[Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC Recommendation -- Further Suggested Revisions
Greg Shatan
gregshatanipc at gmail.com
Tue Sep 26 14:27:26 UTC 2017
Seun,
It seemed clear to me, from both Kavouss's and Farzaneh's emails, that
Resello is a Dutch entity. Can you point to the language you are relying
on?
In any event, if it were a US-based entity, I believe your position is
consistent with the Subgroup's view.
Greg
On Tue, Sep 26, 2017 at 10:06 AM, Seun Ojedeji <seun.ojedeji at gmail.com>
wrote:
> Dear all,
>
> Based on the background recently provided, it seem resello is a US based
> entity so one would expect OFAC to apply just like it does for ICANN.
>
> Should ICANN then be the one to ask for a waiver for resello? I don't
> think so.
>
> Regards
> Sent from my mobile
> Kindly excuse brevity and typos
>
> On Sep 26, 2017 2:13 PM, "Paul Rosenzweig" <paul.rosenzweig@
> redbranchconsulting.com> wrote:
>
>> As I read it they said “our policy” not “our national policy” – and in
>> any event “our national policy” might very well mean “the policy we follow
>> nation-wide” and not “the policy our national government imposes.”
>>
>>
>>
>> P
>>
>>
>>
>> Paul Rosenzweig
>>
>> paul.rosenzweig at redbranchconsulting.com
>>
>> O: +1 (202) 547-0660 <+1%20202-547-0660>
>>
>> M: +1 (202) 329-9650 <+1%20202-329-9650>
>>
>> VOIP: +1 (202) 738-1739 <+1%20202-738-1739>
>>
>> www.redbranchconsulting.com
>>
>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830
>> 097CA066684
>>
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org] *On Behalf Of *Kavouss Arasteh
>> *Sent:* Tuesday, September 26, 2017 8:51 AM
>> *To:* Burr, Becky <Becky.Burr at team.neustar>; ws2-jurisdiction <
>> ws2-jurisdiction at icann.org>
>> *Subject:* Re: [Ws2-jurisdiction] [EXTERNAL] Re: [Ext] RES: OFAC
>> Recommendation -- Further Suggested Revisions
>>
>>
>>
>> Dear Beckie
>>
>> Yes pls read the text as he said " *based on our national Policy *......"
>>
>> Kavouss
>>
>>
>>
>> On Tue, Sep 26, 2017 at 2:04 PM, Burr, Becky <Becky.Burr at team.neustar>
>> wrote:
>>
>> Could someone clarify one point for me? Did the Registrar affirmatively
>> state that it was unwilling to work with Iranian reseller because of OFAC?
>> Or it that an assumption only?
>>
>> Becky Burr
>>
>> Sent from my iPhone
>>
>>
>> On Sep 26, 2017, at 18:26, Kavouss Arasteh <kavouss.arasteh at gmail.com>
>> wrote:
>>
>> Dear Greg
>>
>> Thanks
>>
>> The issue is that the Registrar refusal to get involved in the business
>> apparently and perhaps actually resulted from misinterpretation of OFAC
>> Regulations as that Registrar was over prudent to totally exclude any
>> likelihood of application of OFAC by US to the case .
>>
>> If in the view of the group , see the compilation of views by all of you
>> as conveyed to you as a cut and paste text , there is no link between the
>> request and OFAC then it should be explained that such irrelevance of the
>> refusal to OFAC as the refusal seemed to have been based on the
>> misinterpretation of the Registrar that there might have been a relation
>> thereto
>>
>> Then, the group while confirming that inapplicability of OFAC to the
>> case needs to (to be mentioned in the document to clarify the matter for
>> the case and for any future misinterpretation.
