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New CEO to step into the lion’s den at auDA

Kevin Murphy, January 14, 2020, Domain Registries

Australian ccTLD manager auDA has named its next CEO: Rosemary Sinclair, current CEO of Energy Consumers Australia.

She’ll join the organization in March, about nine months after the last guy, Cameron Boardman, quit after enduring three years of controversy.

Sinclair appears to come from the consumer side of the house. As well as being a “demand-class” member of auDA, she’s also the founding CEO of ECA, which was set up to represent the rights of Australian energy customers.

She’s been involved in auDA before, sitting as a non-executive director from 2009 to 2011, and was also involved heavily in the ICANN community around the same time.

She joins the organization at a time of change, with controversial initiatives such as the release of second-level .au domains on the horizon. She’s unlikely to get an easy ride; auDA members can be a vocal, activist bunch at times.

Sinclair is a Member of the Order of Australia, an honorific handed out by the Queen, meaning she gets to put AM after her name.

She’s NOT the octogenarian former Miss Australia that pops up first when you Google her name, as much as this headline-writer wants her to be.

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Secrets of the .org deal revealed, but much info remains private

Kevin Murphy, January 12, 2020, Domain Registries

ICANN has published a ream of new information about the proposed acquisition of Public Interest Registry by Ethos Capital, a deal widely criticized for what it could mean for millions of .org registrants.

The documentation was provided to ICANN by Ethos, PIR and the Internet Society, PIR’s current owner, on the understanding that certain confidential information would remain private or would be redacted.

Almost all of the juicy financial details remain unpublished, but there’s still plenty of interesting revelations among the packet’s 27 pages.

Before we dive into the details, here are the headlines:

  • The deal is being partly funded by an enormous loan.
  • Technically, Ethos isn’t the direct buyer. There are at least three corporate entities involved in the acquisition that we haven’t heard of before.
  • Ethos won’t reveal the names of the directors of PIR’s would-be owner.
  • Another former senior ICANN staffer and long-time Fadi Chehadé collaborator has been revealed as having an interest in the acquisition.

Most of the info relates to the proposed corporate ownership structure of PIR during and following the acquisition, and it’s a little bit more complex than Ethos simply signing a check to ISOC and taking the reins at PIR.

First, PIR is going to undergo what it calls a “statutory conversion” in its home state of Pennsylvania, changing its name from Public Interest Registry to Public Interest Registry LLC — essentially changing from a non-profit to a for-profit.

The company notes that this is not a change of entity — PIR will still be PIR — but is rather a change of its company type and legal name.

At the same time, a newly created non-profit fully owned by ISOC called Connected Giving Foundation will take 100% ownership of PIR LLC, before immediately selling its entire stake to the Ethos group.

But the buyer is not, directly, Ethos Capital. Instead, it’s an acquisition vehicle, created October 24 last year in Delaware, called Purpose Domains Direct, LLC. That company is owned in turn by another vehicle, formed the same day in Delaware, called Purpose Domains Holdings LLC.

Ethos controls both of these companies. It’s not unusual for acquisitions to be carried out via subsidiaries in this way.

That said, Ethos appears reluctant to reveal the names of these companies’ directors.

In its letter to ICANN asking for approval of the acquisition, apparently sent November 14 (one day after the public announcement), the names of the three Purpose Domains Direct directors are redacted. Corporation-friendly Delaware doesn’t make it easy to get at this information either.

However, in December 20 answers to a list of dozens of questions posed by ICANN about the deal, Ethos discloses that it has expanded its proposed board to five directors — the CEO of PIR (currently Jon Nevett), alongside two people selected by Ethos and two selected by “one or more minority equity holders”.

The minority owners are not named, but they could be the three entities revealed by ISOC’s CEO last November, which include funds managed by the Perot and Romney families.

The board will therefore be controlled by Ethos and PIR together, the documents state. No proposed directors other than Nevett are named and it’s not known whether the three redacted names from the November letter are still in line for seats.

The identities of individuals involved in the deal have been of keen interest since it emerged, shortly after the acquisition was announced, that former ICANN CEO Fadi Chehadé was acting as an adviser to Ethos, closely enough that he actually registered at least one domain name on Ethos’ behalf.

