Re: Disposition of Gartner/CIO material, Staff data, Staff actions and neutral 3rd-party review

[Eric Brunner-Williams in Portland Maine <brunner@xxxxxxxxxxx>]

Two fundamental problems exit.  One technical evaluator left no record
of its work that allows for direct forensic examination of its failure
of a basic control test -- detection of control data -- the duplicated
submission of a complete technical proposal [1]. One technical evaluator
left no record in its work that allows for direct forensic examination
of its failure of a basic conflicts test -- detection of a conflict of
interest -- the beneficiary relationship between the evaluator and one
proposant [2].

The respective beneficiaries of these two evaluators, ISOC/Afilias and
NeuStar, respectively, have taken different approaches to managing the
problem of evaluator disfunction. ISOC/Afilias has chosen not to adopt
a critical position when commenting on the evaluation which selected it.
NeuStar has chosen to claim some errors of omission when commenting on
the evaluation which selected it.

We've demonstrated that there is no substance to NeuStar's claims that
concern the Gartner evaluation. Gartner missed no opportunity to assert
value when evaluating NeuStar. This is consistent with Gartner's earlier
evaluation of NeuStar, in May 2002 [3], [4].

ISOC/Afilias could have stated that they understood that error may have
occurred, and that they appeared to be the beneficiaries, and offered to
operate .org if ICANN could not recover from the twin failures of its
selection process, confident of the strengths of their proposal. Instead,
they chose to assert the process was fair, etc.

NeuStar could have noticed ICANN that a potential conflict of interest
existed with the selection of Gartner as an evaluator, confident of the
strengths of their proposal. Instead, they chose to assert the process
was almost fair, marred only because it didn't favor them sufficiently.

This poses a problem for ICANN itself. In February 2002 it asserted that
it was conducting an "open and transparent bid solicitation and evaluation
process". How does the Staff, and subsequently the Board, act on knowledge
that the evaluation process was neither "open" nor "transparent". Not "open"
as Gartner was recycling prior pangyrics, marketing NeuStar as a hot ENUM
property, nor "transparent", as the Academic CIOs left less evidence of
their mysterious ritual than the pre-Columbian Hohokam or Anasazi did of
their respective rituals [5].

Somewhere along the line, these folks missed the point that there are 5
million registrations in .de, 2 million in .nl, etc. With fewer the 1
million registrations each, and utilization rates that are in the low
single-digits, the .info and .biz registries have fewer actual users
(speculative and trademark names not counted) than most of the ccTLD
registries in the EU.

The course taken, asking supplementary questions, is a step towards the
replacement of the hopeless Gartner and Academic CIO non-evaluations. The
necessary next step is to discard these two non-evaluations before passing
any recommendation, and the supporting meaningless and/or corrupted
documentation, to the ICANN Board of Directors.

If, as my friend John Klensin observed, operating a domain name registry is
fairly banal e-com, the ICANN Board of Directors would be better served by
Staff if handed a blindfold and a dart, then the Gartner and Academic CIO
adventures in non-determinism. Under this analysis, which assumes complete
equivalency, taint avoidance is probable -- 9 chances in 11.

If, as my experience the past year suggests, having worked with NeuStar,
PopTel, Register and SWITCH, five of the eleven bidders, operating a
domain registry is being subject to the whims of speculators and spammers,
with several outstanding complications to address, the ICANN Board of
Directors would be better served by picking a non-profit operator. Under
this analysis, which asserts non-equivalency, taint avoidance is certain.

A question to ask is what disincentive exists to discourage unscrupulous
behavior or criminal activity by proposants, now and in the future. This
is not a question for which the correct answer is "nothing".

A question to ask is what possible incentive exists to encourage scrupulous
behavior or pro bono activity by proposants, now and in the future. This
too is not a question for which the correct answer is "nothing".

I recommend to Staff that the ISOC/Afilias and NeuStar irregularities be
brought to the attention of the ICANN Board of Directors, and that the
NeuStar-Gartner irregularity be brought to the attention of the Board on
Professional Responsibility of the California Bar, and to the attention
of the Attorney General of the State of California. Staff has sufficient
resources to determine if any alternative courses of action are prudent.

I recommend to Staff that the Gartner and Academic CIO work products be
discarded in toto, that Staff remove the for-profit and the figureheaded
non-profit bids from the proposant pool, and refer to the Board all the 
remaining balanced mixed-mode and pure non-profit proposals with such
relevant technical data as the Staff has collected independently.

I recommend to the Board that a reputable, disinterested, third-party
evaluation of the non-profit bids, and any other bids that Staff refer
or recommend, be undertaken forthwith. An exemplar third-party reviewer
is the West Coast Regional Office of Consumers Union [6].



Eric Brunner-Williams
General Manager, Wampumpeag, LLC

References:

[1] Communication of Marshall Strauss to the .org evaluation team, section 2,
    para 2, cite of Registry Advantage
    http://www.icann.org/tlds/org/applicant-comments/dotorgfoundation-29aug02.htm

[2] Communication of Robert Poulin to Louis Touton, second embedded URL
    http://www.icann.org/tlds/org/applicant-comments/neustar-29aug02.htm
    http://www.icann.org/tlds/org/applicant-comments/neustar-response-gartner-29aug02.pdf
    
[3] Fraley, D., "NeuStar: One of the Best Kept-Secrets in Telecom",
    Gartner Group, TELC-WW-DP-0171, $795, 6 May 2002.

[4] "Gartner disclaims all warranties as to the accuracy, completeness or 
     adequacy of such information. Gartner shall have no liability for errors,
     omissions or inadequacies in the information contained herein or for
     interpretations thereof. The opinions expressed herein are subject to
     change without notice" (from "NeuStar: One of the Best Kept-Secrets in
     Telecom", by David Fraley, cited above).

[5] Hohokam, modernly the Tohono O'odam; Anasazi, modernly the Hopi.

[6] Consumers Union, 1535 Mission Street, San Francisco, CA 94103-2512
    Phone: (415) 431-6747, Fax: (415) 431-0906
    URL: http://www.consumersunion.org/aboutcu/contact.htm#SF