[Ccwg-auctionproceeds] Notes and action items from new gTLD Auction Proceeds CCWG meeting
Daniel Dardailler
danield at w3.org
Wed Jul 25 20:03:13 UTC 2018
I tend to agree with James wrt this point, on the basis that since the
Auction funding is 501c3 mission-constrained on the disbursement front
down to the final recipients, no matter how many intermediaries there
are in between, I don't see how it could be constraint-free on the
us-legal company front along the same lines (that is: if ICANN gives
fund to a legal partner that itself gives it to an illegal one, ICANN is
still liable).
On 2018-07-25 21:48, James Gannon wrote:
> I am saying that ICANN is not in the normal situation of a grant
> making organisation, and as such may be restricted in some small areas
> (Such as by sanctions) in the form it can make the grant making.
> For example it would be to me legally grey to pass a parcel of funding
> to a third party to distribute in a manner that may not align with the
> ICANN bylaws or the restrictions made by applicable law to ICANN.
> This is where I feel we are too close to implementation issues as this
> will be a decision that can only be made on a case by case basis and
> will depend on the current sanctions list at the time of application
> etc etc and many other point in time variables.
>
>
> -James
>
> On 25 Jul 2018, at 21:43, Marilyn Cade
> <marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>> wrote:
>
> James, I am very confused here about the concerns you are raising.
>
> Various governments and other development programs fund entities that
> deal with this issue, and do make grants for parties that do good work
> inside a country that has a sanction, but the group is not within that
> country. think for instance about Save the Children.
>
> Or Empretec.
>
> Of course, there are sanction issues that ICANN has to respect. BUT,
> granting funds to an entity that brings Internet to refugees in a
> country that has sanctions hardly sounds like something you would want
> to oppose -- the applicant might be an NGO not in that sanction
> country but serves such countries.
>
> Are you perhaps thinking we cannot consider such examples?
>
>
>
>
> ________________________________
> From: Ccwg-auctionproceeds
> <ccwg-auctionproceeds-bounces at icann.org<mailto:ccwg-auctionproceeds-bounces at icann.org>>
> on behalf of James Gannon
> <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>
> Sent: Wednesday, July 25, 2018 9:18 AM
> To: Vanda Scartezini
> Cc:
> ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>
> Subject: Re: [Ccwg-auctionproceeds] Notes and action items from new
> gTLD Auction Proceeds CCWG meeting
>
> Sorry but in the commercial space at least that would be very very
> grey from a legal perspective and sounds like avoidance of sanctions
>
> Sent from my iPhone
>
> On 25 Jul 2018, at 14:49, Vanda Scartezini
> <vanda at scartezini.org<mailto:vanda at scartezini.org>> wrote:
>
> In my experience in developing country the way to go over some
> restrictions is make a group of NGOs and the primer - not under
> restriction - will be responsible for the money and will pay the other
> costs . Sometimes this is the only way to allow good organizations in
> restricted countries to participate and works well. What we need to do
> is make clear that projects involving different NGOs from different
> countries is allowed and the relationship will be done with the primer
>
>
> Vanda Scartezini
> Sent from my iPad
> Sorry for any typos and misspellings
>
> On 25 Jul 2018, at 04:05, Maureen Hilyard
> <maureen.hilyard at gmail.com<mailto:maureen.hilyard at gmail.com>> wrote:
>
> Hi Sylvia
>
> I checked with NZ which I have always considered quite liberal, and
> they have (UN) sanctions against a lot of countries where we in
> At-Large have ALSes who may want to access grants from auction funds
> in the future, but will not be able to do so if we decided to set up a
> Foundation or perhaps found a charitable organisation to distribute
> the funds in NZ and probably Australia as well.
>
> As has been mentioned, it would be difficult to find a country that
> didn't have these sanctions. So end-users in these countries who
> might have a really deserving project would still be the underserved,
> but there would be little we could do about it with the auction
> proceeds. .
