PIR says “enough is enough” after ICANN asks to extend deadline.
The California Attorney General has opened an investigation into ICANN and the sale of Public Interest Registry (PIR), which operates .org, from non-profit Internet Society to private equity company Ethos Capital. As a result, ICANN asked PIR last week to extend the deadline for ICANN to approve or deny the transaction by two months.
Now PIR is taking a calculated risk: it is pushing ICANN to make a decision faster, potentially forcing the transaction into a new legal stage.
In a letter to ICANN (pdf), PIR’s lawyers have granted only a shorter extension until February 29. The company said that it may approve a short extension after that.
The California Attorney General’s involvement pushed the .org sale into uncharted territory, and PIR, Internet Society and Ethos are now involved in a risky game.
On the one hand, they could go along with the delays, of which there might be more, giving other opponents to the deal an opportunity to apply pressure on ICANN.
On the other hand, they can push ICANN to make a decision and risk ICANN denying the change.
Until now, it didn’t seem that ICANN had a legal reason to withhold its consent of the deal. Could an investigation by the attorney general, which claims to have regulatory oversight of ICANN, be a reasonable reason to withhold consent?
ICANN’s lawyers are undoubtedly looking into this question.
If it withholds consent, this question could end up in the courts.
Regardless of what happens with the .org deal, ICANN has a new headache to deal with. The attorney general is asking about more than just this deal. It is asking ICANN how, after years of regulating prices, it somehow says that it’s not a price regulator. It has asked for the contact information of its board. Suddenly, a board that just does whatever ICANN’s lawyers tell it to do might have to start thinking for itself.
In the end, this could be a fair outcome. Internet Society, PIR and Ethos are doing something that seems to be permitted by the contract with ICANN to run .org. ICANN probably made numerous mistakes that led to this, and it might finally be held accountable. Accountability might help prevent future mistakes.
Other than maybe ICANN, I don’t see the risk here. I recall, but am unable to find, statements that others have inquired about buying PIR in the past and so interest should now be greater without price caps.
So PIR and ISOC would seem to have little to lose, if Ethos fails there will be others interested. I don’t recall reading any comments that Ethos offered too much, only that Ethos may have offered too little. And Ethos is not those that provided it capital. Another legal fiction can be formed to make an offer to buy PIR based on the same capital providers.
In fact, the longer this drags on, it might actual scare off others as it makes PIR look bad versus those that tee’d up the deal. There would be in interest in closing ASAP or putting this behind them FAST so they can move on to the next offer.
I think its also important to keep in mind Verisign’s interest in this, and public perception management. The last thing they want is the price caps to be the perceived issue here.
Looks like they’re getting a little nervous over at PIR… They probably already spend that sweet cash in their mind. I feel them.. all these hands at ICANN they had to grease to get this deal done and just when you think you made it the California AG shows up… bummer. lol, speaking about karma.
What, you pay your lawyers $500/ hour and they miss the fact that ICANN was incorporated in California?? These guys don’t deserve your hard earned money, PIR 🙂
Of course ICANN saw this coming miles away and no way these guys want to end up in a federal court so they’re pushing hard for immunity.
https://www.icann.org/en/system/files/files/ccwg-acct-ws2-annex-4-2-jurisdiction-minority-statement-27mar18-en.pdf
“At the CCWG plenary meeting at ICANN 59, the concept of immunity from US
jurisdiction (partial immunity, restrictive immunity, immunity with exceptions) featured
prominently as an indispensable condition for the CCWG as a whole to accept the
proposal that it would not pursue recommendations to change ICANN’s jurisdiction of
incorporation or headquarters location. Subsequently, at the subgroup level, some
convergence of views could be discerned to the effect that immunity from US
jurisdiction would be needed to remedy “the concern that US organs can possibly
interfere with ICANN’s [core functions in the management of the DNS]”
Exactly:
April 3, 2007 12:11 AM PDT: https://www.cnet.com/news/icann-may-be-looking-for-immunity-from-u-s-law/
“Dejargonized, that means ICANN could become largely immune from civil lawsuits, police searches and taxes, and its employees would have quasi-diplomatic privileges (such as importing items into the U.S. without paying customs duties).”
April 4, 2007 https://www.nextgov.com/ideas/2007/04/icanns-bid-for-international-immunity/51463/
References:
http://archive.icann.org/en/psc/psc-report-final-25mar07.pdf
“in order to further advance ICANN’s internationalization, the Committee encourages the ICANN Board to explore with the US government, other governments, and the ICANN community, whether there are advantages and appropriate mechanisms for moving ICANN’s legal identity to that of a private international organization based in the US”
“former Under-Secretary-General for Legal Affairs and a former Legal Counsel of the United Nations, Ambassador Hans Corell was invited to discuss international organizational issues”
In turn referencing:
http://www.icann.org/psc/corell-24aug06.html
“On behalf of my colleagues in the United Nations System and myself, I actually raised this matter with the World Intellectual Property Organisation (WIPO). Discussions were held at a WIPO meeting in Geneva in May 2002”
And yet he says:
“It should be understood that I have no detailed knowledge of how ICANN was established and how it functions.”
09 Dec 2013 https://www.diplomacy.edu/blog/international-inviolability-root-zone
“making ICANN a quasi-international organisation”
Have to give PIR/Ethos and their legal team for pushing back hard, is a great strategy. They are outmaneuvering ICANN and the random petition signers
They know ICANN will fold and step out of the way and once that happens the CA Attorney General will drop away as well and the deal will get done.
The further threats to pursue in courts hit at ICANN achilles heel , they do not want to pay Jones Day hundreds of thousands of dollars over this and will roll over under budget constraints and know that bloggers , domainers will never put up actual $$$ to help , so big checkbook wins again
The California A.G. picked up that foul stench and is now fast on their trail. Better watch out. Anyone with a connection to rotten apples gonna get taken down. 35 questions gonna tell A.G. exactly what’s what and who did it. Some folks losing sleep right about now.
A good number of AG questions are about water under bridge at this point, like the .org renewal without price caps. PIR knows that; it’s ICANN PR and Legal issues, not theirs. ICANN can only look at whether the new controllers are not in terrorist lists and are financially sound.
Price caps are not “water under the bridge”. There are legal avenues we are following so it’s taking time but we have in no way given up challenging their removal.
Not if the water under the bridge involved self-dealing. The ICANN board didn’t approve the removal of price caps, it was done by staff members.
Bstards all