>>
>> Moreover, the group needs to mention that the need to verify whether
>> there is a clear provision in the RAA to obligate the Registrar to enter
>> into business with registrant or there is no provision to authorise it to
>> refuse ,i.e. silent situation in RAA . In that case the Group while
>> excluding the applicability or relation between the request and OFAC
>> recommend ICANN to examine the matter and take necessary action, as
>> appropriate
>>
>> Regards
>>
>> Kavouss
>>
>>
>>
>> On Tue, Sep 26, 2017 at 9:02 AM, Greg Shatan <gregshatanipc at gmail.com>
>> wrote:
>>
>> Kavouss,
>>
>>
>>
>> It might help Paul and others to understand your point if you could
>> explain your three points, specifically:
>>
>> a) Why it is necessary to include this case/anecdote in the OFAC
>> Recommendation
>>
>> b) Why it is relevant to the OFAC Recommendation that Resello's decision
>> could *not* be attributed to OFAC applicability
>>
>> c) Why it is relevant to the OFAC Recommendation that the RAA has no
>> obligation for the Registrar to enter into the requested Reseller agreement
>>
>>
>>
>> Best regards,
>>
>>
>>
>> Greg
>>
>>
>>
>> On Tue, Sep 26, 2017 at 1:04 AM, Arasteh <kavouss.arasteh at gmail.com>
>> wrote:
>>
>> Paul
>>
>> You have never ever Been at loss
>>
>> This addition is necessary to address the case as contained in my
>> suggestion as further elaborated in the sense a) to include the case as
>> reported , b) to mention that the refusal of Resello could not be
>> attributed to the likelihood of OFAC applicability and c) to Mention that
>> RAA is silent in obligation of Registrar to enter into business with
>> requérant of domain name purchase as well as its refusal
>>
>> I hope it is clear
>>
>> Tks
>>
>> Kavouss
>>
>>
>> Sent from my iPhone
>>
>>
>> On 26 Sep 2017, at 00:57, Paul Rosenzweig <paul.rosenzweig at redbranchcons
>> ulting.com> wrote:
>>
>> We already have .. at some length. I confess in this instance I really
>> am at a loss as to what more is desired.
>>
>>
>>
>> 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
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=grvWAwyNT097vY4v9uiI5SpAWPQ9RL3qJnEKLDZJJ4o&e=>
>>
>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830
>> 097CA066684
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=QZg6_N_7tZaDa5yi_94NMsyDiQhAX1f-AGdeWkzBOJY&e=>
>>
>>
>>
>> *From:* Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch
>> <Jorge.Cancio at bakom.admin.ch>]
>> *Sent:* Monday, September 25, 2017 10:25 AM
>> *To:* paul.rosenzweig at redbranchconsulting.com; olgacavalli at gmail.com;
>> Samantha.Eisner at icann.org
>> *Cc:* ws2-jurisdiction at icann.org
>> *Subject:* AW: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation --
>> Further Suggested Revisions
>>
>>
>>
>> Dear all, dear Paul,
>>
>>
>>
>> I guess what is being highlighted is a potential „chilling effect“ that
>> could be addressed through improved awareness and communication – something
>> we may well mention in this recommendation…
>>
>>
>>
>> Kind regards
>>
>>
>>
>> Jorge
>>
>>
>>
>> *Von:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org <ws2-jurisdiction-bounces at icann.org>] *Im Auftrag von *Paul
>> Rosenzweig
>> *Gesendet:* Montag, 25. September 2017 16:12
>> *An:* 'Olga Cavalli' <olgacavalli at gmail.com>; 'Samantha Eisner' <
>> Samantha.Eisner at icann.org>
>> *Cc:* 'ws2-jurisdiction' <ws2-jurisdiction at icann.org>
>> *Betreff:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation --
>> Further Suggested Revisions
>>
>>
>>
>> In the end, the problem is that the question of RAA implementation is a
>> completely differerent issue from OFAC. The real reason this is
>> problematic is that an unreleated issue is being shoehorned into an
>> existing, otherwise complete, recommendation.
>>
>>
>>
>> We should move consideration of the RAA issue raised to a new issue
>> subhead in the Subgroup.
