[Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
Greg Shatan
gregshatanipc at gmail.com
Thu Sep 21 05:00:38 UTC 2017
Kavouss,
Thank you for your email, clarifying your earlier points. This is very
helpful. I have incorporated certain of your points into the General
License recommendation, so that it now reads (new language in red):
ICANN should take steps to pursue one or more OFAC “general licenses” with
the U.S. Department of Treasury in connection with DNS-related
transactions. Initially, ICANN should make it a priority to study the
costs, benefits, timeline and details of seeking and securing one or more
general licenses for DNS-related transactions. ICANN should then pursue
one or more OFAC general licenses
*at the earliest possible time*
, unless significant obstacles were discovered in the “study” process.
If there are significant obstacles, ICANN should report them to the
[empowered] community and seek its advice on how to proceed. If
unsuccessful, ICANN would need to find other ways to accomplish the
ultimate goal -- enabling transactions between ICANN and residents of
sanctioned countries to be consummated with a minimum of “friction.” *It
is critical that ICANN communicate regularly about progress toward securing
general licenses, in order to raise awareness in the ICANN community and
with affected parties.*
Thank you again for your input. I hope you will agree that this is an
appropriate way to take your concerns into account within the structure and
focus of the Subgroup document For a more detailed discussion, please see
my inline responses below.
Best regards,
Greg
On Wed, Sep 20, 2017 at 1:30 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.”
>
You seem to be looking at an old version of the document. The current
version was circulated at 5:18 AM UTC (20 September). A copy is attached
for your convenience.
The sentence you refer to was removed from the Recommendation as a result
of Monday's call, which was reflected in the versions circulated 19
September and 20 September. As it now reads, ICANN no longer has
discretion to decide that it is "inappropriate" to seek a general license,
and thus there is no reference to "criteria" for ICANN to apply. The
recommendation now reads:
ICANN should take steps to pursue one or more OFAC “general licenses” with
the U.S. Department of Treasury in connection with DNS-related
transactions. Initially, ICANN should make it a priority to study the
costs, benefits, timeline and details of seeking and securing one or more
general licenses for DNS-related transactions. CANN should then pursue one
or more OFAC general licenses
, unless significant obstacles were discovered in the “study” process.
If there are significant obstacles, ICANN should report them to the
[empowered] community and seek its advice on how to proceed. If
unsuccessful, ICANN would need to find other ways to accomplish the
ultimate goal -- enabling transactions between ICANN and residents of
sanctioned countries to be consummated with a minimum of “friction.”
> 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.
>
Please review the Recommendation. I believe you will see that sentence
above no longer applies.
>
>
> 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
>
In order to fit the first part in, I would suggest revising the third
sentence of the General License Recommendation so that it reads (added
language in *red*)
"
ICANN should then pursue one or more OFAC general licenses
*at the earliest possible time*
, unless significant obstacles were discovered in the “study” process.
"
On the second part, I can't see the connection between (1) existing non-US
registrars "copying and pasting" registrant agreements and (2) general
licenses allowing ICANN to enter into Registrar Accreditation Agreements
with registrars from sanctioned countries.
>
>
> 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
>
In order to fit this in, I would suggest revising this slightly and adding
the following new sentence to the end of the General License Recommendat
ion:
*It is critical that ICANN communicate regularly about progress toward
securing general licenses, in order to raise awareness in the ICANN
community and with affected parties.*
> 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
>
This issue (relating to current registrars) does not appear to relate to
the General License, so it would not fit in the General License
recommendation. Also, we do not have an issue that relates to US
registrars, because they do in fact have OFAC compliance obligations, so
there is no appropriate part in connection with US registrars.
As for non-US registrars, if the Subgroup reviewed these media reports and
confirmed the transfers demands were related to (possibly mistaken) OFAC
concerns, then this could be added to the section on "Application of OFAC
sanctions by Non-US Registrars."
But right now, we do not have enough to go on.
> 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
>
These are both US registrars. As noted above, we do not have an issue
that relates to US registrars, because they do in fact have OFAC compliance
obligations.
> 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
>
The Report is now limited to clarifying that non US registrars do not
have to comply with OFAC sanctions merely because they have a contract with
ICANN. Some broader statements were removed on the last call based on
general agreement. This is a new issue, which relates to legal/business
judgment by individual registrars. The Subgroup has repeatedly said that it
will not give legal advice and that it is up to each registrar to determine
whether they have OFAC compliance obligations and, if so, what compliance
requires. Therefore it does not seem to fit in the Report.
> 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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