[Ws2-jurisdiction] Jurisdiction Draft 11 11 Feb 2018

[Greg Shatan]

Kavouss,

The Paragraph 4 you refer to is a quote from the current "ICANN Terms and
Conditions for the Registrar Accreditation Application" found at
https://www.icann.org/resources/pages/application-2012-02-25-en.  The last
sentence is bolded for emphasis only.  Since it is in the Report to show
the current facts, we cannot amend it.  The Report text that follows this
quote states:  "*The last sentence should be amended to require ICANN to
apply for and use reasonable best efforts to secure an OFAC license if the
other party is otherwise acceptable as qualified to be a registrar (and is
not on the SDN List)." I believe this takes care of your concern.*

*I express no view regarding whether the Subgroup should change its
consensus based on the NCSG comment. This was the last comment reviewed on
the prior call, during our second reading of the comments. There was
general interest in considering whether to change the Recommendation
referred to. No conclusions were reached, and the discussion was not
finished. I suggested that the consideration of the comment would be easier
if an NCSG representative provided a proposed revision to the
Recommendation implementing the Comment.*

*We have taken all comments into account in our work. If a comment and the
ensuing discussion cause the group to develop a consensus that text should
be changed, then the relevant text in the Report is changed. Specific
comments are not referred to here or in any other part of the CCWG Report.
This was the subject of discussion at the beginning of the last call, with
Thomas Rickert joining us specifically to discuss this point. In case you
have not reviewed the transcript/captions, I'll paste the relevant text at
the end of the email. *

Based on the prior call, text was added to the "Overview of the Work of the
Subgroup" referring to the public comment process generally and including a
link to where the comments may be found.  This new text reads:

*The Subgroup’s proposed recommendations were submitted to the
CCWG-Accountability Plenary.  The CCWG-Accountability WS2 plenary meeting
on 27 October 2017 included a discussion focused on jurisdiction issues.  A
transcript of these discussions included as Annex [F] to this Report.*

*The draft Report was approved by consensus as defined in the
CCWG-Accountability charter, and not by full consensus. The Government of
Brazil, which did not support approving the report, has prepared a
dissenting opinion which is supported by several other participants and can
be found in Annex [E] of the Report.*

*The draft Report was published for Public Comment on November 14, 2017.
The Public Comment period closed on January 14, 2018.  Fifteen comments
were received.  These comments may be found at
https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/
<https://mm.icann.org/pipermail/comments-jurisdiction-recs-14nov17/>.
These comments were summarized by ICANN staff in a “comment tool”
spreadsheet, which may be found at [insert link].  These comments were duly
considered and discussed by the Subgroup. Where this led to a change to the
Subgroup’s consensus, the draft Report was then changed to reflect the new
consensus.*


​I look forward to comments from you and the rest of the subgroup on this
and the other proposed changes in the revised Report.​

​Best regards,

Greg​

​*EXCERPT FROM 7 FEBRUARY MEETING CAPTIONING:*

​
>> THOMAS RICKERT:  Sorry I was double muted.  I had unmuted my phone and I
had to unmute

myself in addition to the Adobe room.  This is Thomas Rickert speaking.  Thank
you Greg for handing it over to me.  Good afternoon, morning, evening to
all of you.

I'm very grateful to Greg for allowing me to speak for a little bit.  Because
I made an observation when looking at the public comments that I think you
know, gave me the opportunity to speak to this group for a moment.  And I
would suggest that if you have a different opinion to what I'm proposing
right now, we should try to sort this out up front.  But I guess if we are
aligned on the principles that I'm going the share with you, then I think
we should apply those principles when we are looking at the public comment.
This is something that doesn't only go for the jurisdiction sub-team but it
would go for all public comment analysis in the CCWGN and it's sub-teams.  And
sub-teams reports, all of them have been prepared by the perspective
sub-teams and adopted by the respective sub-teams and presented to the
plenary and the plenary has adopted the report and then the public comment
is there to serve as a vetting process, if you wish.  With the wider
community to see when there's anything in our recommendations that we
forgot had that, and we would look at this comment to see yeah, this is
something that was already discussed or this is a new aspect.  And then
this new aspect might warrant that the report is amended or it might not
warrant that the report is amended.

