[Ws2-jurisdiction] OFAC Rec.s

Sun Sep 24 01:13:10 UTC 2017

Greg
Leon
All
thanks to all of you reflecting on the matter .
I suggest the following

1.In the introductory part of the document, briefly describe the case as
reported by me( See my earlier message reporting / describing the case )

2. in the recommends part insert the following

The group in attempting to address the case mentioned above  while did not
find any provision in RAA to obligate the Resello to get into a business
with the domain name reseller  to provide the requested domain name did not
find also any provisionin the RAA  to allow the registrar to reject / deny
the request .The group  therefore considered  that there was a need  that
ICANN further examine the  matter  with a view to address the silent point
in the RAA.

Do are agree to act and reflect that minimum information

Kavouss

On Sat, Sep 23, 2017 at 10:44 PM, León Felipe Sánchez Ambía <
leonfelipe at sanchez.mx> wrote:

> Dear Kavouss,
>
> Thanks for your quick reply. My answers below.
>
> Best regards,
>
>
> León
>
> El 23/09/2017, a las 17:29, Arasteh <kavouss.arasteh at gmail.com> escribió:
>
> Dear Leon
> Thanks
> Finally one of the co-/chairs came in after days and days of discussions
>
>
> We try to let discussions flow on their own. We only step in when we
> believe there is some facilitation needed. As I believe is the case. So
> this was no lack of attention or dedication but a continued exercise of
> neutrality.
>
> Do you believe that a Registrar having RAA could unilaterally refuse to
> enter into a business with an individual as it assumes that has had full
> freedom to decide as such
>
>
> One thing is what I do or don’t believe, another very different is the
> fact that there isn’t anything in the RAA (to the best of my knowledge)
> that takes away any Registrars freedom to manage its business as it sees
> fit its interests. This last fact is what I would encourage us all to focus
> rather than in personal beliefs which, as noble as they may be, are out of
> our discussion’s scope.
>
> Pls as a lawyer tell me the following
> If a Registrar could decide ax such what is the purpose and usefulness of
> RAA
>
> Any contract is based in the freedom of contracting of the parties that
> agree to it. If one does not agree with what is in a given contract, one
> does not enter into it or otherwise proposes changes and if they’re
> rejected one keeps away from signing it.
>
> THROW IT INTO BASKET,
> I believe there must be some obligation to positively respond as DNS is
> not a personal affairs such as selling potatoes .
>
> This is not the scope of this subgroup’s discussion in my opinion. RAA is
> something shaped through a PDP so if there were any reforms to be made I am
> sure they should be ran through the PDP for that end.
>
> I wonder how you came to the conclusions that Resello has full freedom to
> treat Domain Name  which is an international resources similar to potatoes
>
> My knowledge and understanding might not be as good as yours so I
> apologize if my limitations led me to conclusions which your higher
> knowledge may lead differently. However, with my limited knowledge and
> understanding, I came to that conclusion based on the contractual freedom
> that the parties have as a matter of legal principle. I could, of course,
> be wrong.
>
> Moreover ,In your .view what is the difficulty to I include this actual
> and real case reported in the document
> Because one or some .,,,individual do not wish to do so on a non founded
> ground
>
> I have no problem in including whatever the subgroup and the plenary wish
> to include in the report. Remember that anyone can also add a dissenting
> view to whatever conclusions the subgroup arrives to.
>
> Regards
> Kavouss
>
>
>
> Sent from my iPhone
>
> On 23 Sep 2017, at 23:58, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>
> wrote:
>
> Dear Kavouss,
>
> It seems to me there is some miscommunication here between Greg and
> yourself.
>
> If I understand well, you are asking under what basis could Resellor
> refuse to enter into business with any person, company or country. Is that
> right Kavouss?
>
> On the other hand, I believe Greg has stated that being no contractual
> obligation for Resellor to be forced to enter into business with persons,
