[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

[Greg Shatan]

Farzaneh,

As you say, collecting issues is important. We then need to analyze them.
In the case of a new gTLD, we would need to determine whether an OFAC
license would be necessary for a new gTLD applicant from a sanctioned
country. I'm not at all certain that is the case. If it is, I would not
jump to the conclusion that this is a "grave uncertainty." I think the
italicizes language may be an exercise of caution. ICANN could not possibly
say that OFAC is required to issue a license, nor can it ever promise a
result from any government or other third party. Hence the caveat. ICANN
has sought and received OFAC licenses in the past, not because they are
"gracious" but because that's the appropriate thing to do. I have
absolutely no reason to believe that ICANN would hesitate to do so in the
future. One might wonder if the change in relationship and political
climate would lead OFAC to be more stingy with licenses, but in the case of
ICANN, I think that would be counterproductive. I'm not minimizing the
concern, just saying that we need to analyze each step.

Greg

On Mon, Nov 14, 2016 at 5:37 PM farzaneh badii <farzaneh.badii at gmail.com>
wrote:

> 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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