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PIR Transaction and Proposed Public Interest Commitments Update

Since Public Interest Registry (PIR) formally notified ICANN of the proposed change of control transaction on 14 November 2019, the ICANN org and Board have worked together to thoughtfully and thoroughly evaluate the proposed acquisition to ensure that the .ORG registry remains secure, reliable, and stable. Throughout this process, ICANN has urged PIR, the Internet Society (ISOC), and Ethos Capital (Ethos) to engage and consult with the .ORG community, and to provide full transparency regarding the proposed transaction.

Today, ICANN is publishing PIR's recently updated Public Interest Commitments (PICs), which were received by ICANN on 7 April 2020. PIR proposes that these PICs be added to the .ORG Registry Agreement should ICANN approve the change of control request submitted by PIR. Two versions of the PICs are being published: a "clean" version and a "redline" version that shows changes made by PIR from its 16 March 2020 version submitted to ICANN following PIR's Public Engagement process.

The revised PICs that ICANN is publishing today are in response to additional questions posed by ICANN as part of its diligence around the change of control request. On 3 April 2020, ICANN provided PIR with two sets of questions. One set of questions are in follow-up to previous ICANN inquiries designed to further understand the proposed transaction and its potential effect on PIR and the .ORG top-level domain (TLD). The second set of questions relate specifically to the proposed PICs. PIR has indicated that it is working to answer all of the questions from ICANN.

It is ICANN's intention to post PIR's responses to these questions when they are available, subject to any appropriate requests for confidentiality made by PIR.

Many people have questioned the enforceability of PICs by ICANN. To be clear, PICs are enforceable by ICANN. Any Internet user may submit complaints to ICANN Contractual Compliance. In addition, ICANN Contractual Compliance may identify an issue through its proactive monitoring. ICANN's follow-up questions to PIR seek to ensure that ICANN has a clear understanding of each commitment within the PICs, such that it could be enforced should the need arise. The ICANN Board continues to have reservations regarding the enforceability of PIR's proposed PICs.

The .ORG Registry Agreement stipulates a specified time period for ICANN to approve or withhold consent of the proposed change of control of PIR. ICANN and PIR have agreed to extend the deadline several times since the original deadline in mid-January, and the deadline for ICANN's response is now 20 April 2020.

Similar to when voluntary commitments in the form of PICs were proposed by applicants for new generic TLDs, ICANN is providing PIR's proposed PICs to the ICANN community with this public notice. Given the fast-approaching deadline for ICANN to make a decision to approve or withhold consent on the requested change of control of PIR, the typical 30-day public notice period has been condensed to seven days. We recognize the full engagement of the .ORG community in PIR's consultation process, but wanted to ensure ICANN remained fully transparent in what is being considered, the concerns still present in the Board's review, and what the Board will be reviewing. Feedback may be submitted as a comment to this blog or through correspondence to me or the ICANN Board.

We thank the ICANN community for its active participation in this matter and remain committed to keeping you informed of new developments.

Comments

    Richard Hill  08:55 UTC on 09 April 2020

    My first comment is related to the process. As noted above, there should be a 30-day comment period for the proposed PICs. I think that it is not appropriate to shorten that period. ICANN should insist on an extension for a decision on the proposed sale to 29 May, which would allow 30 days for comments, 2 weeks for a staff report on the comments, and one week for the Board to deliberate. I note that, if ICANN does not approve the proposed change of control, then, pursuant to 5.1 of the .ORG Registry Agreement, PIR could initiate mediation. That is, a refusal by ICANN is not the end of the game: PIR could ask to negotiate the situation via mediation. If mediation fails, PIR could invoke ICC arbitration pursuant to 5.2 of the Registry Agreement. Negotiations could take place in the course of the arbitration. So it appears to me that there is no time pressure on ICANN and that it would be prudent for ICANN to take as much time as seems appropriate under ICANN's normal operating practices, especially given that a procedure under the Independent Review Process is pending, see Namecheap under the Independent Review Process Documents. Further, I would urge ICANN to insist that PIR be fully transparent. In this context, I note the following paragraph of the Emergency Panelists's Decision on Claimant's Request for Interim Measures of Protection: "128. ... As a general proposition, ICANN should require full disclosure from PIR and has every reason to be open and transparent in its review process. A refusal by PIR to fully disclose would, presumably, be a strong ground for ICANN to reject PIR’s change of control request." The cited Decision is under the cited Namecheap page.

