[CPWG] Calif. AG mentions ALAC advice in note to ICANN re: PIR

Mon May 4 04:08:30 UTC 2020

Is there actually "mounting concern that ICANN is no longer responsive to
the needs of its stakeholders" outside those who orchestrated the campaign
to pump those 3000 (largely duplicative, uninformed and non-substantive)
comments into the public comment system when the .org agreement was up for
renewal?  I have not seen evidence of that.  Indeed, I would say that ICANN
Org and Board are largely more responsive to the needs of stakeholders now
than they have been at many times since I've been involved in ICANN
matters. Of course, the very idea that "the needs of stakeholders" are
aligned in a single viewpoint or set of needs is false much more often than
not.  In many cases, the needs of some stakeholders may even be
diametrically opposed to those of others.  In this case, neither the needs
or the views of stakeholders were monolithic or even meaningfully aligned.

I expect that Becerra's views were greatly influenced by the same folks who
brought you that blizzard of cut-and-paste comments. There are many ways in
which the AG's letter is not particularly well-informed.  However, that's
not necessarily Becerra's fault,

Regrettably, I would lay the blame for that largely at the feet of Ethos
and, to a lesser extent, PIR and ISOC and their respective Boards.  It is
clear from Becerra's letter that he felt that the charges raised by certain
opponents of the sale were not rebutted, and that requests for information,
for clarity and for explanations were largely unsatisfied.  In the absence
of robust explanations, counter-argument and data, and transparency into
Ethos, its plans, its financial plan, and its methods for moving forward
post-closing, etc., etc., etc., the AG probably felt he had to go with what
he had -- particularly given the timing of the ICANN Board vote.  Ethos and
its advisors grossly underestimated the strength and persuasiveness of the
opposition, in part because they failed to understand the larger ICANN
ecosystem and they varying concerns of stakeholders.  Instead of
transparency, Ethos (and PIR and ISOC) responded with highly-couched,
mealy-mouthed, heavily-vetted, corporate-speak -- and with plans that
seemed more committed to maintaining Ethos's flexibility than to meeting
the concerns that had been raised.  In the end, they never quieted the
concerns of skeptics -- or of the ICANN Board.  They may have thought that
this battle was a sideshow, and that they could essentially step over these
concerns on the way to closing the deal.  Instead, this battle took the
deal down.

Ethos, ISOC and PIR were never going to convince the hard-core opponents
that this was a good deal.  But that's really beside the point.  Rather, it
was the failure to win over (or at least move over) the skeptics --
including At-Large, the ISOC Chapter Advisory Committee and, apparently,
the ICANN Board -- that sunk the deal.  There were fundamental concerns
raised by the transaction and maybe some concerns never would have been
dispelled.  But other concerns (e.g., how "PIR LLC" and Ethos would have
serviced the debt, how Ethos was structured, whether Ethos's lack of
experience as a registry operator was important given that PIR was
continuing in that role, etc.) could have and should have been responded to
and dealt with much more definitively.

Ethos, in many ways, stuck to the M&A playbook in trying to get the deal
done.  But it was the wrong playbook, or at least, the wrong chapter.
Perhaps the chapter devoted to getting a deal approved by the antitrust
regulators (FTC and DOJ) would have been better inspiration -- both in
dealing with ICANN and in dealing with the issues raised by opponents.
Instead, they seemed to be reading from the chapter about how to deal with
disgruntled minority shareholders -- even (to a great extent) in their
dealings with ICANN.  Of course, the efforts of Ethos et al. weren't all
bad -- but the result will tell you how good they were.

Perhaps we'll never know whether and how Becerra's letter influenced the
ICANN Board.  It's possible it even made ICANN's job harder, because it
would look like ICANN was bending to political pressure if they came to the
same conclusions -- even if the Becerra letter was irrelevant to that
process (and given its timing, it probably was).  The "optics" would have
been better if ICANN came to the conclusion free from the appearance of
political/governmental pressure.  But that's not the reality of the
situation.

Coming back to the question I raised at the beginning -- no, I don't think
there is mounting concern among most ICANN stakeholders that ICANN Board
and Org are no longer responsive to the needs of stakeholders.  On the
primary point of evidence -- those 3000 comments -- I think many ICANN
stakeholders thought ICANN did the right thing in heavily discounting their
influence.

I think it's a leap to say that this set of circumstances supports an "I
told you so" moment or exposes a need to critique the At-Large consensus
process (though we should of course always be critiquing our processes).  I
don't believe the issue during our discussions was whether the "dissent
voices" had merit or not. Rather the question, within At Large, was whether
these viewpoints met the burden of persuasion such that they gained
sufficient traction to move the consensus view, and they did not (which is
not the same as being "dismissed").

