[Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions

Wed Sep 20 15:53:04 UTC 2017

Kavouss et al.,

First, if you would explain how the suggested text, past the first two
sentences, fits as part of a *recommendation* on the *General License*,
that would be helpful.  The remaining suggested text is a series of claims
that actions have been taken by US and non-US registrars to exclude
registrants from sanctioned countries, without any recommendation text.  *How
does this fit in General License recommendation?*  The suggested paragraph
was put there, but it does not fit in that context.

To be clear, each *recommendation* section discusses actual actions to be
taken by ICANN organization to resolve an issue if it accepts the CCWG
recommendation, or that we would suggest other ICANN structures or
stakeholders take to resolve an issue.   The remaining proposed text does
not perform this function and thus seems to have no place as part of
the *General
License Recommendation*.

To the extent these claims relate to concerns about the activities of
non-US registrars, they are addressed in the section discussing application
of OFAC sanctions by non-US registrars who are not required to do so.  It
was agreed on the call that this section would be focused on actual or
apparent mistaken application of OFAC sanctions, with corresponding
recommendations to resolve that issue.

We have never discussed an issue with regard to the activities of US
registrars, who are required to comply with OFAC regulations. As such,
mentioning activities of US registrars (or broadly claimed to be activities
of all registrars) does not seem to be appropriate.

Second, if you would respond to and try to resolve the substance of the
specific concerns I raised, that would be helpful.  Otherwise, there does
not seem to be any substantive basis for accepting any of these suggestions.

I don't think it is helpful or accurate to describe this as a removal of
text, as it was never accepted into the text in the first place.  It was a
very late suggested addition to a document that has been worked on for a
number of weeks, which was provided scant hours before the call.  Vite
fait, mal fait, as you say.

To accept the remainder of the text into the document, the Subgroup would
need to support:

   - The idea that activities of US-based registrars raise a concern for
   this group to address, and that this group has accepted this concern as an
   Issue.
   - That new Issues should be introduced to this document at this point.
   - That issues should be put into the document without corresponding
   recommendations.
   - That "media reports" should be cited in the document without being
   seen by the Subgroup.
   - That the business and legal judgement of registrars, beyond the issue
   of mistaken application of OFAC sanctions, is an appropriate topic for this
   group and an issue that this group has agreed should be addressed in the
   document.

If there is broad support for these concepts in the Subgroup and if the
concerns about the suggested text can be resolved, it would be good to hear
it now, so the document can be revised appropriately.

Best regards,

Greg

On Wed, Sep 20, 2017 at 10:48 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com
> wrote:

