[article] Internet world despairs as non-profit .org sold for $$$$ to private equity firm, price caps axed

[Amr Elsadr]

Hi,

As Milton pointed out before, I’m not saying we CAN’T send a letter. Rather, I’m saying that we SHOULDN’T send a letter asking the ICANN Board or Org to leverage article 7.5 as a means to influence or pressure a Registry Operator in to adopting a status as a NFP (or a For-Profit either). 7.5 is clearly within ICANN’s remit, since it’s in their contract with PIR, but imo, invoking it on this basis doesn’t seem reasonable to me, although I admit, the use of “reasonable” in the contract leaves some space for subjectivity.

Still…, there was never (to my knowledge) any requirement on PIR’s part to be or remain a NFP corporation in its previous agreements with ICANN, so how does penalizing them, or threatening to do so in order to achieve a desirable outcome make any sense? I suppose that, as Milton has said, it isn’t necessarily wrong or unfair for us to ask the ICANN Board to do this, but I believe it would be unfair of the Board to pursue this kind of tactic. I’m pretty sure any one of us would feel that way, if we were in PIR’s position.

…, and that isn’t to say that ISOC unilaterally deciding to agree to sell to a private equity knowing that PIR’s status as a NFP will change is right or fair either. This makes a strategy of pressuring PIR, and consequentially doing the same to ISOC and Ethos Capital, seem sound. It still doesn’t sit right with me.

Let’s say we proceed with this, and it works. The aftermath of this would be that:

1. There is a precedent on ICANN imposing conditions on how Contracted Parties need to be incorporated, which sounds like a pretty stupid idea to me.
2. PIR being locked in to a NFP status by ICANN under threat of termination of its Registry Agreement in the case of non-compliance will likely blow its deal with Ethos Capital out of the water. Remember that many believe this makes sense from an ISOC perspective (to diversify its sources of funding, eliminating any CoI it may have regarding gTLD policy development, etc…).
3. It’s unlikely that ISOC will be able to find another buyer for PIR, should it choose to proceed to attempt to sell PIR. They might be able to find another civil society org with enough cash to make the purchase, but probably won’t make nearly as much as it would from a sale to Ethos.

Speaking for myself, I don’t really mind the potential outcomes 2 and 3. I care more about the interests of .org registrants than I do about ISOC’s and PIR will remain on its feet regardless, but outcome 1 is what worries me. Considering the political balance of power at ICANN, I can totally see this precedent being used against non-commercial interests down the road.

And to answer Milton’s question:

> On Nov 23, 2019, at 6:24 PM, Mueller, Milton L <milton at GATECH.EDU> wrote:

[SNIP]

>  So you’re not off the hook. That’s a straw man argument. Let me try to keep you – and everyone else on this list – focused on the agenda I am trying to advance.

>
> 1.       We don’t care who owns .Org as long as appropriate protections for registrants are in the RA.
>
> 2.       We need to articulate what those protections are. I set out three things:
>
> a.       Content neutrality
>
> b.       Elimination of the URS
>
> c.       Long-term registrations, if not perpetual ones
>
> 3.       We try to use the .ORG uproar to get those goals.
>
> Got it? This is what we should be pushing for. Agree or disagree? I am open to any comment or debate on the substance, but for God’s sake let’s unify around a coherent agenda and not just whine.

At the risk of continuing to sound wimpy, Milton’s agenda items 1 and 2 sound great to me, but 3 depends on how we go about tackling it. Like I said in a previous email, ISOC is the real problem here, not ICANN or PIR. We should take our issues up with them. I remain unconvinced that seeking to use Article 7.5 is the right way of going about this, since there is no indication of wrong-doing, at least not in terms of contractual obligations.

Having said that, something we might want to do is follow-up on something Sam Lanfranco hinted at in an earlier email, and we can and probably should do this wether we decide to proceed with a letter asking the Board to invoke 7.5, or not. This is a snippet of what Sam said earlier on this thread:

> On Nov 22, 2019, at 4:10 PM, Sam Lanfranco <lanfran at YORKU.CA> wrote:
>
> The history of who did what and who knew what when, as the decision was made to remove the
> price cap, and what followed, is yet to be known.

If (that same big IF) anybody at ICANN had any inkling of plans or even desires to purchase PIR when its contract renewal was taking place, this is something we need to know, and sheds a very different light on this whole melodrama, and could be a basis to revisit the decisions made to both remove the price caps on .org registrations and renewals, as well as including the URS in the contract.

So apart from any letter we may end up sending or not sending to the ICANN Board, why not submit a DIDP request (DIDP is ICANN’s Documentary Information Disclosure Policy) asking for the information Sam has referred to?

Additionally, one of the Empowered Community Powers is the rights of inspection and investigation, which may or may not be something we can sell to the GNSO. We can at least make a good case why the details of this need to be transparent to all, but I leave it up to Milton, James and others who participated in ICANN’s accountability reforms to work out the feasibility of this.

Anyway…, if you’ve gotten this far in to my long (and wimpy ;-)) email, then I’ve already used up way more of your time than I should. I’ll try to keep my emails briefer on this in the future, or better yet, stop responding at all, unless I have something new to add.

Thanks again to everyone who’s engaged on this important issue.

Amr

> On Nov 24, 2019, at 12:36 PM, Caleb Olumuyiwa Ogundele <muyiwacaleb at GMAIL.COM> wrote:
>
> @Amr,
>
> While it is assumed that we have all agreed that article 7. 5 is within a fine remit of ICANN board to take some reasonable action.
>
> We have also seen the ICANN board reject or accept policy advice under the guise of "Public Interests / concern".
>
> Therefore nothing stops a two way letter
> 1. To ICANN board,
> 2. and to ISOC Board calling the attention of the CEO.
>
> Caleb Ogundele
>
> On Sat, Nov 23, 2019, 5:29 PM Mueller, Milton L <milton at gatech.edu> wrote:
>
>> Good to know, thanks James.
>>
>> From: NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU>  On Behalf Of James Gannon
>>
>> If NCSG wished to initiate a community IRP post ICANN not executing the contract revocation clause then that would be an area that the EC would be activated and the processes started.
>>
>> ---
>>
>> James Gannon
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