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California .org probe — existential crisis or blessed relief for ICANN?

Kevin Murphy, February 5, 2020, Domain Policy

Does the California attorney general’s probe into ICANN’s relationship with the .org registry represent an existential crisis for ICANN, or could it be better seen as a great opportunity to palm off responsibility to a higher power?

It was recently revealed that AG Xavier Becerra is looking into ICANN’s actions related to not only the proposed acquisition of Public Interest Registry by Ethos Capital, but also the removal of price caps from the .org registry contract.

The AG’s office says it wants to “to analyze the impact to the nonprofit community, including to ICANN, of this proposed transfer”.

Because ICANN is a California-based non-profit, the AG says he has the power to levy penalties or revoke ICANN’s corporate registration.

Becerra’s office sent ICANN a list of 35 searching questions (pdf) related to both deals on January 23, demanding a response by February 7.

While many of the questions demand documentation already in the public domain, published on ICANN’s web site, Becerra also wants to get his hands on redacted portions of PIR’s communications with ICANN, as well as all emails between ICANN, Ethos, PIR and the Internet Society, which currently owns PIR.

At the very least, the investigation complicates ICANN’s own probe of the acquisition. ICANN has to approve transfers of control of gTLD registries, and it’s currently poring over documentation provided by PIR detailing the structure of the deal.

It’s already delayed approval once, saying last month (pdf) that it expected to give a yay or nay to PIR by February 17.

Following the AG’s letter, ICANN asked PIR (pdf) to extend that deadline to April 20, to allow it time to deal with the new concerns.

It emerged yesterday that PIR has told ICANN to get (partially) stuffed (pdf), allowing an extension only to February 29, saying further delay “is neither necessary nor warranted at this time”.

But PIR did give its reluctant consent to ICANN disclosing previously confidential information to the AG, despite taking issue with ICANN’s opinion that AG letters are arguably equivalent to subpoenas, so it was under a legal obligation to do so.

It’s not entirely clear what could come of this predicament.

PIR says that while ICANN is able to approve or decline changes of control, it has no authority under the .org Registry Agreement to deny PIR changing its legal status from non-profit to for-profit entity.

And while California no doubt has jurisdiction over ICANN, PIR is based in Pennsylvania, so it would be up to Becerra’s counterpart in that state (a fellow Democrat, as it happens) to attempt to obstruct PIR’s planned conversion.

If that were to happen, it would interfere with Ethos’ somewhat convoluted acquisition plan.

Some of the AG’s 35 questions are pretty basic, stuff like “describe in detail the authority ICANN has to regulate, license, and/or oversee the domain name system” and “provide an explanation of ICANN’s authority to regulate the registration fees charged for .org domains”.

That’s either coming from a place of ignorance, or from somebody who’s deliberately questioning ICANN’s very existence as the central coordinating body of the DNS.

That would be frightening indeed.

But at the same time, this intervention from a governmental body may come as a relief to ICANN.

ICANN doesn’t like making difficult decisions when it comes to the big legal questions, or indeed anything with the potential to be controversial and ergo litigation bait.

Take, for example, its ongoing pleas to European data protection authorities to fix its GDPR problem, or its longstanding deferment to US competition authorities when it comes to issues such as the price of a .com domain and the introduction of new registry services, or its outsourcing to expert third parties of almost every potential wedge issue to be found the new gTLD program.

An opinion on .org one way or the other from the California AG could provide a lovely smokescreen for ICANN to approve or reject the .org deal without actually taking responsibility for the decision, a prospect I suspect would we well-received by the Org.

Whether it will actually receive this blessing is an open question.

As Cancun looms, ICANN bans China travel because of Coronavirus

Kevin Murphy, February 5, 2020, Domain Policy

ICANN has banned its staff from travelling to China because of Coronavirus.

The organization said at the weekend that it has implemented the ban, which includes connecting flights of “an abundance of caution”. The ban includes the mainland as well as Hong Kong and Macau.

The move matches travel bans imposed on staff by other multi-national technology outfits, and comes as countries including the US place precautionary restrictions on flights from China.

ICANN has in the recent past changed the venues of public meetings twice due to worries about the unrelated Zika virus, but it has no meetings lined up in China any time soon.

Next month, the community will meet in Cancun, Mexico. According to the European Centre for Disease Control, there are currently no reported cases of the disease in that country.

There are usually plenty of Chinese nationals at ICANN meetings, of course, which could put ICANN in a tricky ethical/practical position as 67 draws closer, depending on how the global spread of the disease progresses.

