Status of the ORG negotiations

[Sam Lanfranco]

Milton, 
Thank you for your comments. They pretty much align with what I believe to
be the NCSG strategy for keeping a bit of heat on the ICANN Board. In this
matter they should have been more consultative from the get go, and based
on my other work the secrecy around the ISOC sale, and the exclusion of the
PIR Advisory Committee in the process, have left much to be desired. I
agree that the ICANN board cannot simply void the sale without incurring a
probable expensive lawsuit. 
The interesting question however is whether or not appropriate safeguards
can be incorporated in the registry contract, in contract language that
Ethos Capital is happy to live with. As an economist (and this is my
personal view) this has all the markings of a purchase where opportunities
are monetized within a new .org registry ownership, and then flipped for
profit. Ethos Capital continues to say the right things, but as one who has
had to evaluate big takeovers and buy-outs, if conditions are not carved in
stone, in contract language, they are mainly up front marketing
pronouncements, easy to discard as circumstances change (which they always
do).
Lastly, no matter what the Board tells itself, and what we (NCSG) tell
ourselves, this is an episode where others will watch us, both the ICANN
Board and its integrity, and NCSG as the relevant stakeholder group, and
make assessments that will affect us for a long time to come. 
Sam L.  
------------------------------------
---- Original Message ----
From: "Mueller, Milton L" 
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Sent: Tue, Jan 28, 2020, 2:49 PM
Subject: Status of the ORG negotiations
	From: NCSG-Discuss  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
(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/
(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 S 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 
	   
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