> Deaar Thiago, Dear Jorge,
> Thanks to your positive r3sponse .I am waiting for Greg to resolve the
> issue.
> I strongly oppose to the  unilateral removal of the last paragraph as
> result of off line exchange of views between two or three individual.
> We should be transparent
> We should listen to each other.We should consider problems of others
> Tks
> Regards
> Kavouss
>
> On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <
> thiago.jardim at itamaraty.gov.br> wrote:
>
>> Dear Greg,
>>
>> I add my voice to Jorge's suggestion and look forward to an agreeable
>> solution.
>>
>> Best,
>>
>> Thiago
>>
>>
>> -----Mensagem original-----
>> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org] Em nome de Jorge.Cancio at bakom.admin.ch
>> Enviada em: quarta-feira, 20 de setembro de 2017 05:10
>> Para: gregshatanipc at gmail.com
>> Cc: ws2-jurisdiction at icann.org
>> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested
>> Revisions
>>
>> Dear Greg,
>>
>> would it be possible that Kavouss' concerns are addressed by you also
>> bilaterally as he seems not to be satisfied with these explanations, This
>> could help avoiding any misunderstanding?
>>
>> I feel we are very close to consensus and such an effort would most
>> probably be helpful in order to allow all to be on board.
>>
>> kind regards
>>
>> Jorge
>>
>>
>> ________________________________
>>
>> Von: Greg Shatan <gregshatanipc at gmail.com>
>> Datum: 20. September 2017 um 07:25:56 MESZ
>> An: Arasteh <kavouss.arasteh at gmail.com>
>> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested
>> Revisions
>>
>> All,
>>
>> I wanted to reflect in this email thread how the various topics in the
>> paragraph submitted by Kavouss for potential inclusion in the "General
>> License" recommendation have been dealt with in the document.  Here are the
>> different sections of the text, followed by my notes in italics.
>>
>> Generally, ICANN must pursue the application for general license at
>> earliest time and should advertise and communicate with registries and
>> registrars to revise their registrant agreements and not to copy and paste
>> the general agreements found in US-based registrars. The role of ICANN, to
>> make awareness about such situation is critical and should not be
>> undermined.
>>
>> This is now covered in the section on General Licenses, so this is not
>> needed here.
>>
>> There are several reports in the media that US-Based and Non-US
>> registrars have asked registrants to transfer out their domains immediately
>> because they might get affected by US sanctions.
>>
>> This is not related to General Licenses, so it should not be included in
>> that recommendation.  Regarding non-US registrars: This issue is generally
>> discussed in the section "Application of OFAC Limitations by Non-US
>> Registrars." If the Subgroup receives media reports of non-US registrars
>> taking such actions and it appears there may be no legal basis for these
>> actions, we could cite them in this section.  Since the Subgroup has not
>> seen the reports mentioned here, we do not have any basis to include this
>> sentence, and so it is not included.
>>
>> Regarding US registrars, who have OFAC compliance obligations, there does
>> not appear to be an issue that falls within the purview of the Subgroup.
>> It may well be that these registrars are complying with their legal
>> obligations (or seeking to become compliant with their legal obligations).
>>
>> Samples of that are related to Godaddy and Online Nic, which made
>> pressure against registrants having Iranian citizenship.
>>
>> These are both US-based registrars, who are required to comply with OFAC
>> sanctions. As noted above, it may well be that these registrars are
>> complying with their legal obligations (or seeking to become compliant with
>> their legal obligations). This does not fit with the issue discussed in
>> this report, which relates to mistaken application of OFAC sanctions by
>> non-US registrars, so it is not included.
>>
>> To determine the nature of registrant, registrars usually refer to Admin
>> contact details recorded in whois database. If admin address and phone
>> number is related to sanctioned countries, it is assumed that domain owner
>> is a hidden risk for the registrar, therefore registrars try to examine
>> zero risk policy in regard of penalties imposed by OFAC.
>>
>> This is not related to the General License either.  This seems to be
>> directed toward registrars' business practices and business judgment.
>> Without commenting on the validity of the issue, this would not appear to
>> be an issue for this Subgroup or the CCWG.  Furthermore, if these are
>> registrars with OFAC compliance obligations, then it may well be that these
>> registrars are complying with their legal obligations.  If these are non-US
>> registrars without OFAC compliance obligations, then this issue is covered
>> generally under "Application of OFAC Limitations by Non-US Registrars."  As
>> such the paragraph is not included.
>>
>> Best regards,
>>
>> Greg
>>
>> On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh at gmail.com<mai
>> lto:kavouss.arasteh at gmail.com>> wrote:
>> Dear Paul
>> Thank you very much for your comments
>> I am open to soften the text as you suggested e.g. to replace " prove "
>> by " determine" and the term"must" be a less stronger term such as" need"
>> which is between must/ shall/ and may However, due to the fact that we are
>> severely affected  by the process, may I humbly request you to kindly agree
>> to retain the idea with slightly modified text to also be agreeable to you.
>> I am jerky awaiting to receive your fair suggestion as soon possible
>> Regards Kavouss
>>
>> Sent from my iPhone
>>
>> On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig at redbranchcons
>> ulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>>
>> All
>>
>> Given the lateness with which we received Kavouss's suggested paragraph
>> and revisions and the fact that I, regretfully, could not make the call,
>> let me note my disagreement with two aspects of it:
>>
>> First, on page 5, it is suggested that a survey be undertaken to "prove"
>> that non-US registrars are imposing OFAC requirements.  Since the point of
>> the survey is to determine what is true, it is premature to assume that it
>> will "prove" the facts assumed by the proposer.  The word "prove" is
>> therefore in error and should be replaced by "determent whether"
>>
>> Second, I oppose the proposed new paragraph at the end simply because, as
>> written, I have absolutely no idea what is meant.  But use of terms like
>> "must" as an imperative are always inappropriate in recommendations.
>> Insofar as I can discern the intent (that there is some action being taken
>> by registries against registrants) that issue is a new one that needs to be
>> fully discussed and it is, of course, quite different from the OFAC general
>> license idea for ICANN that we have been discussing (which would only
>> relate to ICANN's on RAA agreements).
>>
>> Paul
>>
>> Paul Rosenzweig
>> paul.rosenzweig at redbranchconsulting.com<mailto:paul.
>> rosenzweig at redbranchconsulting.com>
>> O: +1 (202) 547-0660 <(202)%20547-0660><tel:(202)%20547-0660>
>> M: +1 (202) 329-9650 <(202)%20329-9650><tel:(202)%20329-9650>
>> VOIP: +1 (202) 738-1739 <(202)%20738-1739><tel:(202)%20738-1739>
>> www.redbranchconsulting.com<http://www.redbranchconsulting.com/>
>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830
>> 097CA066684
>>
>> From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-
>> bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf
>> Of Greg Shatan
>> Sent: Monday, September 18, 2017 2:13 PM
>> To: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:
>> ws2-jurisdiction at icann.org>>
>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested
>> Revisions
>>
>> CORRECTED VERSION ATTACHED.  A paragraph suggested by Kavouss, which is
>> in the Google Doc, did not show up in the Word document (nor in the PDF,
>> which is based on the Word doc).  Corrected versions are attached. Thank
>> you to Kavouss for catching this.  Please see the last paragraph in the
>> document so that you can review this suggested text.
>>
>> Also, some crossed-out text at the very end that was supposed to be
>> deleted (as noted on last week's call) has now been deleted from the
>> attached (and the Google Doc).
>>
>> Greg
>>
>>
>>
>> On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc at gmail.com
>> <mailto:gregshatanipc at gmail.com>> wrote:
>> All,
>>
>> I have attached a further revised OFAC Recommendation, reflecting changes
>> suggested by Kavouss Arasteh and Seun Ojedeji.  Word and PDF versions are
>> attached, and the Google Doc reflects these suggested changes as well.
>>
>> I look forward to our call.
>>
>> Best regards,
>>
>> Greg
>>
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