ICANN said: “As of now, we fully intend to move forward with ICANN67 in Cancún, Mexico.”

The ECDC says there have been 20,626 confirmed cases of the virus since it was identified in December, almost all in China, and 427 deaths, all Chinese.

Amazon governments vow revenge for “illegal and unjust” ICANN decision on .amazon

Kevin Murphy, January 17, 2020, Domain Policy

The eight nations of the Amazon Cooperation Treaty Organization are unhappy that ICANN is giving .amazon to Amazon the retailer and have vowed to spread the word that ICANN has acted “illegally”.

ACTO secretary general Alexandra Moreira has written (pdf) to ICANN CEO Göran Marby to say: “We consider this decision an illegal and unjust expropriation of our culture, tradition, history and image before the world.”

She said that ACTO is now “committed to disseminating news of this situation to all relevant groups”, adding:

the international community should be aware of the very real consequences or ramifications (be it economic, environmental, cultural or related to questions of sovereignty) of granting exclusive access to the domain “.Amazon” to a single company.

The delegation of .amazon to Amazon the company, “jeopardizes the continued well-being of the societies that live there”, she wrote, with no elaboration.

Amazon was last month told it could have the gTLD after a years-long battle with ACTO and the ICANN Governmental Advisory Committee, which had advised ICANN by consensus to reject the .amazon application.

That consensus broke last year when the US government basically said enough was enough and refused to continue back the eight South American governments’ plight.

Under the terms of Amazon’s contract, it has to protect hundreds of culturally sensitive second-level domains of ACTO’s choosing, and to give each of its members a single domain that they can use to promote their portion of the Amazonian region.

ACTO had wanted more, basically demanding joint ownership of .amazon, which Amazon refused.

It remains to be seen whether ACTO’s reaction will be limited to harsh language, or whether its members will actively try to disrupt ICANN activities. The next GAC-ICANN face-to-face, set for Cancun in March, could be interesting viewing.

ICANN gets a new European chief

Kevin Murphy, January 14, 2020, Domain Policy

ICANN has moved long-time head of North America stakeholder engagement Chris Mondini to head up the organization’s European office.

Mondini will take over the role of vice president of stakeholder engagement for Europe and will also become managing director of the Brussels office.

He replaces Jean-Jacques Sahel, who quit to join Google’s Asia policy team a few months ago.

As attendees at ICANN’s recent Montreal meeting may recall, American Mondini speaks (to my ear) pretty decent French, which will no doubt come in handy after he crosses the pond.

He will continue to lead Global Business Engagement initiatives worldwide and will continue to report to senior VP Sally Costerton.

Mondini has been with ICANN for over eight years, having joined during the Beckstrom years in 2011.

ICANN predicts shrinkage in new gTLD sector

Kevin Murphy, January 3, 2020, Domain Policy

ICANN will make less money from new gTLDs in its fiscal 2021 because fewer domains will be registered and renewed, according to its recently published draft budget.

The budget, released the day ICANN broke up for its Christmas holidays, shows that the organization expects to bring in $140.4 million in FY21, up a modest $300,000 on its FY20.

But it’s expecting the amount of money contributed by registries and registrars in the new gTLD sector to decline.

For FY21, it expects new gTLD registry transaction fees — the $0.25 paid to ICANN whenever a domain is registered, renewed or transferred — to be $5.1 million. That’s down from the $5.5 million currently forecast for FY20.

It expects registrar transaction fees for new gTLD domains to dip from $4.6 million to $4.3 million.

But at the same time, ICANN is predicting growth from its legacy gTLD segments, which of course are primarily driven by .com sales. All the other legacy gTLDs of note, even .org and .net, are currently on downward trajectories in terms of volumes.

For FY21, ICANN is forecasting legacy gTLD registry transaction fees to come in at $52.6 million, versus the $50.5 million it expects to see in the current FY20. In percentage terms, it’s about double the growth it’s predicting for the current FY.

Legacy gTLD registrar transaction fees are estimated to grow, however, from $31.2 million to $32.7 million.

In terms of fixed fees — the $25,000 every new gTLD registry has to pay every year regardless of transaction volume — ICANN is also predicting shrinkage.

It reckons it will lose a net seven registries in FY21, dropping from 1,170 to 1,163 by the end of June 2021. These are most likely dot-brand gTLDs that could follow the path of 69 predecessors and flunk out of the program.

