reformed ICANN and to fully exercise equal rights given this US trade law OFAC?  Will they need to apply for and obtain a special exemption from OFAC in order to do so?  Does it make a difference between the two models under consideration how this law will impact participation from individuals in those countries?
>
> Thanks,
> Robin
>
> Begin forwarded message:
>
>> Dear all
>>
>> I need some clarification regarding  the designators / membership models that  were introduced to enhance the accountability of ICANN.
>>
>> I have not looked into the details of these recommendations, I totally understand that membership is not at individual level but I would very much like to know how the intake of members by the constituencies work if we were to choose one of the models or if any other model is proposed.
>>
>>
>> I am interested in knowing how the membership intake is regulated. Will the constituencies remain autonomous in selecting their members?  If the intake is also regulated as it is with associations members then it might well be subject to the US sanction law that are applied to several countries. Therefore those located in countries sanctioned by the US cannot become members ! or it may cost alot.
>>
>> This might not even be an issue and I might be off track and ignorant about this but getting an early clarification is better .
>>
>> Now you might ofcourse say that but the membership has nothing to do with financial transactions (which it might have sometimes). Please don't get me started. ISOC has more than once rejected the establishment of an Iran ISOC chapter with a very generic answer! stating  their great reason: OFAC doesnt let them ! But ofcourse that is wrong and ISOC can ask OFAC for a license but they won't bother, there might be other problems as well. Anyhow, ICANN has been dealing with OFAC very well so far. but I don't know what will happen in the future. So an answer from someone who knows better is much appreciated !
>>
>>
>>
>
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