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Explaining the Legal Enforceability of the PIC Proposed by Ethos for .ORG

Allen Grogan

Ethos Capital has recently announced that it has voluntarily proposed to add an amendment to Public Interest Registry's (PIR) .ORG Registry Agreement with ICANN in the form of a Public Interest Commitment, also known as a "PIC." In the press release Ethos indicated that the PIC would become "legally binding" and "enforceable" both by ICANN and by members of the community.

I anticipate that some would ask a number of logical questions: How would that work in practice? Are these commitments really legally enforceable? And by whom? I would like to address these questions and confirm that the PIC that Ethos is proposing will indeed constitute legally binding commitments that will be enforceable by ICANN — and by members of the .ORG community.

As a reminder, the commitments codified in the PIC include: (1) affordability of .ORG domain names; (2) the role of the .ORG Stewardship Council in approving modifications to policies regarding censorship and freedom of expression, and use of .ORG registrant and user data; (3) the establishment of a Community Enablement Fund; and (4) the publication of annual reports assessing PIR's compliance with its public interest commitments and the ways in which PIR pursued activities for the benefit of .ORG domain name registrants.

If PIR fails to live up to any of these commitments, both ICANN and the community will have recourse against PIR.

A Primer on PICs

Public Interest Commitments (PICs) are embodied in Specification 11 of ICANN's new gTLD Registry Agreement and thus are part of the contract between ICANN and a Registry Operator. Broadly speaking, there are two categories of contractually binding PICs. Some PICs are mandatory and are listed in Specification 11 of every base gTLD Registry Agreement, which now include, for example, not only .ORG but also .INFO and .BIZ. The second form of PIC is sometimes referred to as a "voluntary PIC" because they are entered into voluntarily by an individual Registry, rather than mandated or negotiated by ICANN. The PIC proposed by Ethos and PIR fits into this second, voluntary category.

Although this form of PIC is referred to as "voluntary," once incorporated into the Registry Agreement, the PIC, just like other portions of the Registry Agreement, cannot be subject to unilateral modification or revocation by PIR. Any change or amendment to a PIC would be subject to the amendment procedures established in the Registry Agreement, which could include a public comment period and Board approval.

PICs Are Enforceable by ICANN

All PICs are subject to enforcement by ICANN's contractual compliance department in the ordinary course of its enforcement activities. If ICANN compliance receives a complaint from anyone in the community, or if ICANN's compliance team learns of potential non-compliance with a PIC from other sources, it can undertake an investigation and seek to require PIR to comply with the terms and conditions of the PIC. As noted, anyone can file a contractual compliance complaint with ICANN if they believe PIR is breaching its agreement with ICANN and ask ICANN's compliance team to investigate.

If a complaint is filed, ICANN's compliance team will investigate, and if PIR is found to have breached the PIC and fails to cure that breach, ICANN can pursue various remedies, potentially including termination of the Registry Agreement.

An example of ICANN's enforcement activities with respect to PICs can be found here. In that example, following an audit that concluded in September 2019, ICANN required remediation to bring some Registry Operators into compliance with the obligations regarding DNS security threats contained in the mandatory PIC found in Section 3(b) of Specification 11.

PICs Are Enforceable by Community Members

Someone who believes that PIR has failed to comply with a PIC and that they have been harmed as a result may report the alleged non-compliance to ICANN's compliance team for review and investigation under the Public Interest Commitments Dispute Resolution Procedure ("PICDRP"). If ICANN refers the matter to a PICDRP panel, this process provides an alternative or parallel mechanism to address breaches of a PIC, similar to an arbitration proceeding. While the PICDRP is under way, ICANN can continue to investigate and pursue the matter through its normal compliance channel, so any issue found to have merit could be solved by ICANN or the PICDRP panel.

Examples of community members invoking the PICDRP panel process to address failures of Registry Operators to comply with PICs can be found here and here. In both of these cases, members of the community filed a report of non-compliance with ICANN, ICANN referred the matter to a PICDRP panel, and the PICDRP panel concluded that the Registry Operator was not in compliance with its Public Interest Commitments and referred the matter back to ICANN for enforcement.

The important point here is that these mechanisms work.

Conclusion

By embedding a PIC into Specification 11 of the Registry Agreement, Ethos is taking action to make clear that it means what it says. The commitments Ethos and PIR are making will now become legally binding and enforceable against PIR by both ICANN and members of the community. There is no clearer statement that Ethos will abide by its pledges than by giving ICANN and the community the power to enforce those promises.

By Allen Grogan, Independent Business Owner – Allen Grogan served as ICANN's Chief Contracting Counsel from May 2013 to September 2014, and in that position oversaw the implementation and rollout of the Registry Agreements for the New gTLD Program, all of which included Specification 11 PICs. From October 2014 to December 2016, he served as Chief Contract Compliance Officer for ICANN, overseeing Contractual Compliance and Consumer Safeguards, and in that position he was responsible, among other things, for enforcement of Public Interest Commitments made by Registries. He currently serves as an advisor to Ethos. Visit Page
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Share your comments

Meaningless unless there is an explicit third party beneficiary designation. Karl Auerbach  –  Feb 25, 2020 12:38 PM PDT

All of this is, in practice, meaningless unless this contract contains an express third party beneficiary clause that allows domain name registrants to march into court and enforce these terms.

ICANN has a long history of ignoring things that were harming the public - for example the Registerfly mess.

Absent an expressed third party beneficiary provision that designates domain name registrants (and perhaps registrars) as beneficiaries with standing to initiate legal enforcement proceedings this "PIC" is, from the point of view of domain name registrants and registrars, no more than a Potemkin village that presents a pretty facade but no real substance.

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