Analysis At this year's Internet Governance Forum (IGF) in Berlin, the opening ceremony, featuring German Chancellor Angela Merkel, was immediately followed by an hour-long session on the “future of internet governance.”
That session, held yesterday morning, featured seven internet luminaries on stage, including “father of the internet” and founding president of the Internet Society Vint Cerf, as well as Goran Marby, the CEO of DNS overseer ICANN.
Audience members were invited to ask questions through an online portal for others to upvote, with the results displayed in real time. Toward the end of the session, a moderator and the chairman of the meeting were given tablets with the most popular questions listed in order, and the questions were asked of the panel as a high-tech way of involving the audience in the session.
At around 1550 local time, Cerf, as meeting chairman, was handed an iPad and the top question, of 172 asked, was: “What’s your opinion on the .org sale and what this means for not-for-profits?”
One day earlier, Cerf – a long-time Google veep – had already given his second statement in favor of the sale. You know the one: the Internet Society's sale of dot-org to Ethos Capital – a private equity firm linked to a former CEO of ICANN and funded by Republican moneybags. The sale that sparked a growing firestorm within the internet community. Yes, that one.
Last week, the board of ICANN, of which Goran Marby is a key member, held a special meeting to consider a formal reconsideration request of the sale, lodged by internet registrar Namecheap. That request accused ICANN of ignoring more than 3,500 comments from the internet community about the renewal of the .org contract to the Internet Society (ISOC).
The initial request for reconsideration was rejected, and soon after ISOC unexpectedly announced it was going to sell the rights to dot-org to Ethos for an undisclosed sum, thought to be $1bn.
The sale only happened because the very thing that thousands of members of the internet community had warned ICANN about – removing price caps on .org domains – was approved. Namecheap appealed its rejection, citing the sale as new evidence to be considered, and asked again that ICANN reconsider its decision to lift price caps.
As Goran Marby sat on stage this week, he knew that the ICANN board had again decided to reject that appeal. But no one else did. Only after the session was over did ICANN post its minutes from the meeting five days earlier, presumably to avoid him having to answer difficult questions on the topic in public.
Internet world despairs as non-profit .org sold for $$$$ to private equity firm, price caps axedREAD MORE
He needn’t have worried because, despite the internet community actively voting to have the issue of the .org sale raised on stage and despite it being the issue of greatest current concern to the 'net governance world, neither the moderator nor Cerf asked it, nor even mentioned its existence.
Around the same time as the internet governance session was going on, the first of the Internet Society’s chapters, ISOC Netherlands, broke ranks and put out a formal statement condemning the sale.
“We call on ISOC Global to reverse the sale of the .ORG domain to private equity firm Ethos Capital,” it begins. “We invite all ISOC chapters across the world to join us in this statement.”
The sale, the statement argues, goes against the criteria attached to the .org registry when it was handed over to the Internet Society in 2003 and breaks specific promises made by ISOC subsequently. The decision to sell it to a private equity firm, which has made no commitments on prices, rights protection or censorship, it argues, is not only the wrong decision but “ISOC Global’s reputation has been severely harmed by even contemplating this transaction.”
Just keep moving
But the Internet Society is charging ahead regardless. At a two-day meeting this weekend, its board voted unanimously to allow its CEO Andrew Sullivan to enter into negotiations with Ethos Capital.
There was clearly significant discussion of the proposed sale but despite significant public interest in the deal, details have been exorcised from the record. In place of transparent and open discussion is the notation: “[ REDACT … REDACT ].” It appears no less than five times in the minutes, each time in relation to the proposed sale of org.
Meanwhile, a petition started by a group of high-profile non-profit organizations opposed to the sale has over 8,000 signatories. “Dear Mr Sullivan, we urge you to stop the sale of the Public Interest Registry (PIR) to Ethos Capital,” it begins. (PIR is wholly owned by ISOC and operates the dot-org registry for the society.)
Sullivan responded in a blog post making the somewhat remarkable case that .org was never really intended to be for non-profit outfits.
