LawBytes Podcast – Episode 34 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.
Michael Geist:
This is Law Bytes, a podcast with Michael Geist.
PIR:
What do the Red Cross, Wikipedia and the American Kite Flyers Association have in common? They all use the dot org domain to power their Web sites, connecting people and communities to actively engage for a good purpose. Managed by the Public Interest Registry, the dot org domain has given voice to the world’s most trusted organizations for over 30 years. Dot org is open for anyone who wants to establish credibility within their community, while making a positive impact in the world.
Michael Geist:
The dot org domain extension was established as one of the first top level domains in 1985 alongside dot com, dot net and a handful of others. In 2002, administration over the domain was awarded to the Public Interest Registry, a non-profit established by the Internet Society to run the extension. The Internet Society, better known as ISOC, was founded in 1992 by Bob Kahn and Vint Cerf, two Internet pioneers, to assist with standards development. Now ISOC initially struggled to maintain financial stability and the awarding of the dot-org extension in 2002, placed it on solid financial footing. The domain extension grew to be favoured by the public interest, a nonprofit community, and with over 10 million registered domains, it generates significant recurring revenue as registrants pay to renew their domain name registration each year. I should note that I played a very small role in the Public Interest Registry, serving on its inaugural advisory council and chairing its policy committee. Earlier this year, ICANN, the Internet Corporation for Assigned Names and Numbers, the entity that manages the domain name system reached a new registry agreement with PIR that removed price caps that had previously been in place. Within months, PIR announced that had been purchased by Ethos Capital, a private equity firm that includes a former CEO of ICANN among its founders. With a rumored purchase price of over a billion dollars, there’s big money for ISOC, but the deal has left the nonprofit community worried about potential price increases and policy changes to the domain that could impact online speech. Elliot Harmon, activism director with the Electronic Frontier Foundation, recently wrote about the issue and has been working on a campaign with NGOs from around the world opposed to the deal. He joined me on the podcast to discuss the background behind dot-org, the concerns with the sale and what can be done about it.
Michael Geist:
Elliot, welcome to the podcast.
Elliot Harmon:
Thanks a lot for having me, Michael.
Michael Geist:
Yeah, I’m so glad that you’ve joined because this is an issue that is really, I think, capturing the civil society and the Internet governance world by storm. You recently wrote a post on behalf of the EFF and dozens of civil society groups expressing concern with the proposed sale of the dot org domain. And I want to try to unpack the issues that are associated with the sale, why people are as upset as they are. But why don’t we start with some of the basics. People use domain names, of course, every day, but many people don’t, I think, pay much attention to Internet governance or domain names, specific issues. So why don’t we just start with what is the dot org domain?
Elliot Harmon:
So what we’re what we’re talking about here is when you look at any Web site that has a, you know, Elliot Harmon dot-org, EFF.org, Walmart.com or whatever. What we’re talking about here is those little three letter extensions. At the end of those domain name, URLs and those are referred to as top level domains or sometimes gTLDs. There is this whole kind of kind of complicated system of regulations and things relating to each of those TLDs. And the truth is the in a way, the sale of dot org was kind of just the most recent string, the most recent event and kind of a long thing that’s been taking place over the past year, which is this renegotiation of the rules relating to the dot org TLD, which we can talk about that more if you like. But EFF expressed a number of concerns about that new registry agreement between ICANN and Public Interest Registry, which is the organization that runs the dot org TLD. We expressed these concerns that a number of things in the agreement were essentially giving the registry a lot more power to kind of unilaterally make policy decisions affecting all of the people who own domains and they dot org ecosystem. So we were raising those flags even before the sale was announced. I think that what this announcement has done is it’s kind of awakened this entire global NGO sector to this issue that we’ve now given the registry a great deal more power over our Web sites and over our communication. And now that registry is going to be sold to a private equity firm.
Michael Geist:
Ok. Well, I want to come to the sale and some of the implications in a minute. But first, let’s make sure everybody knows the players that are involved here. You mentioned Public Interest Registry or PIR, which runs the dot org domain. You mentioned the registry agreement, which it takes place, which would have been undertaken with ICANN. Can you describe who ICANN is? Because they’re also not necessarily well known, but obviously play a very significant role as part of the governance of this space of the Internet.
Elliot Harmon:
Yeah. So ICANN is the Internet Corporation for Assigned Names and Numbers. And this this is the organization whose whose job it literally is to to set those agreements that will determine how each of those TLDs these are managed.
