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

[George Kirikos]

Hi Evan:

Thanks for your reply. I disagree with much of what you said,
obviously, but you're entitled to your opinion.

Without going point by point, I'll note that for #5, one need not
convert from a non-profit to a for-profit, as one could simply
*assign* the underlying contract itself. If ISOC/PIR was offered USD
$8 Billion, to pick a plausible figure, that would be highly tempting.
[Everyone has a "magic number", even if an asset isn't for sale. If
someone offered you $1 million for Telly.org, or another high enough
figure, you might decide to take it, i.e the proverbial] As for
regulators, they only get involved when anti-trust is in play, and to
date they've sat on their hands, so your "disapproving eye of
regulators" statement is not going to work, especially given they've
not gone after the egregious presumptive renewal clause. For your
point about a minimum fee in disclosures section, that's a fee between
and the registry operators --- if that was raised, but left the fee
between registry operators and registrars unchanged, then that's fine
(i.e. that therefore sets a floor for the registry operator, unless
they want to take a loss on every registration; recall under
competition, the actual wholesale cost of domains should be on the
order of USD $1 or less, which is similar to what fees for phone
numbers are these days, see somos.com for example for the wholesale
cost of 1-800 numbers).

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Thu, May 2, 2019 at 4:23 AM Evan Leibovitch <evan at telly.org> wrote:
>
> TL;DR version:
>
>    Q: Are capture and conflict of interest issues in ICANN fair game to talk about?
>    A: Well, sure, but norms on these issues in the outside world are gleefully ignored within ICANN. So good luck with your conversation.
>
>
> Long version:
>
> Well, this has been ... interesting.
>
> First, a few disclosures:
>
> I have been involved in the Internet Society though many vectors. I co-started a chapter, was the primary drafter of its most recent chapters advisory council charter, and I have been recruited by ISOC staff to help impartially resolve disputes in other chapters. All of this has been done voluntarily. My involvement at this moment is negligible.
>
> I own or manage about a dozen domains, none of which are being held for resale.
>
> While on ALAC I "benefited" from travel subsidy that nowhere near covered the value of my time participating at ICANN conferences. I have also gone to two ICANN meetings at my own expense, and I am one of only two people I know (besides Sebastien) who has hosted ALAC social events at their home.
>
> Codes of conduct and conflicts of interest are a thing to me. I created the code currently in use at my nonprofit employer which addresses multiple contexts, and is an amalgam of a number of other codes.
>
> Not only do I agree that the dot-org price cap should be lifted as a significant matter of public interest, I advocate a sharp increase of the fees that ICANN charges all registries for domains. I'd actually like to set a minimum fee rather than a maximum. More details on the rationale can come later, but this discussion seems well beyond the specifics of that public comment issue.
>
>
> Now to a few points:
>
> Conflict of interest, in a governance context, has a more specific definition than simply one's having conflicting interests (by being part of multiple constituencies, perhaps). It means that someone's vote, or advocated point of view, is driven by potential gain in either money or power. If we want to strictly apply CofI principles, we find that Internet Society chapters who are ALSs and whose members are not ISOC staff do *not* have a direct conflict of interest, because their policy viewpoints would not affect their income and power. Conversely, NGOs who protest the lifting of the .ORG price cap are absolutely conflicted because they are defending their own ability to pay as little as possible for domains. Their actions are those of registrants, not end-users, and the issue of price caps is one of those few where the interests of registrants and end users can be very, very different.
>
> I experience hand-wringing denouncements of conflict-of-interest within ICANN with the sense of creepy entertainment that I get watching an episode of Black Mirror. ICANN was built on a foundation of widespread and openly visible conflict of interest and remains that way to this day. Nothing is off-limits so long as you declare. Quoting other constituencies' harping about CofI within ALAC betrays a dangerous ignorance of both history and culture. From the day At-Large began as an alternative to direct public elections of the ICANN Board there has been a constant and predictable effort within most of ICANN, including certain senior staff, to de-legitimize us. The goal of that has been to preempt anything we might say that dare disrupt the cozy compact between domain buyers and domain sellers. Sadly, over the years ALAC has been so timid and self-censoring that such belittling campaigns have proven largely unnecessary.
>
> As for capture, I struggle to see it within ALAC. Despite a list of flaws that I could take a book to detail, ALAC and the other ACs are by far the least-corrupted components of ICANN. Elections tend to be robust, and the NomCom factor works to reduce cronyism. If anything, ALAC suffers from the same ills as many democratic entities in that often the politically sociable will win over the duller policy wonks, and ALAC has traditionally been wonk-poor. I myself once believed that there was ISOC chapter capture until I saw just how freaking diverse the chapters are; considering them a cohesive interest bloc within At-Large, once one looks at the reality, is laughable. Just because a group has reached a conclusion with which one disagrees doesn't make it "captured" without further evidence of manipulation.
>
> Of *course* complaints are legit that a poorly-resourced 25-person ALAC/RALO council can't possibly do a fantastic job representing "the billions". Yet it does sorta OK with what it's given, considering that it has no discretionary budget; ALAC-approved projects have been rejected by ICANN without reason. I have always wished that ALAC got more involved in public polling and education to better know with confidence what the global public wants from ICANN, but (a) doing that is expensive and (b) I'm quite sure ICANN really doesn't want to know this information. I also note that ALAC is the only constituency within ICANN that has forced geographic diversity.
>
> Small nit that I couldn't let pass, even though the point is irrelevant: The assertion that "nothing would stop ISOC/PIR from selling out to private equity" is bullshit. Conversion of a nonprofit body to a for-profit is impossible or horribly difficult in most jurisdictions, and even transfer of assets would quickly come under the disapproving eye of regulators. I've seen some attempts first-hand and they didn't end well.
>
>
> Cheers,
> Evan
>
>