Greetings fellow Councilors,

I write to you today to inform you in my capacity as the ccNSO Representative to the Empowered Community Administration that the Address Supporting Organization (ASO), in its capacity as a Decisional Participant, recently attempted to exercise its Inspection rights under Section 22.7 of the ICANN Bylaws as an “Inspecting Decisional Participant”.

The subject of their Inspection request is the proposed sale by PIR of the .org Registry to Ethos Capital.

Their correspondence to ICANN may be found at https://www.icann.org/en/system/files/correspondence/aso-to-jeffrey-et-al-27dec19-en.pdf.

On Tuesday, the ICANN Corporate Secretary replied to the ASO correspondence of 27 December 2019, rejecting their claim under Section 22.7 as being overly broad.  The Secretary’s correspondence to the ASO may be found at https://www.icann.org/en/system/files/correspondence/jeffrey-to-robles-04feb20-en.pdf. 

There are several remedies available to the ASO.  First, the Secretary has asked the ASO to “…provide more specificity as to how such a request is related to the ASO’s interest as a Decisional Participant, and not solely as an interested member of the ICANN Community.”  Presumably they will do so.  However, Section 22.7(e) provides other options to the ASO, as follows:

Section 22.7(e)(i):  appeal such matter to the Ombudsman and/or the Board for a ruling on the matter,

Section 22.7(e)(ii): initiate the Reconsideration Request process in accordance with Section 4.2,

Section 22.7(e)(iii): initiate the Independent Review Process in accordance with Section 4.3,

Section 22.7(e)(iv): petition the EC to initiate

(A) a Community IRP pursuant to Section 4.2 of Annex D or

(B) a Board Recall Process pursuant to Section 3.3 of Annex D.

The Bylaws are silent with respect to any subordination of Sections 22.7(e)(i) – (iv).  In other words, it appears that the ASO may be free to select any of Sections 22.7(e)(i) – (iv) as their preferred way forward.

My concern is with respect to Section 22.7(e)(iv).  Should the ASO elect this option as their way forward, the ccNSO may well become involved per Section 4.3 of the Bylaws (“Independent Review Process for Covered Actions”). 

I personally doubt that the ASO would elect Section 22.7(e)(iv) as their response to the rejection of their request by the ICANN Secretary, especially given their historic reluctance to engage in ICANN’s management of the DNS (From their 27 December correspondence: “While we do not normally engage in policy matters related to the DNS, we consider ICANN’s handling of this proposal to be an important Internet governance decision, with bearing on the community’s trust in ICANN, and the legitimacy of the ICANN model.”).

However, we are not prepared to deal with a Community IRP.  The odds of having to deal with one initiated by the ASO I think are very low, but I felt I should alert Council to the correspondence between the ASO and the ICANN Secretary, primarily because it is so unusual for the ASO to engage with ICANN at all, on any subject.

I will endeavor to keep the Council informed of any further developments.

Best Regards,

/Stephen