>
>
> On Tue, Jul 24, 2018 at 8:09 PM, James Gannon
> <james at cyberinvasion.net<mailto:james at cyberinvasion.net>> wrote:
> Hi Sylvia,
>
> I don’t think any legal opinion is going to tell us there is a
> mechanism to avoid applicable law...
>
> Neither can any form that the CCWG recommends place the core function
> of ICANN at risk. That needs to be priority one.
>
> I think his is too far into implementation for the CCWG at this point
> and we need to accept that there will be restrictions due to sanctions
> no matter what form location jurisdiction etc is selected
>
>
> Sent from my iPhone
>
> On 25 Jul 2018, at 06:27, Sylvia Cadena
> <sylvia at apnic.net<mailto:sylvia at apnic.net>> wrote:
>
> This issue about being able to support/ accept proposals/applications
> from the whole world has been an issue expressed and supported by many
> of us. It is indeed a serious point to consider to support scenario 1
> and having ICANN administering the whole process as part of the ICANN
> organization.
>
> The list of US sanctioned jurisdictions is growing -unfortunately- and
> the ICANN community is an international one. The source of the funding
> from the auction proceeds is also international, is does not come from
> the US government.
>
> I would like to request an external legal opinion on this. Although I
> do value and respect the input provide by the ICANN legal team, but I
> do not thing the CCWG should rely only on the legal opinion of who
> will “benefit” from the decision to support the scenario where ICANN
> manages the funding.
>
> Regards,
>
> Sylvia
>
> ---------
>
> Sylvia Cadena | APNIC Foundation - Head of Programs |
> sylvia at apnic.net<mailto:sylvia at apnic.net> |
> http://www.apnic.foundation<https://nam03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.apnic.foundation&data=02%7C01%7C%7C21cec03243324e24625a08d5f2313bc7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636681215624743309&sdata=kT3w3BNUjOg6gVQM3y0cqT12xkjohwEdxuR5LWW6H0s%3D&reserved=0>
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>
> From: Ccwg-auctionproceeds
> <ccwg-auctionproceeds-bounces at icann.org<mailto:ccwg-auctionproceeds-bounces at icann.org>>
> on behalf of Samantha Eisner
> <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
> Date: Wednesday, 25 July 2018 at 7:59 am
> To: Maureen Hilyard Hilyard
> <maureen.hilyard at gmail.com<mailto:maureen.hilyard at gmail.com>>, Marilyn
> Cade <marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>>
> Cc:
> "ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>"
> <ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>>
> Subject: Re: [Ccwg-auctionproceeds] Notes and action items from new
> gTLD Auction Proceeds CCWG meeting
>
> In response to Maureen’s question below (Have ICANN assured us that
> they would not have a problem with sending grants to NGOS anywhere in
> the world?), the answer is:
>
> ICANN will be able to send grants to NGOs anywhere in the world that
> are: (1) not under sanction by the US; and (2) that meet the due
> diligence requirements sufficient to demonstrate that they are proper
> recipients of a grant from a U.S. 501(c)(3).
>
> In our initial memo produced for the CCWG (available at
> https://community.icann.org/download/attachments/58730906/May%202016%20-%20Note%20to%20Auction%20Proceeds%20Charter%20DT%20re%20legal%20and%20fiduciary%20principles-UPDATED.doc?version=1&modificationDate=1466697425000&api=v2<https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcommunity.icann.org%2Fdownload%2Fattachments%2F58730906%2FMay%25202016%2520-%2520Note%2520to%2520Auction%2520Proceeds%2520Charter%2520DT%2520re%2520legal%2520and%2520fiduciary%2520principles-UPDATED.doc%3Fversion%3D1%26modificationDate%3D1466697425000%26api%3Dv2&data=02%7C01%7C%7C21cec03243324e24625a08d5f2313bc7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636681215624743309&sdata=nTCzKaXrfh7OXXu34P2m%2BNzuhnC5%2Fy9CJgvnCrNQOIQ%3D&reserved=0>),
> we detailed that it is fully possible to have a grant program that is
> not limited only to US 501(c)(3) organizations, relying instead on
> due diligence over the grantee. We committed early on that it was
> important that this program not be limited to the U.S. From that
> aspect, Marilyn’s example of the ability of grantmaking to entities in
> Afghanistan should be entirely feasible.
