[Ws2-jurisdiction] [Issue and Solution] ICANN and its obligation to apply for OFAC when necessary
Nigel Roberts
nigel at channelisles.net
Sun Aug 20 15:46:25 UTC 2017
I'm instead concerned about the expression "most goods and services".
I'm not sure that's correct. Surely "goods and services that are
prohibited transactions" ought to be the correct construction??
On 20/08/17 15:22, farzaneh badii wrote:
> ICANN RAA says it is under "no obligation" to seek an OFAC license (see
> below)
> With ICANN stating that it is under no obligation to apply for OFACtead
> license for applicants residing in sanctioned countries, ICANN provides
> a way for jurisdiction to interfere with providing domain name services.
> Why, given its commitment to global interoperability of the DNS, should
> it be discretionary for ICANN to apply for an OFAC license?
>
> *Solution: (as was suggested by Jeff, Mike, IGP and others) *
>
> Currently, the RAA states that:
>
>
> /”// 4. Application Process./____
>
> /…../____
>
> /Applicant acknowledges that ICANN must comply with all U.S. laws,
> rules, and regulations. One such set of regulations is the economic and
> trade sanctions program administered by the Office of Foreign Assets
> Control ("OFAC") of the U.S. Department of the Treasury. These sanctions
> have been imposed on certain countries, as well as individuals and
> entities that appear on OFAC's List of Specially Designated Nationals
> and Blocked Persons (the "SDN List"). ICANN is prohibited from providing
> most goods or services to residents of sanctioned countries or their
> governmental entities or to SDNs without an applicable U.S. government
> authorization or exemption. ICANN generally will not seek a license to
> provide goods or services to an individual or entity on the SDN List. In
> the past, when ICANN has been requested to provide services to
> individuals or entities that are not SDNs, but are residents of
> sanctioned countries, ICANN has sought and been granted licenses as
> required. //However, Applicant acknowledges that ICANN is under no
> obligations to seek such licenses and, in any given case, OFAC could
> decide not to issue a requested license//.” [Emphasis Added]/____
>
> …………………____
>
>
> The red part should be changed to require ICANN to applying for an OFAC
> license. with the clarification that OFAC could decide not to issue a
> requested license.
>
> __
>
>
>
>
> Farzaneh
>
>
> __ __
>
> *From:* ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *farzaneh badii
> *Sent:* Monday, August 7, 2017 4:08 PM
> *To:* Mike Rodenbaugh <mike at rodenbaugh.com <mailto:mike at rodenbaugh.com>>
> *Cc:* acct-staff at icann.org <mailto:acct-staff at icann.org>; Thomas Rickert
> <thomas at rickert.net <mailto:thomas at rickert.net>>; ws2-jurisdiction
> <ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>>
> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC
> Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]____
>
> __ __
>
> I also agree with Jeff and Mike. IGP had proposed this change back in
> January and we hope it happens.____
>
> __ __
>
> One more issue that we discussed during the meeting was about the
> uncertainty regarding the application of OFAC to non US-based
> registrars. Some registrars not based in the US might want to avoid risk
> and not provide services for sanctioned countries because of their
> contract with ICANN. I think we should follow up on this issue and solve
> it by just clarifying ( as Steve asked and Sam confirmed ) "that
> contracted parties are not obligated to follow OFAC solely on the basis
> of their having a contract with ICANN".____
>
>
> ____
>
> Farzaneh ____
>
> __ __
>
> On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike at rodenbaugh.com
> <mailto:mike at rodenbaugh.com>> wrote:____
>
> I agree with Jeff's proposal that ICANN be required to make a good
> faith application for OFAC license whenever it is necessary to
> fulfill the purpose of registry and/or registrar agreements. And I
> support his 2d question, requesting details. ____
>
> __ __
>
> Note that OFAC doesn't just hamper registries and registrars located
> or formed in sanctioned countries, but also registries and
> registrars with officers, directors or significant shareholders from
> any of the sanctioned countries (regardless where the business is
> located or formed). Note further that OFAC licenses are
> time-limited, requiring periodic reapplication. And ICANN legal has