It's arguable (at best) that the Becerra letter more resembled the dissent
than the ALAC view. Of course, if this is not the case, the argument fails
at the gate.  Even if the Becerra letter is closer to the dissent, this is
largely because these views had their origins in many of the same sources.
I would not take the Becerra letter as validation of these views; rather, I
would take the divergence as an indication that At-Large engaged in a
better-informed and more nuanced review of these views than the AG did.
Again, this is not Becerra's fault; I doubt he had much (if any)
independent knowledge of ICANN, ISOC, .org, etc. -- much less the
collective decades (even centuries) of experience represented in this group.

In the end, I believe the deal failed for reasons more closely aligned with
the ALAC statement than the more strained aspects of the Becerra letter.
Where both align is in the failure of those involved in the transaction to
dispel the numerous continuing concerns about the deal.  In other words,
the parties to the deal also failed to meet the burden of persuasion, the
skeptics remained skeptical and the deal died due to lack of support.  Put
another way, the skeptics and the opponents within At-Large (and elsewhere)
ended up on the same side of the result -- even if not for exactly the same
reasons.

Best regards,

Greg

On Sun, May 3, 2020 at 3:35 PM David Mackey <mackey361 at gmail.com> wrote:

> It's hard to see the words "There is mounting concern that ICANN is no
> longer responsive to the needs of its stakeholders." as being positive for
> ICANN without thoughtful reflection.
>
> It also seems that the position of the California Attorney General aligns
> better with the dissent voiced in the At-Large CPWG email thread
> discussions, rather than the advice that was eventually given to the board.
>
> The final .ORG decision may over, but I hope there's opportunity for a
> discussion on how to improve the At-Large consensus process.
>
> It appears the dissent voices raised in this email group did, in fact,
> have merit and were not easily dismissed outside the At-Large community as
> being merely "passionate".
>
> It might be a good idea to see how we as a community can better
> encapsulate dissent and non-consensus into our process.
>
>
> On Sun, Apr 19, 2020 at 8:45 AM Matthias M. Hudobnik <matthias at hudobnik.at>
> wrote:
>
>> Well said Jonathan!
>>
>>
>>
>> Have a nice day!
>>
>> Best,
>>
>> M.
>>
>>
>>
>> _________________________
>>
>> Ing. Mag. Matthias M. Hudobnik
>>
>> matthias at hudobnik.at
>>
>> http://www.hudobnik.at
>>
>>
>>
>> *Von:* CPWG [mailto:cpwg-bounces at icann.org] *Im Auftrag von *Jonathan
>> Zuck
>> *Gesendet:* Samstag, 18. April 2020 09:49
>> *An:* Maureen Hilyard; Dev Anand Teelucksingh
>> *Cc:* CPWG
>> *Betreff:* Re: [CPWG] Calif. AG mentions ALAC advice in note to ICANN
>> re: PIR
>>
>>
>>
>> Interesting indeed.  I would stress, however, that it might have much to
>> do with our brand (as the sympathetic voice of end users) as it did with
>> our content. Persistence of Perspective!
>>
>>
>>
>> *From: *CPWG <cpwg-bounces at icann.org> on behalf of Maureen Hilyard <
>> maureen.hilyard at gmail.com>
>> *Date: *Friday, April 17, 2020 at 10:53 PM
>> *To: *Dev Anand Teelucksingh <devtee at gmail.com>
>> *Cc: *CPWG <cpwg at icann.org>
>> *Subject: *Re: [CPWG] Calif. AG mentions ALAC advice in note to ICANN
>> re: PIR
>>
>>
>>
>> Interesting that it was our almost two pages of practical advice from the
>> ALAC that gained the attention of the AG to use as a lash on ICANN than the
>> letters to the Board from the ASO and NCSG.
>>
>>
>>
>> M
>>
>>
>>
>> On Fri, Apr 17, 2020 at 4:43 PM Dev Anand Teelucksingh <devtee at gmail.com>
>> wrote:
>>
>> Indeed, interesting and noteworthy to point out that ALAC statements do
>> have impact.
>>
>> Its a pity because the PDF of the ALAC statement is on the wiki, the link
>> is
>>
>> https://community.icann.org/display/alacpolicydev/At-Large+Workspace%3A+ISOC+Sells+PIR?preview=/120821713/126423106/ALAC%20Advice%20to%20the%20ICANN%20Board%20on%20the%20ISOC%3APIR%20Issue%20-%20FINAL%20310120.pdf
>>
>>
>>
>> Dev Anand
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> On Fri, Apr 17, 2020 at 9:44 PM Marita Moll <mmoll at ca.inter.net> wrote:
>>
>> Wow, quite a slap down by the AG of California.  ALAC advice re: this
>> issue referenced as reasons for concern.
>>
>> Marita
>>
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