[Ws2-jurisdiction] Response Requested: Proposed Changes to OFAC Recommendation
Greg Shatan
gregshatanipc at gmail.com
Wed Sep 27 04:01:08 UTC 2017
Kavouss,
If I may, I'd like to return to two observations I made earlier in this
thread, since I believe they apply to your latest email:
*Opposition/non-support won't be eliminated by request; it needs to be
eliminated by persuading the other person to see things differently so that
their underlying position changes*
*The positions in a Working Group (or Subgroup) Report need to be the
consensus (aka rough consensus) of the Subgroup, not the views of any one
participant.*
I'll make one more observation:
We should presume that a participant's opposition/non-support of a position
is based on a substantive, thoughtful difference in views, rather than
"*defending
your own country's interest," at least when it comes to private sector
participants. *Painting any disagreement as a partisan squabble
substantially *reduces* the likelihood that consensus will be reached.
I hope this will help the Subgroup's exchange of views and decision-making.
Best regards,
Greg
On Tue, Sep 26, 2017 at 11:11 PM, Arasteh <kavouss.arasteh at gmail.com> wrote:
> Dear Milton
> Thank you for your comments
> But it would be more appropriate that you leave the issue of interest in
> my country to the people of my country and not others
> There is no need that you defend that interest .
> I understand that you may defending your own country,s interest which you
> have rights to do so
> Regards
> Kavouss
>
> Sent from my iPhone
>
> On 26 Sep 2017, at 19:41, Mueller, Milton L <milton at gatech.edu> wrote:
>
> Greg and all members of the subgroup.
>
> I support the draft with your edits in red, which are intended to
> accommodate the concerns of Arasteh Kavouss.
>
> I oppose ALL the proposed additional text suggested by Kavouss (in light
> blue). That text adds nothing substantive to the recommendations and #2 in
> particular recounts a specific incident in needless detail that is not
> relevant to the section it is placed in.
>
>
>
> I would remind us of the definition of rough consensus; it is clear that
> Kavouss’s changes have been proposed numerous times, we understand his
> reasoning, and yet they command _*no support*_ from anyone else.
> Therefore they can be left out of the report and we should proceed.
>
>
>
> I would remind Mr. Kavouss that his repetitive and dilatory insistence on
> these changes is actually undermining our attempt to make progress on OFAC
> sanctions and are against the interests of people in his own country.
>
>
>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Greg
> Shatan
> *Sent:* Tuesday, September 26, 2017 2:53 AM
> *To:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Subject:* [Ws2-jurisdiction] Response Requested: Proposed Changes to
> OFAC Recommendation
>
>
>
> All,
>
> Please take a few minutes to *read and respond* to this email, and the *proposed
> changes* discussed here, so that we can finalize the OFAC Recommendation
> and send it to the Plenary.
>
> There are three remaining proposed changes as far as I can tell. These
> changes are below. *Please indicate whether you support adding any of
> proposed changes 1, 2 and/or 3 to the OFAC Recommendation. *
>
> To make it easy, please respond along the lines of “I [support/do not
> support] adding change 1” or “I would support change 1 with the following
> revisions.” If you think it would help others, please explain your
> conclusion.
>
> In addition to the changes, I have attached two documents:
>
> · A draft of the OFAC Recommendation that incorporates the
> proposed changes suggested by Kavouss. Where unclear, I placed a change
> where it seemed most likely intended to be.
>
> · A document with virtually all of the emails devoted to these
> proposed changes, arranged chronologically by topic.
>
> *The proposed changes suggested by Kavouss are as follows:*
>
> 1. The first proposed change appears intended to be added to the
> Issue and Recommendation “Application of OFAC Limitations by Non-US
> Registrars.” The first part reads:
>
> *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.*
>
> *Examples of that are related to Godaddy*[1]* and Online Nic,*[2]* which
> made pressure against registrants having citizenship of Sanction countries.*
>
> Kavouss asked that the second part be inserted into the corresponding
> Recommendation:
>
> Registrars should be reminded that they should not normally examine zero
> risk policy in regard of penalties imposed by OFAC.
