[CPWG] Discussion of Capture is and always has been a legitimate topic at ICANN (was Re: ICANN Code of Conduct)

George Kirikos icann at leap.com
Wed May 1 16:43:52 UTC 2019


I find your email:


which was in response to my email at:


which was responding to Greg's email at:


to be quite bizarre. Discussion of capture is and always has been a
legitimate topic at ICANN.

1. Before going into the substance, there appears to be a double
standard here, where you state my comments are "disingenuous" and
refer to some "campaign". Calling someone "disingenuous" isn't nice or
respectful. The "campaign" presumably refers to Greg Shatan's
statement at:


where wild accusations of a "well-orchestrated campaign" are made, and
pointing to just one "lobby group", the Internet Commerce Association
as behind it. Again, not nice words (and which I'll discuss further
below), but not a peep when those statements are made (which you
presumably share, given you refer to "the campaign"). Greg Shatan's
entire email disrespects and attempts to delegitimize the thousands of
comments that were made. Again, not a peep of concern about that.

2. There's a great tool called "Google" that allows one to research
past discussions of "capture" at ICANN, demonstrating that it has
always been a legitimate topic that can be raised. Here are some
examples to show that my statements are not out of line (not in any


In a review of the At-Large itself, comments by the Registry
Stakeholder Group (RySG) regarding capture:

"While we believe the structural changes proposed by ITEMS will help
to improve the quality and representativeness of At-Large advice, we
remain skeptical that representation by a few users is the best way to
fully capture the user voice. Considering the diversity and breadth of
user perspectives and ****pervasive concerns about the motivations of
and potential capture by At-Large leaders*****, a more informative
approach could be to carry out both quantitative and qualitative user
studies about the impact of policies and other proposals and
developments on Internet users." (page 40, emphasis added)

"Pervasive concerns and motivations of and potential capture by
At-Large leaders" -- that's permitted topic for discussion.

Later in the same document, also by the RySG:

"Carrying out quantitative and qualitative user studies1 on the impact
of policies and other proposals and developments on Internet users
would be effective way to deal with the breadth and diversity of user
perspectives and balance ****ongoing concerns about the motivations
of, and potential capture by, At-Large leaders.****"

Again, "ongoing concerns about the motivations of, and potential
capture by, At-Large leaders" is a legitimate topic for discussion
within ICANN.

b) The CCWG-Accountability report at:


"The new Bylaws tasked the CCWG-Accountability WS2 to:
“review and develop ... recommendations on SO/AC accountability,
including but not limited to improved processes for accountability,
transparency, and participation that are helpful to prevent capture”"
(page 4)

c) By Greg Shatan himself:


Greg Shatan: "…It’s one of the - I wouldn’t say it’s a bogeyman
because there are ****legitimate concerns about capture****. But it’s
- it gets thrown around a fair amount and it’s definitely - while it
can’t be ignored it’s also - it’s important to try to dig down and do
exactly what you do, which is to say, “What are you - what concerns
are you actually expressing when you talk about capture?” (page 8, and
elsewhere too; emphasis added)

d) https://www.icann.org/public-comments/soac-accountability-2017-04-14-en

"(iii) Supporting Organization and Advisory Committee accountability,
including but not limited to improved processes for accountability,
transparency, and participation that are ****helpful to prevent

This Bylaws mandate for this project specifically mention capture, a
concern raised by NTIA in Stress Tests 32-34, *****regarding internal
capture by a subset of SO/AC members, and concern that incumbent
members might exclude new entrants to an SO/AC.****" (emphasis added)

e) https://meetings.icann.org/en/dublin54/schedule/tue-ipc/transcript-ipc-20oct15-en.pdf

Kiran Malancharuvil (of the IP Constituency): "…So, but that group, it
does make me sad because we - and this maybe a dangerous thing to say
in an open meeting, but whatever. It's a really good example of
capture in the ICANN community I think.

I think that the privacy interests have captured and refused to
compromise. I think that the Registrars and the self-interested
service providers have captured that group." (pp. 40-41)

Greg Shatan was even on that call, and wasn't perturbed at the
discussion of capture. Immediately after Kiran spoke, Greg said:

"Kiran, there are others. Do you have any idea about solutions to this
problem more concretely?"

Then Kiran even went further:

"And everybody talks about capture at ICANN as if the business
interests are the ones capturing the groups, and it's absolutely not
the case. And the Privacy interests actually now are starting to the
capture the Public Safety Working Group which is the Law Enforcement
Group." (p. 42)

Again, a legitimate topic of discussion within ICANN.