ICANN also expects its base of paying registrars to go down by 100 accreditations, with no new registrar applications, causing fees to drop from $10.7 million this year to $9.6 million in FY21.

In short, it’s not a particularly rosy outlook for the gTLD industry, unless you’re Verisign.

ICANN’s financial year runs from July 1 to June 30 this year, and usually the December release of its draft budget includes some mid-year reevaluations of how it sees the current period playing out. But that’s not the case this time.

ICANN appears to be on-budget, suggesting that it’s getting better at modeling the industry the more years of historical transaction data it has access to.

The budget (pdf) is now open for public comment. I spotted a few errors, maybe you can too.

ASO uses super powers to demand ICANN turn over .org buyout docs

Kevin Murphy, January 2, 2020, Domain Policy

In an unprecedented move, ICANN’s Address Supporting Organization has exercised its special powers to demand ICANN hand over documents relating to the Ethos Capital acquisition of .org’s Public Interest Registry.

There’s a possibility, however small, that this could be the first shot in a war that could see the PIR acquisition scrapped.

Fair warning, this story is going to get pretty nerdy, which may not be compatible with the fuzzy-headedness that usually accompanies the first working day of the year. We’re heading into the overgrown weeds of the ICANN bylaws here, for which I apologize in advance.

The ASO — the arm of the ICANN community concerned with IP address policy — has asked ICANN Org for access to records concerning the $1.135 billion acquisition of PIR, which has attracted lots of criticism from non-profits, domainers and others since it was announced.

It’s unprecedented, and of interest to ICANN watchers, for a few reasons.

First, this is the ASO making the request. The ASO comprises the five Regional Internet Registries, the bodies responsible for handing out chunks of IP address space to ISPs around the world. It doesn’t normally get involved in policy related to domain names such as .org.

Second, it’s invoking an hitherto untested part of ICANN’s new bylaws that allows the certain community entities that make up the “Empowered Community” to make “Inspection Requests” of ICANN Org.

Third, and perhaps most importantly, there’s a hint of a threat that the ASO and other members of the EC may use their extraordinary powers to attempt to prevent the PIR acquisition from going ahead.

Before we unpick all of this, this is what the ASO has sent to ICANN, according to its December 31 statement:

As a Decisional Participant in the Empowered Community and pursuant to ICANN Bylaws section 22.7, the ASO hereby submits this Inspection Request to inspect the records of ICANN, including minutes of the Board or any Board Committee, for the purpose of determining whether the ASO’s may have need to use its empowered community powers in the near future relating to the potential assignment of the .org Registry Agreement. For this purpose, the ASO seeks to inspect any ICANN records which pertain to or provide relevant insight to the process by which ICANN will consider (and potentially approve) the assignment of the .org Registry Agreement, including the process by which input from the affected community will be obtained prior to ICANN’s consideration and potential approval of the assignment.

The Empowered Community is the entity that replaced the US government as ICANN’s primary overseer, following the IANA transition in late 2016.

Its members cover the breadth of the ICANN community, comprising the ASO, Generic Names Supporting Organization, Country Code Names Supporting Organization, Governmental Advisory Committee and At-Large Advisory Committee. Each member is a “Decisional Participant”.

Since the transition, its only real functions have been to approve appointments to the ICANN board of directors and to rubber-stamp the budget, but it does have some pretty powerful tools at its disposal, such as the nuclear ability to fire the entire board.

One of the powers enjoyed by each Decisional Participant, which has never been invoked publicly, is to make an Inspection Request — a demand to see ICANN’s accounts or documents related to the board’s decisions.

In this case, the ASO wants “records which pertain to or provide relevant insight to the process by which ICANN will consider (and potentially approve) the assignment of the .org Registry Agreement”.

But will it get this information? It seems the Inspection Request bylaw is a little bit like ICANN’s longstanding freedom-of-information commitment, the Documentary Information Disclosure Policy, with some key differences that arguably make the IR process less transparent.

Like DIDP, the IR process gives ICANN Org a whole buffet of rejection criteria to choose from. It can refuse requests for reasons of confidentiality or legal privilege, for example, or if it thinks the request is overly broad.

It can also reject a request if “is motivated by a Decisional Participant’s financial, commercial or political interests, or those of one or more of its constituents”, which makes the fact that this request is coming from the ASO particularly interesting.

If the GAC or the GNSO or the ccNSO, or even the ALAC, had made the request, ICANN could quite reasonably have thrown it out on the basis of “commercial or political interests”.