Michael Geist:
So that’s ICANN’s role. And we have, as you mentioned, a whole series of TLDs. These people may be familiar with, of course, the dot com extension, the dot org, also known, very popular with the NGO community. Then there are country code domains as well. So a dot-ca in Canada and now hundreds of new extensions as part of ICANN’s effort to expand the universe of potential top level domains or TLDs. I want to get into the the specific sale in just a sec. It’s worth noting, I guess almost as a caveat, that I had some early involvement in the public interest registry or PIR. In the very early days, PIR was awarded the dot org and PIR was established by an organization known as ISOC, which has representations or groups all around the world. In those early years I actually they established an advisory council. I should note that I was a member of that advisory council, and I think the vision at the time was very much that ISOC, which had been created by a bunch of people engaged in the Internet, including Vint Cerf, was struggling to find a way to have financial sustainability, and one of the things when it comes to domain name registries is that they’re pretty good about generating a fair amount of revenue because of course as people register their domain names, renew them every year, there’s a nice recurring revenue stream. This was viewed as a really effective revenue stream for for ISOC. So the PIR Public Interest Registry was designed, as the name suggests, to operate a registry in the public interest, generate revenue for ISOC. My role was therefore I was on that advisory council for just a couple of years. But over the years, ISOC’s come to rely on that and I think people can generally comfortable with it. Big shock to the system, though, just in the last number of weeks, because all of a sudden we get an announcement. Can you tell us a bit about what the what the announcement entailed?
Elliot Harmon:
Yes, the announcement. And I think a lot of people are still kind of reeling from this and attempting to put together all of the pieces of what this means was that ISOC was going to sell. And I’m using air quotes with the word sell, but sell PIR to this private equity company called Ethos Capital, and that the non-profit status of PIR was essentially going to be dissolved in it and it was going to run like a for profit company.
Michael Geist:
ISOC, by the sounds of it, looks to be cashing out and that a price I know hasn’t been publicly announced, but the rumors are that it’s a billion dollars or more. So we really are talking about something that generates a huge amount of revenue and is clearly very valuable. But for those relying on the dot org and recognizing its longstanding public interest approach, the notion that this suddenly shifts to a private equity firm clearly is a is is a major shift and one that that a lot of people are really upset about.
Elliot Harmon:
Yeah, I think that that’s true. And it’s funny. Like you even there’s those estimates of how much money the sale was. When you look at the number of dot org registrants and the fact that the majority of registrations in the dot-org TLD are renewals, they’re not new registrations. You can just put that math together and start to realize how much money dot org makes.
Michael Geist:
Yeah, no, I know. And that’s always been one of the real values or why there’s been a desire for people to acquire these new top level domains. You want some of those initial registrations, but especially for a top level domain like a dot org that has been around for decades. The legacy value of renewals year after year after year clearly worth an enormous amount. Now, now, the EFF’s been amongst a whole series of civil society groups and public interest groups from around the world that have launched a save dot org campaign. You tell us. So tell me a bit about who’s involved and I guess zero in on what exactly is the concerns that that you’ve been raising.
Elliot Harmon:
Sure. So there are a couple of groups kind of running like like parallel campaigns. If you will, though, we’re kind of all closely coordinating with each other. The save dot org Web site, which has very funny URL save dot org, dot org. That is run by a U.S. organization called enten and enten is are you are you familiar with enten, Michael?
Michael Geist:
No, I’m not. Can you tell me then?
Elliot Harmon:
Yeah. So they are a non-profit technology capacity building organization that has a lot of influence, at least in the US in the kind of nonprofit technology world. They hold a big conference every year where all of the folks from non-profit I.T. departments or folks that operate as non-profit I.T. consultants all get together and share ideas with each other. They’re really kind of considered one of the big leaders in the nonprofit technology space in the US. So they they they’re the folks who put together that save dot org dot org Web site, kind of the the centerpiece of that Web site, as it were, is this letter that that EFF wrote along with the help of a number of other organizations. When we first sent the letter to ISOC last week, yeah, just last Friday. It had 27 signatories on it. Now we’ve decided to keep accepting signatories to it. Now it has well over 100. I suspect by the time this podcast gets published, it’ll be more like two or three hundred.
Elliot Harmon:
And when you look at those organizations, I think that you you see that this really is an issue that the entire NGO community is thinking about. You have the organizations that I think for for people who sort of travel in the EFF circles are kind of the names that you might expect, like the Free Software Foundation and Public Knowledge. But then there’s also a number of these groups that are kind of tent poles that provide a great deal of support to the nonprofit community like enten and tech soup. And then on top of those, you have a bunch of these just, you know, longstanding legacy nonprofit organizations like the Girl Scouts and Farm Aid and Greenpeace. Like you’re you’re really seeing the entire nonprofit sector come out to try to defend dot org in a way that has even surprised me.
Michael Geist:
So it’s interesting to see you get so many groups from from different fields all within the NGO world coming together. What are they specifically pointing to in terms of the concerns with the sale?
Elliot Harmon:
So our letter talks about three primary issues. And I want to stress about all three of these issues that all of them relate right back to that new registry agreement that came out earlier this year. And these are the three things that we’re saying. The new agreement gives too much power to the registry and we don’t trust this company that nobody’s ever heard of with that power.
