[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Tue Nov 15 00:13:28 UTC 2016

I for one do not believe criminal or terrorist organizations should be registry operators.

Philip S. Corwin, Founding Principal
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On Nov 14, 2016, at 6:27 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:

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<mailto: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<mailto: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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