[ncdnhc-discuss] [Fwd: Harold Feld's Resignation from NCDNHC Evaluation Team]

[Harold J. Feld]

-------- Original Message --------
Subject: Harold Feld's Resignation from NCDNHC Evaluation Team
Date: Thu, 05 Sep 2002 14:08:33 -0700
From: Louis Touton <touton at icann.org>
To: "Harold J. Feld" <hfeld at mediaaccess.org>
CC: Milton Mueller <mueller at syr.edu>, Stuart Lynn <lynn at icann.org>, 
yjpark at myepark.com, amsiat at sdnpben.org.bj, faia at amauta.rcp.net.pe, 
marc at schneiders.org, ermanno at ula.ve, vandrome at renater.fr

Harold,

The following message is being posted on the ICANN web site today.

Best regards,

Louis Touton
==========================
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