[Ws2-jurisdiction] [Issue and Solution] Non-US Based Registrars and Following OFAC

Sun Aug 20 14:22:14 UTC 2017

One of the jurisdictional issues that were discussed is that some non-US
based registrars apply OFAC even when they are not obliged to and merely
based on their assumption that because of their contract with ICANN they
have to apply OFAC.

One solution could be for ICANN to clarify to the registrars that this is
not the case and they do not have "to follow OFAC solely on the basis of
their having a contract with ICANN".

Is it possible to make such clarification?

Farzaneh

---------- Forwarded message ----------
From: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
Date: Tue, Aug 8, 2017 at 10:28 AM
Subject: RE: [Ws2-jurisdiction] Some interesting points from the OFAC Call
[WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]
To: farzaneh badii <farzaneh.badii at gmail.com>, Mike Rodenbaugh <
mike at rodenbaugh.com>
Cc: acct-staff at icann.org, Thomas Rickert <thomas at rickert.net>,
ws2-jurisdiction <ws2-jurisdiction at icann.org>

This is a good idea.  The question then is one of implementation.  How
would that be made clear to the contracted parties.  I suppose ICANN
(through Sam or someone else) could publish its interpretation to that
effect.  I doubt, however, that ICANN would be willing to warranty the
correctness of this and hold any one harmless if it was in error.

Paul

Paul Rosenzweig

paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660 <(202)%20547-0660>

M: +1 (202) 329-9650 <(202)%20329-9650>

VOIP: +1 (202) 738-1739 <(202)%20738-1739>

www.redbranchconsulting.com

My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=
0x9A830097CA066684

*From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
bounces at icann.org] *On Behalf Of *farzaneh badii
*Sent:* Monday, August 7, 2017 4:08 PM
*To:* Mike Rodenbaugh <mike at rodenbaugh.com>
*Cc:* acct-staff at icann.org; Thomas Rickert <thomas at rickert.net>;
ws2-jurisdiction <ws2-jurisdiction at icann.org>
*Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC
Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL]

I also agree with Jeff and Mike. IGP had proposed this change back in
January and we hope it happens.

One more issue that we discussed during the meeting was about the
uncertainty regarding the application of OFAC to non US-based registrars.
Some registrars not based in the US might want to avoid risk and not
provide services for sanctioned countries because of their contract with
ICANN. I think we should follow up on this issue and solve it by
just clarifying ( as Steve asked and Sam confirmed )  "that
contracted parties are not obligated to follow OFAC solely on the basis of
their having a contract with ICANN".

Farzaneh

On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike at rodenbaugh.com> wrote:

I agree with Jeff's proposal that ICANN be required to make a good faith
application for OFAC license whenever it is necessary to fulfill the
purpose of registry and/or registrar agreements.  And I support his 2d
question, requesting details.

Note that OFAC doesn't just hamper registries and registrars located or
formed in sanctioned countries, but also registries and registrars with
officers, directors or significant shareholders from any of the sanctioned
countries (regardless where the business is located or formed).  Note
further that OFAC licenses are time-limited, requiring periodic
reapplication.  And ICANN legal has told me that they were not required to
seek an OFAC license for my client, even though that client had executed
registry agreements with ICANN.  I disputed that, and they got the license;
but there is no guarantee they will seek it again when it expires, even
though the registries are live.

I can't see any good reason why ICANN should not be required at least to
make a good faith effort to get a license.  It seems at least to be implied
in the registry agreement anyway, via the covenant of good faith and fair
dealing inherent in every contract (at least under California law).  If
ICANN refused to seek a license, it would frustrate the purpose of the
entire agreement.

Mike Rodenbaugh

RODENBAUGH LAW

tel/fax:  +1.415.738.8087 <(415)%20738-8087>

http://rodenbaugh.com

On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman at comlaude.com>
wrote:

All,

Is someone able to document the questions that were not answered during the
teleconference?  I was on the teleconference, which was great, and I am not
sure what still needs to be answered.

Also, it seems like we have lost some sight of the main points raised
during the call.

   1. One of the main points I got on the call was that the language found
   on the Registrar Accreditation page of the ICANN site states:

*”** 4.  Application Process.*

*…..*

*Applicant acknowledges that 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. **However, Applicant
acknowledges that ICANN is under no obligations to seek such licenses and,
in any given case, OFAC could decide not to issue a requested license**.”
[Emphasis Added]*

…………………

Although the language states that ICANN does not have to seek licenses for
residents of sanctioned countries, they generally do.  I would like to see
that last paragraph state in writing that they are required to seek a
license, but acknowledge that OFAC could decide not to issue a requested
license.  This would ensure that we could have registries and/or registrars
in these countries able to at least apply to become accredited.

   1. The second point that was interesting was that ICANN seeks licenses
   for all changes to the root zone if initiated by entities or residents in
   the OFAC sanctioned countries.    It would be helpful to know the terms
   (and limits) of those licenses (from an accountability standpoint).  Are
   there certain changes that cannot be made without additional licenses, etc.

