[ncdnhc-discuss] The way forward with board CoI on .org

[Hendrik Rood]

Milton Mueller posted on May 13th, 2002 an e-mail on a potential conflict of
interest on .org which provoked intense discussions on this list.

As ten days have passed it is becoming fruitfull to discuss how to advance
the discussion and define a way forward. We start with some undisputable
facts.

1. The Names Council .org divestiture Task Force filed a final report at
January 17th, 2002.
http://www.dnso.org/dnso/notes/20020117.NCdotorg-report.html

2. ICANN Board discussions at Accra on March 14th, 2002 lead to two
significant modifications, one on the issue of surplus funds the other on
the viewpoint that "the initial delegation of the .org TLD should be to a
non-profit organization that is noncommercial in orientation" was altered in
a "neutral" position on the nature of the TLD-organisation. Neutral meaning
no ex-ante preference for a for-profit or a not-for-profit organisation.

>From the transcript
http://www.icann.org/accra/captioning-afternoon-14mar02.htm it is easily
read that the first ICANN Board member that proposed a "neutral" position on
the nature of the .org registry was ICANN Chairman Dr. Vinton Cerf.

">>Cerf: Let me try to take up this point, and Karl, i hope i will be able
to address some of your concerns with this suggestion. I think that there
are at least three very specific points that the board might wish to make to
the president. One of them is that the nature of the organization that
undertakes to run dot org does not have to be not for profit or for profit.
I think we should be neutral on this point. For clarification, the offer
made by Verisign of the $5 million assistance is only applicable in the
event that the selected organization is a not-for-profit organization;
essentially, a noncompetitor. However, there is no constraint, in my view,
on adopting, awarding this particular organization to a for-profit; it's
just they would not have the benefit of that additional funding from
Verisign."

Before Cerf made his opinion Blokzijl provided the following viewpoints:

">>Blokzijl: Whoever is going to run dot org in the near future inherits an
existing user base of about 3 million people and organizations, some of them
individual persons, some of them large organizations that are really
dependent upon the proper operation of dot org. Just to name one, the
international red cross today could not do its work without the registry dot
org.
[...]
So there are not many organizations that have a demonstrated experience in
running a registry with 3 million registered names. A registry which has
about 10, 12 servers scattered around the world on crucial spots of the
internet. This is a little bit more than running a country code top-level
domain, for instance."


The main departure between Cerf's opinion and that of the Names Council .org
divestiture Task Force is that the TF-report created room for a for-profit
registry operator (Section 4. Registry Operator, in their report 5.4) under
the direction of a non-profit TLD-delegee, while the board decided
unanimously after their discussion in Accra to be "neutral" on the
(not-)for-profit nature of the .org TLD-delegee.

3. The first remarks on the Board position of Blokzijl and the business
affiliation of his wife with Neulevel, and the .org decision appeared at
March 15th, 2002.
http://forum.icann.org/cgi-bin/rpgmessage.cgi?org;3CE25C1A00000011

4. The video of the Accra board meeting has been released by the University
of Oregon at April 1st, 2002  http://videolab.uoregon.edu/events/ICANN/
(date and time at bottom of page)

5. The transcript of the meeting has been published at the ICANN website at
April 14th, 2002.
http://www.icann.org/accra/captioning-afternoon-14mar02.htm
(date and time at bottom of page)

6. Milton Mueller posted an e-mail on this list on May 13th, 2002.
http://www.icann-ncc.org/pipermail/discuss/2002-May/002213.html

Then my inbox for this list started to explode in mailings. As I often have
experienced during the last semi-decade of domain name discussions.

The interesting questions are:
* Why did this issue took 2 months to start floating on this list, while the
first public comment was made the day after the meeting was held.
* How to redress such COI issues in the future, other than by self
management
* What to do with the COI of the three other ICANN directors, whom voted on
this issue, while chairing, managing and/or advising ccTLD registries or
their operators. All of whom are potential bidders or affiliates in a
consortium that bids on the .org registry.
* Public tendering laws in most countries have exclusion rules on prior
involvement. E.g. companies or persons involved in the decision or
preparation of the Request for Proposal are prohibited from participating in
the bidding. This is an aspect I do not find elaborated in the fitness
requirements (http://www.icann.org/tlds/org/fitness-disclosure.htm) or the
prescriptions of the general setup of the proposal
(http://www.icann.org/tlds/org/org-proposal.htm) for .org. The discussion
here started way to late to insert some of these types of organisational
requirements.
I am too limited in my knowledge of legal jurisprudence on public tendering
to assess exclusion cases on family ties. (Not-for-profit) Corporations also
are allowed to more lenient regulations, but even then internal codes of
conduct for tendering are often quite strict.
* The "outplacement" of ".org" was the first effort. The contracts with
Verisign also provide a future "outplacement" for ".net". The initial
decision to start with the ".org" divestment looked very prudent and smart
ex-ante, as the far tougher nut to crack is ".net". Thus the remaining issue
is: what can we learn from these events and this discussion?

In my view it would be smart to evaluate the full decision process for the
".org" divestiture. This has also to result in describing (and/or modifying)
the COI principles that have to steer ICANN-directors participation in the
discussion for the future and even far larger and more important
"divestment" of ".net". I will look with great interest on the statements on
this discussion from the other two members of the ICANN COI-committee.

The main reason that we have to look forward is that ".net" is extremely
important as the whole ISP-infrastructure-industry-sector relies heavily on
the stable and functional operation of ".net". Most routers and
infrastructural equipment of ISP's is named in that part of the hierarchy
(f.i. root-servers.net is under the .net gTLD). E.g. a failure of ".net"
infects daily operations and reduces collaborative troubleshooting and fault
location on the Internet. As so many ISP's (and nowadays also telco's) are
operationally dependent on ".net", so are even more ICANN-directors may
enter in a potential Conflict of Interest. Also all directors with ties to
DNS-TLD-registries are again put in the same position.

Therefore a specification for the ".net" case COI-rules for decision makers
is utterly important. The hostcount under ".net" has surpassed ".com" in
2001. Too lenient rules on COI will very probably provide us with a deja vu
on accusations of COI-violations. Too strict rules of what constitutes COI,
might create a recusation of halve the ICANN Board on the ".net"-divestiture
decisions.

My initial response, a year ago when the "gradual" divestiture from Verisign
of the ".org" and ".net" was announced, was that starting with ".org" and
proceeding later on with ".net" before terminating the contract with
Verisign for ".com" looked a smart and prudent policy. Many people discussed
it as too slow, but such bootstrapping steps of dismantling the former
Verisign monopoly would allow the community also to learn from experiences
with the divestiture of the least risky operational gTLD registry first.

My guess was that the learning curve would be mainly on the "operational"
and "business-economics" side of these transitions. After these 10 days I
have learned that in the current ICANN-climate these transitions, allthough
about the most substantive economic decisions ICANN made up to now, also
provide "procedural" lessons, with to my surprise two off the people I would
have suspected at least instance, upfront in the spotlight of scrutiny.

There is also an important lesson when reviewing the delay between the
Accra-meetings event. We had the immediate comment on March 15th and the
start of this discussion after Milton's posting on May 13th.
Not only does ICANN suffer from volunteer board members with too limited
spare time to get more deeply involved and be able to redirect the
profesional staff. Also ICANN's fiercest critics seem to operate as
volunteers with too limited time available. As such any option for remedy
has passed.

Therefore starting to think now about what to do with foreseeable upcoming
COI-issues around the divestiture of ".net" as pointed out above should be
the minimum constructive effort we can take away from the last ten days of
list discussion.

with regards,

Hendrik Rood
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