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<p><font face="Times New Roman, Times, serif">Thanks for this
Roberto. You are presenting some interesting new angles. Some
responses inline<br>
</font></p>
<div class="moz-cite-prefix">On 12/7/2019 9:06 AM, Roberto Gaetano
wrote:<br>
</div>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<meta http-equiv="Content-Type" content="text/html; charset=UTF-8">
Hi all.
<div class="">While submitting my thoughts to Jonathan for the
consolidated ALAC document to present to ICANN, it occurred to
me that analysing the past facts there are also questions that
we want to submit to Ethos/PIR and ISOC. Maybe some of the
questions to Ethos/PIR and/or ISOC have been asked already in
the meantime, but I kept them for completion.</div>
<div class="">I am therefore posting this - unfortunately long -
contribution for discussion within ALAC.</div>
<div class="">
<div class=""><br class="">
</div>
<div class=""><b class=""><u class="">The initial award of the
contract to PIR</u></b></div>
<div class="">The core of the matter is whether ISOC/PIR were
chosen because of their non profit status. The counter
argument is that the Board insisted in having a bid that was
open also to commercial parties. At the time I was not in any
of the bodies who made the decisions, but as a former Chair of
the DNSO General Assembly I had some exchange of opinions
about this and I was firmly convinced that this stance has
been taken in order to limit the possibility of Verisign to
raise issues with USG that could invalid the bid and/or to
appeal to the court for biased behaviour of ICANN. In simple
words, although the orientation was to have .org managed by a
non-profit, ICANN was very weak at the time and highly exposed
to Verisign lawsuits, and therefore had to move carefully. The
proof is in the pudding: when the contract was awarded to
ISOC/PIR there were some constraints that were directly
related to the Public Interest commitment of that bid.</div>
<div class="">The questions are therefore:</div>
<div class="">
<ul class="x_MailOutline">
<li class="">to ICANN - did the consideration that ISOC/PIR
was a non-profit, and therefore a further step towards
achieving the declared purpose of ICANN about introducing
diversification and competition in the domain name market,
an element that the Board took into account in making a
decision? If so, why is the situation so much changed that
ICANN allows the major gTLDs to be concentrated in
for-profit hands? Would this not be a risk of commercial
organisations to form a cartel that can adversely
influence the market? How is a monopoly by Verisign, that
was the target of ICANN’s action at the time,
substantially different from a cartel between the major
commercial registry operators that will arise if PIR
starts operating for profit? Does ICANN have sufficient
guarantees that Verisign is not behind this operation to
eliminate a competitor? The last question is not
peregrine, considering the operation that Verisign has
crafted about .web, creating a puppet company to
successfully counter Afilias’ bid, all without ICANN
seeing anything strange about i<font face="Times New
Roman, Times, serif">t</font></li>
</ul>
</div>
</div>
</blockquote>
<p><font face="Times New Roman, Times, serif"><i> re: Verisign and
puppet companies -- it's an interesting theory, but, even if
it were true, no one is going to admit it -- even ICANN --
until truth comes out through a 3rd party. So I am not sure of
the value of bring this into the mix. </i><br>
</font></p>
<p>to Ethos - what is the position of the company about the
commitments in the initial contract, like for instance to have an
Advisory Council that has been over the years a link between the
non-commercial and non-profit community and the Registry? As a
side note, the original commitment was to have a representative
from the NCUC, under my PIR chairmanship we changed NCUC to NCSG
and reserved one seat for ALAC as well, with the consideration
that the scenario had changed after the ICANN reform. It would be
important to keep this two-way communication with the new PIR.</p>
<p><i>Private equity companies cannot be held to any promises they
make in order to close a deal. How many times have we seen this
as companies have taken over industries promising to preserve
jobs, continue operating in a region, etc. IMHO, we should not
waste our time asking them to promise to behave. We could ask
them to incorporate as a "Benefit Corporation" (according to Sam
Lanfranco (economist on NCSG list) </i><i><font size="2"
face="Tahoma"><span
style="font-size:12.0pt;line-height:107%;mso-bidi-font-family:
Calibri;mso-bidi-theme-font:minor-latin;color:black">B Corp
duty is to more widely defined stakeholders and not
primarily to owner profit) - </span></font></i><i><font
size="2" face="Tahoma"><span
style="font-size:12.0pt;line-height:107%;mso-bidi-font-family:
Calibri;mso-bidi-theme-font:minor-latin;color:black">which
is not the same as what they have suggested -- a B Corp
certification. If this were to happen, then some of the
suggestions above might hold water. But, according to
Lanfranco, Ethos is unlikely to take this incorporation step
because it would limit their profit making ability. They
chose to be non-profit.<br>
</span></font></i></p>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class="">
<div class="">
<ul class="x_MailOutline">
<li class="">to ISOC - no questions</li>
</ul>
<div class=""><br class="">
</div>
</div>
<div class=""><b class=""><u class="">The Multi-Stakeholder
model</u></b></div>
<div class="">There has been an effort over the years to
progress towards equal representation of the stakeholders.
