[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

[farzaneh badii]

Hi

I think collecting issues is very important. As an example, I would like to
draw your attention to this paragraph in the New gTLD applicant guidebook:
*"Legal Compliance* -- 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. In any given case, however,* OFAC could
decide not to issue a requested license."*
p.1-25 - gTLD Applicant Guidebook, Version 2012-06-04

The paragraph goes so far as to say that  ICANN is prohibited from
providing most goods or services even to the residents of santioned
countries. ICANN is gracious enough to request for OFAC license for those
not in the SDN list but it also says: OFAC could decide not to issue a
requested license! Who would apply for a new gtld from sanctioned countries
when facing such grave uncertainty.


That's only one example.

Best

Farzaneh


On 13 November 2016 at 13:10, avri doria <avri at acm.org> wrote:

> Hi,
>
> As a part time staff member for APC, which signed the letter, I figure I
> should add my 2 cents.
>
> I do not believe the object is to undo the work of WS1 and the
> establishment of the EC under California rules. That is not an APC goal
> and I do not think the letter proposes that.  But I do believe we need
> to look at some of the other issues.
>
> For example the one that persists to bother me and APC, is that fact
> that the US can make laws that prohibit ICANN/IANA from doing business
> with particular countries, whether it is because of boycott or other
> international reasons.  I know we say that has never happened, though
> there may be some arguments about whether it did or not, but it could
> happen. Another issue is that given the removal of US oversight the US
> government commitment made in WSIS and elsewhere to never interfere in
> IANA relationship with ccTLDs is meaningless. Does this commitment
> still hold in the current jurisdictional mix if the US government passed
> laws or made administrative decisions? These are the sorts of
> thing I think we need to find a answer/solution to.  So when I look at
> the notion of 'immunity' that is the sort I look for.   Not that I
> believe this can be easily achieved. Personally, I do not want to see
> IANA (the core of the issue and the Internet) prohibited from making a
> change because of US law, now or ever.
>
> I do not believe we can, or even should resolve this in WS2, but we
> should be aware of these problems and WS2 should recommend that further
> work after WS2, perhaps, be done to make sure that  this and another
> types of errant US control are not possible.  I am personally not
> looking for relief from the courts on contractual, accountability or EC
> issues as that is currently part of the accountability solution, and we
> have yet to see whether that works. It is going to take a few years
> before we have evidenc on the WS1 solution being effective.  But I
> wonder, must that always be US courts, are there other solutions for
> some of these court challenges, especially those more applicable to the
> nationals of other nations. I think there are issues we can't ignore.
>
> So collecting the issues and figuring out what further
> discussion/work needs to be done on them is something that needs to be
> remembered and dealt with in WS2. Hence my agreement with the fact that
> a letter was sent indicating that there were concerns that need to be
> discussed and dealt with. The solution proposed in the letter where just
> possible avenues to explore, and even if they are impractical, we should
> not ignore any open issues that people might have.
>
>
> avri
>
>
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-- 
Farzaneh
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