>>
>>
>>
>> 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
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=grvWAwyNT097vY4v9uiI5SpAWPQ9RL3qJnEKLDZJJ4o&e=>
>>
>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830
>> 097CA066684
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=QZg6_N_7tZaDa5yi_94NMsyDiQhAX1f-AGdeWkzBOJY&e=>
>>
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Olga
>> Cavalli
>> *Sent:* Saturday, September 23, 2017 4:42 PM
>> *To:* Samantha Eisner <Samantha.Eisner at icann.org>
>> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation --
>> Further Suggested Revisions
>>
>>
>>
>> Dear all,
>>
>>
>>
>> could it be possible to address Mr Araste's concerns?
>>
>>
>>
>> perhaps producing a new document with references to comments by himself
>> and others?
>>
>>
>>
>> This could be very useful for us following the discussion as the thread
>> of emails sometimes becomes confusing.
>>
>>
>>
>> best regards
>>
>>
>>
>> Olga
>>
>>
>>
>> 2017-09-22 14:52 GMT-07:00 Samantha Eisner <Samantha.Eisner at icann.org>:
>>
>> Sorry for the delay in responding - I'm traveling internationally and
>> have not been able to stay fully on top of the email traffic. Greg and
>> Paul, thank you for your responses on the issue and for also recognizing
>> that the question does reach into providing legal advice that ICANN is not
>> in a position to give. I agree with your analyses.
>>
>>
>>
>> As noted, I've previously stated that ICANN agrees that OFAC does not
>> apply to any of ICANN's contracted parties solely due to a contract with
>> ICANN.
>>
>>
>>
>> Contracted parties each need to assess for themselves whether they must
>> comply with the OFAC regulations based on whatever business factors they
>> choose to take into account.
>>
>>
>>
>> ____
>>
>> Samantha Eisner
>>
>> Deputy General Counsel, ICANN
>>
>> 12025 Waterfront Drive, Suite 300
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-5F-5F-5F-5F-2BLos-2BAngeles-2C-2BCalifornia-2B90094-5F-5F-5F-5F-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=l0zMXq81yFPIhPWH9iYzDLnDtfycIlng1sD9-RJ8UNM&e=>
>>
>> Los Angeles, California 90094
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-5F-5F-5F-5F-2BLos-2BAngeles-2C-2BCalifornia-2B90094-5F-5F-5F-5F-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=l0zMXq81yFPIhPWH9iYzDLnDtfycIlng1sD9-RJ8UNM&e=>
>>
>> USA
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-5F-5F-5F-5F-2BLos-2BAngeles-2C-2BCalifornia-2B90094-5F-5F-5F-5F-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=l0zMXq81yFPIhPWH9iYzDLnDtfycIlng1sD9-RJ8UNM&e=>
>>
>> Direct Dial: +1 310 578 8631 <(310)%20578-8631>
>> ------------------------------
>>
>> *From:* ws2-jurisdiction-bounces at icann.org <ws2-jurisdiction-bounces at ican
>> n.org> on behalf of Greg Shatan <gregshatanipc at gmail.com>
>> *Sent:* Friday, September 22, 2017 11:09 AM
>> *To:* Tijani BEN JEMAA
>> *Cc:* ws2-jurisdiction
>> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation --
>> Further Suggested Revisions
>>
>>
>>
>> Tijani,
>>
>>
>>
>> Paul is being a bit lawyerly and careful and emphasizing that there is no
>> positive statement in the law or regulations that one can point to and say,
>> "this says OFAC doesn’t apply to any of ICANN's contracted parties solely
>> due to their contracts with ICANN." He has also explained that there would
>> not be, because that's not how laws work (or regulations, except if there
>> were a general license -- but a general license would only be needed if the
>> sanctions would otherwise apply).
