When the Internet Society (ISOC) was awarded the dot-org domain over ten other bids in 2002, evaluators voiced concerns about their ability to steward it. Their report explains:
Some on the Committee expressed concern, however, that ISOC’s associations extend only to the networking/connectivity community and not to a broader base of noncommercial entities.
While we agree that the existence of a membership and chapters constitutes evidence of support, it is surely true that the global noncommercial community and .org registrants are much broader than one organization with a few thousand members.
Furthermore, there was dissatisfaction with ISOC’s tendency to regard itself as the voice of the Internet community.
Evaluators suspected hubris. Eighteen years later, they were proven right. ISOC never fixed the issue of its isolation from the global noncommercial community. It still has no representatives from significant nonprofits on its Board.
It is still dominated by the networking/connectivity community. As evidenced by the decision to sell dot-org in secret, it still regards itself as the voice of the Internet community.
Despite these well-founded concerns, covenants to protect the nonprofits and the noncommercial community lasted only four years. In 2006 ICANN proposed significant changes to the dot-org contract. The covenants vanished.
Critically, while these proposals were put out for public comment, the removal of the nonprofit covenants wasn’t mentioned anywhere. Not by ICANN, not by Public Interest Registry (PIR), and not by ISOC. No one commented on their removal. Maybe no one noticed.
Without their removal, the dot-org sale would have been unlikely. It remains unclear whether it was ICANN, ISOC or PIR that proposed removing the covenants. It doesn’t matter. Each of these organizations has made commitments to uphold the public interest.
Each had an obligation to disclose and discuss the removal of such critical protective covenants with the affected communities. Otherwise, why run a process that created them in the first place?
The removal of these covenants happened a long time ago, but it set the stage for what is happening now. Some have argued that dot-org could be run as a for-profit again because it used to be run by a company or because the 2002 ICANN RFP didn’t require applicants to be nonprofits.
These arguments are specious. The last time dot-org changed hands, ICANN ran an open and competitive request for proposals. A nonprofit bid, designed for nonprofits, won. The decision of the Internet community was that dot-org should be run by and for nonprofits. Nonprofits took the Internet community’s word for it.
The reality is that ICANN awarded dot-org on the basis of the 2002 covenants. As far as the affected community is concerned, they are still there.
Which brings us to the question of whether ICANN should intervene in the dot-org sale. It is not a question of intervention. It is simply standard practice for any organization working in the public interest. It is important to understand that four things are happening here:
First: The nonprofit that runs dot-org is being sold to a private equity firm.
Second: The firm will demolish the nonprofit.
Third: The firm will create a new company.
Fourth: The new company will take control of dot-org.
Let’s say just the first thing was happening. The nonprofit that runs the dot-org domain was being sold to a company. But it would stay a nonprofit. Nothing else would change. Should ICANN intervene?
If I decide to sell my house, the city doesn’t need to become involved. It would be silly to have to seek city approval every time a house changes ownership.
However, if I sell my house to someone who then turns around and demolishes the house and puts up a Seven Eleven, that’s turning a residential land use into a commercial one.
Even if as part of the sale, I continue to live above the seven eleven. Even if I still run the seven eleven. It’s still a Seven Eleven. Not a house. No city would stand by and let a house get turned into a seven eleven without requiring a rezoning.
Even if you argue the house was actually not a house but was actually a Library. You’re still turning a Library into a Seven Eleven. Even if it was a stealth convenience store that I ran out of my basement but told everyone it was just a house. It’s still turning a house into a Seven Eleven.
That’s why Ethos ends their latest ICANN missive with the “dot-org was never required to be a nonprofit.” The thing that keeps them up at night is that they’re trying to pass off a rezoning as a home sale. But it isn’t.
What happened with the dot-org contract in 2006 is irrelevant. Ownership didn’t change. Status didn’t change. The spirit of the 2002 award is even more relevant today than it was in 2002, now that so many nonprofits have trusted dot-org for so long.
That trust is what matters.