"ANNE AIKMAN-SCALESE: Is this thing on? Can you hear me? Okay. Just
three quick points. I think that ****there's been a lot of concern
expressed about capture and not keeping things open to capture.****
And from my standpoint if one SO or AC can completely dictate the
nuclear option, the use thereof or no use thereof, that would be a
capture situation. So if only one can completely block, that's
capture. That would mean one SO or AC can capture. So I agree with the
way it's formulated now." (page 81, emphasis added)

g) https://gnso.icann.org/sites/default/files/file/field-file-attach/transcript-gnso-working-session-2-11mar18-en.pdf

Phil Corwin of Verisign:

"Good morning. Phil Corwin. My group, and we had some participation,
not a great deal of people involved, was on the question of capture.
So I'll of course working group recommendations are subject to
challenge as representing ****captured by a single constituency or a
single interest and that's why capture should be avoided***** because
consensus recommendations of a working group should represent
consensus of a fairly board cross-section of the ICANN community, and
not simply people from this constituency or that stakeholder group, or
this particular economic interest.

I'm going to speaking to this, I can't help but think in the context
of a working group I'm co-chairing but I'm not going to refer to that
specifically. I think you could have two types of capture. One, you
could have a working group, which is just the only participants for
whatever reason are from a single group, however you define it, and
you can't get other people to participate. And I'm not sure what can
be done at that point other than trying to encourage others to join in
or to disband the group because you know that it's quite likely to
have a single point of view and be subject to challenge, and why go
through the exercise.

The situation I've been dealing with is different. You have a -- it's
basically ****what I call operational capture where you have a small group
representing a single interest and single point of view who are the
most active members of the working group.****" (pp. 24-25, emphasis
added; discussion is even longer, than this)

h) https://archive.icann.org/meetings/singapore2015/en/schedule/tue-csg/transcript-csg-meeting-10feb15-en.pdf

Elisa Cooper: "Yeah, so, you know, that’s an - if they ask us about
that, that’s an opportunity for us. Our explanation was actually quite
lengthy and I wanted to keep this to one slide. But it’s risks to
coming from marginalized groups. It’s similar to some of these other
ones that are out there.

****It’s risk of capture****. It’s risk of over representation by
governments. There’s a whole category of items that we think pose
potential risk to the multistakeholder model." (pp. 3-4, emphasis

i) https://www.icann.org/news/announcement-2003-01-09-en

"Among the reforms is fresh thinking on how to bring the voices of
individual users and registrants into the decision process. An
At-Large Advisory Committee is being formed to channel the thinking of
users around the world. Last March, the ICANN Board decided that, at
this time, online elections of directors is an expensive process too
fraught with dangers of capture and fraud, and more effective means of
bringing users to the ICANN table needed to be found. "ALAC," added
Lynn, "will help bring this about."

That was an interesting one. Concerns about capture of online
elections for ICANN directors, which then led to the creation of ALAC!


Danny Younger: "…The second, more urgent question that I've got is on
the topic of
capture. ****I'm one of many that views ICANN as having been captured by
the contracted parties.**** I see multiple regional registry/registrar
gatherings funded every year by ICANN with no equivalent for non-
contracted parties whatsoever. Has the committee started thinking
about recommendations to deal with the internal capture issue?" (emphasis added)

and later:

Marilyn Cade: "…Today ****I do think we have been captured by the
contracted parties****, but I believe that we can overcome that and I
believe that that is in the best interest of the contract parties as
well." (emphasis added)

Normally 10 examples would be more than enough, but I couldn't resist an 11th:

k) https://www.icann.org/en/system/files/correspondence/badiei-to-chalaby-22may18-en.pdf

>From NCSG:

"At-Large must develop a robust conflict of interest policy, in
particular for their leadership.

It is no easy task to represent the interests of the Internet’s over
3 billion end users. However, if At-Large is going to play this
function effectively in the multistakeholder process, it is critical
to consider their role as being distinct from that of other
stakeholder groups at ICANN. ****At-Large should develop a conflict of
interest policy to facilitate this distinction, and to avoid capture
by interests whose goals may not be in line with those of end-users*****
more generally such as, for example, governments and businesses.
Although governments and businesses are, of course, end users in their
own right, they also have dedicated stakeholder groups in which their
interests are represented. Moreover, governments and some business
sectors may have interests which are directly divergent from those of
the vast majority of Internet users. ****In order to protect the integrity
of ALAC, it is important to develop a conflict of interest policy
which prevents membership by persons who are closely tied to these
other groups.*****" (page 4)

There are obviously many more examples, but I'll stop at 11. It should
be abundantly clear that discussion of capture has been and is an
entirely legitimate topic at ICANN.