Elliot Harmon:
The first one and certainly the one that I think is kind of grabbing the most headlines is the power to raise dot org registration fees without the approval of ICANN or the adored community. We were talking just a second ago about that kind of cash cow that dot org is the the the fear of a registry raising those registration fees and the organizations that rely on dot org. Kind of being this captive audience that’s sort of stuck there unless they’re able to do a major rebranding. And there’s just going to have to give more and more money that this for profit company. That’s the first one. The second one is, is the ability to develop and implement rights protection mechanisms unilaterally without consulting the dot-org community. So that’s a little wonky, but I can try and unpack that a little bit. There are built into registry agreements these these provisions having to do with IP enforcement. In the new dot org agreement, there is this thing called URS, which stands for Uniform Rapid Suspension, and we can talk more about URS, if you like. But that’s that’s baked into the new agreement. But there’s also this language that here I’ll read you, the exact language registry operator may at its election implement additional protections of the legal rights of third parties. Like fullstop without the multi-stakeholder process that these things have historically gone through. Now we’re just giving the registry kind of the power to decide those things on its own. And that is another frightening power to suddenly hand to this company that might not have a whole lot of history in the nonprofit sector. And then the third one is even broader in a way, it’s the ability to suspends domain names based on accusations of, quote, activity contrary to applicable law. This is like and again, how that’ll get implemented is a huge question mark. But lots of folks in the NGO community, especially folks in countries that don’t have the the protections for freedom of expression that we enjoy in Canada and the United States, when they see that kind of broad enforcement language like “activity contrary to applicable law”, it scares them. And it reminds them of the various ways that that state actors have tried to target NGOs with allegations of illegal activity.
Michael Geist:
I mean, it’s interesting you raise especially the latter two issues around potential content related issues with the domain. I can recall actually, when I was back on the PIR Advisory Council, I chaired the policy committee. And one of the issues that we grappled with was, was there something different about the dot org? When you compared it to some of the other extensions and and where we landed was that there was. That because this was a space that was traditionally used by NGOs or others, other groups might be engaged in freedom of expression or criticism that even more than you might find in the dot com or some of the other TLDs there needed to be clear safeguards and protections for that kind of speech. So we actually raised the prospect of changing the dispute resolution policies that were in place and still are in place for the dot com extension and said, well, when you apply it to dot-org, we need to ensure that there are additional protections for free speech and criticism sites specific to the dot org because this is not your typical commercial TLD.
Elliot Harmon:
That’s very true. And I kind of see it as creating this mechanism that was designed for a very specific thing and then trying to apply it that apply it to everything else. And my understanding and you probably have more of this history than I do because this is going back a couple of years. The the URS, the uniform rapid suspension mechanism, what that was expressly created for was for the new TLDs that started coming out in the last few years because there was this concern about people essentially taking advantage of this explosion of new TLDs for the purposes of domain squatting. And so they wanted a way to to deal with what you might consider a very kind of cut and dry trademark infringement cases. I created this Web site called Pepsi Dot Business that’s claiming to be at the Pepsi Web site. No, it’s not. And that’s trademark infringement. At the time that the URS was implemented, again, like I said earlier, it was expressly for the new TLDs and they intentionally kept that discussion off of the table of whether to expand URS to the legacy TLDs or not. And in fact, before the decision was made to apply it to dot org, a working group had been said. And I can specifically for the purpose of exploring that question of applying U R S to legacy TLDs and exploring that question in the traditional multi-stakeholder very, very careful way. And then with the new dot org agreements, they essentially bypassed all of that and just bilaterally decided with PIR to implement it.
Michael Geist:
No. You’re quite right about that history especially. There’s a long standing history within the ICANN world around this question of expanding the number of top level domains and invariably literally for decades, going back to the very founding of the domain name system with Jon Postel. One of the concerns was coming from the intellectual property community about what would happen if people would scoop up domains. And so a system was established as these new TLDs were brought online to try to create a certain amount of safeguards and bring comfort to the IP community. But that, as you say, is designed for new TLDs. It’s not designed for one that’s been around for decades.
Elliot Harmon:
Yeah. And just going back to your point about the the uniqueness of dot org. Trademark infringement cases or trademark infringement disputes, I should say, between for profits and non-profits are usually not these kind of cut and dry cases that URS was created for among other reasons, because you can use non-commercial use as a defence in a trademark infringement case. There was there is I think among the entire NGO community this real fear of these systems being used to censor things like criticism by non-profits of for profit companies.
Michael Geist:
So if I’m following the timeline, PIR negotiates with ICANN to remove the price cap. ICANN agrees to remove the price cap. And a number of months later, it’s announced the PIR is essentially selling the registry for we don’t know, but a billion dollars or more to a private equity firm.