>>
>>
>>
>> Sam is also being careful (and has to be, because ICANN cannot give legal
>> advice on OFAC compliance to contracted parties), when she confirms that
>> "ICANN cannot and does not obligate its contracted parties to follow OFAC
>> regulations." But consider that Sam also said that "*ICANN agrees that
>> OFAC does not apply to any of ICANN's contracted parties solely due to a
>> contract with ICANN*." Considering how careful ICANN has to be in not
>> giving legal advice on OFAC compliance, this should be highly persuasive.
>>
>>
>>
>> Consider also that all contracting parties would be in breach of their
>> ICANN contracts if US law required them all to comply with OFAC because
>> they have an ICANN contract and they did not do so. Do you think ICANN or
>> the US government would tolerate such widespread violation of law and
>> breach of contract?
>>
>>
>>
>> Like Becky I'll be a little less lawyerly, and say that I can find
>> absolutely no basis for concern that OFAC applies to any of ICANN's
>> contracted parties solely because they have entered into a contract with
>> ICANN.
>>
>>
>>
>> Greg
>>
>>
>>
>> On Fri, Sep 22, 2017 at 1:43 PM, Tijani BEN JEMAA <
>> tijani.benjemaa at topnet.tn> wrote:
>>
>> Thank you Paul,
>>
>>
>>
>> So, since no firm answer can be given, it is not sure that OFAC doesn’t apply
>> to any of ICANN's contracted parties solely due to their contracts with
>> ICANN, which is a concern in my opinion.
>>
>>
>>
>> ------------------------------------------------------------
>> -----------------
>>
>> *Tijani BEN JEMAA*
>>
>> Executive Director
>>
>> Mediterranean Federation of Internet Associations (*FMAI*)
>>
>> Phone: +216 98 330 114 <+216%2098%20330%20114>
>>
>> +216 52 385 114 <+216%2052%20385%20114>
>>
>> ------------------------------------------------------------
>> -----------------
>>
>>
>>
>>
>>
>> Le 22 sept. 2017 à 13:13, Paul Rosenzweig <paul.rosenzweig at redbranchcons
>> ulting.com> a écrit :
>>
>>
>>
>> Hi Tijani
>>
>>
>>
>> Let me try. You ask “According to the California or US jurisdictions”
>> I assume you mean EITHER the executive branches of those areas or their
>> courts.
>>
>>
>>
>> As to California – OFAC is a Federal law, so the California state
>> government would have no authority to construe the law or enforce it. As a
>> result, no action to enforce OFAC requirements has ever been brought by
>> California or adjudicated by California courts. Since the law is outside
>> of their scope of reference this is not surprising.
>>
>>
>>
>> As to the Federal government, its rules regarding the scope of OFAC are
>> set forth in regulations that are discussed in detail in the draft report
>> the group put together. Those regulations do not directly address ICANN
>> (or any other specific business entity) but describe widely the categories
>> and types of people and institutions to which it applies. The US
>> government through the Department of Treasury has never been asked about
>> ICANN’s contracted parties directly and if asked they probably would refuse
>> to answer a hypothetical. So we are left only with the regulations – and
>> as to those, I agree with Sam that the best reading of them is that they
>> apply to ICANN but not the contracted parties (unless the contracted
>> parties are themselves US companies independently subject to OFAC).
>>
>>
>>
>> Since no enforcement action has ever been brought against ICANN or a
>> contracted party in a US court, no US court has ever answered the question
>> you ask
>>
>>
>>
>> Hope that helps
>>
>> 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[redbranchconsulting.com]
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=dYTtbBIgukseIqTDSE_jTP6FcRo3hGEm3jck9IgSNlI&s=FsheHq6zPytklxrdyXT0gBBB9bIiM9n2wk_Fbuglkwg&e=>
>>
>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x
>> 9A830097CA066684[keys.mailvelope.com]
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=dYTtbBIgukseIqTDSE_jTP6FcRo3hGEm3jck9IgSNlI&s=5LOM0e7F4IVRj4YB10BUhCEuJx6mKXl3NBgL0KM8-Nk&e=>
>>
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdi
>> ction-bounces at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf
>> Of *Tijani BEN JEMAA
>> *Sent:* Thursday, September 21, 2017 4:22 PM
>> *To:* Samantha Eisner <Samantha.Eisner at icann.org>
>> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> *Subject:* Re: [Ws2-jurisdiction] [Ext] RES: OFAC Recommendation --
>> Further Suggested Revisions
>>
>>
>>
>> Thank you Sam,
>>
>>
>>
>> You didn’t answer my question which was:
>>
>> According to the California and US jurisdictions, does OFAC apply to any
>> of ICANN's contracted parties solely due to their contracts with ICANN?
