Delay .org deal because of… coronavirus? Gimme a break

Opponents of Public Interest Registry’s proposed acquisition by Ethos Capital are now claiming that ICANN should delay approval of the deal due to coronavirus.
A statement, released yesterday by digital rights group Access Now with the apparent approval of several other like-minded groups, outlines a few reasons why coronavirus means ICANN should reject, or at least delay its consideration of, the deal.
ICANN is currently working towards a March 20 deadline to deliver its verdict.
Peter Micek, general counsel for Access Now, said in the statement:

Far from routine, this transfer would further imperil crucial channels of trusted information in a precarious time. From Médecins Sans Frontières to Wikipedia to many of the world’s hospitals, organizations that disseminate accurate health information and connect affected communities with public resources depend on the .ORG domain. Now is not the time to shift the ground beneath their online activities.

Could a $0.97 increase in the cost of wikipedia.org this year see Wikipedia’s hive mind crumble and turn into the digital equivalent of Jenny McCarthy’s brain? Will it prompt MSF volunteers to retreat, screaming, from the front lines? I don’t think so.
The statement goes on to suggest that China would be able to use its substantial financial and political clout to lean on Ethos’ secretive backers to something something something coronavirus. Kenneth Roth, executive director of Human Rights Watch said:

The Chinese government routinely uses economic pressure to censor critics or inconvenient information, such as about its disastrous early cover-up of the coronavirus outbreak. Investors in the private equity firm that wants to buy the .ORG domain inevitably will have economic interests that Beijing could threaten.

While there may well be a nugget of truth in there, I fail to see how it applies to the current pandemic. Is the argument that China will pressure Ethos’ billionaire money men to close down domains belonging to organizations disseminating accurate Covid-19 information? It seems a stretch.
China already has substantial powers to shut down domains within its own borders, and requires registries operating in the country to comply with Draconian censorship rules. I’m not aware of any cases of these existing powers being exercised against domains globally.
A third argument is that ICANN is using coronavirus as a convenient smokescreen to quietly approve the acquisition while everyone else is busy ram-raiding corner stores for toilet paper.
Daniel Eriksson, head of technology at Transparency International, said in the statement:

If this transfer goes ahead during the current crisis as planned, we’ll look back on it as an example of vested interests taking advantage of the extraordinary situation created by the COVID-19 pandemic to further their own concerns at the expense of the broader good of society. We need to be vigilant against any such actions, and this is precisely the role of many civil society organizations that have a watchdog function. We need maximum transparency and integrity around the sale of .ORG, and that is simply not possible if the sale is rushed through at a moment when peoples’ attention is elsewhere.

Again, this seems like a stretch. The announcement of the acquisition predates the discovery of Covid-19 by weeks, and it has been subject to intense scrutiny, engagement, comment and unprecedented — albeit imperfect — levels of transparency ever since. This is an acquisition being negotiated to a large extent in the public square.
I’ll be generous and suggest a fourth explanation: this is probably just a poor-taste (but, let’s face it, successful) attempt to grab headlines by linking the #SaveDotOrg campaign, however thinly, to the pandemic currently occupying the world’s collective conscious.
There are plenty of good arguments that could be — and are being — made in favor of further delay and scrutiny of the deal, but I don’t think coronavirus is one of them.

At ICANN 67, nobody knew you’re a dog

Want to see what your fellow ICANN 67 attendees looked like on the other side of the Zoom chat room?
The meeting may have been held entirely remotely, but that hasn’t stopped the ICANN org from populating its Flickr page with a big wedge of photos, one of which seems to prove the old adage that “On the internet, nobody know’s you’re a dog.”

Photo credit: @icannphotos
At regular, face-to-face ICANN meetings, there’s a professional photographer doing the rounds, doing his or her level best to make jet-lagged, bearded. middle-aged men sitting in circles at laptops look thrusting and dynamic.
This time, it was largely up to remote participants to submit their own mug shots, taken in their home offices, kitchens, and lounges, for your viewing delight. And what a jolly nice bunch of people they look.
The batch of photos from 67 also includes a number taken on-site at ICANN’s Los Angeles headquarters, which had been hastily rigged up to act as the meeting’s hub after the face-to-face meeting in Cancun, Mexico was cancelled over coronavirus fears.
Here.

