[Ws2-jurisdiction] OFAC: Background Reading -- a few FAQs and Overviews

Tue Aug 1 07:06:56 UTC 2017

On Tuesday 01 August 2017 12:17 PM, Nigel Roberts wrote:
> It is going to depend up whether ICANN engages in transactions with
> that person (and 'person' is construed here as "legal or natural
> person") that are "prohibited transactions" within the meaning of the
> legislation, isn't it>

right

>
> If it's not a matter covered by the legislation, then, er, it's not a
> matter covered by the legislation.

right again. But ICANN legal would know the nature of ICANNs
transactions with gTLDs and ccTLDs, right? And should also know, and if
they dont should find out, if these transactions are within OFAC
legislation as prohibited transactions  . I would be most surprised,
with such solid legal presence, if ICANN has still not formed a view on
whether or not its transactions would be covered under OFAC. But in any
case nice to know whether they have or not, and so a good question for
ICANN legal. 
>
>
> In practice,what is going to matter for any US private company (and
> ICANN is just a US private company)

Alas!! But lets not get distracted.....

> is compliance -- in other words that they can be sure that they are
> above board. And that inevitably requires inquiry and documentation.
>
> If I were a Board member or senior member of staff, I wouldn't want to
> go to gaol . . .

Right. But still not getting you..... Is it therefore not right to ask
ICANN legal the question that I framed for them?

p
>
>
>
>
>
> On 01/08/17 06:57, parminder wrote:
>> Nigel
>>
>> Are you suggesting that ICANN's dealings with registries, gTLD or ccLTD,
>> may not even be a matter covered under OFAC, meaning even if an OFAC
>> sanction is in force, it would not cover ICANN's dealings with a gTLD of
>> ccTLD owned by a person within a sanctioned country? Do correct me if
>> that is not what you are saying.
>>
>> Well, we should then certainly ask ICANN legal this question:
>>
>> Are ICANN's interactions with gTLDs and ccTLDs covered under sanctions
>> assuming an OFAC sanction is in force over the country/ persons
>> concerned?
>>
>> This should clear the matter.
>>
>> Greg, may I request ICANN legal also responds to the above question that
>> arises from Nigel's email...
>>
>> parminder
>>
>>
>> On Monday 31 July 2017 12:48 PM, Nigel Roberts wrote:
>>> OFAC applies, it seems, to ALL countries, not a few
>>>
>>> See answer 10 at
>>> https://www.treasury.gov/resource-center/faqs/Sanctions/Pages/faq_general.aspx#licenses
>>>
>>>
>>>
>>>
>>> The real key as to whether ICANN and/or PTI is seriously affected by
>>> OFAC depends not so much on the countries to which OFAC applies (to
>>> which, for the reasons above the answer is "ALL"), but to the true
>>> construction of the expression "prohibited transaction".
>>>
>>> OFAC's own website gives a fairly general and broad definition: "
>>> trade or financial transactions and other dealings in which U.S.
>>> persons may not engage unless authorized by OFAC or expressly exempted
>>> by statute."
>>>
>>> But what matters is the detail of the statute and the regulations
>>> issued under it.
>>>
>>>
>>> Nonetheless, if ICANN, or PTI does not engage in prohibited
>>> transactions for which a license would be required, then the effect of
>>> the OFAC system is going to be negligible, or insignificant.
>>>
>>> (Unfortunately, risk aversion, an over-abundance of caution, and a
>>> 'box-ticking' approach might result in an inappropriately
>>> disproportionate approach to compliance "just to make sure").
>>>
>>> Which is a risk in itself.
>>>
>>>
>>>
>>> On 31/07/17 07:53, Arasteh wrote:
>>>> Greg
>>>> Tks for the info which are available on GOOGLE but nor quickly as you
>>>> gathered.
>>>> Appreciation for that
>>>> I request you to kindly collect the names of countries to which OFAC
>>>> applies by ICANN
>>>> Kavouss
>>>>
>>>> Sent from my iPhone
>>>>
>>>> On 31 Jul 2017, at 08:40, Greg Shatan <gregshatanipc at gmail.com
>>>> <mailto:gregshatanipc at gmail.com>> wrote:
>>>>
>>>>> All,
>>>>>
>>>>> I thought it might be helpful to provide some background information
>>>>> on OFAC  in advance of Tuesday's meeting.  These are intended to
>>>>> provide overall information on OFAC, not analysis of the
>>>>> relationshipO
>>>>> between OFAC compliance and ICANN.  If there are other helpful
>>>>> general
>>>>> resources, please reply to this email.
>>>>>
>>>>> OFAC FAQ, General Questions:
>>>>> https://www.treasury.gov/resource-center/faqs/Sanctions/Pages/faq_general.aspx#basic
>>>>>
>>>>>
>>>>>
>>>>> A basic overview of OFAC compliance for US-based businesses (a little
>>>>> old (2011), but still helpful):
>>>>> https://www.law360.com/articles/262952/4-steps-toward-ofac-sanctions-compliance
>>>>>
>>>>>
>>>>> (Also attached as PDF in case the link can't be accessed)
>>>>>
>>>>> Good overview, though oriented toward banks and financial
>>>>> institutions, from FFIEC (Federal Financial Institutions Examination
>>>>> Council, a US inter-agency body empowered to prescribe uniform
>>>>> principles, standards, and report forms for the federal
>>>>> examination of
>>>>> financial institutions):
>>>>> https://www.ffiec.gov/bsa_aml_infobase/pages_manual/olm_037.htm
>>>>>
>>>>> Wikipedia
>>>>> https://en.wikipedia.org/wiki/Office_of_Foreign_Assets_Control
>>>>>
>>>>> IEEE and OFAC:
>>>>> https://www.ieee.org/about/corporate/compliance/legal/ofac/DF_IEEE_MIG_NAV_94987
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> Greg
>>>>> <4 Steps Toward OFAC Sanctions Compliance.docx>
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>>>>
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>>
>>
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