[Ws2-jurisdiction] Jurisdiction Questionnaire response analysis: Ministry of Telecom and Mass Communications of the Russian Federation

[Dr. Tatiana Tropina]

Dear all,

I would like to submit analysis of two responses to the WS2 Jurisdiction
subgroup’s Questionnaire. I am submitting them in two different emails
to avoid any confusion, however, I would like to say that these
responses have raised the similar concerns related to jurisdiction and I
recommend the group to consider these concerns based on the information
provided in both of the responses.

I would also like to reiterate that I am analysing the responses in my
individual capacity. I am not representing my employer - Max Planck
Institute. The fact that I am a Russian national has nothing to deal
with the fact that I am analysing this response, I am not representing
the views of Russian Federation in any capacity or form. So please
consider this to be an independent summary with views expressed on my own.

*The first response I would like to analyse is the one submitted by the
the Ministry of Telecom and Mass Communications of the Russian
Federation. *I am attaching the response to the email, but it can also
be found at  the jurisdiction questionnaire responses page:
https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire

*Summary of the responses
*


A note: I am sorry that some of the responses I am referring to rather
in lengthy way, because I think as the Ministry of Telecom and Mass
Communications of the Russian Federation responded with what we actually
wanted - real case that they consider relevant - it is with for the
group to consider it in a more detailed way.

*Question 1*

**The respondent states that their business, privacy or ability to use
or purchase domain name-related services been affected by ICANN’s
jurisdiction. The response refers to the fact that ICANN, in particular,
is a subject of the US regulations on the economic and trade sanctions
program administered by the Office of Foreign Assets Control (OFAC) of
the U.S. Department of the Treasury. The respondent refers to the
provisions of the gTLD Applicant Guidebook and the document governing
new registrar accreditation (“Registrar Accreditation: Application”,
section 4. “Application Process”) and states that this can affect not
only new top-level domain applicants (potential registries after
application evaluation), but also companies seeking accreditation as
ICANN registrar.
To illustrate how this provisions on OFAC sanctions can affect business,
the Ministry of Telecom and Mass Communications of the Russian
Federation brings up the case of sanctions implemented in accordance
with the Executive Order 13685 of U.S. Administration (December 19th,
2014) prohibiting U.S. companies from supplying services and goods in
the Republic of Crimea, doing business with individuals and entities
located in the Republic of Crimea. This led to:
- Notification that Google Apps users located in Crimea access to Google
services for accounts located in Crimea will get their services
suspended within a week.
- Notifications from other U.S. technology companies like Amazon, Apple,
Paypal; issuance of the Google chrome browser updates that web-sites and
hosting registered by individual residents of this region will be removed.
- Announcements from several U.S. registrar companies (e.g., GoDaddy)
that domain names of registrants from the Republic of Crimea will be
removed from registries .com, .net, .org, .info, and others. The
announcements referred to trade restrictions which do not allow
registrars to do business with individuals and entities located in the
Republic of Crimea.

The respondent expressed a strong belief that the WS2 Jurisdiction
subgroup shall analyse not only incidents that happened and gather
information about actual cases, but also analyse the potential risks
related to jurisdiction.

*Question 2, Question 3.* - No information provided

*Question 4a*

The respondent doesn’t provide any material. However, Russian Ministry
of Telecom and Mass Communications of the Russian Federation expresses
an opinion that since ICANN’s policies and their implementation shall be
in compliance with the California law, but top-level domain registries
enter into agreements with registrars individually, and registrars enter
into agreements with the registrants in compliance with law of other
countries, there will be conflicts between ICANN’s policies and national
law systems. As one of the examples, the respondent refers to the
General Data Protection Regulation – GDPR 2016/679. Lastly, the response
suggested to answer the questions why the issues related to domain name
system and infrastructure shall be under the jurisdiction of a single
state.
*
**Question 4b*
With regard to any alternative jurisdiction solutions, the respondent
suggests that the following solutions:
- Governance of the DNS by the international law/ treaties
- Separate main ICANN’s responsibilities over different jurisdictions
- Jurisdictional immunity under the US law

*Analysis:*
I recommend that every participant of the group reads if not the
response, but at least the summary of it, and makes his or her own
conclusion. However, I recommend the issue of trade sanctions and OFAC
to be discussed in details and assessed by the group, as this issue
comes up in more than one response and requires a serious consideration.
No matter how we treat the political and geo-political issues that lead
to the implementation of sanctions, the cases of the sanctions affecting
businesses because OFAC and ICANN’s jurisdiction requires the group to
answer at least whether this should be taken into consideration and how.
The issue of OFAC is also raised in the response of the IGP, which I am
also analysing.

As to the alternative jurisdiction solutions: again, it is up to the
group to continue the discussion and I think that as this issue being
constantly raise we will have to come to it at some point if we realise
that there are some serious risks coming from ICANN being incorporated
in the US. However, I would like to note - as my personal opinion - that
some of the proposed solutions very likely either do not meet the
transition requirement (governance by international treaties) or
probably impossible - e.g. If I am not mistaken the jurisdictional
immunities under the US law could be given only to the international
organisation, which, in turn, doesn’t fit the transition requirements. 
This, however, shall be discussed anyway if the issue of alternative
jurisdiction will be raised in the group.


Warm regards,
Tanya

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