WE’RE ALL GONNA DIE! In other news, ICANN 67 was… “muted”

Without wishing to scaremonger about Covid-19, I don’t mind admitting that I’ve never been so terrified of anything as much in my adult life.
I have relatives in their nineties or with existing lung conditions, and I’m generally a pretty unhealthy middle-aged bloke myself. In the last few days, I’ve become increasingly concerned that not every member of the clan is going to make it out of 2020 alive.
I’m sure many readers are feeling the same way right now.
The UK government’s response may or may not be scientifically sound, but it seems to me the underlying strategy is not to prevent people from getting the disease, which may well no longer be possible, but rather to spread out infections over as long a period as possible, so as to reduce the peak strain on the National Health Service.
My feeling, which I don’t think is particularly paranoid, is that Boris Johnson, in apparent contrast to other world leaders, has made the call to throw a generation of British grannies under the bus in the name of herd immunity.
We’re living in dark times, and it’s going to get worse before it gets better.
I hope all my readers stay safe. And, in all seriousness, keep washing those hands and stay at home if you start coughing!
Awkward segue incoming.
There was little doubt in my mind that ICANN made the correct decision three weeks ago when it cancelled the in-person Cancun public meeting and quickly organized a much-truncated online-only ICANN 67 instead. There seemed a possibility that it was acting through an over-abundance of caution.
But, given the developments in the coronavirus pandemic since ICANN pulled the plug on Cancun, all such doubt has surely been eliminated. ICANN made entirely the right call.
That’s not to say that 67 was a roaring success. It suffered from the entirely predictable and unavoidable limitations of online conferencing.
When I say it was “muted”, I mean that in two senses of the word.
Watching the American late-night talk show hosts last night performing to empty audiences this morning was a surreal experience. Like watching survivors of the zombie apocalypse broadcasting a plaintive SOS into an eerily silent ether.
I kinda felt the same listening to ICANN 67.
While I’m no stranger to remote participation — that’s how I experience most ICANN meetings — there’s usually a detectable sense of place, of a jostling community on the other side of the Zoom room. I hesitate to use a word as strong as “vibrancy”, but you probably know what I’m getting at.
There was none of that at 67, which largely played out in much the same way as a regular policy working group call.
And that’s when we get to the other sense of the word “muted” — I lost count of the amount of time squandered to technical issues such as dropped or laggy connections, background noise, and, most commonly, people not realizing that they have to unmute their lines before speaking.
I don’t think a single session I attended was not plagued by periods of uncomfortable silence.
As I said, this was entirely predictable and largely unavoidable. I don’t think the fact that each session’s Zoom room appeared to be configured differently helped, but it’s probably a problem that will be mitigated as people become more accustomed to the Zoom platform.
The next ICANN meeting, numbered 68, is currently still scheduled to take place in Kuala Lumpur, Malaysia, from June 22, but I think that it’s almost inevitable that we’ll be looking at another online-only session.
Malaysia currently has 158 confirmed cases of coronavirus, suggesting that it’s still in the relatively early stages of the pandemic compared to, say, Europe.
With UK experts predicting peak infections here around late May, it’s entirely possible ICANN 68 would take place while Malaysia’s problem is significantly worse than it is today.

Facebook WILL sue more registrars for cybersquatting

Facebook has already sued two domain name registrars for alleged cybersquatting and said yesterday that it will sue again.
Last week, Namecheap became the second registrar in Facebook’s legal crosshairs, sued in in its native Arizona after allegedly failing to take down or reveal contact info for 45 domains that very much seem to infringe on its Facebook, Instagram and WhatsApp trademarks.
In the complaint (pdf), which also names Namecheap’s Panama-based proxy service Whoisguard as a defendant, the social media juggernaut claims that Whoisguard and therefore Namecheap is the legal registrant for dozens of clear-cut cases of cybersquatting including facebo0k-login.com, facebok-securty.com, facebokloginpage.site and facebooksupport.email.
In a brief statement, Facebook said these domains “aim to deceive people by pretending to be affiliated with Facebook apps” and “can trick people into believing they are legitimate and are often used for phishing, fraud and scams”.
Namecheap was asked to reveal the true registrants behind these Whoisguard domains between October 2018 and February 2020 but decline to do so, according to Facebook.
The complaint is very similar to one filed against OnlineNIC (pdf) in October.
And, according to Margie Milam, IP enforcement and DNS policy lead at Facebook, it won’t be the last such lawsuit.
Speaking at the second public forum at ICANN 67 yesterday, she said:

This is the second in a series of lawsuits Facebook will file to protect people from the harm caused by DNS abuse… While Facebook will continue to file lawsuits to protect people from harm, lawsuits are not the answer. Our preference is instead to have ICANN enforce and fully implement new policies, such as the proxy policy, and establish better rules for Whois.

