[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Tue Nov 15 00:24:50 UTC 2016

Phil, I think the issue is non-SDN residents of sanctioned countries, while
you are referring to SDNs.

Greg

On Mon, Nov 14, 2016 at 7:13 PM Phil Corwin <psc at vlaw-dc.com> wrote:

> I for one do not believe criminal or terrorist organizations should be
> registry operators.
>
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
> 202-559-8750/Fax
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>
> Twitter: @VLawDC
>
> "Luck is the residue of design" -- Branch Rickey
>
> Sent from my iPad
>
> On Nov 14, 2016, at 6:27 PM, Greg Shatan <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>
> 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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