<html>
<head>
<meta http-equiv="content-type" content="text/html; charset=utf-8">
</head>
<body bgcolor="#FFFFFF" text="#000000">
<p>Dear all,<br>
<br>
I would like to submit analysis of two responses to the WS2
Jurisdiction subgroup’s Questionnaire. I am submitting them in two
different emails to avoid any confusion, however, I would like to
say that these responses have raised the similar concerns related
to jurisdiction and I recommend the group to consider these
concerns based on the information provided in both of the
responses.<br>
<br>
I would also like to reiterate that I am analysing the responses
in my individual capacity. I am not representing my employer - Max
Planck Institute. The fact that I am a Russian national has
nothing to deal with the fact that I am analysing this response, I
am not representing the views of Russian Federation in any
capacity or form. So please consider this to be an independent
summary with views expressed on my own. <br>
<br>
<b>The first response I would like to analyse is the one submitted
by the the Ministry of Telecom and Mass Communications of the
Russian Federation. </b>I am attaching the response to the
email, but it can also be found at the jurisdiction questionnaire
responses page:
<a class="moz-txt-link-freetext" href="https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire">https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire</a><br>
<br>
<b>Summary of the responses <br>
</b></p>
<p><br>
A note: I am sorry that some of the responses I am referring to
rather in lengthy way, because I think as the Ministry of Telecom
and Mass Communications of the Russian Federation responded with
what we actually wanted - real case that they consider relevant -
it is with for the group to consider it in a more detailed way. <br>
<br>
<b>Question 1</b></p>
<p><b> </b>The respondent states that their business, privacy or
ability to use or purchase domain name-related services been
affected by ICANN’s jurisdiction. The response refers to the fact
that ICANN, in particular, is a subject of the US regulations on
the economic and trade sanctions program administered by the
Office of Foreign Assets Control (OFAC) of the U.S. Department of
the Treasury. The respondent refers to the provisions of the gTLD
Applicant Guidebook and the document governing new registrar
accreditation (“Registrar Accreditation: Application”, section 4.
“Application Process”) and states that this can affect not only
new top-level domain applicants (potential registries after
application evaluation), but also companies seeking accreditation
as ICANN registrar. <br>
To illustrate how this provisions on OFAC sanctions can affect
business, the Ministry of Telecom and Mass Communications of the
Russian Federation brings up the case of sanctions implemented in
accordance with the Executive Order 13685 of U.S. Administration
(December 19th, 2014) prohibiting U.S. companies from supplying
services and goods in the Republic of Crimea, doing business with
individuals and entities located in the Republic of Crimea. This
led to:<br>
- Notification that Google Apps users located in Crimea access to
Google services for accounts located in Crimea will get their
services suspended within a week. <br>
- Notifications from other U.S. technology companies like Amazon,
Apple, Paypal; issuance of the Google chrome browser updates that
web-sites and hosting registered by individual residents of this
region will be removed.<br>
- Announcements from several U.S. registrar companies (e.g.,
GoDaddy) that domain names of registrants from the Republic of
Crimea will be removed from registries .com, .net, .org, .info,
and others. The announcements referred to trade restrictions which
do not allow registrars to do business with individuals and
entities located in the Republic of Crimea.<br>
<br>
The respondent expressed a strong belief that the WS2 Jurisdiction
subgroup shall analyse not only incidents that happened and gather
information about actual cases, but also analyse the potential
risks related to jurisdiction. <br>
<br>
<b>Question 2, Question 3.</b> - No information provided <br>
<br>
<b>Question 4a</b></p>
<p>The respondent doesn’t provide any material. However, Russian
Ministry of Telecom and Mass Communications of the Russian
Federation expresses an opinion that since ICANN’s policies and
their implementation shall be in compliance with the California
law, but top-level domain registries enter into agreements with
registrars individually, and registrars enter into agreements with
the registrants in compliance with law of other countries, there
will be conflicts between ICANN’s policies and national law
systems. As one of the examples, the respondent refers to the
General Data Protection Regulation – GDPR 2016/679. Lastly, the
response suggested to answer the questions why the issues related
to domain name system and infrastructure shall be under the
jurisdiction of a single state. <br>
<b><br>
</b><b>Question 4b</b><br>
With regard to any alternative jurisdiction solutions, the
respondent suggests that the following solutions:<br>
- Governance of the DNS by the international law/ treaties <br>
- Separate main ICANN’s responsibilities over different
jurisdictions<br>
- Jurisdictional immunity under the US law <br>
<br>
<b>Analysis:</b><br>
I recommend that every participant of the group reads if not the
response, but at least the summary of it, and makes his or her own
conclusion. However, I recommend the issue of trade sanctions and
OFAC to be discussed in details and assessed by the group, as this
issue comes up in more than one response and requires a serious
consideration. No matter how we treat the political and
geo-political issues that lead to the implementation of sanctions,
the cases of the sanctions affecting businesses because OFAC and
ICANN’s jurisdiction requires the group to answer at least whether
this should be taken into consideration and how. The issue of OFAC
is also raised in the response of the IGP, which I am also
analysing. <br>
</p>
<p>As to the alternative jurisdiction solutions: again, it is up to
the group to continue the discussion and I think that as this
issue being constantly raise we will have to come to it at some
point if we realise that there are some serious risks coming from
ICANN being incorporated in the US. However, I would like to note
- as my personal opinion - that some of the proposed solutions
very likely either do not meet the transition requirement
(governance by international treaties) or probably impossible -
e.g. If I am not mistaken the jurisdictional immunities under the
US law could be given only to the international organisation,
which, in turn, doesn’t fit the transition requirements. This,
however, shall be discussed anyway if the issue of alternative
jurisdiction will be raised in the group. <br>
</p>
<p><br>
</p>
<p>Warm regards,<br>
Tanya <br>
</p>
</body>
</html>