He goes on: “When ICANN awarded the operation of .org to the Internet Society, that agreement did not require that .org be operated by a non-profit entity or by a non-governmental organization. In fact, from 1993 through to the reassignment in 2003, .org was a for-profit registry, operated by a for-profit entity. In 2002, the Internet Society was not asked to operate .org in perpetuity but rather to be a good steward, which we have done proudly.”
It's good for you
Sullivan rejects the other concerns about the sale in a similar fashion, and argues, effectively, that the greater good is served by selling the registry:
“We truly believe that this transaction is good for all stakeholders because it allows PIR to invest in the registry and expand services for the benefit of all registrants, while also providing the Internet Society with a substantial endowment that ensures its ability to continue efforts to guarantee the Internet is for everyone.
“Importantly, it provides the Internet Society with security and stability, freed from continued dependence on any one Internet-related industry or company.”
Underneath the meeting minutes and blog posts, however, a clear strategy is unfolding: both ISOC and ICANN are driving the sale forward as fast as possible in the background and refusing to consider counter-arguments until it’s done.
Sullivan is now authorized to “enter into exclusivity with Ethos for an initial period of up to seven days, and to extend such exclusivity for up to an additional seven days.”
ICANN still has to consider a second reconsideration request from the Electronic Frontier Foundation (EFF) over its controversial decision to approve the lifting of price caps on .org, which sparked the sale in the first place. Also, don't forget: ICANN and ISOC have still not provided critical details about how, when, and with whom the sale was negotiated.
Added to which, it remains unclear exactly what the legal position is over the sale, which is supposed to complete in the first quarter of 2020. Does ICANN have to give its formal approval of the sale? Has it even done so? If so, who made it: the staff or the board? if not, who will make the call? Can ISOC move ahead so long as it doesn’t receive an objection?
It is a critical point because ICANN has a series of accountability mechanisms that can be invoked over its decisions and typically it has to wait until they are finished before it can move forward. That process could take several years (in no small part because ICANN has still not created a standing committee for its Independent Review Process despite being told to do so as swiftly as possible several years ago.)
Bye bye bylaws
Even if ISOC doesn’t require ICANN approval to move forward (and its registry contract appears to give ICANN a 30-day window to object after which its silence is taken to mean approval), there is still the risk that ICANN could be found to have broken its bylaws when it approved the new .org contract with ISOC in the first place against the clear wishes of its community.
The Independent Review Process (IRP) has repeatedly overturned ICANN decisions, often in caustic terms. And ICANN’s case for approving the lifting of .org price caps is based on a single economic study [PDF] produced more than a decade ago that critics say represents an opinion rather than a valid study for policy-making.
More worryingly for ICANN, the reconsideration request lodged by the EFF, which it has yet to address, argues that it was ICANN's board that should have made the decision on the .org contract and that in failing to do so, the approval was not valid.
Long-term observers of ICANN processes suspect that the board did not make the decision for two very specific reasons. First, it would have required the committee to consider and discuss a number of factors that put the decision to lift price caps in a bad light – including any concerns raised by the community; any fiscal impacts or ramifications on the community or public; and how the action served the public interest.
Secondly, ICANN’s final IRP accountability process, which is the only process that ICANN’s staff and board don’t control, has a very specific constraint: it can only consider decisions made by the board. It has no authority to review or question staff decisions: something that has come to light twice. First, when staff were found to have doctored an independent review over the .inc, .llp and .llc domains, and, second, when staff pressured an independent reviewer to change their conclusions over the .africa domain.
Thus, if the .org contract renewal was purely an ICANN staff decision, it doesn’t have to go through either accountability process.
The sound of silence
In the meantime, the Internet Society’s board, dominated by US citizens, is unanimous in its approval of the sale of .org to an American private equity firm. But it faces a rebellion from the international chapters that inform ISOC’s work and provide it with global legitimacy. They are increasingly of the view that the sale should be stopped.
So, yes, the most important question that could have been put to the panel on the Future of Internet Governance at the annual Internet Governance Forum concerns the sale of .org, and what the deal says about the organizations that are charged with protecting the internet as a public trust.
And that question was never asked. ®