[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
avri doria
avri at acm.org
Tue Nov 15 02:08:42 UTC 2016
Dear Phil,
And please do not put words in my mouth. I am NOT arguing for a change
in jurisdiction for ICANN corporate. I think that is a straw dog to
keep us from discussing the point issues that may be of concern.
We have been sending these specific issues. My two were:
> 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.
Which Farzi amplified,
> 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.
to which you replied
> I for one do not believe criminal or terrorist organizations should be
> registry operators.
thanks
avri
On 15-Nov-16 10:34, Phil Corwin wrote:
>
> Avri:
>
>
>
> Please do not put words in my mouth, as I have not stated that “all
> residents and companies in sanctioned countries are terrorists”, or
> that “the US is infallible on deciding who is worthy of doing business
> with ICANN/IANA”.
>
>
>
> No nation is infallible, and evil nations contain good individuals.
> But I think it would be hard to find a nation worthy of consideration
> for ICANN jurisdiction that does not have similar laws preventing
> identified parties from conducting business or facilitating monetary
> transaction within its borders. So there will always be grounds for
> general criticism of any national jurisdiction and its laws. And I
> presume that you would agree that certain entities, such as drug gangs
> and ISIS, should not be permitted to become registry operators (if for
> some reason they wished to).
>
>
>
> I ask again: What specific entities are being unfairly barred from
> being registry operators by the AG’s referencing of OFAC, what actual
> harm are they incurring (as being a registry operator is a risky
> proposition with no assurance of success), and what alternative
> jurisdiction is being posited where such alleged harm would not occur?
>
>
>
> Further, in regard to individuals, the AG portion quoted by Farzaneh
> contained this passage – “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.”_ So ICANN has demonstrated the ability
> to seek and receive exemptions for individuals and entities that are
> residents of sanctioned counties, further reducing any potential harm.
>
>
>
> To facilitate a response from the proponents of removing ICANN from US
> jurisdiction, here’s a link to the SDN list --
> https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx
> . At least by looking at it we can move from the general to the specific.
>
>
>
> Sincerely, Philip
>
>
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/Cell***
>
> * *
>
> *Twitter: @VlawDC*
>
>
>
> */"Luck is the residue of design" -- Branch Rickey/*
>
>
>
> *From:*avri at acm.org [mailto:avri at doria.org]
> *Sent:* Monday, November 14, 2016 7:57 PM
> *To:* Phil Corwin; Greg Shatan
> *Cc:* Avri Doria; farzaneh badii; ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>
>
> Phil,
>
>
>
> Do you believe that all residents and companies in sanctioned
> countries are terrorists? Should icann not support the legislate
> interests of people who may live under tyranny of one sort or another?
> And do you believe that the US is infallible on deciding who is worthy
> of doing business with ICANN/IANA.
>
>
>
> That is the problem with having any country or group of countries
> determining who ICANN can serve.
>
> ICANN and especially IANA, need to serve the world impartially.
>
>
>
> Avri
>
>
>
>
>
>
>
> Sent from my T-Mobile 4G LTE Device
>
>
>
> -------- Original message --------
>
> From: Phil Corwin <psc at vlaw-dc.com <mailto:psc at vlaw-dc.com>>
>
> Date: 11/15/16 09:13 (GMT+09:00)
>
> To: Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
>
> Cc: Avri Doria <avri at acm.org <mailto:avri at acm.org>>, farzaneh badii
> <farzaneh.badii at gmail.com <mailto:farzaneh.badii at gmail.com>>,
> ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>
> Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
>
>
>
> 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
>
> 202-255-6172/Cell
>
>
>
> 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
> <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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