>>
>>
>>
>> I will very much appreciate a clear and to the point answer.
>>
>>
>>
>> ------------------------------------------------------------
>> -----------------
>>
>> *Tijani BEN JEMAA*
>>
>> Executive Director
>>
>> Mediterranean Federation of Internet Associations (*FMAI*)
>>
>> Phone: +216 98 330 114 <+216%2098%20330%20114>
>>
>> +216 52 385 114 <+216%2052%20385%20114>
>>
>> ------------------------------------------------------------
>> -----------------
>>
>>
>>
>> Le 21 sept. 2017 à 20:45, Samantha Eisner <Samantha.Eisner at icann.org> a
>> écrit :
>>
>>
>>
>> ICANN cannot and does not obligate its contracted parties to follow OFAC
>> regulations. ICANN requires them to follow applicable laws.
>>
>> —
>>
>> Samantha Eisner
>>
>> Deputy General Counsel, ICANN
>>
>> 12025 Waterfront Drive, Suite 300
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-5F-5F-5F-5F-2BLos-2BAngeles-2C-2BCalifornia-2B90094-5F-5F-5F-5F-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=l0zMXq81yFPIhPWH9iYzDLnDtfycIlng1sD9-RJ8UNM&e=>
>>
>> Los Angeles, California 90094
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-5F-5F-5F-5F-2BLos-2BAngeles-2C-2BCalifornia-2B90094-5F-5F-5F-5F-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=l0zMXq81yFPIhPWH9iYzDLnDtfycIlng1sD9-RJ8UNM&e=>
>>
>> USA
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-5F-5F-5F-5F-2BLos-2BAngeles-2C-2BCalifornia-2B90094-5F-5F-5F-5F-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=l0zMXq81yFPIhPWH9iYzDLnDtfycIlng1sD9-RJ8UNM&e=>
>>
>> Direct Dial: +1 310 578 8631 <(310)%20578-8631>
>>
>>
>>
>> *From: *Tijani BEN JEMAA <tijani.benjemaa at topnet.tn>
>> *Date: *Wednesday, September 20, 2017 at 3:20 PM
>> *To: *Seun Ojedeji <seun.ojedeji at gmail.com>
>> *Cc: *Samantha Eisner <samantha.eisner at icann.org>, ws2-jurisdiction <
>> ws2-jurisdiction at icann.org>
>> *Subject: *[Ext] Re: [Ws2-jurisdiction] RES: OFAC Recommendation --
>> Further Suggested Revisions
>>
>>
>>
>> Thank you Samantha,
>>
>>
>>
>> You said « ICANN agrees that OFAC does not apply to any of ICANN's
>> contracted parties solely due to a contract with ICANN. ». Does that mean
>> that according to the California and US jurisdictions, OFAC does not apply
>> to any of ICANN's contracted parties solely due to a contract with ICANN?
>>
>>
>>
>> ------------------------------------------------------------
>> -----------------
>>
>> *Tijani BEN JEMAA*
>>
>> Executive Director
>>
>> Mediterranean Federation of Internet Associations (*FMAI*)
>>
>> Phone: +216 98 330 114 <+216%2098%20330%20114>
>>
>> +216 52 385 114 <+216%2052%20385%20114>
>>
>> ------------------------------------------------------------
>> -----------------
>>
>>
>>
>> Le 20 sept. 2017 à 21:44, Seun Ojedeji <seun.ojedeji at gmail.com> a écrit :
>>
>>
>>
>> Thanks a lot for that helpful response Samantha!