> companies or countries with which it does not want to do business with,
> then Resellor is free to chose, freely, who to do business with. Is that
> right Greg?
>
> I hope this helps us bridge this communication gap I feel we’re having.
>
>
> Best regards,
>
>
> León
>
> El 23/09/2017, a las 16:52, Arasteh <kavouss.arasteh at gmail.com> escribió:
>
> Dear Greg
> You turn my question around and around
> I am asking you under what terms and conditions of RAA , Resellor could
> deny to get involve in a business with a reseller of domain name under RAS .
> It is not a private business of selling chocolate . It is Domain Name.
> I know you naught have some sympathy with them ad you believe they are
> free to act relating to domain name under a global interest such as they
> could deal with selling chocolate
> Pls be realistic
> Pls do not confuse .
> I request you and appeal you not to counter argue on something that has no
> logic
> They can not deny to deal with a domain name without any valid reason
> What is your personal problem to include that in the introduction as a
> real and actual case formally reported to the group
> Why you dispute with me on a fact and reality
> Why you authorise yourself to be a judge
> We have not given you such authority
> You self volunteered and we gave not objected to that provided that you do
> not disputes with us
> You have no right to disputed
> We are on equal fooling
> There is no superiority between we two
> Pls once again and again and again mention this fact and reality in the
> introduction as reported since you can not deny that
> You have formally asked me on two consecutive calls to provide you with
> example and now it is a full week that you disputed and disputed with us
> Is there any other motivation that you continue to reject my proposal
> I will not give up
> I will continue to ask and ask à faire treatment
>
>
> Sent from my iPhone
>
> On 23 Sep 2017, at 22:32, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> It's their business. I assume they can run it as they see fit, unless they
> violate their contract or the law. As such there would be no need for a
> provision of the sort you envision. Frankly, I've never seen such a
> provision in a contract of any sort.
>
> I'm sure it's not your intention, but it seems as if you just turned my
> question around without attempting to answer it.
>
> In any event, if there is no provision governing the company's discretion
> to enter into Reseller agreements with the parties of their choosing, then
> their decision  would not be contrary to the terms and conditions of their
> RAA.
>
> In any event, if you could review the RAA and see how it might apply to
> this situation, that would help the Subgroup evaluate the RAA element of
> your proposal.
>
> Best regards,
>
> Greg
>
>
> On Sat, Sep 23, 2017 at 2:19 PM Arasteh <kavouss.arasteh at gmail.com> wrote:
>
>> I have no specific section in mind
>> I just want to know which section of RAA give such authority to  resello
>> to deny service?
>> Regards
>> Kavouss
>>
>> Sent from my iPhone
>>
>> On 23 Sep 2017, at 21:54, Greg Shatan <gregshatanipc at gmail.com> wrote:
>>
>> Kavouss,
>>
>> I am out for the day, so I will give this a more detailed review later.
>> One quick question -- what section of the RAA are you referring to? That
>> will help the Subgroup understand your proposal better.
>>
>> Thank you.
>>
>> Greg
>>
>> On Sat, Sep 23, 2017 at 2:21 AM Kavouss Arasteh <
>> kavouss.arasteh at gmail.com> wrote:
>>
>>> De ar Greg,
>>> Sorry for misinterpretation .I did not make any allegatiuon at all
>>> I just reflected my impression of the way the matter is treated.
>>> The statement you made above, could only be interpreted that the
>>> suggestion made is not favoured by you according to your reasoning and or
>>> your judgement .
>>> In my view when Something is not pursued it is blocked.My be the term
>>> blocked was not a correct one but in reality it did not carried forward
>>> Sorry ,if the term " Blocked " boithered you then I replaced it by " is
>>> not currently being carried forward "
>>> Now back to the issue Under discussion
>>> Yes , it does not have direct relation with OFAC but why not you mention
>>> what you said in your last reply as follows
>>>
>>>
>>> *"It was reported to the Group that a registrar ( RESELLO) has developed