Ethos chief purpose officer Nora Abusitta-Ouri was a senior VP at ICANN until 2016, and CEO Erik Brooks worked for 20 years at Donuts owner Abry Partners, the private equity firm where Chehadé now works as a senior advisor.

Abry is not involved in the acquisition, the new documentation states. Neither are any current ICANN staffers or any other registries or registrars.

But it turns out that yet another former senior ICANN staffer is in fact involved.

The new documentation reveals that Allen Grogan, who worked as head of contracting for the new gTLD program and then chief of contract compliance at ICANN between 2013 and 2017, is also acting as an “advisor” on the deal.

It’s not clear whether Grogan is on the payroll of Ethos, Abry, Chehadé & Company, PIR, ISOC, or none of the above, but the smart money would surely be on him having being brought on board by Chehadé. Like so many senior ICANN officers hired during Chehadé’s tenure, the two men worked together for years at other companies.

The final nugget of new information that leaped out at me in the new docs is how the deal will be funded.

The packet reveals, I believe for the first time, that a good chunk of the $1.135 billion proposed purchase price is actually being paid for with new debt.

Ethos says that Purpose Domains Direct has taken out a total of $360 million in loans from various US banks to make up the shortfall left by its own investors.

The company said that PIR — a mature, high-margin business — will easily have the money to service this debt and, as a for-profit, pay its taxes. Repayments will be less than half of what it currently pays to ISOC every year, the documents state.

The documents were published here (pdf) on Saturday. Let me know if you spot something interesting I missed.

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Registrar terminated after what looks like domain hijacking

Kevin Murphy, January 10, 2020, Domain Registrars

ICANN has canned its first registrar of the year.

Los Angeles-based World Biz Domains will be going out of bizness after ICANN terminated its registrar contract earlier this week, following its non-responsiveness to what appears to be case of domain hijacking.

It’s a nothing registrar, with fewer than 100 domains under management, but it once had over 5,000.

The termination comes following the suspension I blogged about in October, which was related to the transfers to World Biz of 15 potentially valuable domains in late 2018.

The names were all either short numerics or the names of famous places in Singapore and Malaysia.

ICANN spent most of last year demanding records showing that the transfers were legit, but was ghosted.

World Biz allegedly also had failed to deliver Whois records in the proper format, and was behind on its ICANN accreditation fees.

The company will lose its accreditation officially on January 22.

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NamesCon publishes full agenda for debut Austin conference

Kevin Murphy, January 10, 2020, Domain Services

NamesCon Global is coming up at the end of the month, and yesterday the organizers published the final agenda for the three-or-four day event, including a keynote by GoDaddy’s new CEO.

Aman Bhutani, who took over the top job in September, will speak after lunch on day two of the conference, Thursday January 30, with an as-yet-untitled presentation. I imagine he was an easy booking, given that NamesCon has been owned by GoDaddy for the last few years.

Elsewhere on the agenda, there are plenty of sessions that look sufficiently interesting — covering topics such as data-driven market analysis, DNS abuse, and emerging technologies — that I kinda wish I was attending this year.

I’d be particularly interested in learning more about DNS over HTTPS and blockchain, two emerging “threats” to regular DNS that have sessions devoted to them during the conference.

It’s the first time NamesCon Global has been held outside of Las Vegas since the event debuted in 2003. It’s happening at the Omni Hotel in Austin, Texas, instead.

There’s a fair bit of doubling or tripling up in terms of speakers — some are sitting on multiple panels or keynotes spread over the three days of presentations — but that’s par for the course at NamesCon if memory serves.

Thursday evening sees the now-traditional domain auction, organized by NamesCon and RightOfTheDot. There are some pretty cool names up for sale this year, including add.com, laptop.com, shirts.com and offices.com.

If the auctioneer is anything like the ones hired in Vegas in previous years, you might want to bring along some ear protectors.

Finally, in terms of socializing, male attendees worried that the Friday night networking event is a “Ladies Only” affair can rest assured that Saturday is a day-long literal sausage fest, a seven-hour piss-up at the Banger’s Sausage House and Beer Garden.

NamesCon runs from January 29 to February 1. Tickets on the door are $999, but booking in advance online knocks the price to $699. Previous attendees are currently being offered an additional 30% discount on pre-booking too. Check your email.

