[Ws2-jurisdiction] Response Requested: Proposed Changes to OFAC Recommendation
Greg Shatan
gregshatanipc at gmail.com
Tue Sep 26 20:23:51 UTC 2017
All,
It would be good to hear from more participants regarding these suggested
changes to the OFAC Recommendation. The OFAC Recommendation needs to be
finalized on tomorrow's meeting. There has been ample time to review the
draft and the suggested changes. The more responses we have on the list,
the easier it will be to finalize the recommendation on the call.
Kavouss,
To clarify, the factual point I requested was examples where non-US
registrars (without OFAC obligations) had refused business or terminated
registrant relationships based on OFAC compliance. The Resello example
doesn't cover this point. Obviously, the GoDaddy and OnlineNIC examples do
not cover this point either. Media reports have been mentioned, but the
Subgroup has not seen these reports, and therefore can't cite them in its
Report.
The Report does deal with the evidence the Subgroup have seen. This
relates to non-US registrars posting T&Cs with OFAC provisions. The Report
covers the possibility of mistaken application of OFAC obligations by
non-US registrars without the obligation to comply.
The Subgroup has not recognized an issue of the RAA not being "respected,"
because no one has identified a section of the RAA that would be violated.
If OFAC is irrelevant to the Resello example, why should it be reflected in
the report? I haven't seen any support in the Subgroup for inclusion.
As for the "silence" in the RAA -- if the Subgroup sees this as an issue,
and wishes to consider a recommendation to change the RAA, then there would
be a basis for considering inclusion in the Report. I have not seen any
support for this.
All,
I would like to offer an observation.In my view (and based on 10 years of
experience in Working Groups), it has not generally been effective to ask
someone not to oppose a suggestion they do not favor. What has been
effective is to persuade someone to view the suggestion favorably. In
other words, opposition/non-support won't be eliminated by request; it
needs to be eliminated by persuading the person to see things differently
so that their underlying position changes. This is most effective when it
is coupled by a willingness to change the "ask" so that it can be supported
by the other person(s), ideally in collaboration with those other persons.
In the end, the positions in a Working Group (or Subgroup) Report need to
be the consensus (aka rough consensus) of the Subgroup, not the views of
any one participant. The sooner that participants transfer "ownership" of
a position from the individual to the group, the more likely that the group
will adopt that position.
Of course, this is only what I have seen in my experience in Working Groups
; it may be more effective in other types of groups to seek "non-objection"
as a path to decision-making without also seeking to change people's views.
This observation is offered only to assist this Subgroup in reaching
decisions, both now and in the next very few weeks. Apologies for the
philosophical digression.
Best regards,
Greg
On Tue, Sep 26, 2017 at 3:02 PM, Arasteh <kavouss.arasteh at gmail.com> wrote:
> Dear Sir.
> A discriminatory disputation had been raised apparently with
> misinterpretation of applicability of OFAC,
> We need to consider they there is RAA to be respected thus the absolute
> and ballet freedom does not exist nor relevant
> Presumably the Registrar indirectly referred to the likelihood of
> application of OFAC regulations which is commented by all ( see
> complication of expressed views) there is no direct or indirect relation
> between this case and OFAC thus it must be a) included the factual report
> as was requested by Greg on 13 and subsequent meeting
> b) the irrelevance of OFAC to the case needs to be reflected
> c) the silent situation. In RAA as described by my several message should
> be reflected
> I know you may not be in d'aboyer if the issue but kindly do not oppose to
> that
> Regards
> Kavouss
>
> Sent from my iPhone
>
> On 26 Sep 2017, at 19:33, Raphaël BEAUREGARD-LACROIX <
> raphael.beauregardlacroix at sciencespo.fr> wrote:
>
> Dear all
>
> 1: I think registrars can set their business policies as they see fit. If
> they do not respect applicable law to the conduct of their business,
> ultimately that is their problem. ICANN should provide objective
> information to them, especially regarding sanctions regime. I understand
> that the difference between legal advice and objective information is a
> thin line to walk. In that sense, I believe that the current language of
> the recommendation better reflects that. I would not oppose referring to
> the media reports, although I find the formulation a bit vague and so I am
> not strongly in favour of adding it either.
>
> 2: For the same reasons as above, I am not in favour of seeing this added.
> Registrars are free to pursue their business as they see fit within the
> framework given by the law. And ultimately, to me, this is not a
> jurisdiction issue. It has been discussed that this could be
> discriminatory; maybe ICANN should do something about it, and certainly it
> can/could/should be discussed, but I do not think it has its place in the
> current recommendation.
>
> 3: I do not understand what the blue text adds, and to some extent what it
> means. Is someone undermining ICANN's awareness-rising processes? Besides,
> I am fine with the red text.