> told me that they were not required to seek an OFAC license for my
> client, even though that client had executed registry agreements
> with ICANN. I disputed that, and they got the license; but there is
> no guarantee they will seek it again when it expires, even though
> the registries are live. ____
>
> __ __
>
> I can't see any good reason why ICANN should not be required at
> least to make a good faith effort to get a license. It seems at
> least to be implied in the registry agreement anyway, via the
> covenant of good faith and fair dealing inherent in every contract
> (at least under California law). If ICANN refused to seek a
> license, it would frustrate the purpose of the entire agreement.____
>
>
> ____
>
> Mike Rodenbaugh____
>
> RODENBAUGH LAW____
>
> tel/fax: +1.415.738.8087 <tel:%28415%29%20738-8087>____
>
> http://rodenbaugh.com ____
>
> __ __
>
> On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman
> <jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>> wrote:____
>
> All,____
>
> ____
>
> Is someone able to document the questions that were not answered
> during the teleconference? I was on the teleconference, which
> was great, and I am not sure what still needs to be answered.____
>
> ____
>
> Also, it seems like we have lost some sight of the main points
> raised during the call. ____
>
> ____
>
> 1. One of the main points I got on the call was that the
> language found on the Registrar Accreditation page of the
> ICANN site states: ____
>
> ____
>
>
> /”//4. Application Process./____
>
> /…../____
>
> /Applicant acknowledges that ICANN must comply with all U.S.
> laws, rules, and regulations. One such set of regulations is the
> economic and trade sanctions program administered by the Office
> of Foreign Assets Control ("OFAC") of the U.S. Department of the
> Treasury. These sanctions have been imposed on certain
> countries, as well as individuals and entities that appear on
> OFAC's List of Specially Designated Nationals and Blocked
> Persons (the "SDN List"). ICANN is prohibited from providing
> most goods or services to residents of sanctioned countries or
> their governmental entities or to SDNs without an applicable
> U.S. government authorization or exemption. ICANN generally will
> not seek a license to provide goods or services to an individual
> or entity on the SDN List. In the past, when ICANN has been
> requested to provide services to individuals or entities that
> are not SDNs, but are residents of sanctioned
> countries, ICANN has sought and been granted licenses as
> required. //However, Applicant acknowledges that ICANN is under
> no obligations to seek such licenses and, in any given case,
> OFAC could decide not to issue a requested license//.” [Emphasis
> Added]/____
>
> …………………____
>
> ____
>
> Although the language states that ICANN does not have to seek
> licenses for residents of sanctioned countries, they generally
> do. I would like to see that last paragraph state in writing
> that they are required to seek a license, but acknowledge that
> OFAC could decide not to issue a requested license. This would
> ensure that we could have registries and/or registrars in these
> countries able to at least apply to become accredited.____
>
> 2. The second point that was interesting was that ICANN seeks
> licenses for all changes to the root zone if initiated by
> entities or residents in the OFAC sanctioned countries.
> It would be helpful to know the terms (and limits) of those
> licenses (from an accountability standpoint). Are there
> certain changes that cannot be made without additional
> licenses, etc.____
>
> Thanks again for the information on last weeks call and I look
> forward to discussing the substance.____
>
> ____
>
> ____
>
> ____
>
> ____
>
> https://www.icann.org/resources/pages/application-2012-02-25-en
> <https://www.icann.org/resources/pages/application-2012-02-25-en>
> ____
>
> ____
>
> *Jeffrey J. Neuman*____
>
> *Senior Vice President *|*Valideus USA***| *Com Laude USA*____
>
> 1751 Pinnacle Drive, Suite 600____
>
> Mclean, VA 22102, United States____
>
> E: jeff.neuman at valideus.com <mailto:jeff.neuman at valideus.com>or
> jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>____
>
> T: +1.703.635.7514 <tel:%28703%29%20635-7514>____
>
> M: +1.202.549.5079 <tel:%28202%29%20549-5079>____
>
> @Jintlaw____
>
> ____
>
>
>
>
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