Status of the ORG negotiations

[Mueller, Milton L]

From: NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> On Behalf Of Sam Lanfranco

> I note that to date the Board has not responded to the three specific
> things we are asking for. Also, it has not consulted with noncommercial
> registrants and it has not offered protective modifications on the Registry Agreement.

Sam, this is not quite an accurate assessment of the situation.

On 7 January the board responded to the NCSG letter of 9 December with this:
https://www.icann.org/en/system/files/correspondence/botterman-to-perrin-07jan20-en.pdf

From that, and from subsequent communications, it is clear that ICANN is still exchanging information with ISOC/PIR and Ethos to determine whether to “provide or withhold its consent to the request.”
Recently there was a 30-day extension of that process.

Until it concludes that process, ICANN is in no position to say anything about our specific proposed modifications to the RA. In terms of consultations I do not think it is legally in a position to bring us (or any other SG) into direct negotiations with Ethos, but I can assure you they know what we think about this, as well as others making noise in the media think. But you are welcome to keep communication with them, preferably with a common and coherent set of positions.

In fact, our three proposed RA modifications were directed not at ICANN but at PIR/ISOC and Ethos as signals regarding what they would need to do to gain community support for going ahead with the sale. PIR has publicly expressed its support for some of those requests, but in some cases says they would require a PDP: https://thenew.org/reflecting-on-community-recommendations-to-improve-org/

I will admit that a clean-slate re-delegation of ORG would bring some positive opportunities (as well as risks) to our interests, but such a move is unlikely because it is 100% certain to bring litigation down on ICANN. A billion $ are at stake, and even a very small fraction of that can hire a lot of lawyers. We also don’t want ICANN to be able to do things arbitrarily outside of its contractual agreements – that could easily come back to bite us.

So the most likely resolution is that ICANN will approve the sale while extracting some commitments from Ethos/PIR. We want to make sure that those commitments are sufficient, or that we have informally negotiated side agreements with Ethos/PIR that move things in the direction we want.

Dr. Milton L Mueller
School of Public Policy
Georgia Institute of Technology
[IGP_logo_gold block_email sig]






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