    Richard Hill  09:34 UTC on 09 April 2020

    My second comment relates to substance. As ICANN itself has correctly pointed out in no. 21 of Attachment B of its 3 April letter to PIR, it is not clear to what extent ICANN could actually enforce the PICs. As far as I know, ICANN can only enforce PICs that are within ICANN's remit. Anything else is not enforceable by ICANN. So, while there is no doubt that ICANN can, in principle, enforce PICs, the relevant question here is whether the specific PICs proposed by PIR/ISOC/Ethos would actually have the binding effects that some of us think necessary. I submit that the answer is clearly NO, they don't. The proposed PICs do only two things: 1. Guarantee that the .org price will be not be raised by more than 10 percent every year for the first 8 years. There are no limits to price increases after that. 2. The Stewardship Council, whose membership is largely determined by Ethos, can, by a 2/3 majority, veto any proposal connected to freedom of expression and sharing of data. It has no other powers. In particular, the Stewardship Council has no power regarding financial matters or operational matters. That is inadequate. In summary, the proposed PICs do not provide any meaningful mechanism for the .ORG community to influence significant decisions that the new PIR Board will make. The new PIR will be, for all intents and purposes, controlled by whoever controls Ethos. In my view, that is not acceptable. So the proposed PIC don't address key issues. Further, it is not clear that the meaningful issues could be addressed by a PIC because, as noted above, ICANN can only enforce PICs to the extent that they fall within ICANN's remit.

    Lynn Eakin  07:49 UTC on 13 April 2020

    On behalf of 58000 nonprofit organizations in Ontario The Ontario nonprofit Network agrees with everything written by Richard Hill on April 9th. One week is far too short a consultation period to gather the information and feedback you will require as this issue moves through mediation and arbitration. We need the full 30 days especially considering the fact the 7 days you have allotted fall over the Easter weekend statutory holiday in Canada. That the .org domain remain available to nonprofit organizations at an affordable price and that the domain remain specific to the nonprofit sector is critical to many of our organizations whose credibility and trustworthiness is critical to them undertaking their work. The assurances given by PIR/SOC/Ethos fall far short of adequate in achieving these goals. It is possible to extend the deadline for a decision so that proper consultation can take place we urge you to do so and not rush this decision so important to the nonprofit sector.

    Mitch Stoltz  18:12 UTC on 13 April 2020

    The Electronic Frontier Foundation joins Richard Hill’s request for a full, standard 30-day public comment period on the change of control of the .ORG registry. We are encouraged that ICANN appears to be taking a hard look at this transaction, but ICANN cannot shortcut the process of public consultation. As John Jeffrey’s letter of 3 April to Jon Nevett makes clear, Ethos Capital and Public Interest Registry have not been forthcoming with information needed to determine whether PIR will remain financially sound under Ethos’s control—or even who, exactly, will control PIR if the proposed transfer occurs. Nor have Ethos and PIR addressed the significant shortcomings in their proposed Public Interest Commitments that we and many others, including five Members of Congress, have pointed out. PIR and Ethos have now had over three months to provide this information, which ICANN has requested previously. Any urgency at this time is a result of their inaction. The NGO sector is currently responding to an unprecedented global pandemic and accompanying economic downturn. A seven-day comment window with no advance warning is plainly insufficient to allow for a broad range of opinions on this issue from those most directly impacted by this change of control. This is neither the time nor the issue on which ICANN should circumvent its multistakeholder process by not allowing sufficient time for the affected public to weigh in. ICANN should allow a full 30 days for public comment. If necessary, ICANN would be fully justified in rejecting the change of control of .ORG prior to 20 April based on PIR and Ethos’s lack of disclosure to date. ICANN could then continue to accept public comment and review any further disclosures by PIR and Ethos.

    Amr Elsadr  07:39 UTC on 14 April 2020

    I've found the introduction of the proposed PICs to be encouraging, and with each iteration, they seem to improve. The last redline changes understandably suggest that despite advice from the Stewardship Council, PIR will always need to comply with applicable laws, regulations and ICANN policies. Regarding ICANN policies, it would be helpful for the Stewardship Council to have a role in PIR's approach to participation in policy development at ICANN. This is particularly necessary when the outcome of policy development in the GNSO impacts freedom of expression or how Registrant data (including gTLD registration data) is processed. It's unreasonable to suggest that the Stewardship Council has the ability to provide binding advice on PIR's participation in policy development. However, in the course of policy development at ICANN, the Council should be able to enter in to some kind of discussion with PIR on the positions the Registry advocates for. It should be in a position to provide non-binding advice, which should (at a minimum) require a formal response from PIR explaining its decision to agree to, or reject the Council's advice. Discussion on policy development issues should not be deemed finalized until both parties (PIR and the Stewardship Council) agree that any given discussion should come to an end. The purpose in introducing this type of advice in the public interest commitments is that the Council is largely powerless in providing binding advice or vetoing PIR policies concerning freedom of expression and how Registrant data is processed, if the advice (or veto) conflicts with ICANN Consensus Policies. There needs to be a different recourse for the Council, in order to work with PIR to ensure that the Registry advocate for policies that enhance freedom of expression, and protect Registrant data while these policies are being developed. Trying to mitigate against risks to Registrants in ICANN policies after they've been adopted by the ICANN Board is futile.

