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ICANN Independence and Non-Profits on the Net – Get it Right and Go Forward

Later this week, ICANN is finally going to vote on the proposed sale of .ORG to Ethos Capital. It will decide the future owner of .ORG, but the decision will also provide a window into whether ICANN will remain independent of the U.S. government. It’s a big decision, one that can strengthen both ICANN and the NGO community on the web, if we get it right.

For nearly a decade, the ICANN community fought hard to untether itself from the U.S. Department of Commerce. Many, even most of us in the ICANN world, supported the move based on assurances that a stronger “empowered community” would create independence for the global Internet community and a greater role for actors within the ICANN ecosystem. The result was two historic milestones: the end of ICANN’s Memorandum of Understanding with the Commerce Department and the termination of the IANA agreement with DOC in 2014.

Now there is reason to doubt that independence. California Attorney General Xavier Becerra recently warned that if ICANN approves the .ORG deal, the AG office, “will continue to evaluate this matter and will take whatever action necessary to protect Californians and the nonprofit community.” Just what action he would take is unclear, but either way, the California government, instead of the Department of Commerce, would be in the drivers’ seat.

Think what you like about the .ORG deal: the next time there’s controversy over an ICANN decision—justified or not—will the unhappy parties simply petition California to threaten ICANN? Will ICANN cave? And what about the community processes within the ICANN ecosystem? Will they be marginalized? Is ICANN simply swapping out one U.S. Government boss for another?

So that’s the negative, but there may also potentially a positive side of this controversy.

I know a little bit about PIR and the workings of .ORG. Several years ago, my firm partnered with Public Interest Registry and others to spread .NGO as a go-to domain for non-profit organizations. The goal was to promote the use of the .NGO space exclusively for use by groups with certified non-governmental status in the countries where they worked—to help real NGOs raise more money and do the community work that the government can’t or won’t do.

Alas, .NGO didn’t grow like we hoped—it was probably an idea ahead of its time. But if PIR and Ethos Capital are really committed to a more active global role, including governance and investing real money (starting with the commitment of $10M in real funding for philanthropic initiatives), this might be a real opportunity for the .ORG community. This would mean money going directly to NGOs versus flowing to the Internet Society for ISOC’s priorities.

For sure, $10M out of a multi-year, billion-dollar deal is just a starting point. But that’s where the economics come in. For the Ethos/PIR deal to work financially, PIR will have to offer more and better service to NGOs around the world. Up until now .ORG’s been a simple registry offering domain names. In this new scenario, PIR is proposing to effectively reinvent itself as a much more impactful portal that the .ORG community can use to get assistance with fundraising, legal compliance, or recruitment and membership and other areas. Having spoken with literally thousands of NGOs as part of our work with PIR over the years, I know that that non-profits from Botswana to Bangladesh need resources to solve these common problems.

The primary focus of discussion on the .ORG sale thus far has been gaining binding commitments around price controls and on censorship. And the community—not the California government—should insist that PIR makes good on their commitments. But let’s not lose sight of the other big issues on the table: the independence of the ICANN community and the online success of the non-profit world.

We, as an ICANN community, asked for independence from government, for good reason. And the global non-profit community can have a better—and more effective—PIR, with the incentive to offer more and better service to the global NGO community. These are positive outcomes, and California shouldn’t get in the way.

By Andrew Mack, Principal at AMGlobal Consulting

Andrew Mack is Principal of AMGlobal Consulting, a specialized Washington, DC-based consulting firm that helps companies do more and better business in Emerging Markets. A former World Bank project manager and finance professional with experience in more than 80 countries, Mack is internationally-recognized for his work on Public-Private Partnership, Corporate Social Responsibility and economic development issues—including work on Internet policy and its impacts on the spread of technology to Africa, Latin America and other underserved regions.

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There is no independence from government in the real world Anthony Rutkowski  –  Apr 28, 2020 10:06 PM

1. The intellectual property assets, systems, and products were created and owned by the U.S. government and paid for my American taxpayers over a 30 year period.  Those assets were conveyed to ICANN pursuant to a Department of Commerce Public Policy Making proceeding to manage with certain expectations.  Indeed, the U.S. government explicitly brought about ICANN’s existence pursuant to the proceeding.