3. If one returns to my actual email:


it mentioned capture twice:

a) "Given the overwhelming opposition already expressed in the public
comments to date, Greg's statement is more indicative of capture of
the At-Large, rather than anything that could reasonably reflect what
users think of these contracts."


b) "The statement that "many At-Large Structures are also ISOC
Chapters" is consistent with a conflict of interest and capture,
rather than being reflective of ordinary users."

The 2nd one is a supporting statement for the first, and literally
quotes a statement from Greg Shatan's own draft:


"Many At-Large Structures are also ISOC Chapters, further
demonstrating the commonality of interests."

That's a direct conflict of interest in my view, an entirely
legitimate concern to raise, as per the many citations pointed to

4. Look at the actual history of this matter. At the last meeting, it
was decided that At-Large would not be making a statement. What "new
information" exists since that decision, to justify change? There is
none, other than the fact that thousands of others have made comments,
and so presumably some of ISOC's friends and/or allies feel the need
to help ISOC. That's not a good justification at all.

Remember, Jonathan even wrote on Friday:


"Let's table this discussion until we can have a more thorough
exploration of the issues. Email is a terrible way in which to have
such a discussion. "

But then some people ignored that, wanting to relitigate a decided
issue. And, many of those people were present at last week's meeting
too, so they already had their chance. Again, what new information did
they have? None. Did Jonathan rebuke them for not tabling the
discussion? Nope.

Indeed, look at Greg Shatan's email at:


"I believe that PIR was hoping for a comment along the lines of our
first draft (which I believe they saw on our site) or our second

That is again entirely consistent with capture.

5. It's obvious that many folks have some past or present connection
to ISOC or one of its chapters, or perhaps even aspirational future
connections with them. e.g. Greg Shatan's is obvious, via the NYC
chapter of ISOC.

Maureen Hilyard's SOI:


mentions the "Pacific Islands Chapter of the Internet Society"

Marita Moll has a history with the Canadian chapter:


Cheryl Landon-Orr's SOI:


mentions "Internet Australia  (IA)  formally known as the Internet
Society of Australia ( ISOC-AU)"

John Laprise's LinkedIn profile:


mentions "cofounding Qatar's Internet Society chapter" as well as
"Faculty" of Internet Society in May 2014.

I think I've made my point.

6. Let's take a look at Jonathan Zuck himself. Jonathan has 2 SOIs
that I could find at ICANN, one for the At Large and one for the GNSO:


One thing that you won't find mentioned in those SOIs is the history
of Jonathan's involvement with Netchoice, as documented by their Form
990 statements:



Page 7 of each Form 990 lists Jonathan Zuck as a director of
Netchoice, an organization where Verisign is a member.


And of course Verisign desires fee increases too.

Indeed, one of the drafters of the Business Constituency's statement
in support of fee increases was Steve DelBianco, of Netchoice:


[another drafter of that statement was Andrew Mack, who even has
PIR/ISOC as a client, see:

https://www.amglobal.com/clients ]

And one is trying to assert that "capture" is somehow an inappropriate
topic for discussion, given all of the above? I don't agree.

7. Let's not forget about Greg's email at:


where he is either unaware of or ignores relevant facts, such as:

a) I *personally* raised awareness to many .org/info/biz/asia
registrants via Slashdot (as well as via my blog and Twitter), see:


Take a look at the date of that -- it's *before* our last meeting,
linking again to a post by Nat Cohen at CircleID *before* our last
meeting. On Slashdot, it generated 82 comments, and I didn't link to
any form (neither did Nat Cohen via CircleID):


Take a look at the number of pageviews of the CircleID article --
35,257 (at the time of this email), which is far above any other
recent post:


(most CircleID articles get 1,000 to 2,000 views)

Back in 2006, a similar Slashdot article also vent viral:


linking to my CircleID post that generate 76,707 views:


(and more than a thousand public comments opposing the proposed contracts)

There was no "campaign". Individuals simply got interested in an
important issue.