    Jorge Cancio   08:59 UTC on 14 April 2020

    As a preliminary comment let me support those asking for a full 30-day comment period. This is especially due considering, first, the highly important matter under discussion (which inter alia has triggered two GAC letters to the Board); and, second, the circumstances of COVID-19 we are all undergoing, which put additional stress on the scarce resources for many community members.

    Amy Sample Ward  13:53 UTC on 14 April 2020

    On behalf of NTEN, I echo the calls for a full, standard 30-day comment period. This is an incredibly important situation as the .Org top-level domain services nonprofits, community groups, and others around the world who are, during a global pandemic, providing many of the crucial needs families and community face. There is no way, during this global crisis, to imagine a sufficient comment period of only 7 days could engage those most impacted by the potential sale. As others have stated, the lack of disclosure by PIR/Ethos to date is reason enough to extend the comment period or rejecting the deal at this juncture. There is a sufficient lack of detail to provide any reasonable assurances that this deal is in any way in the interest of the nonprofit sector and/or the public.

    Vincent Gouillart  04:02 UTC on 15 April 2020

    On behalf of Henri Verdier, Ambassador for Digital Affairs of France, here are France’s comments, echoing a letter sent a few hours ago to Mr. Botterman and Mr. Marby: France commends the ICANN Board and Org for their proactive attitude on this issue of great importance for the whole Internet community. We noted with satisfaction that ICANN did not consider PIR’s transfer of property a mere technical issue, but one of greater scope and impact. France saw the PICs proposed by PIR in February as a first step, however modest, in the right direction. However, these PICs have provided insufficient guarantees so far and the latest modifications are but minor tweaks that do not solve their two main drawbacks: (1) The necessity, for the Stewardship Council (SC), to reach a two-thirds majority to reject “Designated Policy Changes”. Such a threshold would stop it from blocking most problematic decisions from the PIR Board. Since PIR has committed to recruiting individuals with the highest degree of “integrity” and “business acumen”, it should allow a simple majority to defeat decisions by the PIR Board. (2) The PIR Board’s excessive power in the appointment of SC members: even with the selection for five of the seven initial members carried out by an independent firm, their appointment will still lie with the PIR Board and the appointment of every further member will always trace back to an initial decision by the Board. While we welcome the definition of selection criteria for SC members, the PIR Board should not play any role in their nomination at any stage. We also regret that the Community has only been given 7 days to react. Since the April 20th deadline is close, it should be extended to give the Community a month for it to comment. The ICANN Board and PIR would thus demonstrate commitment to public debate, as well as understanding in the face of the Covid-19 crisis. We would also welcome more information about ICANN's criteria for approving the transfer request and the process by which it will evaluate them.

    Jorge Cancio   08:02 UTC on 15 April 2020

    As a second comment I would like to, first, commend the remarkable efforts made by ICANN Board and the involved parties in order to accommodate the concerns expressed by the community, and, second, echo some of the points made by other commenters, especially regarding the needed independence of the planned “Stewardship Council” and the enforceability of the PICs, which according to Göran’s post is still not fully clear in the eyes of the ICANN Board, and which should be beyond any doubt. As mentioned in my first comments, these are issues which merit a fully-fledged 30 day comment period.