Elliot Harmon:
Yeah, and it’s hard not to like when you start putting the pieces together. It’s hard not to kind of roll your eyes at the whole thing. There was this great article on in the Register that I assume you’ve read that that lays out a lot of this history and that Ethos Capital was founded as a company, literally like the same week that the ICANN begin to signal that they were planning to to lift the price cap with the new agreement. You know, all of these things happened within very close succession of each other. And when you look at the entire picture together, it it’s easy to to suspect that some of these changes might have been made for the purpose of making PIR more valuable.
Michael Geist:
Is there much in the way of response of other responses that are coming either from ICANN, PIR, ISOC or others who’ve been involved in this?
Elliot Harmon:
There was this one blog post published, I think in the key points about dot org Web site that is claiming to be a response to our letter. It’s hard not to feel like the response is slightly missing the point, particularly on the issue of the ability to create new enforcement mechanisms. It sidesteps those altogether saying that those would need to be made through this multi-stakeholder process at ICANN. No, our our point here is that the agreement gives us the power to create a bunch of those enforcement mechanisms unilaterally without going back to ICANN.
Michael Geist:
You’ve raised these different issues. The response has been underwhelming, to say the least. Assuming that Ethos Capital and PIR/ISOC aren’t about to back away from this, is there something that or perhaps you might think otherwise, but it seems unlikely at this stage. Is there something that ICANN do? Can they intervene and stop this from happening?
Elliot Harmon:
Indeed they can. And when you look in the registry agreement, it says that ICANN has to be notified of a transfer of ownership. And I I think I understand that that that notification did happen. But it happened around the same time that the rest of us found out, which was on November 13th. And then within 30 days of that notification, ICANN under certain certain scenarios, can and can intervene to stop it. I understand that the the Internet, Internet Commerce Association, ICA, that they have filed a formal request to I can to intervene. At the same time, as all of this is happening, we are also in the midst of negotiating with ICANN about our request for reconsideration of the registry agreements and in our communication with ICANN about that. We’ve been underscoring that although the sale doesn’t change our underlying points about the flaws in the agreement, it does certainly magnify the urgency here.
Michael Geist:
Yeah, I no, absolutely. So there’s a there’s a number of moving parts. You’ve got your request for reconsideration of the registry of the registry agreement itself. You’ve got concerns about the sale that, as we’ve been talking about, connecting the dots seem somewhat correlated. And we’ve got a number of groups speaking out for those listening in concerned individuals. Is there something they can do?
Elliot Harmon:
Yes, there is. So if you go either to that save dot org, dot org Web site I mentioned a minute ago or you go to act.EFF.org, you’ll find this petition that is that same letter that we’re sending to ISOC. You can sign that petition and we will deliver your signatures to ISOC. If you represent an organization that will somehow be impacted by this sale. We’re also asking organizations to continue adding their names to our letter. Like I mentioned earlier, there are over 100 organizations on that list now. And at the rate it’s going, I suspect by the time people are listening to this, it’ll be quite a bit higher than that. But organizations that’ll be impacted, which includes nonprofits, includes we’ve been hearing a lot from nonprofit consultants, people who run various small businesses, partnering closely with the nonprofit community. And all of those folks have been adding their signatures.
Michael Geist:
Right. Well, I mean, given that kind of outcry, just the issue, just as you’ve been saying, has only really just surfaced in the minds of many. It seems like we haven’t heard the last of this. It sounds like this is one this is one of those Internet governance issues that is going to continue to raise quite a lot of concerns in organizations like ICANN are going to have to, I think, provide a stronger justification than we’ve seen to date. Yeah, this should be allowed to go ahead.
Elliot Harmon:
I wholeheartedly agree with that. To me, this kind of goes to a much bigger question about. How these decisions should be made for the Internet. It it seems to me, and I’ll mention again that I have not been doing this as long as you have, Michael. But it seems to me that we’re moving more and more away from that true multi-stakeholder decision making process into a process that moves more and more of that decision making power from the public and to the registries. And I think that that’s a really dangerous pivot. And I’m not sure how far down the path we’re going to go with here. But I don’t think that the end is a place that we want the Internet to be in.
Michael Geist:
You know, you raised, I think, an excellent point that that highlights that this this might be the thin edge of the wedge or at least a continuation of a bit of a shift where I think public confidence for those that had focused on Internet governance for many years was premised on this notion of a multi-stakeholder approach where all groups have a say in the Internet and have a of a say in that kind of policy development. And if you begin to shift much of the decision making away from that kind of fora, it calls into question the kind of Internet we end up with and the confidence we have in the sorts of policies and decisions that are developed.
Elliot Harmon:
I agree.
Michael Geist:
Elliot, thanks so much for joining me on the podcast.
Michael Geist:
Thank you, Michael.
Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.
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