This has been a success story for ICANN, who has been
instrumental in the adoption of this philosophy in other fora
(e.g. IGF) and in the stake-holderism becoming a reference in
debates about governance models. ICANN has been proactive over
the years in balancing commercial and non-commercial views and
voices - even voting power. This is a clear sign of an
approach that would value non-profits being an essential
element that tries to balance the power of for-profit
enterprises. One clear example in this sense is the review of
the GNSO, when the commercial and non-commercial users were
given equal power in the reviewed GNSO while the previous
situation was that commercial companies had three
constituencies (i.e. three votes) while the non-commercial
users had only one. I was the Chair of the Structural
Improvement Committee and of the GNSO Review Working Group at
the time, so I have a lot of details that can be brought to
the discussion. The example is indeed about action in the
non-contracted party house, but indicates IMHO a general
philosophy that ICANN has that would apply also to the
contracted party house. This trend will be reversed if/when
ICANN endorses the transfer of the .org registry to a
commercial company. Moreover, PIR has been instrumental in
some fights for the public interest, endorsing SSAC
recommendations like the position against the wildcard that
Verisign had introduced for its own profit and against the
interest of the Internet users.</div>
<div class="">
<div class="">The questions are therefore:</div>
<div class="">
<ul class="x_MailOutline">
<li class="">to ICANN - does the endorsement of a move of
PIR to the commercial camp mark a change from the
expoused commitment to equal multi-stakeholderism? If
not, is ICANN willing to mark the point and suspend the
approval in order to have Board, Staff and the Community
to have a deeper look at the matter? If not, what are
the measures that ICANN plans to propose to balance this
shift from non-commercial to commercial power and marked
presence? Does ICANN realise that this change will also
alter the balance within the Registry Stakeholder Group
and if so are there any measures that ICANN proposes to
alleviate the consequences? Does ICANN realise that it
will be losing an essential ally in fights that ICANN
Advisory Committees, notably SSAC, is conducting for the
benefit of the whole Internet community as opposed to
the benefit of private interests? Who does ICANN think
it will now have among large gTLD Registries as
supporter of SSAC Recommendations - that are not binding
- now that PIR is likely to change camp? Does ICANN
realise that at this point in time the SSAC itself is
likely to become irrelevant because the commercial
registries cartel could simply disregard the advice?
Does ICANN have a plan B and can this be shared with the
community?</li>
</ul>
</div>
</div>
</div>
</blockquote>
<i><font face="Times New Roman, Times, serif">I like the possible
damage to the multistakeholder model angle, something that I
have not seen explored elsewhere and an argument that should
resonate with the board. <br>
</font></i>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class="">
<div class="">
<div class="">
<ul class="x_MailOutline">
<li class="">to Ethos - over time PIR has taken a lot of
commitments based on putting the Public Interest above
the financial interest of the company itself. Does Ethos
stick with this approach - and is therefore ready to
sign a formal commitment? If not, does Ethos think that
it is appropriate for a Registry that does not take
formal commitments for the public interest to still be
called “Public Interest Registry”? What is Ethos’
position vs formal recommendations that come from
technical ICANN advisory committees like SSAC and RSSAC?
What is Ethos’ position vs formal recommendations that
come from ALAC, the advisory committee that is
representing the user community and therefore the public
interest?</li>
<li class="">to ISOC - no questions</li>
</ul>
<div class=""><br class="">
</div>
</div>
<div class="">
<div class="">
<div class=""><b class=""><u class="">The sale itself</u></b></div>
<div class="">I have to confess that I have been taken by
surprise by the sale. However, linking this with some
trends in the years I have been on the PIR Board - also
as Chair for a while - I now have a better picture of
the whereabouts. The point here is that we need to put
ourselves in a Trustee's shoes and follow the money
-ooops, I meant follow the reasoning. If PIR is not
considered a valid steady supply of money, it is obvious
that an alternative has to be found. I personally do not
believe the story that Ethos’ proposal came out of the
blue and everybody in ISOC was taken by surprise. None
of the actors in this soap opera came out of the blue,
all are insiders. To try to make us to believe that
there have not been contacts for months, or even years,
is an insult to our intelligence.</div>
</div>
<div class="">This said, we must deal with the current
situation and the way we got here is irrelevant - or at
least less important - in this phase. The only fact is
that the transaction happened in the dark, that those who
knew pretend they did not know, that an asset that is
earmarked as “Public Interest” is traded without any
possible interaction with the voices that represent the
public interest.</div>
<div class="">The questions are therefore:</div>
<div class="">
<ul class="x_MailOutline">
<li class="">to ICANN - Is it normal that such a
transaction, that has so much impact for the
community, happens without a public comment period? Is
it too late to start such public comment period before
endorsing the change? We have public comments as a
rule - or at least as a practice. People will not
understand if ICANN gives a stamp of approval to a
transaction of this importance without opening a
consultation. Of course, it will be well understood
that the result of the consultation will not be
binding for ICANN’s decision, but not even to hold the
PIR transfer until we have a feedback from the
community will undermine ICANN’s image vs the public
interest. ALAC should recommend to hold the
transaction and open a public comment phase.</li>
</ul>
</div>
</div>
</div>
</div>
</blockquote>
<i><font face="Times New Roman, Times, serif">ICANN can set
restrictions on the contract. It can even refuse to transfer the
contract. Perhaps we need to take the perspective that the
public comment period is happening impromptu -- i.e. right now.
