[Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions

Wed Sep 20 05:25:45 UTC 2017

All,

I wanted to reflect in this email thread how the various topics in the
paragraph submitted by Kavouss for potential inclusion in the "General
License" recommendation have been dealt with in the document.  Here are the
different sections of the text, followed by my notes in italics.

Generally, ICANN must pursue the application for general license at
earliest time and should advertise and communicate with registries and
registrars to revise their registrant agreements and not to copy and paste
the general agreements found in US-based registrars. The role of ICANN, to
make awareness about such situation is critical and should not be undermined
.

*This is now covered in the section on General Licenses, so this is not
needed here.*

There are several reports in the media that US-Based and Non-US registrars
have asked registrants to transfer out their domains immediately because
they might get affected by US sanctions.

*This is not related to General Licenses, so it should not be included in
that recommendation.  Regarding non-US registrars: This issue is generally
discussed in the section **"Application of OFAC Limitations by Non-US
Registrars."** If the Subgroup receives media reports of non-US registrars
taking such actions and it appears there may be no legal basis for these
actions, we could cite them in this section.  Since the Subgroup has not
seen the reports mentioned here, we do not have any basis to include this
sentence, and so it is not included.  *

*Regarding US registrars, who have OFAC compliance obligations, there does
not appear to be an issue that falls within the purview of the Subgroup.
It may well be that these registrars are complying with their legal
obligations (or seeking to become compliant with their legal obligations).*

Samples of that are related to Godaddy and Online Nic, which made pressure
against registrants having Iranian citizenship.

*These are both US-based registrars, who are required to comply with OFAC
sanctions. As noted above, i**t may well be that these registrars are
complying with their legal obligations (or seeking to become compliant with
their legal obligations).** This does not fit with the issue discussed in
this report, which relates to mistaken application of OFAC sanctions by
non-US registrars, so it is not included. *

To determine the nature of registrant, registrars usually refer to Admin
contact details recorded in whois database. If admin address and phone
number is related to sanctioned countries, it is assumed that domain owner
is a hidden risk for the registrar, therefore registrars try to examine
zero risk policy in regard of penalties imposed by OFAC.

*This is not related to the General License either.  This seems to be
directed toward registrars’ business practices and business judgment.
Without commenting on the validity of the issue, this would not appear to
be an issue for this Subgroup or the CCWG.  Furthermore, if these are
registrars with OFAC compliance obligations, then **i**t may well be that
these registrars are complying with their legal obligations.  If these are
non-US registrars without OFAC compliance obligations, then this issue is
covered generally under **"Application of OFAC Limitations by Non-US
Registrars."  As such the paragraph is not included.*

Best regards,

Greg

On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh at gmail.com> wrote:

> Dear Paul
> Thank you very much for your comments
> I am open to soften the text as you suggested e.g. to replace " prove " by
> " determine" and the term"must" be a less stronger term such as" need"
> which is between must/ shall/ and may
> However, due to the fact that we are severely affected  by the process,
> may I humbly request you to kindly agree to retain the idea with slightly
> modified text to also be agreeable to you.
> I am jerky awaiting to receive your fair suggestion as soon possible
> Regards
> Kavouss
>
> Sent from my iPhone
>
> On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@
> redbranchconsulting.com> wrote:
>
> All
>
>
>
> Given the lateness with which we received Kavouss’s suggested paragraph
> and revisions and the fact that I, regretfully, could not make the call,
> let me note my disagreement with two aspects of it:
>
>
>
> First, on page 5, it is suggested that a survey be undertaken to “prove”
> that non-US registrars are imposing OFAC requirements.  Since the point of
> the survey is to determine what is true, it is premature to assume that it
> will “prove” the facts assumed by the proposer.  The word “prove” is
> therefore in error and should be replaced by “determent whether”
>
>
>
> Second, I oppose the proposed new paragraph at the end simply because, as
> written, I have absolutely no idea what is meant.  But use of terms like
> “must” as an imperative are always inappropriate in recommendations.
> Insofar as I can discern the intent (that there is some action being taken
> by registries against registrants) that issue is a new one that needs to be
> fully discussed and it is, of course, quite different from the OFAC general
> license idea for ICANN that we have been discussing (which would only
> relate to ICANN’s on RAA agreements).
>
>
>
> 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 <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Greg
> Shatan
> *Sent:* Monday, September 18, 2017 2:13 PM
> *To:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] OFAC Recommendation -- Further
> Suggested Revisions
>
>
>
> CORRECTED VERSION ATTACHED.  A paragraph suggested by Kavouss, which is in
> the Google Doc, did not show up in the Word document (nor in the PDF, which
> is based on the Word doc).  Corrected versions are attached. Thank you to
> Kavouss for catching this.  Please see the last paragraph in the document
> so that you can review this suggested text.
>
>
>
> Also, some crossed-out text at the very end that was supposed to be
> deleted (as noted on last week's call) has now been deleted from the
> attached (and the Google Doc).
>
>
>
> Greg
>
>
>
>
>
>
>
> On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
> All,
>
>
>
> I have attached a further revised OFAC Recommendation, reflecting changes
> suggested by Kavouss Arasteh and Seun Ojedeji.  Word and PDF versions are
> attached, and the Google Doc reflects these suggested changes as well.
>
>
>
> I look forward to our call.
>
>
>
> Best regards,
>
>
>
> Greg
>
>
>
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>
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