[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
Phil Corwin
psc at vlaw-dc.com
Tue Nov 15 02:41:13 UTC 2016
I agree that we need to move on from that straw dog, and I did not mean to imply that you favored changing ICANN corporate's jurisdiction.
My initial reply referenced that the main thrust of OFAC is to prohibit organizations regarded as criminal or terrorist by the U.S. government from conducting business or using the banking system, and that for others outside that focus there is an exemption/licensing option that ICANN has successfully utilized.
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
-----Original Message-----
From: avri doria [mailto:avri at acm.org]
Sent: Monday, November 14, 2016 9:09 PM
To: Phil Corwin; ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
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/defa
> ult.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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