    Milton Mueller  14:48 UTC on 15 April 2020

    Some comments about the modified PIC that could be used as is or incorporated into a NCSG comment. 1. We had asked that the PIC text include not just a process-oriented commitment to allow the Org Stewardship Council to veto “modifications” of RO’s policies pertaining to free expression, but a positive commitment to fostering freedom of expression in the .Org domain. The CEO of Org seemed to express a favorable view of that request in a public consultation. The modified PIC contains no such modification. This is disappointing, and makes it impossible for us to fully support the revised PIC. 2. We had also asked for PIR to express a stronger commitment to extending registration terms for org registrants. While we understand that extending registration terms requires a policy change, we were hoping for a statement that PIR would join in efforts to create such a change. The modified PIC contains no such commitment. 3. We informed PIR that the ORG Stewardship Council (OSC) needed to be more independent of PIR. The new PICs and PIR statements have been partially responsive to that request, but still fall short. Specifically, they say “The PIR Board will not appoint the first five members of the .ORG Stewardship Council. To ensure independence, Ethos will engage an internationally-recognized executive search firm to oversee and manage a process for identifying candidates to be the inaugural members. The search firm will solicit applications from a variety of .ORG Stakeholders, including ICANN’s Non-Commercial Stakeholder Group (NCSG) and At-Large Advisory Committee (ALAC) and provide its proposed nominations to a Selection Committee established by the PIR Board.” Clearly, in this process PIR will still select all the OSC members. While the solicitation of applications specifically mentions NCSG, there is no guaranteed representation from NCSG on the OSC. We also must note that ALAC contains, and to some extent is more representative of, commercial users as well as noncommercial users and has no historical connection

    Milton Mueller  14:50 UTC on 15 April 2020

    ...to org ;-)

    Carolyn Tackett  16:40 UTC on 15 April 2020

    In Access Now’s last letter to ICANN on March 13, 2020, we outlined some of the many reasons why the proposed Public Interest Commitments (PICs) would in no way be sufficient to hold PIR — and Ethos Capital as its controlling investor — accountable to the .ORG community or to ensure the interests of those who rely on .ORG are protected. The several adjustments Ethos made to its proposal since we wrote that letter are not significant and do not change our position. ICANN has an important opportunity to restore the .ORG community’s confidence, and to do its part in protecting online civic space — which is already under attack all around the world. It can do that by taking the following steps: - Extend the public comment period. - Negotiate an extension with PIR and Ethos. - Withhold consent to the transfer of control of .ORG. - Lead a community consultation on the future of .ORG. Our complete recommendations are available in a blog post on the Access Now website and have been submitted by email to Göran Marby and Maarten Botterman.

    Mitch Stoltz  19:56 UTC on 15 April 2020

    EFF, joined by the Domain Name Rights Coalition, NTEN, and Access Now, has submitted additional comments by email to the Board. A copy will be posted on EFF's Deeplinks blog.

    Aral Balkan  10:34 UTC on 16 April 2020

    Here’s an idea: how about keeping one top-level domain noncommercial – ONE out of 1,513 – so that you can maintain the façade, if nothing else, that the whole World Wide Web isn’t a cesspit of surveillance capitalism? Needless to say, Small Technology Foundation opposes this sale.

    Georgios Tselentis  13:03 UTC on 16 April 2020

    We would like to commend the efforts of the ICANN Board to thoroughly assess the PIR transaction and reiterate the need to ensure that “the views of the community and the .org community are properly taken into account” (ICANN67 GAC Communique). The revised Public Interest Commitments, although moving in the right direction, could provide stricter guarantees in terms of the independence of the Stewardship Council and the enforceability of the PICs. The Community Enablement Fund is promising and a more elaborated proposal on the funding, with clear commitments from PIR would be constructive.

    Matej Lach  14:00 UTC on 16 April 2020

    The .ORG top-level domain is one of 3 most reconcilable internet TLDs, but the only one that is explicitly associated with non-profit and charitable organizations. Handing the ownership of .ORG to a for-profit entity would be a contradiction that not only goes against ICANN's purported mission, but would needlessly endanger the online presence of vital non-profits that people around the world depend on to survive. Selling .ORG off would be a major breach of trust and a betrayal of the responsibility placed upon. ICANN. Fortunately, there is still time to do the right thing and restore your credibility as the stewards of TLDs. With more and more institutions around the world recognizing the internet as a human right, it is essential that we preserve a non-commercial interests, operated in a manner compatible with the majority of its user base.

    Charles Hutchins  17:34 UTC on 16 April 2020

    .Org domains are a vital resource to charitable and non-profit organisations. Many of these organisations spend most of their resource providing services and support to the communities they were established to serve. They do not have extra money around to serve the profit-seeking needs of corporations. Every penny such a corporation makes off owning the TLD is a penny not going to a charitable or non-profit aim. Food for orphans would literally be diverted to their quest for profit. This is unacceptable.

    Brent Hueth  23:46 UTC on 16 April 2020

    This has a bad smell.

    Rafa Gálvez Vizcaíno  23:58 UTC on 16 April 2020

    In an announcement made on April 16 2020, they say that: "We have agreed to extend the review period to 4 May 2020, to permit additional time to complete our review." Well done! In my opinion, .org should stay away from for-profit missions. It is not compatible with the non-profit status of many of its users.