>
> Best,
>
>
> 2017-09-26 8:52 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>
>> All,
>>
>> Please take a few minutes to *read and respond* to this email, and the *proposed
>> changes* discussed here, so that we can finalize the OFAC Recommendation
>> and send it to the Plenary.
>>
>> There are three remaining proposed changes as far as I can tell. These
>> changes are below. *Please indicate whether you support adding any of
>> proposed changes 1, 2 and/or 3 to the OFAC Recommendation. *
>>
>> To make it easy, please respond along the lines of “I [support/do not
>> support] adding change 1” or “I would support change 1 with the following
>> revisions.” If you think it would help others, please explain your
>> conclusion.
>>
>> In addition to the changes, I have attached two documents:
>>
>> · A draft of the OFAC Recommendation that incorporates the
>> proposed changes suggested by Kavouss. Where unclear, I placed a change
>> where it seemed most likely intended to be.
>>
>> · A document with virtually all of the emails devoted to these
>> proposed changes, arranged chronologically by topic.
>>
>> *The proposed changes suggested by Kavouss are as follows:*
>>
>> 1. The first proposed change appears intended to be added to the
>> Issue and Recommendation “Application of OFAC Limitations by Non-US
>> Registrars.” The first part reads:
>>
>> *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.*
>>
>> *Examples of that are related to Godaddy*[1]* and Online Nic,*[2]* which
>> made pressure against registrants having citizenship of Sanction countries.*
>>
>> Kavouss asked that the second part be inserted into the corresponding
>> Recommendation:
>>
>> Registrars should be reminded that they should not normally examine zero
>> risk policy in regard of penalties imposed by OFAC.
>>
>> 2. The second proposed change relates to an action taken by
>> Resello, a Dutch registrar. It’s also unclear where this would go (it does
>> not seem to fit in the section “Application of OFAC Limitations by Non-US
>> Registrars.”) Perhaps it would go into a new section, possibly entitled “Policy
>> of not Doing Business with Iranian Customers/Resellers (Unconnected to
>> OFAC/Sanctions) by a Non-US Registrar”:
>>
>> *An individual domain Name Iranian National reseller residing outside
>> Iran sent a request to <sales at resello.com <sales at resello.com>> in an
>> online form, asking to become reseller of Domain Name in Iran (to sell
>> domains to Iranian people).*
>>
>> *He received the following reply:*
>>
>> *Quote*
>>
>> *“On Tue, Sep 19, 2017 at 9:48 PM, Resello Sales <sales at resello.com
>> <sales at resello.com>> wrote:*
>>
>> *Dear reseller (XXX)*
>>
>> *Unfortunately our policy restricts doing business with Iranian
>> customers/resellers, even if they aren't living in Iran, but have an
>> Iranian passport.*
>>
>> *Kind regards,*
>>
>> *Mark Assenberg”*
>>
>> *It is worth mentioning that Resello is a subsidiary company for
>> following holding:*
>>
>> *Yourholding*
>>
>> *Ceintuurbaan 28
>> <https://maps.google.com/?q=Ceintuurbaan+28%0D+%0D+*8024+AA+Zwolle*&entry=gmail&source=g>*
>>
>> *8024 AA Zwolle
>> <https://maps.google.com/?q=Ceintuurbaan+28%0D+%0D+*8024+AA+Zwolle*&entry=gmail&source=g>*
>>
>> *+31 38 453 0752*
>>
>> *The name is Yourholding and they are based in Netherlands. So they are
>> not US-Based company.*
>>
>> *They do not want to explain why they don't want to provide service to
>> Iranian. They say, they is our internal policy decision.*
>>
>> *It is important to make it clear that none of Registrars and service
>> providers which are not US Nationals or not based in USA cannot make
>> internal policies to avoid giving services to a given citizens. This is a
>> global business not a personal decision of a company or its managers. They
>> must fully observe the expected behaviour and responses.*
>>
>> *It is important to emphasize that non-US based companies should not to
>> replicate the rules inside USA.*
>>
>> *[Recommendation]*
>>
>> *The group in attempting to address the case mentioned above thought that
>> the above situation might have been arised as result of misinterpretation
>> of applicability of OFAC Regulation to the case.*
>>
>> *The Group concluded that there was no relation between the case and OFAC
>> Regulation and its applicability.*
>>
>> *The Group also 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 provision in the RAA to allow
>> the registrar to reject / deny the request.[3] The group therefore
>> considered / recommends that there is a need that ICANN further examine the
>> matter with a view to address the silent point in the RAA.*
>>
>> 3. The third suggested change is intended to change the
>> Recommendation relating to General Licenses. After Kavouss suggested
>> several changes (including the language in blue), I added the red language
>> to reflect Kavouss’s changes in a way that seemed to read better in the
>> text. After the red language was added, Kavouss continued to request that
>> the language in blue be added as well.