2. ICANN is a legal person by virtue of its incorporation under the laws of State of California.  The relevant government agencies of California have an obligation to oversee and regulate ICANN’s affairs.  If ICANN does not like its existence as a creation of California, it can go elsewhere.

3. ICANN as a legal person is subject to the exercise of legal jurisdiction and the legislative, executive, and judicial requirements imposed by any and all government sovereigns throughout the world.  It does not possess any sovereign immunity.

It is time to stop asserting make-believe notions that ICANN is some kind of untouchable royal regime and join the real world.

Thank you Anthony William Blackwood  –  Apr 29, 2020 3:09 PM

Thank you Anthony. You are performing essential and wise work here to enlighten the confused or the compromised. Anyone who has taken VeriSign, PIR, or ICANN undisclosed money and then tries carrying their water is not qualified to honestly act on behalf of the Internet Community. That’s Ethics 101 for God’s sake. An unadulterated Internet Community of 12,000+ has already unambiguously enunciated on the record forbidding ICANN from allowing registries to uncap their prices or to approve the .org sale to undisclosed foreign interests. A very small select few still seem hell bent to try to kill our once Free U.S. founded Internet. We are witnessing Communism from a self-dealing “more-equal” ICANN that threaten false promises and sloganizing disinformation campaigns.

The slippery slope argument about ICANN independence Kevin Ohashi  –  Apr 29, 2020 12:06 PM

The slippery slope argument about ICANN independence and having US oversight being a long term bad thing could have some merit. If ICANN had been acting responsibly with its newfound independence. Instead, it’s show itself unable to regulate itself and that it’s captured by a vested interests. The .ORG deal shows us how badly ICANN has managed the public interest with no real oversight. If ICANN wants independence, it needs to show it’s capable of governing for the broader interests of all internet users, not the specific few who stand to profit exploiting a monopoly DNS system. The only reason the California AG stepped in is because ICANN is so out-of-line in their behavior that it has attracted the negative attention it deserves. A former CEO working with entrenched registry interests to capture and profit from the domain that’s defacto designated for non-profits around the globe? That’s a cartoon villain plot. The fact they thought (still think?) they will get away with it shows ICANN’s model of governance has failed.

Your next claim is .NGO failed because it was maybe ahead of its time. Or maybe it was a bad idea? Maybe none of the new gTLDs have really pushed any real innovation in the space because the market decided that the registry’s purpose wasn’t innovation. It was a utility to provide an addressing system for the internet. To think Erik Brooks who was connected to Donuts which has hundreds of gTLDs is suddenly going to create real innovation now? What stopped him at Donuts from successfully innovating with the new gTLDs?

The answer is obvious to anyone paying attention, the innovation is uncapped price increases. Or even capped ones. Look at how profitable VeriSign is and they only get 7% four times every six years. .ORG is trying to convince us that 10% every year is normal and acceptable. The only innovation happening here is crafting a narrative (lie) that .ORG price increases are normal and benefiting the public good.

The greatest irony of everything written here is the entire argument that the ‘ICANN community’ should be listened to and have power to decide for itself. Except, when 98%+ of the community says something is a bad idea (removing price caps on .ORG, for example. Or new .COM registry agreement), then it’s full steam ahead for ICANN ignoring the same community. You cannot have it both ways, ICANN either needs to start listening to its own community or get regulated. There is ample evidence that it no longer listens to the community, with deals pre-negotiated by ICANN staff and then ICANN makes a mockery of the public comment period. So now it’s time for ICANN to get regulated.

ICANN screwed up majorly and now it hopefully gets regulated for its own good. Because the public good has been trampled on long enough by ICANN and the entrenched interests which control it.

Are you asking for a return to government control? Andrew Mack  –  Apr 29, 2020 7:52 PM

To the commenters, I hear you and for sure you have more expertise in law than I do.  I will stick to the idea that I started with—we as a community asked for independence from the USG, and we got it.  We may not like the deal or the mechanisms that came with community control, but I’m still hard pressed to see how a return to government control gets us the outcome we want over the long term.  With every press conference I hear I am less convinced that government is likely to get it right regularly.

