[Ws2-jurisdiction] RES: RES: Proposed Final OFAC Recommendation for Plenary

Thu Sep 21 20:21:29 UTC 2017

Dear Greg,

Thank you for your reply. I understand your points and therefore withdraw my suggested amendment to footnote 5.

I take your suggestion to cut down the starting sentence, which would then read "Many countries..."

Best regards,

Thiago

-----Mensagem original-----
De: Greg Shatan [mailto:gregshatanipc at gmail.com] 
Enviada em: quarta-feira, 20 de setembro de 2017 19:47
Para: Paul Rosenzweig
Cc: Thiago Braz Jardim Oliveira; ws2-jurisdiction
Assunto: Re: [Ws2-jurisdiction] RES: Proposed Final OFAC Recommendation for Plenary

Thiago,

I see a number of concerns with these proposed changes.

The first sentence is a statement of fact.  You have edited this statement of fact so that it is only "recognized" by "several participant."  As a statement of fact, it is inappropriate to preface it with "Several participants of the Subgroup recognize..."  Either the sentence could be left as is, or it could be cut down to read "Many countries impose sanctions regimes and cooperate in the creation and enforcement of sanctions." However, the purpose of the footnote is to help explain why we are not dealing with non-US sanctions regimes in this Report (while recognizing this could be germane in the future). "The Subgroup recognizes" is a way of saying "Yeah, we know about this, but we're not dealing with this...." Without this intro, the intent of the paragraph is less clear. 

I must say I am quite surprised you think only "several participants" in the Subgroup "recognize" that "many countries impose sanctions regimes and cooperate in the creation and enforcement of sanctions." It follows from this that you think that the rest of the Subgroup does not recognize that "many countries impose sanctions regimes and cooperate in the creation and enforcement of sanctions." 

Perhaps I have a higher opinion of the Subgroup, but I would surprised to find out anyone in the subgroup sincerely does not recognize that "many countries impose sanctions regimes and cooperate in the creation and enforcement of sanctions." Thus, I strongly believe that the proposed change would introduce a false statement into the Report, and thus it would not be appropriate to make this change for that reason as well.

In contrast with the statement of fact discussed above, the new text you suggest is a statement of opinions -- or more precisely, a series of opinions, admittedly held by only "several participants." As you know, this Recommendation will be part of the Subgroup's Report, which is essentially a consensus document (although not likely to be a full consensus document). As such, statements about the views of only "several participants" should not be in the Report.

Best regards,

Greg

On Wed, Sep 20, 2017 at 5:37 PM, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com> wrote:

	Naturally, this footnote is note descriptive but argumentative.  If you want to be descriptive the final clause should read:

	Several participants of the Subgroup [delete: expressly recognize] [insert: contend] that the country where ICANN is incorporated is in a unique position to enforce its sanctions regime against ICANN’s DNS management, which take place in that country’s territory and are subject to that country’s territorial sovereignty, notably its exclusive enforcement jurisdiction. [Insert:  Other participants in the Subgroup disagree with that contention and do not think that the country of incorporation is in a unique position to enforce sanctions against ICANN.]

	P

	Paul Rosenzweig
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	-----Original Message-----
	From: ws2-jurisdiction-bounces at icann.org <mailto:ws2-jurisdiction-bounces at icann.org>  [mailto:ws2-jurisdiction-bounces at icann.org <mailto:ws2-jurisdiction-bounces at icann.org> ] On Behalf Of Thiago Braz Jardim Oliveira
	Sent: Wednesday, September 20, 2017 4:24 PM
	To: 'Greg Shatan' <gregshatanipc at gmail.com>; ws2-jurisdiction <ws2-jurisdiction at icann.org>
	Subject: [Ws2-jurisdiction] RES: Proposed Final OFAC Recommendation for Plenary

	Dear Greg,
	Dear All,

	The version attached contains an amendment to footnote 5 (at p. 2), which, as it was intended to be descriptive, should now better reflect the different views expressed within the subgroup. Thank you.

	Best,

	Thiago

	-----Mensagem original-----
	De: ws2-jurisdiction-bounces at icann.org <mailto:ws2-jurisdiction-bounces at icann.org>  [mailto:ws2-jurisdiction-bounces at icann.org <mailto:ws2-jurisdiction-bounces at icann.org> ] Em nome de Greg Shatan Enviada em: quarta-feira, 20 de setembro de 2017 02:18
	Para: ws2-jurisdiction
	Assunto: [Ws2-jurisdiction] Proposed Final OFAC Recommendation for Plenary

	As discussed on Monday's call, the plan is to submit the OFAC Recommendation for consideration by the Plenary in next week's call.  The document deadline for next week's plenary is 23:59 UTC on Wednesday, September 20.

	As promised on Monday's call, I revised the draft recommendation in Google Docs to reflect the discussions on the call and then circulated PDF and Word copies to the list for review and comment.  I received comments from Milton Mueller on the list, which were consistent with the Monday call, and the draft has been updated with these comments.

	I am attaching PDF and Word copies of the latest version of the OFAC Recommendation, which I believe is very close to final form.  I have included a clean copy of the proposed final version, and a version with track changes, showing the changes to the pre-call version of the Recommendations.  IF you want to read the Recommendation, I think the clean version is much easier to follow.  The track changes version is useful if you want to see what changes are made.

	So that we may have a Google Doc that shows the proposed final OFAC Recommendation as it will be submitted (i.e., without revisions and comments), I have created a new Google Doc, which I encourage you all to read over one more time before it goes to the plenary.   The link is:
	 MailScanner has detected definite fraud in the website at "docs.google.com". Do not trust this website: https://docs.google.com/document/d/1xLDx7IevK2s7yQ1naD3cjnlPGnO7oPrRUN61RKEesFc/edit?usp=sharing <https://docs.google.com/document/d/1xLDx7IevK2s7yQ1naD3cjnlPGnO7oPrRUN61RKEesFc/edit?usp=sharing> 

	The marked-up version and all prior drafts are still available at the link previously circulated.

	If there are any further refinements, corrections, etc., please put them into new, clean version on Google Docs, or add them to the clean document attached here and send it back to the list.

	Thanks!

	Greg