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

Thu Apr 16 21:26:14 UTC 2015

How does this apply, assuming no dues are charged to a sanctioned member of
a SOAC?

On Thursday, April 16, 2015, List for the work of CCWG-Accountability Legal
SubTeam <ccwg-accountability5 at icann.org> wrote:

> A more specific response on the OFAC question with guidance from Sidley's
> Lisa Crosby:
>
> Each U.S. sanctions regime is different, but OFAC rules do generally
> prohibit an entity located in the United States and/or organized under U.S.
> law from offering services to, or receiving payment from, a sanctions
> target (e.g., the government of sanctioned country, a party in a sanctioned
> country, a Specially Designated National).  Such restrictions apply
> regardless of whether an activity is commercial or non-commercial.
>
> However, OFAC regularly issues "general licenses" authorizing activities
> that would otherwise be prohibited by its regulations.  For example, the
> Iranian Transactions and Sanctions Regulations, the Cuban Assets Control
> Regulations, the Sudanese Sanctions Regulations and the Syrian Sanctions
> Regulations all authorize IP-related transactions involving countries
> subjection to U.S. economic sanctions.  See 31 CFR 560.509 (Iran), 515.528
> (Cuba), 538.514 (Sudan) and 542.520 (Syria).  OFAC issues such general
> licenses when U.S. foreign policy favors activities (e.g., protection of
> intellectual property) that would otherwise be prohibited by OFAC
> regulations.  In sum, it should be possible to overcome the OFAC
> restrictions if OFAC were persuaded to issue a general license authorizing
> activities involving the reformed ICANN.
>
> Further, Congress has in some cases restricted the President's authority
> to impose economic sanctions that would prohibit activity that Congress
> feels should be exempt from U.S. economic sanctions.  For example, the
> International Emergency Economic Powers Act (IEEPA),  50 USC 1701-1706, the
> principal statute pursuant to which the U.S. President imposes economic
> sanctions, states:  "The authority granted to the President by this section
> does not include the authority to regulate or prohibit, directly or
> indirectly--[. . .] (4) any transaction ordinarily incident to travel to or
> from any country . . .."  Congress has limited the U.S. President's
> authority to impose sanctions on certain activities (e.g., travel; the
> import/export of books and movies; donations of food and medicine for
> humanitarian purposes) that Congress feels should not be used as
> instruments of U.S. foreign policy.  Congress could amend IEEPA or pass
> another statute exempting activities involving the reformed ICANN from the
> scope of U.S. economic sanctions. Exempting such activities from U.S.
> economic sanctions by statute would eliminate the need for an OFAC general
> license.
>
> Ed McNicholas
> SIDLEY AUSTIN LLP
>
> -----Original Message-----
> From: ccwg-accountability5-bounces at icann.org <javascript:;> [mailto:
> ccwg-accountability5-bounces at icann.org <javascript:;>] On Behalf Of List
> for the work of CCWG-Accountability Legal SubTeam
> Sent: Thursday, April 16, 2015 2:30 PM
> To: ccwg-accountability5 at icann.org <javascript:;>
> 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 <javascript:;>
> www.sidley.com/infolaw
>
> -----Original Message-----
> From: ccwg-accountability5-bounces at icann.org <javascript:;> [mailto:
> ccwg-accountability5-bounces at icann.org <javascript:;>] 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 <javascript:;>
> 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 <javascript:;>> 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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