In terms of .NGO, well, yes, I do think it was a good idea.  And innovative, in a number of ways.  I mention it only to say that I know the space and have some real, first-hand experience around the world talking with NGOs about the challenges they face—both working on .NGO and over most of my career.  You are certainly entitled to think .NGO was dumb, or not viable.  (I’m willing to bet that some people at .ORG probably share(d) your view.)  Still, I would hope that .ORG in whatever guise would take on some of the ideas we had for .NGO which were aimed at doing more than just providing NGOs with a simple domain.

Government control left? William Blackwood  –  Apr 30, 2020 2:30 PM

From: .(JavaScript must be enabled to view this email address) [mailto:[email protected]] On Behalf Of Phil Corwin
Sent: Wednesday, September 14, 2016 8:56 AM
To: xxx Google Group Subject: [xxx]
FW: WID—GAO Reports Out Hill Republicans Crafting Final CR Language to Stop Imminent IANA Transition

Washington Internet Daily September 14, 2016

GAO Reports Out Hill Republicans Crafting Final CR Language to Stop Imminent IANA Transition

Capitol Hill Republicans are finalizing language in the short-term continuing resolution aimed at preventing the planned Internet Assigned Numbers Authority transition, Senate Commerce Committee Chairman John Thune, R-S.D., told reporters Tuesday. The language would extend a rider in the Department of Commerce’s FY 2016 budget that bars NTIA from using federal funds on the transition. The CR may move on the Senate floor this week. A GAO report released earlier in the day found the transition won’t result in a transfer of U.S. government property and likely resolves one of the many issues posed by critics. Resolution of the of property issue won’t by itself drastically shift the debate on the Hill on delaying the changeover, lobbyists said in interviews.

“I would expect” the transition funding rider extension language to be included in the short-term CR, said Thune, a Senate leadership member. “It’s a question of they’re trying to work out what that would look like, what would be affected in terms of slowing, putting the brakes on this. I don’t think anybody feels we’re ready yet for that transition to take place. So the question is how do you facilitate, how do you make that happen. I think they’re trying to work with our committee, the appropriators, the leadership, in this negotiation over language that might be included in the CR that would address that issue.” Republican Senate leadership discussed the IANA provision Monday at a leadership meeting, Thune said. Senators are coordinating with House lawmakers “on the leadership level” and the House “is in the same spot,” with “many of the same concerns” as senators, Thune said. Democrats are “probably not so” receptive, Thune said. “I think there are some who are interested and have some of the same concerns that our members do. But I’m sure they’re probably getting a lot of pressure from the administration because the administration’s pushing hard to get this done.”

He cited the CR language possibility last week and joined other Republicans in both chambers in urging Commerce and DOJ to reconsider delaying the switchover (see 1609090062). Thune acknowledged two camps of Republican lawmakers, noting the role of Sen. Ted Cruz, R-Texas, in opposing the transition, but framed their short-term goals as aligned for now, without any conflict. “Right now, we all want to make sure that on Sept. 30, that that transition doesn’t occur because we don’t think it’s ready yet,” he said. “Some of our members want to prevent this completely from happening, and there are others who would like to see it slowed and give us a chance to take a look at some of the issues that have been raised, which are legitimate issues about that transition.” Senate Majority Leader Mitch McConnell, R-Ky., filed cloture Monday on a vehicle for the shortterm CR—which would fund the government through Dec. 9—and said he would like to move the funding bill this week.

“Based on past experience, I don’t think we probably get there this week,” Thune said. “I think this probably spills into next week. But there’s progress being made, and there are half a dozen outstanding issues that have to be addressed, one of which is the ICANN [transition].” Senators likely will leave Washington once they pass the CR, he said. House Speaker Paul Ryan, R-Wis., expects a “low-drama September,” House Communications Subcommittee Chairman Greg Walden, R-Ore., told reporters Tuesday of the short-term CR. “I think the speaker has told the president that we’re not going to do some big gigantic omnibus,” Walden added of the process for later in the year, citing a House GOP desire for “smaller packages” of appropriations measures.