    Stephane Deschamps  15:08 UTC on 17 April 2020

    **I second Aral Balkan's comment entirely.** Plus, I have a personal website, and .ORG means no money is being made here. I like the idea of a public organisation handling this TLD rather than a private one. It's true that “for the next 8 years” it's not going to be too expensive, but then after that? Also, how would ICANN be able to enforce this promise? I can't recall a single actual moment when capitalist companies kept their promises, because shareholders etc. Pocket money, freedom of speech, and also, THIS IS FOR EVERYONE, as Tim Berners-Lee would put it. Not having a non-profit TLD for .ORG means most of us will envetually resort to country TLDs for instance, which do not (repeat DO NOT) mean the same thing for some of us out there. I've had my .ORG domain since 2000 and would like to be true to the original, non-profit idea behind the Web. .ORG means something special, please keep this one (out of all the other TLDs) handled by a non-profit. One TLD not handled by business, come on. (Also: Recaptcha, really? I can't comment on a public platform documenting the crucial future of public information without jumping through Google's hoops? Not happy with that)

    Richard Hill  05:18 UTC on 30 April 2020

    I agree with the non-binding advice that the ISOC Chapters Advisory Commitee sent to the ISOC Board on 29 April. In particular, I believe that ICANN should not approve the proposed change of control of PIR unless at least the following conditions are met: (1) Ethos agrees to make public, and to submit for public comment, the proposed articles of incorporation and bylaws of the future for-profit PIR, which must include a commitment to act in the public interest. Ethos must also recognize that the ICANN Public Interest Commitments (PICs) are not an appropriate mechanism for making binding commitments regarding free speech and data protection issues. (2) The PICs proposed by Ethos are replaced by a different mechanism, developed in open and public consultation with .ORG registrants and other interested parties, that results in binding commitments, which include ensuring that operation of the .ORG domain will continue to conform to the criteria with which the original award of ORG was evaluated. (3) The Charter of the proposed Stewardship Council proposed by Ethos is replaced by a new Charter, developed in open and public consultation with .ORG registrants and other interested parties.

    Eduardo Diaz  06:39 UTC on 30 April 2020

    The ISOC Chapter Advisory Council Steering Committee (ChAC-SC) submitted the following advice to the ISOC Board of Trustees on 29 April 2020. I believe pertinent to include it here so it can also be considered as part of this discussion: -Advice 2020.04.17-01 :: Second Advice on PIR Sales to Ethos Capital ---- Advice: "We reiterate that the sale of PIR to Ethos Capital should not proceed until, unless proscribed by law, the following conditions are met, and the ISOC Board has taken into account the comments received after the information requested below is made public" ----Link to original text: isoc.box.com/s/w2iaod4kb738thlm1a0ollli00saze8q This advice was approved by 58% of the 126 chapters currently active in the Chapter Community during a vote call held between 21 April 2020 to 28 April 2020, inclusive. Eduardo Díaz Chair ChAC-SC

Domain Name System
Internationalized Domain Name ,IDN,"IDNs are domain names that include characters used in the local representation of languages that are not written with the twenty-six letters of the basic Latin alphabet ""a-z"". An IDN can contain Latin letters with diacritical marks, as required by many European languages, or may consist of characters from non-Latin scripts such as Arabic or Chinese. Many languages also use other types of digits than the European ""0-9"". The basic Latin alphabet together with the European-Arabic digits are, for the purpose of domain names, termed ""ASCII characters"" (ASCII = American Standard Code for Information Interchange). These are also included in the broader range of ""Unicode characters"" that provides the basis for IDNs. The ""hostname rule"" requires that all domain names of the type under consideration here are stored in the DNS using only the ASCII characters listed above, with the one further addition of the hyphen ""-"". The Unicode form of an IDN therefore requires special encoding before it is entered into the DNS. The following terminology is used when distinguishing between these forms: A domain name consists of a series of ""labels"" (separated by ""dots""). The ASCII form of an IDN label is termed an ""A-label"". All operations defined in the DNS protocol use A-labels exclusively. The Unicode form, which a user expects to be displayed, is termed a ""U-label"". The difference may be illustrated with the Hindi word for ""test"" — परीका — appearing here as a U-label would (in the Devanagari script). A special form of ""ASCII compatible encoding"" (abbreviated ACE) is applied to this to produce the corresponding A-label: xn--11b5bs1di. A domain name that only includes ASCII letters, digits, and hyphens is termed an ""LDH label"". Although the definitions of A-labels and LDH-labels overlap, a name consisting exclusively of LDH labels, such as""icann.org"" is not an IDN."