>
> However, the first question that kicked off the discussion below was
> actually focused on a different issue: whether ICANN’s need to follow
> sanctions rules could bar ICANN from allowing a grant to be given to
> an entity under sanctions. The answer to that is YES. Carolina raised
> this question using the specific example of entities in Venezuela ("I
> would like to know if there any country restrictions for non-US
> grants. For example, would organizations based in Venezuela which
> today faces US sanctions be eligible to apply?”) To be clear, there is
> no jurisdiction that we could select to house a disbursement mechanism
> that that would relieve ICANN of following these sanctions laws.
> Compliance with OFAC rules and other applicable sanctions regimes must
> be followed in the grant making process. As a result, even if an
> applicant was located in the U.S. but was subject to sanctions, a
> grant from the auction proceeds could not go to that applicant.
>
>
> —
> Samantha Eisner
> Deputy General Counsel, ICANN
> 12025 Waterfront Drive, Suite
> 300<https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmaps.google.com%2F%3Fq%3D12025%2BWaterfront%2BDrive%2C%2BSuite%2B300%2B%250D%250A%2B%250D%250A%2B%250D%250A%2BLos%2BAngeles%2C%2BCalifornia%2B90094%2B%250D%250A%2B%250D%250A%2B%250D%250A%2BUSA%26entry%3Dgmail%26source%3Dg&data=02%7C01%7C%7C21cec03243324e24625a08d5f2313bc7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636681215624743309&sdata=lpZgN1rupjZeQv0%2FLuacBlQgfd6FpPurtpQC%2FkcZFaE%3D&reserved=0>
> Los Angeles, California
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> Direct Dial: +1 310 578 8631
>
> From: Ccwg-auctionproceeds
> <ccwg-auctionproceeds-bounces at icann.org<mailto:ccwg-auctionproceeds-bounces at icann.org>>
> on behalf of Maureen Hilyard
> <maureen.hilyard at gmail.com<mailto:maureen.hilyard at gmail.com>>
> Date: Monday, July 23, 2018 at 1:47 PM
> To: Marilyn Cade
> <marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>>
> Cc:
> "ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>"
> <ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>>
> Subject: Re: [Ccwg-auctionproceeds] Notes and action items from new
> gTLD Auction Proceeds CCWG meeting
>
> Yes Carolina and Marilyn, a very interesting perspective.
>
> Have ICANN assured us that they would not have a problem with sending
> grants to NGOS anywhere in the world?
>
> From my perspective too, it seems a bit of a conflict that ICANN who
> is very reluctant to even reimburse hard-working ICANN constituency
> volunteers for expenses that they may pay out from their own pocket to
> attend ICANN meetings and/or to carry out outreach and other work in
> the regions that promote and support ICANN's mission, is being
> considered as the distributor of large sums of grant money to other
> outside personnel and organisations to do the same.
>
> Just a thought.
>
> On Mon, Jul 23, 2018 at 10:26 AM, Marilyn Cade
> <marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>> wrote:
> This is an interesting topic, but needs to have more exploration
> before assumptions are "declared".
>
> In May, I was in Afghanistan, and two major corporations were there,
> describing their capacity building programs, funded by their CSR
> programs. they saw no barriers to making contribution to the NGOs
> they were supporting.
>
> I was recently in another country where there is high assertion of
> fraud, and there were NGOs who could only do their capacity building
> because of contributions from US based entities, ranging from
> companies to Foundations, to USG.
