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As I’ve pointed out in recent articles, the promises and obligations of the Memorandum of Understanding (MOU) are merged by direct reference into the InterNIC licensing agreement between the U.S. Department of Commerce and ICANN. This licensing agreement has been extended twice by mutual consent, most recently until January 2025.
Therefore, the MOU’s promises and obligations remain in effect through the InterNIC licensing agreement despite the fact that the MOU itself terminated in 2009. While this might challenge many preconceived misperceptions caused by willful misleadings, readers are encouraged to use the NTIA website links provided here to see for themselves what these agreements say in black and white.
Even casual scrutiny of these documents quickly reveals the most likely reason why last year’s extremely controversial .org registry sale by the Internet Society to Ethos Capital was rejected by the ICANN board.
Recall that ICANN failed to approve that .org registry sale at the last minute after a closed-door session. Following the board vote to reject the sale, a statement was released that gave a responsible-sounding explanation. But, considering ICANN’s standard operating procedure of ignoring even a pretense of deference to stakeholders, the public reasoning given rings hollow and, in light of the newly rediscovered InterNIC licensing agreement with the merged MOU agreement, actually falls far short of a transparent explanation for this mysteriously surprising decision.
What ICANN knows, or what its lawyers most certainly advised the board, is that Ammendment (sic) 3 of the MOU is still in force—if amusingly misspelled in both the document itself as well as the reference link—and contains the following critically relevant language:
ICANN shall not enter into any agreement with any successor registry to NSI to operate the .com, .net or .org registries without prior approval of the DOC of such successor registry.
According to this extant obligation, ICANN must obtain prior approval from the Commerce Department to approve the sale of the .org registry. It is probably safe to assume that ICANN did not want to do anything that would publicly reveal its subordinate position to the U.S. government for purposes of the .com, .net, and .org Internet registries. This is made even more so when considering California Attorney General Xavier Becerra’s strident objections to the planned sale.
Disturbingly, ICANN may have already violated other provisions of its agreements with the U.S. government when it amended the .org registry agreement to remove pricing consumer safeguards in the weeks prior to the announcement of the failed .org sale.
Meanwhile, rather than enforcing its extant agreements with ICANN and ending ICANN’s injuring of consumers, stakeholders, and Internet users—to say nothing of victims of online sexual exploitation, illegal Internet pharmacies, and content piracy that are being harmed in the rapidly expanding vacuum of accurate, complete, and timely WHOIS registrant data and which also violates ICANN’s obligations to the U.S. government—the Commerce Department instead is obscuring from view these essential agreements.
The Commerce Department should stop the damage being done by enforcing its agreements with ICANN and restoring some semblance of sanity before ICANN drives itself and the Internet irretrievably over a cliff.
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It is worth noting that ICANN has adhered to Amendment 3 in the past, which makes the more recent effort all the more stark of a contrast:
“C. Negotiation of the ICANN-PIR Agreement
The .org Registry Agreement was negotiated over the next ten days. On 24 October 2002, the fully negotiated agreement was posted on the ICANN web site. In line with ICANN’s usual practice, ICANN Board members were afforded seven days in which to raise objections to the agreements based on policy considerations; no such objections were raised. On 26 November 2002, the U.S. Department of Commerce approved PIR as successor registry under Amendment 3 of its Memorandum of Understanding with ICANN. The ICANN and PIR formally entered the .org Registry Agreement on 2 December 2002.”
Reference: https://iana.org/reports/2002/org-report-09dec02.html
Thank you Greg for another informative article. Always remember that .ORG & .COM (& .NET) were, and are, existential issues for ICANN. ICANN has FAILED the global internet community, including registrants, in so many ways, including the .ORG & .COM pricing debacles (2019-2020). But for the intervention of the Attorney General of California, acting in the public interest in accordance with California statutory and common law, the global public resource .ORG would have been lost forever and in the hands of a private equity firm run by ICANN’s former President & CEO and his cronies. ICANN, its Board, Org, and legal staff, intentionally “dumbed-down” the .ORG registry agreement to allow the attempted sale and exploitation of a global public public resource (see RFC 1591). If the US government is unable or unwilling to act, the global internet community needs to proceed with replacement of the incompetent, corrupt, and captured ICANN, as soon as possible.
It is important to remember that the U.S. government doesn’t have any choice but to enforce its contractual agreements. Ample and extensive legal precedent exists establishing that the U.S government may not forego receiving the obligations of its contractual counter parties. The only decision that the U.S. government needs to make is whether it will pursue damages for the injuries inflicted by ICANN’s failure to adhere to its obligations or will merely seek a judicial order for specific performance by ICANN of it’s contractual obligations, in the event that ICANN continues dithering and violating its obligations. On a myriad of issues that are burning, top-of-mind problems — from the WHOIS obstruction to single-character labels in the legacy registries, to the evisceration of consumer safeguards on pricing, to the narrowly averted monetization of public interest Internet infrastructure in the .org failed sale, all of these things would be vastly, if not wholly, remedied simply by the U.S. government’s enforcement of its contractual agreements — which legal precedent going all the way to the Supreme Court affirms it has no choice but to do. Additionally, these extant legal agreements state that “neither party may injure a person or persons or categories of persons” and so this raises the possibility that, by failing to enforce its contractual prerogatives, the U.S. government is itself negligent and liable for damages. Enough is enough and every moment that continues elapsing without ICANN doing the right thing by correcting its atrocious violations is another moment that it is skating on the thinnest of disappearing lines. There is no need to think or consider or study, there is only the need to act to correct its aberrant behavior — and in the most immediate possible sense of the term.