[Ws2-jurisdiction] Jurisdiction Draft 11 11 Feb 2018

[Kavouss Arasteh]

Dear Greg,
Thank you very much for the file and explanation.
However, views of Thomas Rickert is views of Thomas Rickert. He does not
have any privilege  nor and supremacy  with respect to other views to
others comments
If we do not take into account, according to Thomas Rickert then what is
the usefulness of public comment?

there were other occasions in which the group modified its conclusions
based on public comments, Example of that is IOT, Human Rights where the
conclusions were modified.
It is quite clear that the majority pro ....do not wish to address the OFAC
but it is the core issue of jurisdiction.
I look forward to see how you could take into account the views submitted
by Public comments
Regards
Kavouss

On Wed, Feb 14, 2018 at 8:23 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Dear Greg,
> Thank you very much for the file and explanation.
> However, views of Thomas Rickert is views of Thomas Rickert. He does not
> have any privilege  nor and supremacy  with respect to other views to
> others comments
> If we do not take into account, according to Thomas Rickert then what is
> the usefulness of public comment?
>
> there were other occasions in which the group modified its conclusions
> based on public comments,Example of that is IOT, Human Rights where the
> conclusions were modified.
> It is quite clear that the majority pro ....do not wish to address the
> OFAC but it is the core issue of jurisdiction.
> I look forward to see how you could take into account the views submitted
> by Public comments
>
> On Wed, Feb 14, 2018 at 7:35 AM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
>> 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
>>>
>>>
>>>
>>
>>
>
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