[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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>         _______________________________________________
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>
>
>
>          
>
>         -- 
>
>         Farzaneh
>
>         _______________________________________________
>         Ws2-jurisdiction mailing list
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>
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