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Fifth Update on .org Reassignment Process

This is an update on the status of the evaluation of the eleven applications ICANN received from entities seeking to become the registry operator for the .org top-level domain on 1 January 2003, when VeriSign, Inc. gives up that role. For more information, see the previous updates that were published on 25 July 2002, 4 August 2002, 21 August 2002, and 4 September 2002.

Resignation of Harold Feld from Usage Evaluation Team

One of the co-chairs of the Usage Evaluation Team (composed of participants in the Non Commercial Domain Name Holders Constituency), Harold Feld, notified ICANN's General Counsel on Tuesday, 3 September 2002 of a conflicting interest, of which he had just became aware, that he has with regard to the .org proposal submitted by RegisterORGanization. Because of this conflicting interest, Mr. Feld has decided to immediately resign from the Usage Evaluation Team. The circumstances are described in the General Counsel’s reply to Mr. Feld, which appears below.

ICANN thanks Mr. Feld for his professionalism in immediately revealing this situation and for his candor in responding to the General Counsel's investigation of it.


Harold J. Feld
Media Access Project

Dear Mr. Feld:

I have received and reviewed your notification of 3 September 2002 regarding your discovery of a conflict of interest that you feel makes it inappropriate for you to continue to serve on the Non Commercial Domain Name Holders Constituency (NCDNHC) evaluation committee for the .org applications, and your desire to resign immediately from the committee.

At the outset, let me express my deep respect for the professional manner in which you have addressed this discovery. Coming forward immediately upon discovery of the circumstances surely carries considerable embarrassment for you, and I commend you for making ethical considerations your paramount guiding principle. I also greatly appreciate your candor in responding to my further inquiries regarding the circumstances.

You have served as co-chair, with Milton Mueller, of the NCDNHC evaluation committee (referred to in the preliminary staff report as the "Usage Evaluation Team"). The committee was divided into three subgroups according to the three usage criteria; your personal involvement was directed at criterion 5 (responsiveness and governance). Although as a co-chair you otherwise would have been involved in the process of combining the three criteria scores, in fact you were not because you were on vacation at the time.

One of the .org proposals, submitted by RegisterORGanization, proposes to distribute US$2,500,000 between two foundations to seed the growth of a .org community through technology capacity building, bridging the digital divide, policy education and advocacy, and technology innovation. The two organizations proposed by RegisterORGanization were the Benton Foundation and the Open Society Institute’s (OSI) Information Program. On 3 September 2002, you realized that the Open Society Initiative in fact is one of Media Access Project’s funders (at the level of approximately US$125,000 per year). Previously, you had understood (understandably, based on my evaluation of the circumstances) that the OSI mentioned in RegisterORGanization’s proposal was a distinct organization from the one that provides funding to the Media Access Project.

When you discovered the connection, you immediately alerted me of the circumstances.

As I have noted on several occasions previously (including in connection with your request for advice about the Benton Foundation), because the DNSO (including its constituencies) is primarily an advisory (rather than decision-making) body that is specifically intended to be a forum where involved participants formulate bottom-up advice to ICANN, it is to be expected that the participants will have material interests on matters regarding which they give advice. Prohibiting DNSO participants with interests in particular matters from giving their views would destroy much of the utility of the DNSO's advice. Accordingly, there is no conflict-of-interest requirement that a DNSO participant not participate in development of recommendations or advice to the Board that may have effects on the participant's interests. The prevailing requirement, instead, is clear notification to all involved of the nature of the participant's interests.

Although your continuing on the Usage Evaluation Team – with full disclosure – would not violate any conflict-of-interest requirements, it is my opinion that your decision to resign from the committee is appropriate because failing to do so would impair the reliability of the final evaluation report of the team. This is because it would be extremely difficult for you to ignore the financial interest you now realize is present in making further assessments as a member of the evaluation team. The result of your continued involvement would be to call into question the objectivity of the Usage Evaluation Team’s advice, at least as to criterion 5.

I have reviewed the draft evaluation report's discussion regarding criterion 5 (responsiveness and governance) to assess preliminarily whether there is any indication of bias in favor of RegisterORGanization. (One would not expect such bias, of course, since at the time you were unaware of the relationship between Media Access Project and one of the benefactors of the RegisterORGanization proposal.) The draft report contains the following ranking and scores for the eleven proposals:

1. Unity 27.25
2. GNR 26.75
3. ISOC 21.75
4. DotOrg Foundation 20.50
5. UIA 16.75
6. IMS/ISC 14.00
7. Neustar 12.75
8. Register Org 11.75
9. Switch 8.00
10. .Org Foundation 5.00
11. Organic Names 0.00

The summary of the basis for the RegisterORGanization evaluation on responsiveness and governance reads as follows:

Rank 8: RegisterORG

RegisterORG offers has partnered with the Benton Foundation and the Open Society Institute – two non-profits well known for extensive international work. It has committed substantial resources, $2.5 million dollars, so that these organizations may develop input from the noncommercial community and facilitate noncommercial community involvement with .org.

Ultimately, however, RegiserORG retains total control and may ignore any input generated through its noncommercial partners. Neither RegisterORG nor its noncommercial partners has detailed any plan for outreach. Therefore it received a Low rating in the Input/governance cell. RegisterORG has no relationship with the noncommercial community, except via its partnership with Benton and OSI. The extensive relationships of OSI and Benton and the commitment of resources cannot entirely compensate for the lack of detail in the plan, particularly where Benton and OSI appear to be more in a consulting relationship than a true partnership. The Committee therefore gave this bid a "Moderate" rating in its relationship to the community. RegisterORG has participated on the public forum and responded to the questions of the NCDNHC, receiving a High rating in that area.

The bidder has proposed no new services or good works projects, beyond supporting Benton and OSI. The bidder proposes no relationship with the NCDNHC, and has not offered to facilitate participation of noncommercial entities in ICANN.

Based on a preliminary review of the report, there is no indication that any interest you have biased the report in favor of RegisterORGanization. Nonetheless, to confirm the absence of bias, the process followed and conclusions reached by the responsiveness and governance subgroup evaluation should undergo an audit by persons not involved in the process to date. ICANN will undertake this audit as part of its final review of the NCDNHC evaluation.

Sincerely,

Louis Touton
General Counsel


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