Make no mistake, this is an open threat to fence-sitting registrars to either play ball with Facebook’s regular, often voluminous requests for private Whois data, or get taken to court. All the major registrars will have heard her comments.
Namecheap responded to its lawsuit by characterizing it as “just another attack on privacy and due process in order to strong-arm companies that have services like WhoisGuard”, according to a statement from CEO Richard Kirkendall.
The registrar has not yet had time to file its formal reply to the legal complaint, but its position appears to be that the domains in question were investigated, found to not be engaging in nefarious activity, and were therefore vanilla cases of trademark infringement best dealt with using the UDRP anti-cybersquatting process. Kirkendall said:

We actively remove any evidence-based abuse of our services on a daily basis. Where there is no clear evidence of abuse, or when it is purely a trademark claim, Namecheap will direct complainants, such as Facebook, to follow industry-standard protocol. Outside of said protocol, a legal court order is always required to provide private user information.

UDRP complaints usually take several weeks to process, which is not much of a tool to be used against phishing attacks, which emerge quickly and usually wind down in a matter of a few days.
Facebook’s legal campaign comes in the context of an ongoing fight about access to Whois data. The company has been complaining about registrars failing to hand over customer data ever since Europe’s GDPR privacy regulation came into effect, closely followed by a new, temporary ICANN Whois policy, in May 2018.
Back then, its requests showed clear signs of over-reach, though the company claims to have scaled-back its requests in the meantime.
The lawsuits also come in the context of renewed attacks at ICANN 67 on ICANN and the domain industry for failing to tackle so-called “DNS abuse”, which I will get to in a follow-up article.

ICANN chair: “all options open” on .org deal

ICANN has not yet decided to approve the acquisition of Public Interest Registry by Ethos Capital, but has not ruled out rejecting the deal either.
That’s according to chair Maarten Botterman, speaking to his Governmental Advisory Committee this evening.
At the online-only ICANN 67 meeting, he was asked by GAC chair Manal Ismail whether ICANN is considering withholding its consent for the $1.13 billion deal, which would see the .org registry return to for-profit hands for the first time in 18 years.
“At this moment all options remain open. We are open-minded to taking all input into account before it is time for us to decide,” Botterman replied.
“ICANN will consider the request based upon the totality of the information received,” he also said.
ICANN has the ability, under its registry agreement with PIR, to reject a change of control such as an acquisition, if it believes it’s not in the public interest.
Critics of the deal believe it would allow private equity firm Ethos and its anonymous backers to price-gouge non-profits such as charities, which need the money more.
But Ethos has offered to cap price increases at 10% per year on average for the next seven years, reimposing a price cap that PIR negotiated its way out of last year.

Could .org debate bring back the glory days of ICANN public forums?

ICANN is going to devote 90 minutes to discussing the controversial acquisition of Public Interest Registry by Ethos Capital on Monday, and the sparks could fly.
It’s actually going to be the first formal session of the abridged, online-only ICANN 67 meeting, which had been due to take place in Cancun but will now be carried out fully online. The customary opening ceremony has been scrapped.
Seventy minutes will be devoted to taking questions and comments from the “room”. ICANN 67 is sticking to Cancun’s time zone and the .org session starts at 1400 UTC, which would have been 0900 at the venue.
ICANN warned that the sessions is devoted to the process ICANN is using to approve, or not, the acquisition, and that it “cannot address questions and comments that relate to the ISOC, PIR, Ethos Capital, or other parties involved in the proposed transfer”.
The deal is controversial largely because critics believe Ethos, as a private equity company, is much more likely to start to rip off .org registrars with price hikes than not-for-profit ISOC. But Ethos has offered to bake conditions into its contract that limit it to 10% increases per year on average.
Given the vast amount of interest in the .org deal from outside the usual ICANN community, we could see the kind of robust debate that was common in the ICANN public forum sessions during the birth throes of the new gTLD program, but which has been sadly lacking in recent years.
Newcomers wishing to get involved might like to first familiarize themselves with ICANN’s Expected Standards of Behavior. Anyone dropping the F-bomb or calling the deal “gay”, as happened during the recent .com comment period, will very likely be kicked and banned. Just imagine you’re talking to Titania McGrath and you should be okay.

Poblete to replace Disspain on ICANN board

Chilean registry manager Patricio Poblete will join ICANN’s board of directors this October, replacing longstanding member Chris Disspain.
The Country Code Names Supporting Organization confirmed Poblete as its new nominee at the weekend following a lengthy election process also fought by Australian Nigel Phair and South African Calvin Browne.
Poblete is the director of NIC Chile, the ccTLD registry for some almost 600,000 .cl domains. He’s been involved in ICANN since its very beginning.
In the election, he received 57 votes compared to Browne’s 42 and Phair’s eight.
Disspain, a very influential member of the board who was vice-chair for years until he stepped aside last September, is being forced out due to term limits in ICANN’s bylaws. He’s almost done serving his third and final three-year term.
Poblete will become one of two ccNSO-selected directors. The other is Nigel Roberts, who runs the Channel Islands ccTLDs. Roberts’ term ends next year.
The nomination frees up a spot for a possible future director from Asia-Pacific, while reducing the available spots from Latin America.