b) NameCheap themselves blogged about it, *and* sent emails to all
their own customers, thus generating many comments, both via the ICA
form (which they linked to), and original creations. They certainly
have a right to raise awareness. And then those clients also went to
social media, to encourage public comment. For example, I don't know
Quincy Larson personally, but take a look at his Twitter feed:


He's involved with FreeCodeCamp.org, and has more than 77,000
followers. His tweet at:


has 322 retweets, and 365 likes, implying it received huge coverage
and clicks, raising awareness. And if you look at the WHOIS for


it's registered at NameCheap, where he presumably learned about the issue.

c) While many have been focused on .org, consider the number of public
comments re: .info:


250 at the time of this post. Or for .biz:


169 at the time of this post. [The .asia archives appear to be broken,
haven't been updated in a week, and haven't even posted my own
submission yet, so those 6 comments aren't informative]

Given the relative size of .org vs. .biz and .info, one would easily
have expected more than 1000 comments for .org.

d) Even the BBC reported about the issue, further raising awareness.

e) Some very large non-profits and organizations representing
non-profits made substantial comments:

(i) NPR, YMCA, C-SPAN, National Geographic Society, AARP, The
Conservation Fund, Oceana, and National Trust for Historic


(ii) National Council of Nonprofits

(iii) ASAE


f) Where are all the public comments from At-Large structures or
individuals of this CPWG? We agreed last week that folks should submit
individual comments, but where are they? I submitted one, of course.
Where are comments from ALSes? Where's any outreach to those ALSes?
All the entities that At Large purports to represent --- where are
their comments? Doesn't At Large do any outreach or education?

Instead, we have a small number of people pushing for an At Large
statement at this late date (despite last week's call), one that is
rather extreme and illogical, inconsistent with those who've made
comments already. It doesn't represent the views of billions of users,
nor should it pretend to. It's reactionary, reacting to a perceived
desire from PIR/ISOC to have their views (which are self-serving
views) put forth at ICANN. That's the very essence of capture. Go back
to Greg's email:


"I believe that PIR was hoping for a comment along the lines of our
first draft (which I believe they saw on our site) or our second

8. I feel so strongly about this issue, that if At Large does issue a
statement that demonstrates capture, I will definitely cease my
involvement with At Large and CPWG. Such a statement would undermine
At Large's integrity and reputation. I will not waste my time
providing input and analysis that will be ignored, if At Large
demonstrates it has been captured.


