[Npoc-discuss] Fwd: Featured Blog Post: Explaining the Legal Enforceability of the PIC Proposed by Ethos for .ORG

Tue Feb 25 14:26:30 UTC 2020

---------- Forwarded message ---------
From: KeyPointsAbout.org <newsletter at keypointsabout.org>
Date: Tue, Feb 25, 2020 at 3:11 PM
Subject: Featured Blog Post: Explaining the Legal Enforceability of the PIC
Proposed by Ethos for .ORG
To: <muyiwacaleb at gmail.com>

Ethos Capital has recently announced that it has voluntarily proposed to
add an amendment to Public Interest Registry's (PIR) .ORG Registry ...
Explaining the Legal Enforceability of the PIC Proposed by Ethos for .ORG
<https://keypointsabout.us4.list-manage.com/track/click?u=bbe393a821d0d7ef97e7b47c5&id=9631c7466d&e=b42e7a4166>

*Originally published in CircleID*
*BY ALLEN GROGAN*

Ethos Capital has recently announced that it has voluntarily proposed to
add an amendment to Public Interest Registry's (PIR) .ORG Registry
Agreement with ICANN in the form of a Public Interest Commitment, also
known as a "PIC." In the press release
<https://keypointsabout.us4.list-manage.com/track/click?u=bbe393a821d0d7ef97e7b47c5&id=ae9043f68c&e=b42e7a4166>
Ethos
indicated that the PIC would become "legally binding" and "enforceable"
both by ICANN and by members of the community.

I anticipate that some would ask a number of logical questions: How would
that work in practice? Are these commitments really legally enforceable?
And by whom? I would like to address these questions and confirm that the
PIC that Ethos is proposing will indeed constitute legally binding
commitments that will be enforceable by ICANN — and by members of the .ORG
community.

As a reminder, the commitments codified in the PIC include: (1)
affordability of .ORG domain names; (2) the role of the .ORG Stewardship
Council in approving modifications to policies regarding censorship and
freedom of expression, and use of .ORG registrant and user data; (3) the
establishment of a Community Enablement Fund; and (4) the publication of
annual reports assessing PIR's compliance with its public interest
commitments and the ways in which PIR pursued activities for the benefit of
.ORG domain name registrants.

If PIR fails to live up to any of these commitments, both ICANN and the
community will have recourse against PIR.

*A Primer on PICs*

Public Interest Commitments (PICs) are embodied in Specification 11 of
ICANN's new gTLD Registry Agreement and thus are part of the contract
between ICANN and a Registry Operator. Broadly speaking, there are two
categories of contractually binding PICs. Some PICs are mandatory and are
listed in Specification 11 of every base gTLD Registry Agreement, which now
include, for example, not only .ORG but also .INFO and .BIZ. The second
form of PIC is sometimes referred to as a "voluntary PIC" because they are
entered into voluntarily by an individual Registry, rather than mandated or
negotiated by ICANN. The PIC proposed by Ethos and PIR fits into this
second, voluntary category.

Although this form of PIC is referred to as "voluntary," once incorporated
into the Registry Agreement, the PIC, just like other portions of the
Registry Agreement, cannot be subject to unilateral modification or
revocation by PIR. Any change or amendment to a PIC would be subject to the
amendment procedures established in the Registry Agreement, which could
include a public comment period and Board approval.

*PICs Are Enforceable by ICANN*

All PICs are subject to enforcement by ICANN's contractual compliance
department in the ordinary course of its enforcement activities. If ICANN
compliance receives a complaint from anyone in the community, or if ICANN's
compliance team learns of potential non-compliance with a PIC from other
sources, it can undertake an investigation and seek to require PIR to
comply with the terms and conditions of the PIC. As noted, anyone can file
a contractual compliance complaint with ICANN if they believe PIR is
breaching its agreement with ICANN and ask ICANN's compliance team to
investigate.

