[Ws2-jurisdiction] Jurisdiction Draft 11 11 Feb 2018

[Kavouss Arasteh]

Greg,
Further to the last night discussion on " REASONABLE BEST EFFORTS " or
other wise footnoted text,
I suggest to use the term" Best feasible efforts" There is difference
between "Reasonable " and "feasible" thus the latter coiuld better suit
with the best efforts
Regards
Kavouss



On Wed, Feb 14, 2018 at 7:03 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Kavouss,
>
> Thank you for your feedback.
>
> Thomas was speaking on behalf of the co-chairs, whatever his personal
> views might be.
>
> I have already stated that the group could modify its conclusions based on
> public comments.  This is one of the core reasons for public comments, but
> the decision to revise consensus is always that of the Subgroup.
>
> There is at least one significant proposal to do so in the current draft —
> to move from a neutral statement about options for picking the “choice of
> law” from a menu (contracted party choice and negotiation with ICANN), to a
> statement favoring the contracted party choice.
>
> Another possible modification relates to the OFAC General License
> recommendation, where the Subgroup is still considering a “stiffer”
> approach for ICANN vs. the one set out in our draft report.  That is based
> on the NCSG Comment you mentioned earlier.
>
> Adopting modifications like these (or smaller modifications that serve to
> improve the text) is the way in which public comments are manifested in
> Working Group report.  While the Subgroup has duly taken into account all
> of the comments submitted, it is only through causing the Subgroup to
> decide to change the text that a comment will be manifested.  And even
> then, the comment is not directly mentioned in the Report.
>
> Finally, I don’t understand your statement regarding some (majority?) part
> of the group not wishing to address OFAC.  We probably spent more time on
> OFAC than any other aspect of our work, and half our report covers
> OFAC/sanctions related issues.  So I see no evidence of our Subgroup, or
> any part of it, not wishing to address OFAC issues.
>
> Best regards,
>
> Greg
>
>
> On Wed, Feb 14, 2018 at 2:26 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
>> 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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