[Ws2-jurisdiction] [Issue and Solution] ICANN and its obligation to apply for OFAC when necessary
parminder
parminder at itforchange.net
Sun Aug 20 16:47:21 UTC 2017
On Sunday 20 August 2017 09:35 PM, Tijani BEN JEMAA wrote:
> Farzaneh,
>
> Does that solve the problem? What will happen if OFAC decides not to
> issue the requested license?
Precisely. That is the original OFAC related jurisdiction issue. Not so
much ICANN's less than very appropriately worded terms in the gltd
application book, which can of course be improved. ICANN's change of
language does not substantially change the application of OFAC on
ICANN's global governance function. We need a response to that
problem.... parminder
>
> -----------------------------------------------------------------------------
> *Tijani BEN JEMAA*
> Executive Director
> Mediterranean Federation of Internet Associations (*FMAI*)
> Phone: +216 98 330 114
> +216 52 385 114
> -----------------------------------------------------------------------------
>
>
>> Le 20 août 2017 à 15:22, farzaneh badii <farzaneh.badii at gmail.com
>> <mailto:farzaneh.badii at gmail.com>> a écrit :
>>
>> 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 OFAC
>> 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 <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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