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

Fri May 3 16:51:31 UTC 2019

George,

This is all basically incorrect.  As Daniel Patrick Moynihan used to say,
you’re entitled to your own opinion, but not to your own facts.  A
corollary may be that you’re not entitled to portray someone else’s facts
as opinion, as you did to Evan.

A non-profit cannot simply assign a contract (or any other assets) outside
the ordinary course of business.  The non-profit must file with and receive
approval from the state Attorney General (and/or a court, depending on the
state).  A transfer to another non-profit will be somewhat easier, but
either way, the transfer must benefit the public interest.  Approval from
an AG is not a foregone conclusion, and they can even oppose the
transaction after it takes place.  This is a significant distinction
between non-profit and for-profit corporations. It’s important not to miss
that distinction.

The AG (or an office within the AG, such as the Charities Bureau) is the
principal state regulator of non-profits.  I believe that is what Evan was
referring to.  As for the idea that “regulators only get involved when
anti-trust is in play,” that is clearly false.  Most regulators are not
antitrust regulators.  It’s probably true that “*antitrust* regulators only
get involved when antitrust is in play,” but that does not extend to all
regulators.

The proposition that “under competition, the actual wholesale cost of
domains should be on the order of $1 or less” seems to be an opinion shared
only (and an idea concocted) by a few domain investors, based on a raft of
self-serving assumptions and in large part, a single datapoint, the bid for
backend services for .in, which is at best an apples to oranges (or apples
to apple tree or fruit basket) comparison.  Perhaps this is another
corollary to the rule at the beginning of this email: you are not entitled
to depict your own opinions as fact.

Best regards,

Greg

On Fri, May 3, 2019 at 3:54 AM George Kirikos <icann at leap.com> wrote:

> Oops, sorry. I skipped a word:
>
> "For your point about a minimum fee in disclosures section, that's a
> fee between and the registry operators --- if that was raised,"
>
> should be:
>
> "For your point about a minimum fee in disclosures section, that's a
> fee between *****ICANN***** and the registry operators --- if that was
> raised,"
>
>
>
> On Thu, May 2, 2019 at 5:38 AM George Kirikos <icann at leap.com> wrote:
> >
> > 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
> > >
> > >
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-- 
Greg Shatan
greg at isoc-ny.org
President, ISOC-NY
*"The Internet is for everyone"*
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