>
> Some countries have unique challenges, but we can't and should not
> design a program based on exception.
> ________________________________
> From: Ccwg-auctionproceeds
> <ccwg-auctionproceeds-bounces at icann.org<mailto:ccwg-auctionproceeds-bounces at icann.org>>
> on behalf of Vanda Scartezini
> <vanda at scartezini.org<mailto:vanda at scartezini.org>>
> Sent: Monday, July 23, 2018 2:59 PM
> To: Carolina Caeiro;
> ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>;
> Marika Konings
>
> Subject: Re: [Ccwg-auctionproceeds] Notes and action items from new
> gTLD Auction Proceeds CCWG meeting
>
> Some US organization cannot give grants to many other countries under
> specific restrictions or not.
>
> Vanda Scartezini
> Polo Consultores Associados
> Av. Paulista
> 1159<https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmaps.google.com%2F%3Fq%3DAv.%2BPaulista%2B1159%26entry%3Dgmail%26source%3Dg&data=02%7C01%7C%7C21cec03243324e24625a08d5f2313bc7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636681215624899557&sdata=HR1hqXbuesGxrBZZEpI0VK1Et%2BYW5%2B%2FHGRD7a%2FoLkl0%3D&reserved=0>,
> cj 1004
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> Mobile: + 55 11 98181.1464
> Sorry for any typos.
>
>
>
>
>
> From: Ccwg-auctionproceeds
> <ccwg-auctionproceeds-bounces at icann.org<mailto:ccwg-auctionproceeds-bounces at icann.org>>
> on behalf of Carolina Caeiro
> <carolina at lacnic.net<mailto:carolina at lacnic.net>>
> Date: Monday, July 23, 2018 at 13:54
> To:
> "ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>"
> <ccwg-auctionproceeds at icann.org<mailto:ccwg-auctionproceeds at icann.org>>,
> 'Marika Konings'
> <marika.konings at icann.org<mailto:marika.konings at icann.org>>
> Subject: Re: [Ccwg-auctionproceeds] Notes and action items from new
> gTLD Auction Proceeds CCWG meeting
>
> Dear Marika and all,
> As per action item #2, review of the Sarah's descriptions of the
> mechanisms, I have the following questions:
> 1. When speaking of International capabilities of the various
> mechanisms, I would like to know if there any country restrictions for
> non-US grants. For example, would organizations based in Venezuela
> which today faces US sanctions be eligible to apply? This is relevant
> to mechanisms 1, 2 and 3.
> 2. In comparing mechanisms, 1 and 2, I am also curious to better
> understand what it means for ICANN to have grant making activities
> reflected in its tax filings. Specifically, I would like to know if
> ICANN would be better protected by mechanism 2 by which the DAF
> reports for grant activity in its own tax filling as opposed mechanism
> 1 which foresees ICANN reporting grant-making activity on its own tax
> filing.
> Lastly, I think it should be noted in the description of mechanism 3
> that we are assuming an ICANN Foundation would be US-based; there
> should be an explanation as to why we are only considering the option
> of it being based in the US.
> Lastly, in connection to the proposed responses to charter questions,
> for Charter question 11 ("Should a review mechanism be put in place to
> address possible adjustments to the framework?"), I see references to
> large vs small grants, number of disbursements, etc. While I think the
> group needs to come to an agreement on these points, those should be
> fleshed out when we review Charter Question 4.
>
> In connection to Action item #3, I have no concerns with the proposed
> steps/timeline.
>
> Many thanks,
>
> Carolina
>
> El 12/7/18 a las 12:27, Marika Konings escribió:
> Dear All,
>
> Please find below the notes and action items from today’s new gTLD
> Auction Proceeds CCWG. Please take particular note of the action
> items:
>
> Action item #2: CCWG to review summary document and identify any
> remaining questions as soon as possible so that these can be
> considered by the small group of volunteers undertaking the triage of
> questions.