>>> / used a business policy of not doing business with Iranian passport
>>> holders, independent of any sanctions, US or otherwise.  This may be a bad
>>> policy, .The group did not conclude that  it has any  direct ( or indirect
>>> ) connection to sanctions (US or otherwise) or ICANN's jurisdiction.The
>>> Group inferred from Resello's decision that there are reasons, unrelated to
>>> OFAC, for declining to do business with nationals of an OFAC-sanctioned
>>> country. There seems to be legitimate that ICANN  investigate the matter
>>> carefully and remind RESELLO that such course of action would be
>>> counterproductive as it is contray to the terms and conditions specified7
>>> stipulated in the RAA".*
>>>
>>> As you know I have raised this matter, independently from the activities
>>> of the Jurisdiction Group with Chairman,and CEO of ICANN and chair of the
>>> GNSO Council copied to to CCWG co-chairs and you .
>>>
>>> Now may I kindly request you to consider the language that I proposed
>>> you and include it in appropriate / relevant part of the Report with
>>> ,possibly, some cross refernce in the body of recommands part .
>>> Awaiting your kind consideration and quick reply
>>> Kavouss
>>>
>>> On Fri, Sep 22, 2017 at 7:24 PM, Greg Shatan <gregshatanipc at gmail.com>
>>> wrote:
>>>
>>>> Kavouss,
>>>>
>>>> I am not "blocking" anything, either.
>>>>
>>>> It is a very serious allegation to say that a rapporteur is blocking
>>>> something that they "do not like."  You have absolutely no idea what I
>>>> "like" and "do not like."
>>>>
>>>> The "problem" with "indicating" the Resello situation "in the
>>>> introductory part of the Report" is that it has absolutely no connection,
>>>> direct or indirect, to OFAC sanctions or to ICANN's "jurisdiction" -- in
>>>> the US or elsewhere.
>>>>
>>>> You have chosen to infer that Resello's policy is somehow related to
>>>> OFAC, even though they are a non-US registrar and they have made absolutely
>>>> no reference to OFAC or US law or ICANN.  There is no basis for that
>>>> inference.  Without a basis, there is no reason for the Subgroup to include
>>>> the Resello situation in the Recommendations on US sanctions or sanctions
>>>> generally.
>>>>
>>>> Without any connection to OFAC, sanctions regime or ICANN's
>>>> jurisdiction, "Resello" only shows us that a registrar has a business
>>>> policy of not entering into reseller agreements with Iranian passport
>>>> holders.  Personally, I do not like this policy (so now you have some idea
>>>> what I "do not like"), though I would want more facts before making a final
>>>> judgment.
>>>>
>>>> But why would it be in our Report?  It shows that a registrar developed
>>>> a business policy of not doing business with Iranian passport holders,
>>>> independent of any sanctions, US or otherwise.  This may be a bad policy,
>>>> but we can't say it has any connection to sanctions (US or otherwise) or
>>>> ICANN's jurisdiction.  Putting this in the Report would not support any
>>>> Issues or Recommendation the Subgroup has identified.  If anything, it
>>>> would be counterproductive, as it could infer from Resello's decision that
>>>> there are reasons, unrelated to OFAC, for declining to do business with
>>>> nationals of an OFAC-sanctioned country.  Why would we want that in this
>>>> Report?
>>>>
>>>> I look forward to your response to these concerns.
>>>>
>>>> Best regards,
>>>>
>>>> Greg Shatan
>>>>
>>>> On Wed, Sep 20, 2017 at 5:32 PM, Erika Mann <erika at erikamann.com>
>>>> wrote:
>>>>
>>>>> Dear Kavouss -
>>>>> I'm not blocking anything. Just making a comment with regard to the
>>>>> point you raised in relation to the Dutch case, insofar that I was saying
>>>>> the Dutch decision might relate to an EU restriction and not to an US
>>>>> restriction.
>>>>>
>>>>> Kind regards,
>>>>> Erika
>>>>>
>>>>> On Wed, Sep 20, 2017 at 10:09 PM, Kavouss Arasteh <
>>>>> kavouss.arasteh at gmail.com> wrote:
>>>>>
>>>>>> Dear Greg
>>>>>> Dear Erika$
>>>>>>  What is the problem that you indicate that in the introductory part
>>>>>> of the Report.
>>>>>> You have asked me on 13 and 18 of September to provide you with the
>>>>>> factual evidence on this type of discrimination or restriction and I have
>>>>>> provided that to you.
>>>>>> You you are blocking it. You are are expected to reflect the report
