Non-profits face uncertainty as .org domain goes up for sale

Yola VerbruggenFriday 6 March 2020

The executive directors of some of the world’s largest non-governmental organisations (NGOs), including Greenpeace and Human Rights Watch, have asked for proper due diligence and safeguards to be put in place to protect civil society groups. Major concerns regarding the sale include the lack of regulation to prevent price hikes, the ability of a private equity firm to resist the pressure of repressive governments, and the monetisation of the data of its users.

Such fears have predominantly been directed towards the Internet Corporation for Assigned Names and Numbers (ICANN), the not-for-profit that coordinates internet addresses and which is reviewing the sale.

‘Both the physical and virtual world have become increasingly inhospitable and risky for civil society organizations who face constant surveillance, online censorship, and even more physical risks and legal restrictions on their operations and personnel’, the NGOs said in a joint letter to the boards of the Internet Society, which created the PIR and ICANN. ‘This proposed sale presents an additional danger to civil society and undermines the safety and stability of the digital space for countless non-governmental organizations, their partners, and their broader communities.’

The deal came as a surprise to the non-profit sector and has been largely devoid of public scrutiny. Ethos Capital was only established in May 2019, just months before the proposed sale of .org was announced. The fact that former ICANN Chief Executive Fadi Chehadé is involved in Ethos Capital has not done much to settle the unease among the domain’s users. Xavier Becerra, the Attorney General of California, where ICANN is registered, has requested more details on the deal so as to analyse the impact to non-profits.

‘New ownership of the domain as such is not a major issue, but since Ethos Capital is an investment company, this raises questions about their longer-term intentions and strategy,’ says Daniel Lundqvist, Vice-Chair of the IBA Internet Business Subcommittee and a partner with Kahn Pedersen in Sweden. ‘The .org domain is a vital part of the internet, specifically for NGOs and non-profits. A potential change in ownership and strategy of this domain, resulting in higher fees and more commercial focus, could potentially have significant impact.’

Despite promises from Ethos Capital to ‘limit increases for .org domain registration prices to no more than ten per cent, per year, on average’, there is no mechanism in place that would enforce such a promise. This leaves NGOs vulnerable to price hikes from a company ‘that is not accountable to anyone, apart from its shareholders’, says Mark Stephens, a prominent media lawyer with Howard Kennedy and Vice-Chair of the IBA’s Human Rights Institute.

Stephens also emphasises the threat to accessibility of the domain, as organisations including those from the Global South for whom a small fee increase could be crippling, depend on the low pricing of their websites. ‘There is no restriction, nothing to prevent Ethos Capital from pricing individual domains out of the market. They could discriminate and thereby censor. Squeezing profits from not-for-profits and civil society is not a moral basis that you should want to follow.’

For David Kaye, United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and Clément Nyaletsossi Voule, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, the sale ‘raises serious questions’ about the ability of civil society groups to continue to use the domain safely and securely. Questions around the opacity of the deal ‘directly implicate the freedom of expression and the ability for civil society organisations to have a place online that is not subject to the pressures of a commercial environment that could very well silence them,’ they wrote in a letter to ICANN leadership.

In another letter, also directed at the ICANN leadership, United States Senator Elizabeth Warren, together with other lawmakers, raised concerns about the sale, saying it would provide ‘substantial opportunities for abuse’.

ICANN, potentially unprepared for the media storm that has surrounded the sale, has requested an extension to 20 April 2020 for its review.

‘ICANN is best placed to investigate this sale so that all of its stakeholders can see exactly which safeguards will be put in place to protect .org customers,’ says Sajai Singh, Co-Chair of the IBA Technology Law Committee and a partner with J Sagar Associates in India. ‘If those safeguards are found to be lacking or there are challenges on enforceability, then ICANN should follow its stated objective of providing consensus-based multi-stakeholder governance. ICANN may, if necessary, block the deal.’

Several large online non-profits – including Wikimedia and the Mozilla Foundation – have provided an alternative to the sale through the formation of a cooperative corporation. The aim of the cooperative is to keep the domain in the hands of what one of its directors, Esther Dyson, who was the founding chair of ICANN, says are its ‘rightful owners’.