George Kirikos

On Tue, Apr 30, 2019 at 6:59 PM Jonathan Zuck
<JZuck at innovatorsnetwork.org> wrote:
> George,
> Your comments about Greg somehow "capturing" the At-large (on whose behalf I wonder) are disingenuous given the campaign. In which you are engaged and insulting to everyone on this list attempting to get a handle on a complex and highly political issue. I suggest you withdraw them. Thanks.
> Jonathan
> Jonathan Zuck
> Executive Director
> Innovators Network Foundation
> www.Innovatorsnetwork.org
> ________________________________
> From: GTLD-WG <gtld-wg-bounces at atlarge-lists.icann.org> on behalf of George Kirikos <icann at leap.com>
> Sent: Tuesday, April 30, 2019 7:51:47 AM
> To: CPWG
> Subject: Re: [GTLD-WG] [CPWG] Further Revised Draft Statement on .ORG Renewal
> For the record, I disagree with the statement that Greg prepared, and
> it doesn't reflect my views (which I linked to in an earlier post). It
> doesn't even reflect the views expressed by many non-profits who made
> public comments, including NPR and other high profile ones:
> https://mm.icann.org/pipermail/comments-org-renewal-18mar19/2019q2/003179.html
> or the Non-Commercial Stakeholders:
> https://mm.icann.org/pipermail/comments-org-renewal-18mar19/2019q2/003207.html
> If folks wanted to send a letter, they should have sent it in an
> individual capacity, rather than pretend that this statement is
> reflective of the views of billions of internet users. Given the
> overwhelming opposition already expressed in the public comments to
> date, Greg's statement is more indicative of capture of the At-Large,
> rather than anything that could reasonably reflect what users think of
> these contracts.
> ISOC/PIR is just one of many non-profits, and its mission is no better
> than any other. Every organization has unlimited wants, but needs to
> work within a reasonable budget. ISOC/PIR doesn't own .org, and
> shouldn't pretend it does via unlimited "rent" or taxes payable to it.
> They'll always be able to spend as much money as they can take in. As
> I noted in my own comments, nothing would stop ISOC/PIR from selling
> out to private equity, who could then take the heat for huge price
> increases, while ISOC/PIR walks away with an enormous multi-billion
> dollar endowment fund.
> The statement that "many At-Large Structures are also ISOC Chapters"
> is consistent with a conflict of interest and capture, rather than
> being reflective of ordinary users.
> The base agreement for new gTLDs is different from that of legacy
> gTLDs for good reason, and should not be adopted by legacy gTLDs which
> predate ICANN itself, and whose registrants do not agree with
> unlimited fee increases. That's changing the rules in the middle of
> the game (whereas registrants of new gTLDs knew all along the risks
> they take registering with new gTLDs, where the registry essentially
> "owns" that TLD).
> The letter quotes Jonathan Zuck's statement about the "desirability"
> of higher prices almost verbatim, but hasn't done the same for others
> in the CPWG. Higher prices are not desirable in any way, except by
> some twisted logic that makes no economic sense (my own personal
> background is in economics and finance). New entrants always knew that
> legacy gTLDs had capped prices, before they entered the space.
> Furthermore, competition generally leads to *lower* prices, not higher
> prices!
> Attempting to argue that capped fees contribute to confusion, phising,
> fraud and abuse is truly a stretch.  The most abused TLDs are the new
> gTLDs, not the legacy ones, e.g. see:
> https://www.spamhaus.org/statistics/tlds/
> If one wants to target phishing, fraud and other abuses, one needs to
> actually *target* it using effective tools. Raising prices for
> *everyone* is not an effective tool, as it has more collateral damage
> than actual benefits. If 1%, for example, of domains are engaged in
> abused, it makes no sense to raise costs on 100% of registrants. One
> wants to raise costs only on those engaged in abuse (e.g. through high
> penalties for abuse, like jailtime, fines, etc.). Raising prices for
> *everyone* simply enriches the registry, at the expense of the public.
> Pretending that an "economic study" will be helpful is absurd, as
> ICANN has in the past commissioned "experts" who simply regurgitated
> whatever ICANN wanted them to say. Recall that these so-called
> "experts" (the Carlton report, etc.) were used to justify the new gTLD
> program in the first place, which has been a failure. Here's a comment
> from K. Claffy, which talked about those reports:
> https://forum.icann.org/lists/economic-framework/msg00004.html
> which also referenced my scathing comments about them at the time
> (which proved prescient). She concluded her comments with:
> "Similar to my observations of what's happening in the security and
> stability discussion of root scaling, ICANN's behavior looks like it's
> trying to buy rubberstamps of its current plans from commercial
> consultants, rather than foster what is needed in the long term: a
> coherent field of objective, peer-reviewed technical, policy, and
> economic research on Internet naming and numbering, and incentivized
> data-sharing to support such research."
> The ICANN contracts do not have any mechanism to "undo" the changes.
> Once the caps are removed, that genie cannot be put back in the
> bottle. One should do an economic study *before* lifting any price
> caps, rather than doing them after the horse has left the barn, and
> after the damage has already been done.
> What "problem" is this contract actually trying to solve? If it's not
> broken (and legacy gTLDs are successful, obviously), one should stick
> with the status quo. If new gTLDs are the "broken" thing, they can be
> fixed directly (by adding fee caps, just like the successful legacy
> gTLDs, or making other changes).
> In conclusion, Greg, Jonathan, and others should have simply submitted
> their own personal comments, rather than try to suggest that this
> statement is reflective of billions of users.
> Sincerely,
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> On Tue, Apr 30, 2019 at 2:14 AM Greg Shatan <greg at isoc-ny.org> wrote:
> >
> > All,
> >
> > I am attaching another, further revised draft public comment on the .ORG renewal, after sifting through the various recent conversations on the list.   I will try to circulate a redline in the morning, New York time, but can't right now.
> >
> > I thought about including something on UA, but for .ORG and in the absence of proposed language, I did not see the obvious hook in this statement to bring that concept in.
> >
> > Best regards,
> >
> > Greg
> >
> > Greg Shatan
> > greg at isoc-ny.org
> > President, ISOC-NY
> > "The Internet is for everyone"
> > _______________________________________________
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> > CPWG at icann.org
> > https://mm.icann.org/mailman/listinfo/cpwg
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