Thanks again for the information on last weeks call and I look forward to
discussing the substance.

https://www.icann.org/resources/pages/application-2012-02-25-en

*Jeffrey J. Neuman*

*Senior Vice President *|*Valideus USA* | *Com Laude USA*

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

E: jeff.neuman at valideus.com or jeff.neuman at comlaude.com

T: +1.703.635.7514 <(703)%20635-7514>

M: +1.202.549.5079 <(202)%20549-5079>

@Jintlaw

*From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
bounces at icann.org] *On Behalf Of *Mueller, Milton L
*Sent:* Monday, August 7, 2017 7:51 AM
*To:* Benedicto Fonseca Filho <benedicto.fonseca at itamaraty.gov.br>; Kavouss
Arasteh <kavouss.arasteh at gmail.com>; Greg Shatan <gregshatanipc at gmail.com>;
ws2-jurisdiction <ws2-jurisdiction at icann.org>; acct-staff at icann.org; Thomas
Rickert <thomas at rickert.net>; Samantha Eisner <Samantha.Eisner at icann.org>;
Bernard Turcotte <turcotte.bernard at gmail.com>; Jordan Carter <
jordan at internetnz.net.nz>; León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>
*Subject:* Re: [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS
RAISED DURING THE CALL

The question I would ask you, Benedicto, and all others suggesting a rather
elaborate documentation process, is this:

Would you rather this WG develops a final report, or spend most of its
remaining time documenting the results of a conference call, the transcript
of which is readily available?

If you choose the latter, are you then going to complain that we did not
finish our work?

*From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
bounces at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of
*Benedicto
Fonseca Filho
*Sent:* Thursday, August 3, 2017 8:23 PM
*To:* Kavouss Arasteh <kavouss.arasteh at gmail.com>; Greg Shatan <
gregshatanipc at gmail.com>; ws2-jurisdiction <ws2-jurisdiction at icann.org>;
acct-staff at icann.org; Thomas Rickert <thomas at rickert.net>; Samantha Eisner <
Samantha.Eisner at icann.org>; Bernard Turcotte <turcotte.bernard at gmail.com>;
Jordan Carter <jordan at internetnz.net.nz>; León Felipe Sánchez Ambía <
leonfelipe at sanchez.mx>
*Subject:* [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED
DURING THE CALL

Dear all,

Let me endorse Kavouss' request - also supported by Seun and Jorge - that
answers be provided in written form, with whatever disclaimer might be
necessary to ensure they are not in the form of any official legal advice
or the like.

Judging from the last call's transcript, not all questions formulated upon
the rapporteur´s invitation were systematically covered during the call, so
it is only fair to have the unanswered questions also addressed, preferably
in written form. I'd also reiterate the views expressed by others: for the
sake of clarity and to allow and promote further participation, it would be
necessary to have also in written form (even if succinct) the answers to
the questions that were supposedly covered during last call as the
transcript does not allow to clearly correlate each question to each
comment/answer.

Further, several questions were asked during last call, some of which may
have been questions that were only asked at that time. It seems that none
of them had to pass the test of consensus either to be asked or to be
answered. So it would be unfair now to ask for support for certain
questions to be asked and then answered, particularly those questions that
were only asked following the rapporteur's invitation in the mailing list.

Finally, I believe that no one would ever feel their views are
systematically disregarded if their requests or suggestions were subjected
to the same test that is applied to other´s proposals…

Best regards,

Benedicto

------------------------------

*De:* ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces at icann.org]
em nome de Kavouss Arasteh [kavouss.arasteh at gmail.com]
*Enviado:* quinta-feira, 3 de agosto de 2017 13:48
*Para:* Greg Shatan; ws2-jurisdiction; acct-staff at icann.org; Thomas
Rickert; Samantha Eisner; Bernard Turcotte; Jordan Carter; León Felipe
Sánchez Ambía
*Assunto:* Re: [Ws2-jurisdiction] WRITTEN ANSWERS TO THE QUESTIONS RAISED
DURING THE CALL

Greg

I do not understand what you are talking ABOUT

Samantha, during her presentation, three times  emphasized that if  we had
questions we could  raise them  with her. Read the Transcript.

Two of these three times she referred to me.

Pls do not be so formalistic. Let us do our work.

pls do not complain to anyone about me as it would have negative IMPACT  .
This issue is important.

Then I was formally invited to raise my questions with her, pls read
transcript after I was so invited.

What do you want to prove? We are not to be treated like student

We should be respected. The tone of your message is offensive even though
you have used diplomatic offensive language .That does not work

We are part of a group and must understand each other’s problems

What you stated is quasi preventing me to speak freely?

Why there is prohibition to reply to the invitation that she launched to us
and to me? Why I should not address my question to ICANN STAFF? She does
not work for you. She is working for ICANN and we are all part of ICANN i
replied to Sam’s invitation that is all.

Why I need the approval of the group in which over represented by those
that do not wish that I talk at all ?

Cheers

On Tue, Aug 1, 2017 at 9:55 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:

Kavouss,

Kindly direct your request to the Subgroup, and not to Sam.  This is a
matter for the Subgroup to consider, rather than any individual
participant.  The Subgroup can take up your request and decide whether to
ask for written responses to questions (and if so, which questions).  Thank
you.

Best regards,

Greg

On Tue, Aug 1, 2017 at 10:15 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

Dear Sam, With tks to your presentation, pls kindly note that I nned
written answers to the questions raised before the meeting and those during
the meeing either as intervention or in the chat.

Regards

Kavouss

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170820/5bd7202d/attachment-0001.html>