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.gay prices and availability revealed as registry promises to give 20% of revenue to charity

Kevin Murphy, January 10, 2020, Domain Registries

The long-fought, once-controversial gTLD .gay is to launch a month from now.

Top Level Design, which won the string at auction against three other applicants last February, this week informed registrars that its sunrise period will begin February 10 this year. General availability will start May 20.

The registry, which beat a mission-focused, restricted “community” applicant for .gay, also said that it will give 20% of its top-line registration revenue to two LGBT charities — GLAAD and CenterLink.

With base registry fee of $25 per domain, that’s at least $5 going to gay charities for every domain sold. Registrars are being encouraged to match that donation at the retail level.

There will also be six tiers of “premium” domains — $100, $250, $650, $2,000, $5,000 and $12,500 — for which the 20% donation will also apply. Premium domains will renew at premium prices.

Top Level Design also says it is to enforce an anti-bullying policy. Any registrant using a .gay domain for “harassment, threats, and hate speech” will stand to lose their name. It’s a complaint-based enforcement policy; the registry will not actively monitor content.

Registrants who have forums on their .gay web sites will also have to police their user-generated content, to keep it in line with registry policy.

Its official policy even includes helpline numbers for bullied gay people who are feeling suicidal.

The registry appears to be making the right noises when it comes to calming concerns that an unrestricted, non-community .gay space could do more harm than good.

The key area where it diverges from the community application, which had been backed by dozens of gay-rights groups, is the lack of a ban on pornography. I’d hazard a guess that a good chunk of registration volume will come from that space.

The launch will comprise two sunrise periods and an early access period, before .gay goes to GA.

The first sunrise is the ICANN-mandated period, open only to those trademark owners with listings in the official Trademark Clearinghouse. That will run from February 10 to March 31. A second sunrise will be open to other trademarks, validated by back-end provider CentralNic. That runs from April 6 to May 6.

Both sunrise periods will include the automatic reservation of 10 potentially confusing Latin internationalized domain name variants, generated by CentralNic algorithm. This will include strings that transpose 0 and O or e and ë, for example.

EAP, the period in which early birds can grab the names they want for premium fees that decrease every day, runs from May 11 to May 17. Prices are not yet available.

GA is May 20.

Top Level Design originally planned to launch .gay last year, timed to coincide with National Coming Out Day in the US.

The new GA date appears to land on the anniversary of a landmark gay rights ruling in the US Supreme Court, Romer v Evans, but this may just be a coincidence.

.gay is launching about a month before the 50th anniversary of the Stonewall Riots, in June, so we might see some marketing around that event.

Registrars signing up to sell .gay domains are also being given some schooling, apparently courtesy of GLAAD, about what language is currently cool and uncool to use in marketing.

Apparently, the terms “homosexual”, “sexual preference” and “transvestite” are considered offensive nowadays and are therefore verboten in registrar marketing. “Queer”, as a partially reclaimed offensive term, should be used with caution.

I suppose Top Level Design had better hope the word “gay” is not added to this list any time soon, otherwise it has a serious problem on its hands.

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Now .org critics actually want to take over the registry, blocking billion-dollar sale

Kevin Murphy, January 8, 2020, Domain Registries

A group of ICANN alumni and non-profits want to block the $1.135 billion sale of .org manager Public Interest Registry and for ICANN to hand over the reins to a new not-for-profit entity.

The Cooperative Corporation of .ORG Registrants was reportedly formed in California this week, supported by a long list of opponents of the .org deal, which would see the Internet Society sell PIR to a new private equity company called Ethos Capital.

Currently not-for-profit .org would become commercial again, answerable to shareholders who want to see a return on their investment. PIR recently had its 10%-a-year price caps lifted by ICANN, enabling it to increase its annual registry fees by as much as it wants.

Founding directors of the new co-op reportedly include ICANN founding chair Esther Dyson and founding CEO Mike Roberts, neither of whom have been heavily involved in ICANN or the domain name industry for the better part of two decades.

According to Reuters, Also on the board are Wikimedia Foundation CEO Katherine Maher, Jeff Ubois of the MacArthur Foundation, and Bill Woodcock, executive director of Packet Clearing House, which provides .org, via back-end Afilias, with DNS resolution services.