>>
>> Regards
>>
>> Sent from my mobile
>> Kindly excuse brevity and typos
>>
>>
>>
>> On Sep 20, 2017 9:37 PM, "Samantha Eisner" <Samantha.Eisner at icann.org>
>> wrote:
>>
>> Hi Seun -
>>
>>
>>
>> To your question below, and as noted in my presentation to the
>> Jurisdiction group below, ICANN agrees that OFAC does not apply to any of
>> ICANN's contracted parties solely due to a contract with ICANN. However,
>> ICANN cannot provide any advice to a contracted party as to which laws and
>> regulations are (or are not) applicable, and each contracted party is
>> responsible for understanding that as part of their business operations.
>>
>>
>>
>> Sam
>>
>> ____
>>
>> Samantha Eisner
>>
>> Deputy General Counsel, ICANN
>>
>> 12025 Waterfront Drive, Suite 300[maps.google.com]
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-250D-2BLos-2BAngeles-2C-2BCalifornia-2B90094-250D-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=9ca8NCIEA-Ax-xcRchljermQjUSdiR0U4i7sHsVe4pU&s=jqlKpYuoR60ghP7UB1YO7aIqTRwXGUJTucqk39U7mRA&e=>
>>
>> Los Angeles, California 90094[maps.google.com]
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-250D-2BLos-2BAngeles-2C-2BCalifornia-2B90094-250D-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=9ca8NCIEA-Ax-xcRchljermQjUSdiR0U4i7sHsVe4pU&s=jqlKpYuoR60ghP7UB1YO7aIqTRwXGUJTucqk39U7mRA&e=>
>>
>> USA[maps.google.com]
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3D12025-2BWaterfront-2BDrive-2C-2BSuite-2B300-250D-2BLos-2BAngeles-2C-2BCalifornia-2B90094-250D-2BUSA-26entry-3Dgmail-26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=9ca8NCIEA-Ax-xcRchljermQjUSdiR0U4i7sHsVe4pU&s=jqlKpYuoR60ghP7UB1YO7aIqTRwXGUJTucqk39U7mRA&e=>
>>
>> Direct Dial: +1 310 578 8631 <+1%20310-578-8631>
>> ------------------------------
>>
>> *From:*ws2-jurisdiction-bounces at icann.org <ws2-jurisdiction-bo
>> unces at icann.org> on behalf of Seun Ojedeji <seun.ojedeji at gmail.com>
>> *Sent:* Wednesday, September 20, 2017 1:17 PM
>> *To:* Mueller, Milton L
>> *Cc:* ws2-jurisdiction
>>
>>
>> *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further
>> Suggested Revisions
>>
>>
>>
>> Sent from my mobile
>> Kindly excuse brevity and typos
>>
>>
>>
>> On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton at gatech.edu> wrote:
>>
>> We do ask ICANN to clarify that registrars do not need to follow OFAC
>> sanctions simply due to their contracts with ICANN, and that is important.
>>
>> SO: Can we get ICANN legal to respond to the above as I think it will
>> help someone like myself move from sitting on the fence on this particular
>> topic.
>>
>>
>>
>> Regards
>>
>>
>>
>> *From:*ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdic
>> tion-bounces at icann.org] *On Behalf Of *Kavouss Arasteh
>> *Sent:* Wednesday, September 20, 2017 10:48 AM
>> *To:* Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br>;
>> Thomas Rickert <rickert at anwaelte.de>; León Felipe Sánchez Ambía <
>> leonfelipe at sanchez.mx>; Jordan Carter <jordan at internetnz.net.nz>
>> *Cc:* ws2-jurisdiction at icann.org
>> *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further
>> Suggested Revisions
>>
>>
>>
>> Deaar Thiago, Dear Jorge,
>>
>> Thanks to your positive r3sponse .I am waiting for Greg to resolve the
>> issue.