A second GAO report Tuesday clears the way for Congress to use the CR to extend the transition funding ban rider. The rider “would apply to amounts appropriated by a continuing resolution” for FY 2017, the GAO said in the report. A CR “would make appropriations to continue the activities funded in the [FY 2016 budget] while incorporating the terms and conditions that applied to those appropriations” in FY 2016. “NTIA could not use amounts appropriated under a continuing resolution to relinquish its responsibilities with respect to the Internet domain name system,” GAO said.

Stakeholders eagerly anticipated GAO’s transition property issue report given its potential impact on the debate. Several previously acknowledged the report and the U.S. Court of Appeals for the D.C. Circuit’s review of the Weinstein v. Iran country code top-level domains case would fully resolve the longstanding debate over whether TLDs are property (see 1605310064).

It’s “unlikely that either the authoritative root zone file ... or the Internet domain name system as a whole” is federal property under U.S. law, GAO said in its transition property issue report. “We did not identify any Government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system. It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.” The federal government “does have certain rights under a series of contracts and agreements related to the domain name system and the IANA functions, and has title to limited intellectual and tangible property related to performance of these functions, all of which constitute” federal property, GAO said: Almost all of that property “will be retained and not transferred or otherwise disposed of in connection with the proposed transition.” NTIA’s planned turnover of its oversight of the IANA functions is unlikely to violate the Constitution but “would result in NTIA surrendering the role that the U.S. Government has played in some form for nearly 50 years,” the GAO said. “Today, NTIA exercises both broad contractual oversight and specific contractual control regarding the IANA functions and domain name system, a role described by the global multistakeholder community and NTIA itself as providing ‘stewardship,’ an ‘accountability backstop,’ and a ‘safety net.’” Congress “may wish to take steps to address the broader issues raised by the transition if it believes there should continue to be direct U.S. oversight and control,” GAO said. “This opinion expresses no views on the merits of the proposed transition.”

GAO was “impressively clear” that there’s “no real property interest involved in the transition that would inhibit” it from proceeding, said Wiley Rein telecom and internet governance lawyer David Gross. Though the property issue has been one of several that transition skeptics evoked, the report “can have some influence on the current debate by taking this particular argument off the table,” he said. “I’d imagine that NTIA is happy.” NTIA is “pleased that GAO concluded that the transition does not involve a transfer of U.S. government property requiring Congressional approval,” said Administrator Larry Strickling in a statement.

“That this was released so late might create a suspicion that the GAO held it back so members of Congress wouldn’t have time to properly review it.” Cruz; House Judiciary Committee Chairman Bob Goodlatte, R-Va.; Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa; and House IP Subcommittee Chairman Darrell Issa, R-Calif., jointly requested the review in September 2015 (see 1509280056).

GAO released both reports a day before the Senate Judiciary Oversight Subcommittee is to hold a hearing on transition-related concerns (see 1609020038 and 1609070041). The subcommittee confirmed Tuesday that Strickling and ICANN CEO Göran Marby will be among witnesses. Witnesses on a second panel are Neustar Chief Privacy Officer Becky Burr, NetChoice Executive Director Steve DelBianco, Karsten Manufacturing Corporate Counsel Dawn Grove, LegitScript CEO John Horton, Red Branch Consulting founder Paul Rosenzweig, TechFreedom President Berin Szoka and ACT | The App Association President Jonathan Zuck. ICANN believes the Senate Judiciary Oversight hearing and other meetings on the Hill “are important conversations and are opportunities to clarify” misconceptions about the IANA transition, said Senior Adviser to the President-Global Strategy Theresa Swinehart in an interview. Stakeholders’ support for the transition in recent letters to Congress and the Senate Judiciary Oversight hearing “are the best way to demonstrate that our transition proposals are responsive to ensuring checks and balances in the system,” she said. ICANN remains “on track to execute” the ICANN community’s transition-related plans and will be ready to conduct the transition as planned Oct. 1, but “we’ll need to address” contingency plans for continuing to operate under NTIA oversight if Congress passes a CR with the funding ban extension, Swinehart said. That contingency plan will be “based on the situation at hand,” she said.—Jimm Phillips and John Hendel

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite

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