Dyson told the New York Times: “If you’re owned by private equity, your incentive is to make a profit. Our incentive is to serve and protect nonprofits and the public.”

The new registry would not have a profit motive, and excess funds would be returned to the non-profit community.

While the new group has yet to make a formal, public proposal, the idea is reportedly to persuade ICANN to block the sale of PIR to Ethos — something nobody can seem to agree is even within its powers — and instead transfer stewardship to this new co-op.

It’s a crazily ambitious goal.

The group would be basically asking ICANN to cut off ISOC’s primary funding source. PIR currently gives tens of millions of dollars a year to its owner, and after the Ethos deal ISOC intends to live off the interest of its billion-dollar windfall.

If ICANN canceled the PIR contract and handed .org to a third party, ISOC would get nothing, potentially crippling it and subsidiaries such as the IETF.

I can’t imagine such a decision, on the outside chance ICANN actually went down this path, not resulting in litigation.

The Cooperative Corporation of .ORG Registrants is reportedly also being backed by other supporters of the #SaveDotOrg campaign (which now has over 20,000 supporters), including the free speech advocates at the Electronic Frontier Foundation and NTEN, a conference/community hub for non-profits.

This campaign last month managed to persuade a group of four Democrat members of Congress — Ron Wyden, Richard Blumenthal, Elizabeth Warren and Anna Eshoo — to express their concerns about the Ethos deal and ask ISOC/Ethos/PIR a series of pointed questions about its potential ramifications.

In its response this week (pdf), the leaders of the three entities avoided directly answering the bulleted questions, but did make some commitments that I believe are new.

Notably, they said that the registry would reincorporate as a Public Benefit LLC before the acquisition closes. This is a relatively new form of legal entity, which has been described like this:

A Public Benefit LLC is a for-profit entity; however, in operating a Public Benefit LLC, the LLC’s management can take into account social, economic and political considerations without violating its fiduciary duty to act in the best interests of the company.

In other words, PIR would be free to place the needs of .org’s non-profit registrants ahead of the needs of its own shareholders without opening itself up to legal action.

A “statement of public benefit” would be in its certificate of formation, and would include a commitment “to limit any potential increase in the price of a .ORG domain registration to no more than 10% per year on average”.

I’ve noted before that this is worded vaguely enough to give Ethos some flexibility to raise prices by over 10%, but the fact that it’s offering to bake a commitment on pricing into its corporate DNA may be seen as a step in the right direction by critics.

It’s also proposing a “Stewardship Council”, which would be “an independent and transparent body” tasked with providing policy guidance to PIR and overseeing a new “Community Investment Fund” that would be used for initiatives such as the annual .org awards program.

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Verisign pays ICANN $20 million and gets to raise .com prices again

Kevin Murphy, January 3, 2020, Domain Registries

Verisign is to get the right to raise the price of .com domains by 7% per year, under a new contract with ICANN.

The deal, announced this hour, will also see Verisign pay ICANN $20 million over five years, starting in 2021, “to support ICANN’s initiatives to preserve and enhance the security, stability and resiliency of the DNS”.

According to ICANN, the pricing changes mean that the maximum price of a .com domain could go as high as $10.26 by October 2026.

Verisign getting the right to once more increase its fees — which is likely to be worth close to a billion dollars to the company’s top line over the life of the contract — was not unexpected.

Pricing has been stuck at $7.85 for years, due to a price freeze imposed by the Obama-era US National Telecommunications and Information Administration, but this policy was reversed by the Trump administration in late 2018.

The amendment to the .com registry agreement announced today essentially takes on the terms of the Trump appeasement, so Verisign gets to up .com prices by 7% in the last four years of the six-year duration of the contract.

ICANN said:

ICANN org is not a price regulator and will defer to the expertise of relevant competition authorities. As such, ICANN has long-deferred to the [US Department of Commerce] and the United States Department of Justice (DOJ) for the regulation of pricing for .COM registry services.

But ICANN will also financially benefit from the deal over and above what it receives from Verisign under the current .com contract.

