The sale of .org was made public back in November of last year. ISOC probably thought that selling off PIR and the .org domain registry would be relatively simple and I sincerely doubt they expect the backlash that the announcement triggered.
There have been thousands of articles written about the proposed sale. If you made the mistake of setting up an alert for mentions of the sale then you probably lost your inbox ages ago!
While some of the issues raised by those questioning or downright opposing the sale might be valid a lot of the concerns are exaggerated or unrealistic.
Under ICANN’s own rules this kind of transaction is not only covered, but they’ve got plenty of experience dealing with it. Since the launch of the “new TLD” project back in 2012 there have been many many instances of domain name registries swapping hands. Sure, some have attracted more attention than others, but the bulk of the transactions have simply happened without anyone really noticing, or caring. ICANN even has a manual (PDF) outlining how the entire process is meant to work. It’s not a particularly long or complicated document and essentially lays out what ICANN expects from the registry operator if they’re sold or change their shareholding significantly.
This sale has caught the eye of politicians and government both in the US and more specifically in California where ICANN is headquartered. Normally lawmakers don’t really care too much about domain names, so this is novel in many respects.
However this attention is a serious problem. No, I’m not for an instant saying or suggesting that ICANN or PIR should ignore lawmakers or somehow inhabit some Utopia where no normal laws apply, but there is a serious issue if lobbying leads to the California AG flexing their muscles. The only reason the California AG has taken an interest in the PIR / ICANN scenario is because they were lobbied.
The impact of the California AG’s involvement is a real wild card.
At present ICANN (the corporation) has been playing a protracted game of pass the parcel with letters being exchanged between them, Ethos Capital, PIR and the California AG (as well as others). This has been going on for literally months with the current timeline now extended until early May.
Some argue that the case of .org is “exceptional” in some way. While emotions in some quarters might be running high the transaction itself isn’t that complicated. PIR holds the contract with ICANN to operate the .org domain name registry. The entity that owns PIR is selling their controlling interest to somebody else. It’s covered as I outlined above.
Whatever the California AG might like to think about the sale of PIR and .org while interesting at one level, isn’t something that everyone is likely to care too much about in the long term.
But the ramifications of the AG’s involvement. That. That should worry people.
You cannot simply hide behind the concept of “exceptional”. For any affected party a decision that they feel deeply about or that has a tangible impact on their business will be seen as “exceptional”.
The chilling effect of government involvement in ICANN decisions is not something that can be simply swept aside.
What happens with the ePDP on whois? Will Facebook and others go crying to the California AG if they don’t like the outcome?
What about decisions and outcomes that nobody has even considered?
Is there any point in spending thousands of hours and millions of dollars in the multi-stakeholder process if you can just bypass a decision you don’t like by lobbying? It’s not like the US has ever had any issue with political appointees being perceived to be working more on behalf of their financial backers than their constituents.
For now it appears like the California AG’s interest could be sparked by pretty much any kind of transaction or, more worryingly, action or decision that comes out of ICANN.
So what can ICANN ORG do?
ICANN’s senior management and Board need to bite the bullet and take the decision to rubber stamp the sale of PIR. Not because they like it. But because the danger of not taking that decision is so far reaching that to fail to act could lead to ICANN’s unravelling.