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

Wed Sep 20 20:44:29 UTC 2017

Thanks a lot for that helpful response Samantha!

Regards
Sent from my mobile
Kindly excuse brevity and typos

On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner at icann.org>
wrote:

Hi Seun -

To your question below, and as noted in my presentation to the Jurisdiction
group below, ICANN agrees that OFAC does not apply to any of ICANN's
contracted parties solely due to a contract with ICANN.  However, ICANN
cannot provide any advice to a contracted party as to which laws and
regulations are (or are not) applicable, and each contracted party is
responsible for understanding that as part of their business operations.

Sam

____

Samantha Eisner

Deputy General Counsel, ICANN

12025 Waterfront Drive, Suite 300
<https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,+California+90094%0D+USA&entry=gmail&source=g>

Los Angeles, California 90094
<https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,+California+90094%0D+USA&entry=gmail&source=g>

USA
<https://maps.google.com/?q=12025+Waterfront+Drive,+Suite+300%0D+Los+Angeles,+California+90094%0D+USA&entry=gmail&source=g>

Direct Dial: +1 310 578 8631 <+1%20310-578-8631>
------------------------------
*From:* ws2-jurisdiction-bounces at icann.org <ws2-jurisdiction-bounces@
icann.org> on behalf of Seun Ojedeji <seun.ojedeji at gmail.com>
*Sent:* Wednesday, September 20, 2017 1:17 PM
*To:* Mueller, Milton L
*Cc:* ws2-jurisdiction

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

Sent from my mobile
Kindly excuse brevity and typos

On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton at gatech.edu> wrote:

We do ask ICANN to clarify that registrars do not need to follow OFAC
sanctions simply due to their contracts with ICANN, and that is important.

SO: Can we get ICANN legal to respond to the above as I think it will help
someone like myself move from sitting on the fence on this particular topic.

Regards

*From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
es at icann.org] *On Behalf Of *Kavouss Arasteh
*Sent:* Wednesday, September 20, 2017 10:48 AM
*To:* Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br>; Thomas
Rickert <rickert at anwaelte.de>; León Felipe Sánchez Ambía <
leonfelipe at sanchez.mx>; Jordan Carter <jordan at internetnz.net.nz>
*Cc:* ws2-jurisdiction at icann.org
*Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further
Suggested Revisions

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<mailto:
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 <+1%20202-547-0660><tel:(202)%20547-0660
<(202)%20547-0660>>
M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650
<(202)%20329-9650>>
VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739
<(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com]
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=>
<http://www.redbranchconsulting.com/[redbranchconsulting.com]
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>
>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830
097CA066684[keys.mailvelope.com]
<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=>

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<mailt
o: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

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org<mailto:Ws2-jurisdiction at icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170920/1e60f5c5/attachment-0001.html>