First, the two parties have said they will sign a binding letter of intent (pdf) committing Verisign to give ICANN $4 million a year, starting one year from now, to help fund ICANN’s activities:

conducting, facilitating or supporting activities that preserve and enhance the security, stability and resiliency of the DNS, which may include, without limitation, active measures to promote and/or facilitate DNSSEC deployment, Security Threat mitigation, name collision mitigation, root server system governance and research into the operation of the DNS

That’s basically describing one of ICANN’s core missions, which is already funded to a great extent by .com fees, so quite why it’s being spun out into a separate agreement is a little bit of a mystery to me at this early stage.

Don’t be surprised if you hear the words “bung” or “quid pro quo” being slung around in the coming hours and days by ICANN critics.

The second financial benefit to ICANN comes from additional payments Verisign will have to make when it sells its ConsoliDate service.

This is the service that allows .com registrants, via their registrars, to synchronize the renewal dates of all of the domains in their portfolio, so they only have to worry about renewals on a single day of the year. It’s basically a partial-year renewal.

Under the amended .com contract, ICANN will get a piece of that action too. Verisign has agreed to pay ICANN a pro-rated fee, based on the $0.25 per-domain annual renewal fee, for the number of days any given registration is extended using ConsoliDate.

I’m afraid to say I don’t know how much money this could add to ICANN’s coffers, but another amendment to the contract means that Verisign will start to report ConsoliDate usage in its published monthly transaction reports, so we should get a pretty good idea of the $$$$ value in the second half of the year.

The amended contract — still in draft form (pdf) and open for public comment — also brings on a slew of new obligations for Verisign that bring .com more into line with other gTLDs.

There’s no Uniform Rapid Suspension policy, so domain investors and cybersquatters can breath a sigh of relief there.

But Verisign has also agreed to a new Registry-Registrar Agreement that contains substantial new provisions aimed at combating abuse, fraud and intellectual property infringement — including trademark infringement.

It has also agreed to a series of Public Interest Commitments, along the same lines as all the 2012-round new gTLDs, covering the same kinds of dodgy activities. The texts of the RRA addition and PICs are virtually identical, requiring:

a provision prohibiting the Registered Name Holder from distributing malware, abusively operating botnets, phishing, pharming, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law and providing (consistent with applicable law and any related procedures) consequences for such activities, including suspension of the registration of the Registered Name;

There are also many changes related to how Verisign handles data escrow, Whois/RDAP and zone file access. It looks rather like users of ICANN’s Centralized Zone Data Service, including yours truly, will soon have access to the humongous .com zone file on a daily basis. Yum.

The proposed amendments to the .com contract are now open for public comment here. You have until February 14. Off you go.

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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.

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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.

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Now PIR rubbishes .org “downtime” claims

Kevin Murphy, December 30, 2019, Domain Registries

Two of Public Interest Registry’s top geeks have come out swinging against recent claims that .org will suffer days of downtime if PIR is acquired by Ethos Capital.

Chief technology officer Joe Abley and Susanne Woolf, senior director of technology community engagement, have penned a blog post calling the recent assertions by subcontractor Packet Clearing House “baffling” and “wrong”.

PCH claimed earlier this month that should PIR fall into for-profit hands, donations made to PCH would dry up, giving Ethos no choice but to either significantly increase .org prices or risk over three days of downtime per year.

PCH is a not-for-profit provider of DNS resolution services that contracts with Afilias to support .org and a couple hundred other Afilias-managed TLDs.

But PIR’s technologists today wrote:

PCH is a contractor to Afilias and has no business relationship with PIR; consequently PCH has no access to non-public financial information. We’re more concerned with the assertions that the current costs of maintaining DNS services are only sustainable if PIR remains a non-profit, and that a for-profit PIR will need to make deep cuts to funding for operations. These inferences are at odds with our knowledge and experience regarding the costs of providing solid DNS service. To be clear – they are wrong.

They go on to say “we find that PCH’s claims about their operational costs and funding models are baffling” and to suggest that if PCH is unhappy with .org’s forthcoming for-profit status, Afilias has plenty of competitors to choose from, writing:

If PCH is unable or unwilling to continue to provide service to Afilias at current pricing, Afilias has many options to ensure that .ORG continues to function at the high levels the technical community expects.

Afilias has already rubbished PCH’s claims in a letter to ICANN.

The $1.135 billion acquisition of PIR from the Internet Society is expected to close in the first quarter, but it’s currently undergoing some scrutiny by ICANN, which has to first approve the change of control.

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