[Ws2-jurisdiction] Jurisdiction Questionnaire response analysis: Ministry of Telecom and Mass Communications of the Russian Federation

[parminder]

Dear Tatiana

Thanks for your analysis, which is very useful.

Allow me to comment on the last para about your opinion on the proposed
solutions in Russian Federation's response.  I quote your email

    "As to the alternative jurisdiction solutions: again, it is up to
    the group to continue the discussion and I think that as this issue
    being constantly raise we will have to come to it at some point if
    we realise that there are some serious risks coming from ICANN being
    incorporated in the US. However, I would like to note - as my
    personal opinion - that some of the proposed solutions very likely
    either do not meet the transition requirement (governance by
    international treaties) or probably impossible - e.g. If I am not
    mistaken the jurisdictional immunities under the US law could be
    given only to the international organisation, which, in turn,
    doesn’t fit the transition requirements. "

First about jurisdictional immunity.

It is not true that US law allows immunity only to such organisations
which are registered under international law. The relevant law, US
International Organisations Immunities Act , has provided jurisdictional
immunity to organisations registered as non profits under US law.
International Fertilizer and Development Centre is one such US
registered non profit that has been provided jurisdictional immunity, a
fact which has been pointed out in an ICANN commissioned study on the
jurisdiction issue (
https://archive.icann.org/en/psc/corell-24aug06.html ). Pl allow me to
note that this fact has been brought to the notice of this group several
times.

Therefore, there is no problem in ICANN getting jurisdictional immunity
under the mentioned Act even as it continues to be a US non profit. In
light of this fact, I would like to know your views about the
desirability of seeking such jurisdictional immunity for ICANN.

Now, for your observation "do not meet the transition requirement
(governance by international treaties)".

I see no mention of jurisdiction issue in transition requirements. You
can point me to it if I have missed it.

You perhaps refer to this part of the original NTIA notice on IANA
transition; "NTIA will not accept a proposal that replaces the NTIA role
with a government-led or an inter-governmental organization solution."

Oversight of IANA, which was with NTIA, is quite different from
jurisdiction over IANA and ICANN which was and remains of the US state.

No one is suggesting replacing the now lapsed NTIA oversight role with
that of a gov or inter-gov organisation.

What is being proposed is replacement of US jurisdiction (which remains,
and US state is certainly a government) with international jurisdiction.
One governmental thing with another...

