[Ws2-jurisdiction] Jurisdiction Questionnaire response analysis: Internet Governance Project

[Dr. Tatiana Tropina]

Dear all,

This is my second submission of the analysis of the response the WS2
Jurisdiction subgroup’s Questionnaire. This email analyses the response
submitted by the *Internet Governance Project*. 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

With the risk of sound annoying, I would also like to reiterate that I
am analysing the responses in my personal capacity. I am not
representing my employer - Max Planck Institute.

*Summary of the responses *


*Question 1*
IGP raises three issues:
1) Application for new gTLD registration for residents from countries
subject to the US sanctions (OFAC issues). IGP raises the issues of the
possibility of the OFAC license for providing services to specially
designated nationals (SDNs) not being granted or non-transparency or
delays in ICANN’s processes of applying for such license and the absence
of ICANN’s commitment to transparency and responsiveness with regards to
these issues.
2) Some registrars follow OFAC sanctions and regulation in the legal
agreements with registrants even if they are not based in the US: the
IGP makes an example of Gesloten.cw, a registrar based in Curacao and
Olipso, a registrar based in Turkey.
3) The issue of high costs of money transfers between ICANN and
countries under the sanctions.

*Question 2*
IGP refers to the court case brought by a group of terrorist victims in
the US that had a writ of attachment against the state of Iran to show
how the .IR, .SY and .KP can be affected by the ICANN’s current
jurisdiction. In the case the litigants asked for the seizure of ccTLDs
as attachable property. During the litigation, those registered domain
with .IR were felt like their businesses were at risk. OGP provides the
analysis of the case with regard to the outcome: “the court showed
deference to ICANN’s mission which is to serve an international
community. The court, while affirmed the district court judgment not to
attach .IR, first respected the third party rights”.
The respondent also raises the issue of awareness of ccTLDs about the
ICANN’s jurisdiction with regard to the law applicable to the ICANN
organisation.
 
*Question 3*
IGP refers to the blog post, where more information and analysis is
provided:

http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-and-domainnames/


The blog post provides more detailed analysis of the OFAC sanctions
issues and ICANN jurisdiction and suggests some solutions, like for
example,  a general OFAC waiver, or contractually obliging registrars to
investigate the possibility of receiving an OFAC license for providing
services to sanctioned countries, prohibiting registrars from
arbitrarily cancelling domain names without notice, clarification
whether registrars based in other countries need to comply with OFAC and
US laws.

*Question 4 *- No information provided

*Analysis:*

**
I strongly believe that the response from the IGP (as well as blog post
the response refers to) provides several points that the Jurisdiction
subgroup has to explore and give special attention to:
- OFAC sanctions (this was also raised in the reply from the Russian
Telecom Ministry) and uncertainty and concerns associated with this issue.
- The case of .IR, .SY and .KP
- The possible solutions suggested in the IGP blogs post (see summary of
the response to the Question 3).

I am not in a position to recommend any conclusions to the issues raised
because the discussion shall be a group exercise. However, as a
rapporteur for this response, I strongly recommend the issues to go
through the group discussion.

Warm regards,

Tanya

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