> Action item#3: CCWG to review remaining steps and proposed timeline
> and identify any concerns / issues.
>
> Best regards,
>
> Marika
>
> Notes & Action items – new gTLD Auction Proceeds CCWG meeting of 12
> July 2018
>
> These high-level notes are designed to help the CCWG navigate through
> the content of the call and are not meant as a substitute for the
> transcript and/or recording. The MP3, transcript, and chat are
> provided separately and are posted on the wiki at:
> https://community.icann.org/display/CWGONGAP/2018+Meetings
> [community.icann.org]
>
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>
> 1. Roll Call
> · Attendance will be taken from AC
> · Please mute your microphones when not speaking and state
> your name for transcription purposes
>
> 2. Welcome / SOI-DOI Updates
> · Participation in recent meetings has been low, including
> limited participation today - is there a need to review working
> methods?
> · Please remember to review and update your SOI/DOIs as
> appropriate
>
> 3. Recap from CCWG62 related meetings and updates
> · See notes and action items from that meeting
> · A number of items discussed at ICANN62 are also coming back
> on the agenda today
> · Leadership also provided an update to the ccNSO and the GAC
> on the status of deliberations - shared current timeline, questions
> under consideration, etc.
>
> 4. Review of proposed responses to charter questions (updated version
> to be shared by staff shortly)
> · See the document that was shared on the CCWG mailing list
> · Objective is to get this document into a state that it is
> ready for inclusion in the Initial Report.
> · Number of questions that have been identified - some may be
> responded to by Sam/Xavier, Sarah Berg but also the CCWG.
> · What approach should be taken to get to answers for these
> questions?
> · What is the role of the Board in internal mechanism? Board
> has indicated that they do not expect involvement in daily operations
> or approving individual projects. May need to be clarified by Board
> Liaisons re. how much they want to get involved in overseeing
> individual projects. Depending on which mechanism is recommended,
> Board may need / want to adjust its thinking. Board does not want any
> involvement in relation to decisions on individual grants, but
> oversight of administrative process is expected, for example through
> annual review / evaluation.
> · May need to pull out all legal / tax related questions and
> ask legal to provide guidance on these (possibly through outside
> counsel). Would first need to see the questions to determine who would
> be the best person/resource to respond to these.
> · Some questions earmarked for Sarah may also be more
> appropriate for other experts / sources.
> · Need to play it safe and be sure about
> decisions/recommendations.
> · How to extract those legal questions that may need input
> from outside counsel? Need certainty on those essential items before
> publishing Initial Report.
> · Small group of volunteers to review questions and undertake
> a triage effort (which questions are for CCWG to consider, which are
> for Sam/Xavier, which for Sarah Berg, which ones are possibly for an
> external source /counsel). Volunteers: Marilyn, Vanda, Samantha,
> Maureen, Erika. Objective for the small group is to undertake triage
> effort early next week following which it would share its
> recommendations with the CCWG ahead of next meeting.
>
> Action item #1: staff to set up doodle poll for small group for a call
> early next week to undertake triage effort. If there are other
> volunteers, please share your interest with the mailing list.
>
> 5. Final review of summary descriptions provided by Sarah Berg - ICANN
> Contracted Advisor on Strategic Development and Philanthropic Programs
> (see attached)
>
> · Number of questions were identifed for Sarah - will be
> considered as part of the triage effort as identified under previous
> item so that a defined set of questions can be shared with Sarah as
> there may be other items for which her input will be helpful.
> · Note question in relation to need for human rights
> assessment into the process. CCWG-Accountability WS2 provided
> recommendations in this regard - need to consider how that would be
> implemented into the auction proceeds process.
>
> Action item #2: CCWG to review summary document and identify any
> remaining questions as soon as possible so that these can be
> considered by the small group of volunteers undertaking the triage of
> questions.