That’s not the case with the ASO, which makes me wonder (aloud, it seems) whether the ASO had received any nudges from other members of the EC before filing the request.

Inspection Requests also differ from DIDP in that any documents that are turned over are not necessarily published, and ICANN can also force the Decisional Participant to file a non-disclosure agreement covering their contents.

ICANN can even demand that an ASO member shows up at its Los Angeles headquarters in person to read (and, if they want, copy) the docs in question.

In short, ICANN has a lot of wriggle room to refuse or frustrate the ASO’s request, and it has a track record of not being particularly receptive to these kinds of demands.

The grey-hairs out there will recall that Karl Auerbach, one of its own directors, was forced to sue the organization back in 2002, just in order to have a look at its books.

But what’s perhaps most tantalizing about the ASO’s request is its excuse for wanting to inspect the documents in question.

It says it need the info “for the purpose of determining whether the ASO’s [sic] may have need to use its empowered community powers in the near future relating to the potential assignment of the .org Registry Agreement”.

One way of interpreting this is that the ASO needed to state a reason for its request and this is pretty much all it’s got.

But what powers does the Empowered Community have that could potentially cover the acquisition of PIR by Ethos? It certainly does not have the power to directly approve or reject the transfer of control of a gTLD contract.

The EC has nine bulleted powers in the ICANN bylaws. Some of them are explicitly about things like budgets and bylaws amendments, which could not possibly come into play here. I reckon only four could feasibly apply:

(i) Appoint and remove individual Directors (other than the President);

(ii) Recall the entire Board;

(viii) Initiate a Community Reconsideration Request, mediation or a Community IRP; and

(ix) Take necessary and appropriate action to enforce its powers and rights, including through the community mechanism contained in Annex D or an action filed in a court of competent jurisdiction.

Short of lawyering up or having the entire board taken out and shot, it seems like the most likely power that could be invoked at first would be the Community Reconsideration Request.

Judging by the bylaws, this is virtually identical to the normal Request for Reconsideration process, a process which very rarely results in ICANN actually reconsidering its decisions.

The major difference is that at least three of the five members of the Empowered Community has to vote in favor of filing such a request, and no more than one may object.

If they manage to muster up this consent — which could take many weeks — the fact that the reconsideration request comes from the “Community” rather than a single entity appears to make substantially no difference to how it is rejected considered by ICANN.

Threatening ICANN with a Community Reconsideration Request is a little like threatening to jump through an increasingly narrow series of hoops, only to find the last one leads into a pit filled with ICANN lawyers with laser beams attached to their heads.

A Community Independent Review Process, however, is a different kettle of snakes.

It’s substantially the same as a regular IRP — where ICANN’s fate is decided by a panel of three retired judges — except ICANN has to pay the complainant’s legal fees as well as its own.

ICANN’s track record with IRPs is not fantastic. It can and does lose them fairly regularly.

Could the ASO’s letter be the first portent of a community-led IRP bubbling up behind the scenes? Could such a move delay the PIR acquisition, putting Ethos’ plan for a profit-driven, price-raising .org on hold for a year or two? It’s certainly not impossible.

Amazon beats South America! Dot-brand contracts now signed

Kevin Murphy, December 23, 2019, Domain Policy

Amazon has prevailed in its seven-year battle to obtain the right to run .amazon as a branded top-level domain.

The company signed contracts for .amazon and the Chinese and Japanese translations on Thursday, despite years-long protests from the eight South American governments that comprise the Amazon Cooperation Treaty Organization.

This means the three gTLDs are likely to be entered into the DNS root system within a matter of weeks, after ICANN has conducted pre-delegation testing to make sure the registry’s technical systems are up to standard. The back-end is being provided by Neustar, so this is pretty much a formality.

.amazon is pretty much a done deal, in other words, and there’s pretty much nothing ACTO can do within the ICANN system to get the contract unsigned.

ACTO was of course angry about .amazon because it thinks the people of the Amazonia region have greater rights to the string than the American e-commerce giant.

It had managed to muster broad support against the gTLD applications from its Governmental Advisory Committee colleagues until the United States, represented on the GAC by the National Telecommunications Administration did a U-turn this November and withdrew its backing for the consensus.

This coincided with Amazon hiring David Redl, the most-recent former head of the NTIA, as a consultant.

The applications were originally rejected by ICANN due to a GAC objection in 2013.

But Amazon invoked ICANN’s Independent Review Process to challenge the decision and won in 2017, with the IRP panel ruling that ICANN had paid too much deference to unjustified GAC demands.