If a complaint is filed, ICANN's compliance team will investigate, and if
PIR is found to have breached the PIC and fails to cure that breach, ICANN
can pursue various remedies, potentially including termination of the
Registry Agreement.

An example of ICANN's enforcement activities with respect to PICs can be
found here
<https://keypointsabout.us4.list-manage.com/track/click?u=bbe393a821d0d7ef97e7b47c5&id=d8ff649ed0&e=b42e7a4166>.
In that example, following an audit that concluded in September 2019, ICANN
required remediation to bring some Registry Operators into compliance with
the obligations regarding DNS security threats contained in the mandatory
PIC found in Section 3(b) of Specification 11.

*PICs Are Enforceable by Community Members*

Someone who believes that PIR has failed to comply with a PIC and that they
have been harmed as a result may report the alleged non-compliance to
ICANN's compliance team for review and investigation under the Public
Interest Commitments Dispute Resolution Procedure ("PICDRP")
<https://keypointsabout.us4.list-manage.com/track/click?u=bbe393a821d0d7ef97e7b47c5&id=cc6b533fe3&e=b42e7a4166>.
If ICANN refers the matter to a PICDRP panel, this process provides an
alternative or parallel mechanism to address breaches of a PIC, similar to
an arbitration proceeding. While the PICDRP is under way, ICANN can
continue to investigate and pursue the matter through its normal compliance
channel, so any issue found to have merit could be solved by ICANN or the
PICDRP panel.

Examples of community members invoking the PICDRP panel process to address
failures of Registry Operators to comply with PICs can be found here
<https://keypointsabout.us4.list-manage.com/track/click?u=bbe393a821d0d7ef97e7b47c5&id=309324a822&e=b42e7a4166>
and here
<https://keypointsabout.us4.list-manage.com/track/click?u=bbe393a821d0d7ef97e7b47c5&id=5435d1217b&e=b42e7a4166>.
In both of these cases, members of the community filed a report of
non-compliance with ICANN, ICANN referred the matter to a PICDRP panel, and
the PICDRP panel concluded that the Registry Operator was not in compliance
with its Public Interest Commitments and referred the matter back to ICANN
for enforcement.

The important point here is that these mechanisms work.

*Conclusion*

By embedding a PIC into Specification 11 of the Registry Agreement, Ethos
is taking action to make clear that it means what it says. The commitments
Ethos and PIR are making will now become legally binding and enforceable
against PIR by both ICANN and members of the community. There is no clearer
statement that Ethos will abide by its pledges than by giving ICANN and the
community the power to enforce those promises.

Source:
http://www.circleid.com/posts/20200224_legal_enforceability_of_pic_proposed_by_ethos_for_dot_org/
<https://keypointsabout.us4.list-manage.com/track/click?u=bbe393a821d0d7ef97e7b47c5&id=db5d0dd227&e=b42e7a4166>
*Copyright © 2020 Key Points About .ORG, All rights reserved.*
You are receiving this email because you opted in via our website.

*Our mailing address is:*
Key Points About .ORG
1775 Wiehle Ave Ste 100
Reston, VA 20190-5109

Add us to your address book
<https://keypointsabout.us4.list-manage.com/vcard?u=bbe393a821d0d7ef97e7b47c5&id=0a0aa0e8f6>

Want to change how you receive these emails?
You can update your preferences
<https://keypointsabout.us4.list-manage.com/profile?u=bbe393a821d0d7ef97e7b47c5&id=0a0aa0e8f6&e=b42e7a4166>
or unsubscribe from this list
<https://keypointsabout.us4.list-manage.com/unsubscribe?u=bbe393a821d0d7ef97e7b47c5&id=0a0aa0e8f6&e=b42e7a4166&c=7202536e02>.

-- 
*Ogundele Olumuyiwa Caleb*
*muyiwacaleb at gmail.com <muyiwacaleb at gmail.com>*
*234 - 8077377378*
*234 - 07030777969*
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://mm.icann.org/pipermail/npoc-discuss/attachments/20200225/24042c83/attachment.html>