Chinese registrars ask ICANN to waive fees due to Coronavirus

Almost 50 registries and registrars based in China have asked ICANN to temporarily waive its fees due to the economic impact they say Covid-19 — the new Coronavirus — is having on them.
They’ve all put their names to a February 21 letter (pdf) that ICANN published over the weekend, saying they “believe that it’s essential that ICANN provides immediate fee waiver to registries and registrars in China”.
The letter, signed by more than half of the currently accredited registrars in China, notes the cancellation of the Cancun public meeting, adding:

We highly respect and welcome ICANN’s approach to keep our community safe. Meanwhile, the contracted parties in China, including their staff, suppliers, and relevant business counterparts, are being hit and suffered by the 2019-nCoV in a much greater scale than in other countries and regions combined since January 2020. Many of the staff members have been restrained to perform sales and support functions at the level they are required to. There are significant delays in collections, payments and wire transfers. While we expect that the scale of 2019-nCoV could not go greater, the business growth estimate in 2020 has been jeopardized and the time of recovery can be very long.
While domestic aid on tax, rentals, etc. are being discussed and confirmed, we believe that it’s essential that ICANN provides immediate fee waiver to registries and registrars in China. The waiver of 2020 fees, including annual fees and transaction fees, will greatly help stabilize our business in the difficult time.

This is not a small ask. ICANN collects fees based on transaction volume, and many millions of transactions originate in China. That’s particularly true in the new gTLD space, where China dominates.
The Chinese companies say that ICANN could afford to waive the fees due to the money they say ICANN will save by cancelling Cancun and other international travel.
My hunch is that ICANN won’t agree to these demands. While China is currently undoubtedly disproportionately affected by Covid-19, that situation is rapidly changing.
In the coming weeks and months it’s quite possible — worst-case scenario — the rest of the world could be similarly affected. Is ICANN prepared to set a precedent that could see it sacrifice its entire annual budget? I doubt it.
All previous requests for ICANN to waive its fees for various other reasons have been denied.

Most languages won’t be available at ICANN 67

Translation services are the first component of ICANN 67 to fail victim to the org’s decision to hold the meeting entirely online.
ICANN announced last week that it has cancelled the in-person meeting, which had been due to kick off this coming Saturday in Cancun, due to fears about importing Covid-19 into Mexico and exacerbating its worldwide spread.
But it seems the lack of physical space is going to cause problems. It simply doesn’t have the room at its Los Angeles headquarters to accommodate all of its usual services.
There will be eight rooms operating simultaneously via Zoom during the meeting, ICANN said yesterday, and only two of those will have real-time interpretation.
Of the five non-English United Nations languages usually supported — Arabic, Chinese, French, Russian, and Spanish — only French and Spanish will be supported live. Portuguese, which is also usually available, will not be supported.
Sessions of the Governmental Advisory Committee and other high-interest meetings such as open board meetings and the Public Forums, will be given priority.
According to data released by ICANN in December, it appears very few remote participants people actually take advantage of live interpretation.
Of the 1,752 remote participants at ICANN 66, only 15 people tuned in non-English web audio streams and nine of those were listening to the Spanish, this report states. It appears the Arabic interpreter was broadcasting to an international audience of literally nobody.
This, of course, does not take into account how many people were physically in the room and using the live-interpretation headsets ICANN provides. These people will presumably have to switch to the web streams this time around.
Translated transcripts will be available after the meeting, faster than they are normally provided, ICANN said.
It seems that ICANN community members with limited English are going to be hardest hit by the switch to online-only.
Given that these people are most likely reading this article via Google Translate, I’d just like to add for clarity: my lonely moped speedily devours yawning leopards, while gorgeous shoelaces envelope my thorax.