>
> 2. The second proposed change relates to an action taken by
> Resello, a Dutch registrar. It’s also unclear where this would go (it does
> not seem to fit in the section “Application of OFAC Limitations by Non-US
> Registrars.”) Perhaps it would go into a new section, possibly entitled “Policy
> of not Doing Business with Iranian Customers/Resellers (Unconnected to
> OFAC/Sanctions) by a Non-US Registrar”:
>
> *An individual domain Name Iranian National reseller residing outside Iran
> sent a request to <sales at resello.com <sales at resello.com>> in an online
> form, asking to become reseller of Domain Name in Iran (to sell domains to
> Iranian people).*
>
> *He received the following reply:*
>
> *Quote*
>
> *“On Tue, Sep 19, 2017 at 9:48 PM, Resello Sales <sales at resello.com
> <sales at resello.com>> wrote:*
>
> *Dear reseller (XXX)*
>
> *Unfortunately our policy restricts doing business with Iranian
> customers/resellers, even if they aren't living in Iran, but have an
> Iranian passport.*
>
> *Kind regards,*
>
> *Mark Assenberg”*
>
> *It is worth mentioning that Resello is a subsidiary company for following
> holding:*
>
> *Yourholding*
>
> *Ceintuurbaan 28
> <https://maps.google.com/?q=Ceintuurbaan+28%0D+%0D+*8024+AA+Zwolle*&entry=gmail&source=g>*
>
> *8024 AA Zwolle
> <https://maps.google.com/?q=Ceintuurbaan+28%0D+%0D+*8024+AA+Zwolle*&entry=gmail&source=g>*
>
> *+31 38 453 0752 <+31%2038%20453%200752>*
>
> *The name is Yourholding and they are based in Netherlands. So they are
> not US-Based company.*
>
> *They do not want to explain why they don't want to provide service to
> Iranian. They say, they is our internal policy decision.*
>
> *It is important to make it clear that none of Registrars and service
> providers which are not US Nationals or not based in USA cannot make
> internal policies to avoid giving services to a given citizens. This is a
> global business not a personal decision of a company or its managers. They
> must fully observe the expected behaviour and responses.*
>
> *It is important to emphasize that non-US based companies should not to
> replicate the rules inside USA.*
>
> *[Recommendation]*
>
> *The group in attempting to address the case mentioned above thought that
> the above situation might have been arised as result of misinterpretation
> of applicability of OFAC Regulation to the case.*
>
> *The Group concluded that there was no relation between the case and OFAC
> Regulation and its applicability.*
>
> *The Group also did not find any provision in RAA to obligate the Resello
> to get into a business with the domain name reseller to provide the
> requested domain name did not find also any provision in the RAA to allow
> the registrar to reject / deny the request.**[3]** The group therefore
> considered / recommends that there is a need that ICANN further examine the
> matter with a view to address the silent point in the RAA.*
>
> 3. The third suggested change is intended to change the
> Recommendation relating to General Licenses. After Kavouss suggested
> several changes (including the language in blue), I added the red language
> to reflect Kavouss’s changes in a way that seemed to read better in the
> text. After the red language was added, Kavouss continued to request that
> the language in blue be added as well.
>
> 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. * The role of ICANN, to
> make awareness about such situation is critical and should not be
> undermined.*
>
>
>
> Finally, there have been a number of questions asked about each of these
> suggested changes, which have largely gone unanswered. I’ve rephrased and
> listed them here, since it could be helpful for the Subgroup to consider
> them (or see if any members might answer them). (I am not suggesting these
> questions need to be answered to evaluate the proposed changes.)
>
>
>
> *On suggested change 1*:
>
>
>
> 1. Do you have the “reports in the media” referred to in the proposed
> change?
>
> a. If the Subgroup has not seen the reports in the media, can the
> Subgroup Report refer to them, or the activities reported in them?
>
> b. For US registrars, considering that they have to comply with OFAC,
> is this an issue for this Subgroup?
>
> c. For non-US registrars, why isn’t the current text of this section
> of the OFAC Recommendation sufficient? (It discusses possible mistaken
> application of OFAC sanctions by non-US registrars because they think
> contracting with ICANN imposes OFAC compliance obligations on them)*.*
>
> 2. Since GoDaddy and OnlineNIC are both US-based registrars, does it
> make sense to refer to them?who are required to comply with OFAC sanctions.
>
> a. Do you know what “made pressure against” refers to?
>
> b. Are there any example of this “pressure”? With non-US registrars?
>
> 3. What does it mean to say “Registrars should be reminded that they
> should not normally examine zero risk policy in regard of penalties imposed
> by OFAC”?
>
> a. If this refers to the exercise of business or legal judgment of
> registrars, do you believe it is appropriate for the Subgroup Report to
> comment on this?
>
> b. What proposed issue does this Recommendation resolve/remediate?
>
>
>
> *On suggested change 2*:
>
> 1. Is this an example of a non-US Registrar
> complying with OFAC sanctions? Where is the connection to OFAC?
>
> 2. What section of the RAA is being violated by this business
> decision (i.e., a registrar deciding not to do business with citizens of a
> given country (whether it is Canada, Haiti, Iran or otherwise))?
>
> 3. If Resello's business decision does not seem to
> be related to OFAC, US jurisdiction or to any ICANN-related jurisdiction,
> does the Subgroup approve this as an “Issue” or our group to make a
> Recommendation on? If so, what recommendation?
>
> 4. Is this possibly an EU sanctions issue (the
> registrar is Dutch)
>
> 5. If this is possibly an EU sanctions issue, should
> we get into interpreting EU sanctions?
>
> 6. Why is the current language of the Recommendation
> insufficient? It reads:
>
> a. "ICANN needs to bring awareness of these issues to
> registrars. ICANN should clarify to registrars that the mere existence of
> their RAA with ICANN does not cause them to be required to comply with OFAC
> sanctions. ICANN should also explore various tools to remind registrars to
> understand the applicable laws under which they operate and to accurately
> reflect those laws in their customer relationships."
>
> 7. What connection does this have to OFAC sanctions
> or to ICANN's "jurisdiction" -- in the US or elsewhere?
>
>
>
> *On suggested change3:*
>
> 1. Why is the language already added to the text
> (in red) insufficient?
>
> 2. What situation does “make awareness about such
> situation” refer to?
>
> 3. Is there a concern that something will be
> “undermined”? What does this refer to?
>
>
> ------------------------------
>
> [1] NOTE TO SUBGROUP: GoDaddy is a U.S.-based registrar incorporated in
> Delaware as GoDaddy, LLC and headquartered in Scottsdale, Arizona.
>
> [2] NOTE TO SUBGROUP: OnlineNIC is a U.S.-based registrar incorporated in
> California as OnlineNIC, Inc. and headquartered in San Leandro, California.
>
> [3] Resello’s “General Terms and Conditions,” for resellers state in
> Article 1.1 that “acceptance by Resello … may be refused without reason.”
> https://www.resello.com/agreement
>
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