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

Wed Sep 20 20:12:49 UTC 2017

Dear Greg
I replied to your message.
I modified that paragraph to fit in the text . I suggested to transfer part
of the paragraph to the relevant part of the doc. I am waiting for that
Pls kindly be positive, contructive and objective and do not put obstacle
in every suggestions made. This is not a private group and you MUST prperly
act
Regards
Kavouss

On Wed, Sep 20, 2017 at 7:30 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Greg
> I read your comments
> To clarify the matter and to some extent comply with your questions .I
> have prepared the following reply.
> Pls kindly consider then favourable as they are now fitting the text
> either in the recommands part or in the preamble to the recommand
> Regards
> Kavouss
>
> 1.The last sentence reads” unless the results of the study demonstrate
> that it would be inappropriate for ICANN to pursue these licenses.”To this
> effect the first sentensce below “ what Criteria……inappropriate Because you
> qualify the study by being inappropriate and I did suggest what criteria
> will be use to make the judgement
>
> Thus the first sentence would fir .You may include my comment by modifying
> the sentence as follows
>
> UNLESS, USING APPROPRIATE CRITERIA, THE RESULTS OF STUDY DEMONSTRATE THAT
> IT WOULD BE INAPPROPRIATE FOR ICANN TO PURSUE THESE STUDIES.
>
>
>
> 2.
>
> Generally, ICANN  should pursue the application for general license at
> earliest time and should  remind the registries not to copy and paste the
> general agreements found in US-based registrars.
>
> This also fits
>
>
>
> 3. The role of ICANN, to make awareness about such situation is critical
> and should not be undermined.
>
> This part is talking about awareness that was extensively discussed and
> thus fits
>
> 4. 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 could be included in appropriate part .if it does not fit with the
> recommends part
>
> 5.Examples of that are related to Godaddy and Online Nic, which made
> pressure against registrants having citizenship of Sanction coountries.
> This could be included in the introductory part of the OFAC sanctions and
> registrar
>
> 6 Registrars should be reminded that they should not normally examine zero
> risk policy in regard of penalties imposed by OFAC.
> This could be included either in the recommends part or preamble of the
> recommend part
> Regards
> Kavouss
>
>
>
>
>
> On Wed, Sep 20, 2017 at 5:53 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
>> 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 redbranchconsulting.com<mailto:paul.rosenzw
>>>> eig 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.rosenzwe
>>>> ig 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/pk
>>>> s/lookup?op=get&search=0x9A830097CA066684
>>>>
>>>> From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-b
>>>> ounces 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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>>>
>>>
>>
>
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