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

List for the work of CCWG-Accountability Legal SubTeam ccwg-accountability5 at icann.org
Fri Apr 17 02:22:26 UTC 2015


Thanks Ed.

Counsel,

Could you please add to the list of questions assigned for advice those raised by Edward Morris in his email below?

That is:

> 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?


Best regards,


León

> El 16/04/2015, a las 20:44, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org> escribió:
> 
> 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 <mailto: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 <mailto: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 <mailto: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 <tel:202.736.8010>
>> emcnicholas at sidley.com <>
>> www.sidley.com/infolaw <http://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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