regards

parminder





On Monday 29 May 2017 05:05 PM, Dr. Tatiana Tropina wrote:
>
> Dear all,
>
> I would like to submit analysis of two responses to the WS2
> Jurisdiction subgroup’s Questionnaire. I am submitting them in two
> different emails to avoid any confusion, however, I would like to say
> that these responses have raised the similar concerns related to
> jurisdiction and I recommend the group to consider these concerns
> based on the information provided in both of the responses.
>
> I would also like to reiterate that I am analysing the responses in my
> individual capacity. I am not representing my employer - Max Planck
> Institute. The fact that I am a Russian national has nothing to deal
> with the fact that I am analysing this response, I am not representing
> the views of Russian Federation in any capacity or form. So please
> consider this to be an independent summary with views expressed on my
> own.
>
> *The first response I would like to analyse is the one submitted by
> the the Ministry of Telecom and Mass Communications of the Russian
> Federation. *I am attaching the response to the email, but it can also
> be found at  the jurisdiction questionnaire responses page:
> https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire
>
> *Summary of the responses
> *
>
>
> A note: I am sorry that some of the responses I am referring to rather
> in lengthy way, because I think as the Ministry of Telecom and Mass
> Communications of the Russian Federation responded with what we
> actually wanted - real case that they consider relevant - it is with
> for the group to consider it in a more detailed way.
>
> *Question 1*
>
> **The respondent states that their business, privacy or ability to use
> or purchase domain name-related services been affected by ICANN’s
> jurisdiction. The response refers to the fact that ICANN, in
> particular, is a subject of the US regulations on the economic and
> trade sanctions program administered by the Office of Foreign Assets
> Control (OFAC) of the U.S. Department of the Treasury. The respondent
> refers to the provisions of the gTLD Applicant Guidebook and the
> document governing new registrar accreditation (“Registrar
> Accreditation: Application”, section 4. “Application Process”) and
> states that this can affect not only new top-level domain applicants
> (potential registries after application evaluation), but also
> companies seeking accreditation as ICANN registrar.
> To illustrate how this provisions on OFAC sanctions can affect
> business, the Ministry of Telecom and Mass Communications of the
> Russian Federation brings up the case of sanctions implemented in
> accordance with the Executive Order 13685 of U.S. Administration
> (December 19th, 2014) prohibiting U.S. companies from supplying
> services and goods in the Republic of Crimea, doing business with
> individuals and entities located in the Republic of Crimea. This led to:
> - Notification that Google Apps users located in Crimea access to
> Google services for accounts located in Crimea will get their services
> suspended within a week.
> - Notifications from other U.S. technology companies like Amazon,
> Apple, Paypal; issuance of the Google chrome browser updates that
> web-sites and hosting registered by individual residents of this
> region will be removed.
> - Announcements from several U.S. registrar companies (e.g., GoDaddy)
> that domain names of registrants from the Republic of Crimea will be
> removed from registries .com, .net, .org, .info, and others. The
> announcements referred to trade restrictions which do not allow
> registrars to do business with individuals and entities located in the
> Republic of Crimea.
>
> The respondent expressed a strong belief that the WS2 Jurisdiction
> subgroup shall analyse not only incidents that happened and gather
> information about actual cases, but also analyse the potential risks
> related to jurisdiction.
>
> *Question 2, Question 3.* - No information provided
>
> *Question 4a*
>
> The respondent doesn’t provide any material. However, Russian Ministry
> of Telecom and Mass Communications of the Russian Federation expresses
> an opinion that since ICANN’s policies and their implementation shall
> be in compliance with the California law, but top-level domain
> registries enter into agreements with registrars individually, and
> registrars enter into agreements with the registrants in compliance
> with law of other countries, there will be conflicts between ICANN’s
> policies and national law systems. As one of the examples, the
> respondent refers to the General Data Protection Regulation – GDPR
> 2016/679. Lastly, the response suggested to answer the questions why
> the issues related to domain name system and infrastructure shall be
> under the jurisdiction of a single state.
> *
> **Question 4b*
> With regard to any alternative jurisdiction solutions, the respondent
> suggests that the following solutions:
> - Governance of the DNS by the international law/ treaties
> - Separate main ICANN’s responsibilities over different jurisdictions
> - Jurisdictional immunity under the US law
>
> *Analysis:*
> I recommend that every participant of the group reads if not the
> response, but at least the summary of it, and makes his or her own
> conclusion. However, I recommend the issue of trade sanctions and OFAC
> to be discussed in details and assessed by the group, as this issue
> comes up in more than one response and requires a serious
> consideration. No matter how we treat the political and geo-political
> issues that lead to the implementation of sanctions, the cases of the
> sanctions affecting businesses because OFAC and ICANN’s jurisdiction
> requires the group to answer at least whether this should be taken
> into consideration and how. The issue of OFAC is also raised in the
> response of the IGP, which I am also analysing.
>
> As to the alternative jurisdiction solutions: again, it is up to the
> group to continue the discussion and I think that as this issue being
> constantly raise we will have to come to it at some point if we
> realise that there are some serious risks coming from ICANN being
> incorporated in the US. However, I would like to note - as my personal
> opinion - that some of the proposed solutions very likely either do
> not meet the transition requirement (governance by international
> treaties) or probably impossible - e.g. If I am not mistaken the
> jurisdictional immunities under the US law could be given only to the
> international organisation, which, in turn, doesn’t fit the transition
> requirements.  This, however, shall be discussed anyway if the issue
> of alternative jurisdiction will be raised in the group.
>
>
> Warm regards,
> Tanya
>
>
>
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> Ws2-jurisdiction at icann.org
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