More recently, ACTO had been demanding shared control of .amazon, while Amazon had offered instead to protect cultural interests through a series of Public Interest Commitments in its registry agreements that would be enforceable by governments via the PIC Dispute Resolution Procedure.

This wasn’t enough for ACTO, and the GAC demanded that ICANN facilitate bilateral talks with Amazon to come to a mutually acceptable solution.

But these talks never really got underway, largely due to ACTO internal disputes during the political crisis in Venezuela this year, and eventually ICANN drew a line in the sand and approved the applications.

After rejecting an appeal from Colombia in September, ICANN quietly published Amazon’s proposed PICs (pdf) for public comment.

Only four comments were received during the month-long consultation.

As a personal aside, I’d been assured by ICANN several months ago that there would be a public announcement when the PICs were published, which I even promised you I would blog about.

There was no such announcement, so I feel like a bit of a gullible prick right now. It’s my own stupid fault for taking this on trust and not manually checking the .amazon application periodically for updates — I fucked up, so I apologize.

PICs commenters, including a former GAC vice-chair, also noticed this lack of transparency.

ACTO itself commented:

The proposed PIC does not attend to the Amazon Countries public policy interests and concerns. Besides not being the result of a mutually acceptable solution dully endorsed by our countries, it fails to adequately safeguard the Amazon cultural and natural heritage against the the risks of monopolization of a TLD inextricably associated with a geographic region and its populations.

Its comments were backed up, in pretty much identical language, by the Brazilian government and the Federal University of Rio de Janeiro.

Under the Amazon PICs, ACTO and its eight members each get a .amazon domain that they can use for their own web sites.

But these domains must either match the local ccTLD or “the names of indigenous peoples’ groups, and national symbols of the countries in the Amazonia region, and the specific terms OTCA, culture, heritage, forest, river, and rainforest, in English, Dutch, Portuguese, and Spanish”.

The ACTO nations also get to permanently block 1,500 domains that have the aforementioned cultural significance to the region.

The ACTO and Brazilian commenters don’t think this goes far enough.

But it’s what they’ve been given, so they’re stuck with it.

Russian company approved as gTLD escrow provider

Kevin Murphy, December 16, 2019, Domain Policy

ICANN has approved Russian internet exchange point MSK-IX as its 10th gTLD data escrow provider.

The organization said that week that Joint Stock Company “Internet Exchange “MSK-IX” has been added to its roster of companies fighting for gTLD registries escrow business.

MSK-IX is mainly in the business of operating an internet peering hub — a location where ISPs can connect their networks to backbones and to each other — in Moscow.

It becomes the fourth escrow provider in Europe, and the only one in Europe outside of the EU.

There are also five approved providers in Asia and only one — original provider Iron Mountain — in North America.

ICANN says it is not currently looking for any more providers.

gTLD registries are contractually obliged to periodically put their domain and registrant data into escrow, on the off-chance they go out of business and domains need to be transferred to a different company.

Kamel’s deputy gets promoted at ICANN

Kevin Murphy, December 10, 2019, Domain Policy

ICANN has promoted Mandy (Kathryn) Carver to the position of senior VP for governmental and intergovernmental engagement, replacing her late boss, Tarek Kamel.

Carver has been with ICANN for 13 years and reported to Kamel, as a plain VP, for the last six. She’ll now report directly to the CEO.

She’s a human rights and health lawyer, with previous experience at several non-profit entities.

Kamel died in October at 57 after a long battle with poor health.

ICANN board meets to consider PIR acquisition TODAY

Kevin Murphy, November 21, 2019, Domain Policy

ICANN’s board of directors will gather today to consider whether the acquisition of Public Interest Registry by a private equity company means that it should reverse its own decision to allow PIR to raise .org prices arbitrarily.

Don’t get too excited. It looks like it’s largely a process formality that won’t lead to any big reversals, at least in the short term.

But I’ve also learned that the controversy could ultimately be heading to an Independent Review Process case, the final form of appeal under ICANN rules.

The board is due to meet today with just two named agenda items: Reconsideration Request 19-2 and Reconsideration Request 19-3.

Those are the appeals filed by the registrar Namecheap in July and rights group the Electronic Frontier Foundation in August.

Namecheap and EFF respectively wanted ICANN to reverse its decisions to remove PIR’s 10%-a-year price-raising caps and to oblige the registry to enforce the Uniform Rapid Suspension anti-cybersquatting policy.