Ethos volunteers for .org pricing handcuffs

Ethos Capital has volunteered to have price caps written back into Public Interest Registry’s .org contract, should ICANN approve its $1.1 billion proposed acquisition.
The private equity firm said Friday that it has offered to agree to a new, enforceable Public Interest Commitment that bakes its right to increase prices into the contract under a strict formula that goes like this:

Applicable Maximum Fee = $9.93 x (1.10n)

The $9.93 is the current wholesale price of a annual .org registration. The “n” refers to the number of full years the current .org registry agreement has been in play, starting June 30, 2019.
In other words, it’s a 10%-per-year increase on average, but PIR could skip a year here and there and be eligible for a bigger price increase the following year.
For example, PIR could up the fee by 10% or $0.99 to $10.92 this coming June if it wanted, but if it decided to wait a year (perhaps for public relations reasons) if could increase the price to $12.13 in June 2021, an increase of $2.20 or roughly 22%.
It could wait five years before the first price increase, and up it from $9.93 to $16.53, a 66% increase, in year six.
While price increases are of course unpopular and will remain so, the formula does answer the criticism posed on DI and elsewhere that Ethos’ previous public statements on pricing would allow PIR to front-load its fee hikes, potentially almost doubling the price in year one.
But the caps have a built-in expiry date. They only run for eight years. So by the middle of 2027, when PIR could already be charging $18.73, the registry would be free to raise prices by however much it pleases.
It’s a better deal for registrants than what they’d been facing before, which was a vague commitment to stick to PIR’s old habit of not raising prices by more than 10% a year, but it’s not perfect and it won’t sate those who are opposed to increased fees in principle.
On the upside, a PIC is arguably an even more powerful way to keep PIR in line after the acquisition. Whereas other parts of the contract are only enforceable by ICANN, a Public Interest Commitment could theoretically be enforced via the PIC Dispute Resolution Procedure by any .org registrant with the resources to lawyer up. Losing a PICDRP triggers ICANN Compliance into action, which could mean PIR losing its contract.
The PIC also addresses the concern, which always struck me as a bit of a red herring, that .org could become a more censorial regime under for-profit ownership.
Ethos says it will create a new seven-person .ORG Stewardship Council, made up of field experts in human rights, non-profits and such, which will have the right to advise PIR on proposed changes to PIR policy related to censorship and the use of private user/registrant data.
The Council would be made up initially of five members hand-picked by PIR. Another two, and all subsequent appointments, would be jointly nominated and approved by PIR and the Council. They’d serve terms of three years.
The proposed PIC, the proposed Council charter and Ethos’ announcement can all be found here.
Correlation does not necessarily equal causation, but it’s worth noting that the proposal comes after ICANN had started playing hard-ball with PIR, Ethos and the Internet Society (PIR’s current owner).
In fact, I was just putting the finishing touches to an opinion piece entitled “I’m beginning to think ICANN might block the .org deal” when the Ethos statement dropped.
In that now-spiked piece, I referred to two letters ICANN recently sent to PIR/ISOC and their lawyers, which bluntly asserted ICANN’s right to reject the acquisition for basically any reason, and speculated that the deal may not be a fait accompli after all.
In the first (pdf), Jones Day lawyer Jeffrey LeVee tells his counterpart at PIR’s law firm in no uncertain terms that ICANN is free to reject the change of control on grounds such as the “public interest” and the interests of the “.org community”.
Proskauer lawyer Lauren Boglivi had told ICANN (pdf) that its powers under the .org contract were limited to approve or reject the acquisition based only on technical concerns such as security, stability and reliability. LeVee wrote:

This is wrong. The parties’ contracts authorize ICANN to evaluate the reasonableness of the proposed change of control under the totality of circumstances, including the impact on the public interest and the interest of the .ORG community.

Now, the cynic in me saw nothing but a couple of posturing lawyers trying to rack up billable hours, but part of me wondered why ICANN would go to the trouble of defending its powers to reject the deal if it did not think there was a possibility of actually doing so.
The second letter (pdf) was sent by ICANN’s new chair, Maarten Bottermann, to his ISOC counterpart Gonzalo Camarillo.
The letter demonstrates that the ICANN board of directors is actually taking ownership of this issue, rather than delegating it to ICANN’s executive and legal teams, in large part due to the pressure exerted on it by the ICANN community and governments. Botterman wrote:

It is not often that such a contractual issue raises up to a Board-level concern, but as you might appreciate, PIR’s request is one of the most unique that ICANN has received.

He noted that the controversy over the deal had even made ICANN the target of a “governmental inquiry”, which is either a reference to the California attorney general’s probe or to a letter (pdf) received from the French foreign office, demanding answers about the transaction.
It’s notable from Botterman’s letter that ICANN has started digging into the deep history of PIR’s ownership of .org, much as I did last December, to determine whether the commitments it made to the non-profit community back in 2002 still hold up under a return to for-profit ownership.
Given these turns of events, I was entertaining the possibility that ICANN was readying itself to reject the deal.
But, given Ethos’ newly proposed binding commitments, I think the pendulum has swung back in favor of the acquisition eventually getting the nod.
I reserve the right to change my mind yet again as matters unfold.