[Ws2-jurisdiction] Multiple Layers of Jurisdiction Document

Tue Nov 15 00:57:22 UTC 2016

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> Date: 11/15/16  09:13  (GMT+09:00) To: Greg Shatan <gregshatanipc at gmail.com> Cc: Avri Doria <avri at acm.org>, farzaneh badii <farzaneh.badii at gmail.com>, 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
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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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