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

Mon May 4 22:05:52 UTC 2020

I mostly agree with Greg here - since younger age I have learned never to argue strongly with people with a bigger horn :-).
However, I have a couple of comments.
First of all - and maybe I have to admit that I might be biased - I am puzzled by the approach of putting Ethos, PIR and ISOC in the same basket. Ethos and ISOC had both the interest in the transaction - for reasons that we have discussed at length - and the full power to conduct it, regardless what PIR could or would do. Anybody who has witnessed those change of hands of a subsidiary would understand what I am talking about.
Moreover, unless things in PIR (the company) have dramatically changed since I left less than a year ago, staff was by and large very proud of working for something that they felt as the public good, serving the non profits worldwide, being part of a community, and even happy that the profits were given to ISOC - although the disillusion about ISOC’s behaviour might have changed this bit for them as well.
I am sure that everybody understands that you can quickly change a lot of things in a company, but not its culture - this requires years and thorough work.
Why am I saying this? Simply because the direct responsibility of the management of .org still stays with PIR and this is the part of the whole picture that we, as Internet user community, should concentrate on. And it does not help to mix the roles and responsibilities in this affaire.
A second comment is about the difference between ALAC’s position and the CA-AG. The first thing that strikes me is that while ALAC reaches its position bringing together views of the whole user community worldwide the CA-AG only cares about California - or maybe the US. Is there anybody that can claim in good faith that the CA-AG will consider opinions, positions, needs, and what else, of the population outside the US unless, of course, it could serve the domestic interest? I do not mean to be polemic, I find that this is absolutely the way it is supposed to be, it would be the same for any country, when people take office they have to be loyal and serve the interest of their country. If that matches the rest of the world, so much the better, if it does not, too bad.
On the wider issue, that is whether ICANN is doing its job, whether the multi-stakeholder model works or not, we have discussed this so many times that I am actually tired of repeating the same things time and again - so I would prefer to concentrate on the two points above.
Cheers,
Roberto

On 04.05.2020, at 06:08, Greg Shatan <greg at isoc-ny.org<mailto:greg at isoc-ny.org>> wrote:

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<mailto: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<mailto:matthias at hudobnik.at>> wrote:
Well said Jonathan!

Have a nice day!
Best,
M.

_________________________
Ing. Mag. Matthias M. Hudobnik
matthias at hudobnik.at<mailto:matthias at hudobnik.at>
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Von: CPWG [mailto:cpwg-bounces at icann.org<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<mailto:cpwg-bounces at icann.org>> on behalf of Maureen Hilyard <maureen.hilyard at gmail.com<mailto:maureen.hilyard at gmail.com>>
Date: Friday, April 17, 2020 at 10:53 PM
To: Dev Anand Teelucksingh <devtee at gmail.com<mailto:devtee at gmail.com>>
Cc: CPWG <cpwg at icann.org<mailto: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<mailto: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<mailto: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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