>>
>> I strongly oppose to the unilateral removal of the last paragraph as
>> result of off line exchange of views between two or three individual.
>>
>> We should be transparent
>>
>> We should listen to each other.We should consider problems of others
>>
>> Tks
>>
>> Regards
>>
>> Kavouss
>>
>>
>>
>> On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira <
>> thiago.jardim at itamaraty.gov.br> wrote:
>>
>> Dear Greg,
>>
>> I add my voice to Jorge's suggestion and look forward to an agreeable
>> solution.
>>
>> Best,
>>
>> Thiago
>>
>>
>> -----Mensagem original-----
>> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdict
>> ion-bounces at icann.org] Em nome de Jorge.Cancio at bakom.admin.ch
>> Enviada em: quarta-feira, 20 de setembro de 2017 05:10
>> Para: gregshatanipc at gmail.com
>> Cc: ws2-jurisdiction at icann.org
>> Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested
>> Revisions
>>
>>
>>
>>
>> Dear Greg,
>>
>> would it be possible that Kavouss' concerns are addressed by you also
>> bilaterally as he seems not to be satisfied with these explanations, This
>> could help avoiding any misunderstanding?
>>
>> I feel we are very close to consensus and such an effort would most
>> probably be helpful in order to allow all to be on board.
>>
>> kind regards
>>
>> Jorge
>>
>>
>> ________________________________
>>
>> Von: Greg Shatan <gregshatanipc at gmail.com>
>> Datum: 20. September 2017 um 07:25:56 MESZ
>> An: Arasteh <kavouss.arasteh at gmail.com>
>> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested
>> Revisions
>>
>> 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, it 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 it 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<mai
>> lto: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 at redbranchcons
>> ulting.com<mailto:paul.rosenzweig at 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<mailto:paul.
>> rosenzweig at redbranchconsulting.com>
>> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660
>> <(202)%20547-0660>>
>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650
>> <(202)%20329-9650>>
>>
>> VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739
>> <(202)%20738-1739>> www.redbranchconsulting.com[redbranchconsulting.com]
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=v-k9kgNfbevSG1hsn5C_hu8J81Lt2LmdyMcrbvhL3e8&e=>
>> <http://www.redbranchconsulting.com/[redbranchconsulting.com]
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=HnmhcBwRiPc7pnKaGKkyyI8tqyDISzgIfxYVHliaAzU&e=>
>> >
>> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x
>> 9A830097CA066684[keys.mailvelope.com]
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=SSg9DqnAreY7rqmepf941C1TwRABY8LDqML_434HenE&s=3dySAIxgq5-Bu6Q6V_dX3UG4LDr_Xc36YIrFFDwE5L0&e=>
>>
>>
>>
>> From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdic
>> tion-bounces at icann.org> [mailto: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<mailto:
>> 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
>> <mailto: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
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org<mailto:Ws2-jurisdiction at icann.org>
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=5MBhZo9ZQ16Oh9-oTT0ueNZBLLEhBYLfWOsCUtn-yqU&e=>
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=5MBhZo9ZQ16Oh9-oTT0ueNZBLLEhBYLfWOsCUtn-yqU&e=>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=5MBhZo9ZQ16Oh9-oTT0ueNZBLLEhBYLfWOsCUtn-yqU&e=>
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=5MBhZo9ZQ16Oh9-oTT0ueNZBLLEhBYLfWOsCUtn-yqU&e=>
>>
>>
>>
>>
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=5MBhZo9ZQ16Oh9-oTT0ueNZBLLEhBYLfWOsCUtn-yqU&e=>
>>
>>
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Jfd6XppNR7epMjIOy8D72ZpL7AqIw_wnhitKzx-slBM&s=5MBhZo9ZQ16Oh9-oTT0ueNZBLLEhBYLfWOsCUtn-yqU&e=>
>>
>>
>>
>>
>> _____________________
>>
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>
>> ...
>
>
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