>>>>>> on this type of restriction whether directly or indirectly related to OFAC.
>>>>>> Your action is not to decide what is right and what is wrong. There
>>>>>> is no veto right given to you .I insist to reflect that .
>>>>>> Pls kindly do not further block this
>>>>>> You blocking whatever, you do not like
>>>>>> Pls kindly, ionce again. be helpful, fair and collaborative
>>>>>> Regards
>>>>>> Kavouss
>>>>>>
>>>>>> On Wed, Sep 20, 2017 at 8:06 PM, Greg Shatan <gregshatanipc at gmail.com
>>>>>> > wrote:
>>>>>>
>>>>>>> Kavouss,
>>>>>>>
>>>>>>> As a factual happening, I don't see why this should be reflected in
>>>>>>> our report.  Resello's business decision does not seem to be related to
>>>>>>> OFAC, US jurisdiction or to any ICANN-related jurisdiction.
>>>>>>>
>>>>>>> I asked you whether Resello's agreement with ICANN (the Registrar
>>>>>>> Accreditation Agreement (RAA)) prohibits Resello from establishing the
>>>>>>> policy you have mentioned.  If ICANN does not prohibit this policy, and it
>>>>>>> is not triggered by OFAC or some other connection to ICANN's jurisdictions,
>>>>>>> then it seems to be unconnected to our work.
>>>>>>>
>>>>>>> I don't know whether there is an EU or Dutch law that requires this
>>>>>>> policy, or whether there is one that prohibits it.  If there is one that
>>>>>>> requires it, that is not an "ICANN jurisdiction" issue.  If there is one
>>>>>>> that prohibits it and Resello is violating Dutch law, then it may be that
>>>>>>> Resello is violating the RAA requirement (Section 3.7.2) that Registrars
>>>>>>> abide by applicable law.  But again, that's a Compliance issue.
>>>>>>>
>>>>>>> Best regards,
>>>>>>>
>>>>>>> Greg
>>>>>>>
>>>>>>> On Wed, Sep 20, 2017 at 1:46 PM, Kavouss Arasteh <
>>>>>>> kavouss.arasteh at gmail.com> wrote:
>>>>>>>
>>>>>>>> Dear Greg
>>>>>>>> I do not know what question you raised.
>>>>>>>> If you believe that
>>>>>>>> *Mark Assenberg from Resello  which is a subsidiary company for *
>>>>>>>> *Yourholding** holding:*
>>>>>>>>
>>>>>>>> *with the below address Ceintuurbaan 28
>>>>>>>> <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&source=g>,8024
>>>>>>>> AA Zwolle
>>>>>>>> <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&source=g>,
>>>>>>>> +31 38 453 0752 <+31%2038%20453%200752>*
>>>>>>>> *based in Netherlands.being  a  non  US-Based company  on the basis
>>>>>>>> of which *section of the RAA refrain such a business decision
>>>>>>>> (i.e., a registrar deciding not to do business with citizens of a given
>>>>>>>> country (whether it is Canada, Haiti, Iran or otherwise)?
>>>>>>>> May you address this issue as a factual happening .
>>>>>>>> Pls kindly advise how you trest and reflect that in the report
>>>>>>>> Regards
>>>>>>>> Kavouss
>>>>>>>>
>>>>>>>> On Wed, Sep 20, 2017 at 7:28 PM, Nigel Roberts <
>>>>>>>> nigel at channelisles.net> wrote:
>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> On 20/09/17 18:19, Greg Shatan wrote:
>>>>>>>>>
>>>>>>>>> Can you please guide me to the section of the RAA that would
>>>>>>>>>> prevent
>>>>>>>>>> such a business decision (i.e., a registrar deciding not to do
>>>>>>>>>> business
>>>>>>>>>> with citizens of a given country (whether it is Canada, Haiti,
>>>>>>>>>> Iran or
>>>>>>>>>> otherwise)?
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>> In the United Kingdom, never mind the RAA,
>>>>>>>>> <https://maps.google.com/?q=Ceintuurbaan+28,8024+AA+Zwolle+%3Chttps://maps.google.com/?q%3DCeintuurbaan%2B28%2B8024%2BAA%2BZwolle%26entry%3Dgmail%26source%3Dg%3E&entry=gmail&source=g>
>>>>>>>>> this would be quite illegal (see s.13, prohibited conduct) unless such
>>>>>>>>> treatment is required by law (e.g.  required by legally binding sanctions).
>>>>>>>>>
>>>>>>>>> How can anyone in the 21st century believe that any "business
>>>>>>>>> decision" doctrine could allow making decisions on the basis of
>>>>>>>>> race/citizenship (or any other protected characteristic) is quite alien
>>>>>>>>> over here and incomprehensible.
>>>>>>>>>
>>>>>>>>> http://www.legislation.gov.uk/ukpga/2010/15
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> _______________________________________________
>>>>>>>>> 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
>>>>>>>>
>>>>>>>>
>>>>>>>
>>>>>>
>>>>>
>>>>
>>>
>
>
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