Both parties now claim that the sale by the Internet Society of PIR to private equity firm Ethos Capital, announced last week, casts new light on the .org contract renewal.

The deal means PIR will change from being a non-profit to being a commercial venture, though PIR says it will stick to its founding principles of supporting the non-profit community.

I reported a couple of weeks ago that the board had thrown out both RfRs, but it turns out that was not technically correct.

The full ICANN board did in fact consider both appeals, but it was doing so in only a “preliminary” fashion, according to an ICANN spokesperson. ICANN told me:

On 3 November the Board considered “proposed determinations” for both reconsideration request 19-2 and 19-3. In essence, the Board was taking up the Board Accountability Mechanism Committee (BAMC) role, as the BAMC had not been able to reach quorum in early November due to certain recusals by BAMC members.

Once the Board adopted the proposed determinations (in lieu of the BAMC issuing a recommendation to the Board) the parties that submitted the reconsideration requests had 15 days to submit a rebuttal, for the Board’s full consideration of the matter, which is now on the agenda.

Normally, RfRs are considered first by the four-person BAMC, but in this case three of the members — Sarah Deutsch, Nigel Roberts, and Becky Burr — recused themselves out of the fear of appearing to present conflicts of interest.

The committee obviously failed to hit a quorum, so the full board took over its remit to give the RfRs their first pass.

The board decided that there had been no oversights or wrongdoing. Reconsideration always presents a high bar for requestors. The .org contract was negotiated, commented on, approved, and signed completely in compliance with ICANN’s governing rules, the board decided.

But the ICANN bylaws allow for a 15-day period following a BAMC recommendation during which rejected RfR appellants can submit a rebuttal.

And, guess what, both of them did just that, and both rebuttals raise the PIR acquisition as a key reason ICANN should think again about the .org contract changes.

The acquisition was announced a week ago, and it appears to have come as much of a surprise to ICANN as to everyone else. It’s a new fact that the ICANN board has not previously taken into account when considering the two RfRs, which could prove important.

Namecheap reckons that the deal means that PIR is now almost certain to raise .org prices. New gTLD registry Donuts was bough by Ethos affiliate Abry Partners last year, and this year set about raising prices across the large majority of its 200-odd gTLDs. Namecheap wrote in its rebuttal:

Within months of be acquired by Abry Partners, it raised prices in 2019 for 220 out of its 241 TLDs. Any statements by PIR now to not raise prices unreasonably are just words, and without price caps, there is no way that .org registrants are not used a source to generate revenue for acquisitions or to pay dividends to its shareholders.

It also said:

The timing and the nature of this entire process is suspicious, and in a well-regulated industry, would draw significant scrutiny from regulators. For ICANN not to scrutinize this transaction closely in a completely transparent and accountable fashion (including public disclosure of pertinent information regarding the nature, cost, the terms of any debt associated with the acquisition, timeline of all parties involved, and the principals involved) would demonstrate that ICANN org and the ICANN Board do not function as a trusted or reliable internet steward.

Namecheap also takes issue with the fact that ICANN’s ruling on its RfR (pdf) draws heavily on a 2009 economic analysis by Professor Dennis Carlton, which concluded that price caps were unnecessary in the new gTLD program.

The registrar trashes this analysis as being based on more opinion than fact, and says it is based on outdated market data.

Meanwhile, the EFF’s rebuttal makes the acquisition one of four reasons why it thinks ICANN should reverse course. It said;

ICANN must carefully reexamine the .ORG Registry Agreement in light of this news. Without the oversight and participation of the nonprofit community, measures that give the registry authority to institute new [Rights Protection Mechanisms] or make other major policy changes invite management decisions that conflict with the needs of the .ORG community.

Quite often, RfRs are declined by ICANN because the requestor does not present any new information that the board has not already considered. But in this case, the fact of the PIR acquisition is empirically new information, as it’s only week-old news.

Will this help Namecheap and the EFF with their cause? The board will certainly have to consider this new information, but I still think it’s unlikely that it will change its mind.

But I’ve also learned that Namecheap has filed with ICANN to trigger a Cooperative Engagement Process procedure.

The CEP is an often-lengthy bilateral process where ICANN and an aggrieved party attempt to resolve their differences in closed-door talks.

When CEP fails, it often leads to an Independent Review Process complaint, when both sides lawyer up and three retired judges are roped in to adjudicate. These typically cost both sides hundreds of thousands of dollars in legal fees.

CEP and IRP cases are usually measured in years rather than months, so the PIR acquisition could be under scrutiny for a long time to come.