[proposed letter] NCSG Concerns About the Sale of the Public Interest Registry to Ethos Capital

[Ayden Férdeline]

> ICANN has absolutely no role in stopping the sale, if EFF and other orgs are serious about this then they should be taking actions in the PA courts system.

The proposed letter asks ICANN to exercise its contractual right to disallow the transfer of the .ORG registry agreement, which is written into the contract as something that can in certain circumstances happen when there is a change in direct or indirect control of the registry operator. The letter does not 'ask ICANN to stop the sale'.

Ayden Férdeline

‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
On Saturday, December 7, 2019 2:56 AM, James Gannon <lists at ICANN.GURU> wrote:

> ICANN has absolutely no role in stopping the sale, if EFF and other orgs are serious about this then they should be taking actions in the PA courts system.
>
> NCSG has spent years telling ICANN to stop overreaching and stick to its limited mandate, now is not the time to throw all of that work in the bin, ICANN does not regulate the sale of companies, we all should know this if we are participating in ICANN policy processes. Those who wish to intervene in this should do, but at least put time and effort in the right fora.
>
> ---
>
> James Gannon
>
> From: NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> on behalf of Mitch Stoltz <mitch at EFF.ORG>
> Reply to: Mitch Stoltz <mitch at EFF.ORG>
> Date: Saturday, 7 December 2019 at 00:11
> To: "NCSG-DISCUSS at LISTSERV.SYR.EDU" <NCSG-DISCUSS at LISTSERV.SYR.EDU>
> Subject: Re: [proposed letter] NCSG Concerns About the Sale of the Public Interest Registry to Ethos Capital
>
> I support submitting the letter drafted by Ayden. Amr proposed, in the alternative, "engaging with both ICANN and PIR on how PIR can better serve the needs of civil society." While I support such engagement, it gives us no leverage to effect change.
>
> On the NTEN call yesterday, Andrew Sullivan and Erik Brooks said that they intend to conclude the sale as quickly as possible, but no later than the first quarter of 2020. Once the sale is finalized, we will have little to no influence over the operation of .ORG. The only formal constraint on that operation is the Registry Agreement between PIR and ICANN. And earlier this year, when that agreement was renewed, it was altered to make it less protective of registrants in several ways. ICANN staff dismissed thousands of comments that were nearly unanimous in opposing the new contractual terms. There was no multistakeholder input.
>
> This means that if we don't stop or at least delay the sale, we can "engage" with the newly for-profit PIR all we want, but they will have little incentive to make any changes.
>
> There is plenty that an unrestrained PIR can do to hurt the interests of noncommercial registrants. The reason there hasn't been much harm yet is because of ISOC's influence, or at least ISOC's concern for its reputation. A mysterious private equity firm that didn't exist eight months ago will have no such compunctions. And we will have no real influence. That's why we need to call on ICANN to halt the sale. How can we fail to respond now, when it might mean something?
>
> Mitch Stoltz
>
> Senior Staff Attorney, EFF | 415-436-9333 x142
>
> https://www.eff.org/donate
> |
> https://act.eff.org/
>
> On 12/4/19 7:43 AM, Nick Shorey wrote:
>
>> Hi Ayden,
>>
>> Thanks for the responses. I agree it is possible it could be seen as an indirect change, though I read it more as a situation where PIR were to outsource registry backend operations for example.
>>
>> Re open tender - I’d personally prefer PIR remained as it were. An open tender process risks the potential for an even less appropriate operator winning the bid.
>>
>> Kind regards,
>>
>> Nick
>>
>> Nick Shorey
>> Phone: +44 (0) 7552 455 988
>> [Email: lists at nickshorey.com](mailto:lists at nickshorey.com)
>> Skype: nick.shorey
>> Twitter: @nickshorey
>> LinkedIn: www.linkedin.com/in/nicklinkedin
>> Web: www.nickshorey.com
>>
>>> On 4 Dec 2019, at 15:32, Amr Elsadr <aelsadr at ICANNPOLICY.NINJA> wrote:
>>>
>>> Hi,
>>>
>>>> On Dec 4, 2019, at 5:24 PM, Ayden Férdeline <icann at FERDELINE.COM> wrote:
>>>>
>>>> This letter is not about halting the sale; it is about preventing the transfer of the Registry Agreements for .ORG, .NGO, and .ONG to Ethos Capital. The decision to sell PIR's assets is indeed a matter for ISOC to decide. If this is not clear please feel free to edit the letter to make this distinction more evident. Thanks!
>>>
>>> Nobody (to my knowledge) has suggested that a transfer of the Registry Agreements to Ethos will take place. This would make Ethos the Contracted Party, but by all accounts I’ve seen, they will still remain with PIR.
>>>
>>> But yes…, I do agree that this might qualify as an indirect change of control.
>>>
>>> The way that the letter is currently worded suggests that the NCSG will ask the ICANN Board to terminate PIR’s Registry Agreements, and transfer them to another entity.
>>>
>>> Thanks.
>>>
>>> Amr
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