>>
>> ICANN should then pursue one or more OFAC general licenses at the
>> earliest possible time, unless significant obstacles were discovered in
>> the “study” process. If there are significant obstacles, ICANN should
>> report them to the [empowered] community and seek its advice on how to
>> proceed. If unsuccessful, ICANN would need to find other ways to
>> accomplish the ultimate goal -- enabling transactions between ICANN and
>> residents of sanctioned countries to be consummated with a minimum of
>> “friction.” It is critical that ICANN communicate regularly about
>> progress toward securing general licenses, in order to raise awareness in
>> the ICANN community and with affected parties. * The role of ICANN, to
>> make awareness about such situation is critical and should not be
>> undermined.*
>>
>>
>>
>> Finally, there have been a number of questions asked about each of these
>> suggested changes, which have largely gone unanswered. I’ve rephrased and
>> listed them here, since it could be helpful for the Subgroup to consider
>> them (or see if any members might answer them). (I am not suggesting these
>> questions need to be answered to evaluate the proposed changes.)
>>
>>
>>
>> *On suggested change 1*:
>>
>>
>>
>> 1. Do you have the “reports in the media” referred to in the proposed
>> change?
>>
>> a. If the Subgroup has not seen the reports in the media, can the
>> Subgroup Report refer to them, or the activities reported in them?
>>
>> b. For US registrars, considering that they have to comply with OFAC,
>> is this an issue for this Subgroup?
>>
>> c. For non-US registrars, why isn’t the current text of this section
>> of the OFAC Recommendation sufficient? (It discusses possible mistaken
>> application of OFAC sanctions by non-US registrars because they think
>> contracting with ICANN imposes OFAC compliance obligations on them)*.*
>>
>> 2. Since GoDaddy and OnlineNIC are both US-based registrars, does it
>> make sense to refer to them?who are required to comply with OFAC sanctions.
>>
>> a. Do you know what “made pressure against” refers to?
>>
>> b. Are there any example of this “pressure”? With non-US registrars?
>>
>> 3. What does it mean to say “Registrars should be reminded that they
>> should not normally examine zero risk policy in regard of penalties imposed
>> by OFAC”?
>>
>> a. If this refers to the exercise of business or legal judgment of
>> registrars, do you believe it is appropriate for the Subgroup Report to
>> comment on this?
>>
>> b. What proposed issue does this Recommendation resolve/remediate?
>>
>>
>>
>> *On suggested change 2*:
>>
>> 1. Is this an example of a non-US Registrar
>> complying with OFAC sanctions? Where is the connection to OFAC?
>>
>> 2. What section of the RAA is being violated by
>> this 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))?
>>
>> 3. If Resello's business decision does not seem to
>> be related to OFAC, US jurisdiction or to any ICANN-related jurisdiction,
>> does the Subgroup approve this as an “Issue” or our group to make a
>> Recommendation on? If so, what recommendation?
>>
>> 4. Is this possibly an EU sanctions issue (the
>> registrar is Dutch)
>>
>> 5. If this is possibly an EU sanctions issue,
>> should we get into interpreting EU sanctions?
>>
>> 6. Why is the current language of the
>> Recommendation insufficient? It reads:
>>
>> a. "ICANN needs to bring awareness of these issues to
>> registrars. ICANN should clarify to registrars that the mere existence of
>> their RAA with ICANN does not cause them to be required to comply with OFAC
>> sanctions. ICANN should also explore various tools to remind registrars to
>> understand the applicable laws under which they operate and to accurately
>> reflect those laws in their customer relationships."
>>
>> 7. What connection does this have to OFAC sanctions
>> or to ICANN's "jurisdiction" -- in the US or elsewhere?
>>
>>
>>
>> *On suggested change3:*
>>
>> 1. Why is the language already added to the text
>> (in red) insufficient?
>>
>> 2. What situation does “make awareness about such
>> situation” refer to?
>>
>> 3. Is there a concern that something will be
>> “undermined”? What does this refer to?
>>
>> ------------------------------
>>
>> [1] NOTE TO SUBGROUP: GoDaddy is a U.S.-based registrar incorporated in
>> Delaware as GoDaddy, LLC and headquartered in Scottsdale, Arizona.
>>
>> [2] NOTE TO SUBGROUP: OnlineNIC is a U.S.-based registrar incorporated
>> in California as OnlineNIC, Inc. and headquartered in San Leandro,
>> California.
>>
>> [3] Resello’s “General Terms and Conditions,” for resellers state in
>> Article 1.1 that “acceptance by Resello … may be refused without reason.”
>> https://www.resello.com/agreement
>>
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>>
>
>
> --
> Raphaël Beauregard-Lacroix
> LinkedIn
> <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> -
> @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
> <+33%207%2086%2039%2018%2015>
>
>
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