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

Fri Apr 17 01:44:06 UTC 2015

I'd like to thank  Ed McNicholas and Lisa Crosby of Sidley for their prompt
and detailed response on the OFAC question. I've had occasion in recent
years to need to obtain a few licenses from Treasury for things I've been
doing in the DPRK and have always found the procedure to be fairly
straightforward and simple. If needed, hopefully that will remain the case
for ICANN and it's constituent parts.

Leon,  I have a question I'd like to pose to the attorneys through whatever
procedure we currently have in place:

Some of the powers coming out of WP1 as being desired by the community
include spilling the Board and recalling individual Board members. The
desired voting thresholds for removal are high: supermajority or higher.

One of the mechanisms under consideration is that of statutory membership.
There are provisions in the California Corporations Code for removal of
Board members that specify statutory thresholds that are less than that
desired by the community, particularly if the number of members is under 50.

If statutory membership is chosen do we need to have a certain number of
members in order to be able to concurrently have a supermajority threshold
for Board removal, is the number of members irrelevant to the issue, or is
something else involved? Please answer giving consideration to a proposal
that has been made on list for a single member structure for the ICANN
community.

Thanks,

Ed Morris

On Thu, Apr 16, 2015 at 10:43 PM, List for the work of CCWG-Accountability
Legal SubTeam <ccwg-accountability5 at icann.org> wrote:

> Dear all,
>
> Please don’t forget to sign all your emails as we, at the moment, are
> unable to identify the sender unless the mail is signed.
>
>
> Best regards,
>
>
> León
>
> El 16/04/2015, a las 16:26, List for the work of CCWG-Accountability Legal
> SubTeam <ccwg-accountability5 at icann.org> escribió:
>
> 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 [mailto:
>> ccwg-accountability5-bounces at icann.org] On Behalf Of List for the work
>> of CCWG-Accountability Legal SubTeam
>> Sent: Thursday, April 16, 2015 2:30 PM
>> 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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