So we can ask for this, but I would not hold anything back
waiting for it. <br>
</font></i>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class="">
<div class="">
<div class="">
<div class=""> </div>
</div>
</div>
</div>
</blockquote>
<i>
</i>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class="">
<div class="">
<div class="">
<div class="">
<ul class="x_MailOutline">
<li class="">to Ethos - when the asset was bought, was
it understood that PIR via .org was playing a
substantial role in the ecosystem being the only large
gTLD operating in the public interest as non-profit?
Does Ethos plan to continue this role - regardless the
formal for-profit company form? What are the
engagements that can be formalised in a binding
contract that could support this approach? Are there
any plans to further trade PIR assets to, e.g., a
registrars consortium that via vertical integration
could provide better return on investment at the
detriment of the public interest? Would Ethos/PIR be
ready to go beyond the simple affirmation of intents -
that can be changed at any time and that do not carry
weight in a court - and sign a formal commitment like
a contract with ICANN?<br>
</li>
</ul>
</div>
</div>
</div>
</div>
</blockquote>
<i>See comment above re: holding private equity to account</i><i><br>
</i>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class="">
<div class="">
<div class="">
<div class="">
<ul class="x_MailOutline">
<li class="">to ISOC - I remember ISOC putting a lot of
pressure to PIR for the rebid of the back end
contract. The issue was to make sure that we had a
completely open and transparent bit, which of course
PIR did. How comes that the requirements for a PIR
subcontract do not apply for the mother company? Does
ISOC realise that this is yet another instance of “do
what I say, not what I do”? Do ISOC chapters realise
that they have had no input - as vehicle from the
field - in this transaction? Can we have an official
statement from the ISOC Chapter representatives on the
Board of Trustees - some Chapters are also ALAC ALSes
- on why they supported this sale and how the public
interest has played a role in this? Does ISOC realise
that it has lost the trust from large part of the
people who are aware of the domain name issues - who
are the core of the supporters historically? Do the
ISOC chapters realise that they are becoming
irrelevant facing the role that the IETF Trustees have
taken on the ISOC Board and the collusion with the
organisational members?</li>
</ul>
</div>
</div>
</div>
</div>
</blockquote>
<i>I have been wondering if ISOC chapters are holding back -- not
wanting to bite the hand that feeds them? Understandable -- but
unfortunate</i><i><br>
</i><i><font face="Times New Roman, Times, serif"> </font></i>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class="">
<div class="">
<div class="">In summary, my personal opinion is that we
should ask ICANN to wait before granting its approval until
after a consultation is carried on and until Ethos/PIR have
cleared their position vis-à-vis taking binding commitments
about their future behaviour in the Public Interest.</div>
</div>
</div>
</blockquote>
<p><i>See all comments above. There is no way to hold Ethos to
account. As I said on the CPWG call, we should be anticipating
that ICANN will approve the deal and asking for some contractual
protections that would protect end-users. </i><i><br>
</i></p>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class="">
<div class="">
</div>
<div class="">As for the questions to ISOC I would expect the
ISOC Chapters - in particular those who are active in ALAC -
to express their opinion on the sale.</div>
</div>
</blockquote>
<i>They might be wondering if that would endanger their funding.
Although some chapters have done so, ISOC has not done anything to
make chapters feel comfortable pushing back.</i><i><br>
</i>
<blockquote type="cite"
cite="mid:0C20F654-49E0-4F05-8E38-CDB5605230B5@hotmail.com">
<div class=""><i>
</i>
<div class="">Cheers,</div>
<div class="">Roberto</div>
</div>
<br>
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