Because what the public comment period is not really designed for is to
give members and for pants of the -- of the sub-teams or CCWG that have
already in part of the consensus forming during the preparation of the
 recommendations
in the past another opportunity to chime in and increase the weight of
their statement or position.  So don't get me wrong, certainly it's most
welcome for everyone to identify positive comment and positive or negative
comments do help everyone understand better where we are with the
recommendations much but for those that have chimed in already during the
deliberations, you know, their views have already been amalgamated into the
findings of the sub-team.  Therefore these would not get additional weight
or second would it of the apple as we tend to say in this environment as
when I goes to recognizing the views and adopting them in the report.

So let me just check with everyone whether that's a long the lines of your
thinking as well.  And let me pause here.  Greg is chiming in don't be
excessive.  That's a good point.  And for those that have haven't been part
1 there's some historical fun that we seem to have and still have.  So
thanks for bringing that up Steve.

>> CHERYL LANGDON-ORR:  I'm certainly -- [voices overlapping] yeah I'm
saying I'm very comfortable with that.  I think we need to make the
difference however between an individual and entities.  I for example would
think that the ILAC and at large, if they represent is by 5 members for
example on various things, members and participants often operate without
the full con silence use of the ALAC and the total at large obviously.  So
I think we need to have that ruling, but recognize there may be a
difference between a consensus voted upon statement from a support
organization or advisory committee.  And from a participants during the
process.  Thanks.

>> THOMAS RICKERT:  Thanks very much Cheryl.  And that's a excellent point
that you make.  And I think it's a perfect and true that there may be an
incomers between the person that is participating in the sub-team and
actually the views that are presented by the group that that person might
happen to work with.  But we did have cases where the views of a group have
been injected into the sub-teams work already.  So I'm talking about the
cases where you have coumarinsy during the input that was given during the
deliberations of the recommendations and comments during the public comment
period.  So thanks for pointing that out.  I don't see any other hand,
accept for David's.  David, the floor is yours please.

>> DAVID McAULEY:  Thomas thank you it's David McAuley for the record.  I'm
going to weigh in even though I missed a little bit of what you said as my
phone sort of broke away.  I had a little bit of connection difficulty.  But
in any event and listening to the later part of what you said and what
Cheryl said, I think one of the things we will struggle with in this
working group and   perhaps others where the comments coming in or the
discussion of the comments really centers not so much on the initial input
but rather on the matter of clarification and let me illustrate here in
jurisdiction.  In jurisdiction we recommend that on governing law issues
there would be a menu approach but we also couch that in terms of saying we
are not recommending -- what we are doing is saying the ICANN and
contracted parties, the  GNSO should consider this.  And then the
government of Denmark came in with a comment saying in a menu approach it
should be a matter of choice by the registrar or registry issue.  It should
note be a matter of issue to choosing the government law.

The clarification would be if you have a menu approach and done regionally
could someone in North America choose governing law from Asia and were not
things decided.  It would be clarification, natural clarification that
comes from the consequence of someone's comments.  I think we can get
through it but I think it's going to be difficult.  Anyway that's the
nature of my comment.  Thanks Thomas.

>> THOMAS RICKERT:  Thanks so much David that's a excellent point. I want
to make sure we are all aligned in term of expectations.  And I guess

that if there are comments by somebody who has represented a view in the
course of the work of the sub-team already, and if that point is repeated
during the public comment period, that will not give that voice additional
weight.  That's it in a nutshell.  Greg you have your hand raised and I
think it's quite convenient because I was about to hand it back over to you
anyway.  Thanks for your time.