>
> 6. Feedback on remaining steps and proposed timeline (see attached)
> · See remaining steps & proposed timeline shared.
> · Please share any concerns you may have about the timeline
> with the list. Meeting the target of publication of an Initial Report
> by ICANN63 will require commitment and participation from all.
> · Should additional meetings be scheduled to make sure all
> issues can be considered in detail? May be a challenge considering the
> August timeframe and vacation time in the northern hemisphere.
> · More time may be needed for consultations in relation to the
> poll.
> · Need to maintain flexibility and review on a regular basis
> how to adjust the timeline / schedule of meetings as this is dependent
> on the progress that is made.
>
> Action item#3: CCWG to review remaining steps and proposed timeline
> and identify any concerns / issues.
>
> 7. Confirmation of next steps and next meeting (26 July 2018 at 14.00
> UTC)
>
> Marika Konings
> Vice President, Policy Development Support – GNSO, Internet
> Corporation for Assigned Names and Numbers (ICANN)
> Email: marika.konings at icann.org<mailto:marika.konings at icann.org>
>
> Follow the GNSO via Twitter @ICANN_GNSO
> Find out more about the GNSO by taking our interactive courses
> [eur03.safelinks.protection.outlook.com]<https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.proofpoint.com%2Fv2%2Furl%3Fu%3Dhttps-3A__eur03.safelinks.protection.outlook.com_-3Furl-3Dhttp-253A-252F-252Flearn.icann.org-252Fcourses-252Fgnso-26data-3D02-257C01-257C-257Cdd9abd1751d94eb6396b08d5f0ce6bc0-257C84df9e7fe9f640afb435aaaaaaaaaaaa-257C1-257C0-257C636679691718742459-26sdata-3DIwDc-252B5Pf24O7BNlvvXPYNXJbGnUgJKnm5aTSNtg-252BAYM-253D-26reserved-3D0%26d%3DDwMFaQ%26c%3DFmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM%26r%3Dw1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko%26m%3DVqWxPnFVIUmWQHGZJxDFDgVJn47445frtXeBi7QYCGc%26s%3DA2mK6U7wiAUqk3AAQ6JAwsvwHCAAio1xdGZtZn3-688%26e%3D&data=02%7C01%7C%7C21cec03243324e24625a08d5f2313bc7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636681215624899557&sdata=T4fXFT74o6CcJcHPeGQ7DLgycmTme83mPh%2BKVqIolT4%3D&reserved=0>
> and visiting the GNSO Newcomer pages
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> --
> Carolina Caeiro
> Coordinadora de Proyectos de Desarrollo
> Coordinator of Development Projects
> www.lacnic.net
> [eur03.safelinks.protection.outlook.com]<https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.proofpoint.com%2Fv2%2Furl%3Fu%3Dhttps-3A__eur03.safelinks.protection.outlook.com_-3Furl-3Dhttp-253A-252F-252Fwww.lacnic.net-26data-3D02-257C01-257C-257Cdd9abd1751d94eb6396b08d5f0ce6bc0-257C84df9e7fe9f640afb435aaaaaaaaaaaa-257C1-257C0-257C636679691718742459-26sdata-3DLihhELb-252F8kudqMYGGPJz0nzr2f7uTOjZCWJhl7hI8fQ-253D-26reserved-3D0%26d%3DDwMFaQ%26c%3DFmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM%26r%3Dw1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko%26m%3DVqWxPnFVIUmWQHGZJxDFDgVJn47445frtXeBi7QYCGc%26s%3D6IJWDeAEoG-T6V8KA0GwyauGTz7x4CZPJqFbT588K88%26e%3D&data=02%7C01%7C%7C21cec03243324e24625a08d5f2313bc7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636681215624899557&sdata=vy37r5dgdZSHY5vYd4BLmGlzCcr9%2FwjxCDd4FYZuwyE%3D&reserved=0>
> Latin American and Caribbean Internet Addresses Registry
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