>> GREG SHATAN:  Thank you Thomas.  I think one corollary and Thomas
correct me if I'm wrong if I'm not getting this right, but a corollary to
what you were saying about comments and how they are treated here and
elsewhere in the subgroups and in the plenary for that matter is that
comments are reviewed by the group and if there's a consensus in the group
that the report needs to change, having taken on consideration of the
comments.  Then the report will be changed.  Based on that new consensus.  But
the existence of comments or if you will, the raw material of any
particular comment won't be reflected in the report.  I think the comment
list rather the mail list to which the comment was sent will continue to
exist.  And I think we can put a link to that mail list into the
report.  Acknowledging
the comments are there.  But other than that, unless the group as a whole
or has brought agreement that we didn't get it right the first time and
comments have shown us the error of our ways, that the report doesn't get
changed.

Is that your understanding as well Thomas?  As how it's being handled over
all.

>> THOMAS RICKERT:  Yes that's my understanding.  That's a good point
related to the one I was mentioning.  So I guess that what I'm mentioning
is we have a what you typically do is you make a link to the public comment
and the public comment analysis -- public comment review to us as it's
called at least in the GNSO where everything is collected.  And this
particular case our suggestion would be however to have a slightly
different language not only pointing to the public comment review tool but
making things a little bit more explicit and, also, with respect to the
meetings and to meeting minutes of the extensive jurisdiction debate that
we had in Abui Dubaiy as well a the minority statement that we got.  We are
going the frame it slightly differently here but the substance of the
report will only be amended in the circumstances that you also outlined
Greg.

>> GREG SHATAN:  Okay thank you for that clarification Thomas.

Or for clarifying that my clarification was correct.  And, also, for the
additional suggestion of how we should refer to other important materials
from our deliberations.



On Tue, Feb 13, 2018 at 10:59 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com
> wrote:

> Dear Greg,
> Thank You very much for the draft
> I was unable to attend the last meeting as I was on the Plane However, on
> page 16 .Section/ Paragraph 4,I have noted a paragraph in bold.
> The inclusion of that  bolded paragraph, has a negative connotation as it
> negate and neutralize the action(s) described / required in that paragraph.
> I therefore suggest the following amendment which convey the same message
> but in positive sense
> See Below
> * ” 4. Application Process.*
> Applicant acknowledges that ICANN must comply with all U.S. laws, rules,
> and regulations. One such set of regulations is the economic and trade
> sanctions program administered by the Office of Foreign Assets Control
> ("OFAC") of the U.S. Department of the Treasury. These sanctions have been
> imposed on certain countries, as well as individuals and entities that
> appear on OFAC's List of Specially Designated Nationals and Blocked Persons
> (the "SDN List"). ICANN is prohibited from providing most goods or services
> to residents of sanctioned countries or their governmental entities or to
> SDNs without an applicable U.S. government authorization or
> exemption. ICANN generally will not seek a license to provide goods or
> services to an individual or entity on the SDN List. In the past, when
> ICANN has been requested to provide services to individuals or entities
> that are not SDNs, but are residents of sanctioned countries, ICANN has
> sought and been granted licenses as required.   While ICANN ,in
> principle, is under no obligations to seek such licenses and, in any given
> case,  and  OFAC may decide not to issue a requested license, nevertheless
> ICANN, is required to apply for and use reasonable best efforts to secure
> an OFAC license if the other party is otherwise acceptable as a registrar
> (and is not on the SDN List).  During the licensing process, ICANN should
> be helpful and transparent with regard to the licensing process and ICANN’s
> efforts, including ongoing communication with the potential registrar.
> Moreover, I saw that you referring to the comments from Non Commerciale
> Stakeholder  that you want  to consider for which I have no objection but,
> Why you have not taken into account comments from Russia, Italy, France
> into account
> It seems you have totally ignore  these  comments that formally requested
> you to briefly refer to the French, Italian, Russian comments in the
> introductory part
> Regards .
> Kavouss
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20180214/141706a6/attachment-0001.html>