[Expression] [governance] ICANN Board Vote Signals Era of Censorship in Domain Names

Michael Froomkin - U.Miami School of Law froomkin at law.miami.edu
Tue Apr 3 18:51:30 EDT 2007 

so ".com" is bad?  It's not "content neutral" after all.

I gather only semantically meaningless suffixes (like ".iii") would pass 
this very stiff test?

On Tue, 3 Apr 2007, Andrew McLaughlin wrote:

> I'm saying ICANN should reject any TLD that is not content-neutral, regardless of what the content is. .xxx would not be content-agnostic, and so should be rejected (IMHO). I fear the consequences if governments get the idea that the DNS can be used to label and control content.
>
> --andrew
>
> -----
> andrew mclaughlin
> google inc.
> mclaughlin at google.com
> +1.650.253.6035
>
>
>
> -----Original Message-----
> From: Robin Gross
> To: Andrew McLaughlin
> CC: Vittorio Bertola; governance at lists.cpsr.org; expression at ipjustice.org; NCUC-DISCUSS at listserv.syr.edu
> Sent: Tue Apr 03 15:01:46 2007
> Subject: Re: [Expression] [governance] ICANN Board Vote Signals Era of Censorship in Domain Names
>
> Hi Andrew,
>
> I'm having a hard time understanding how you can say ICANN should keep
> the "top level content-neutral and strictly divorced from
> content-specific rules" while also arguing that ICANN should prevent
> .xxx because of its content.
>
> Do you agree that ICANN should be content-neutral or do you believe
> ICANN should make policies based on content?
>
> Thanks,
> Robin
>
>
>
> Andrew McLaughlin wrote:
>
>> FWIW (i.e., not much), I agree with Vittorio.  To call this decision
>> "censorship" degrades the meaning of that term.  The fact that there
>> is no .abortion TLD doesn't in any way limit the ability of any
>> Internet speaker to voice an opinion about abortion.  To the extent
>> that DNS labeling is important, second- and third- and fourth level
>> labels -- abortion.example.com -- are always available.
>>
>> IMHO, free expression is much more threatened by content-specific TLD
>> labels, all of which ICANN would be smart to reject.  Rather than give
>> restrictive governments and ISPs new tools for censorship of the real
>> kind, ICANN should keep the DNS at the top level content-neutral and
>> strictly divorced from content-specific rules.
>>
>> Susan's dissent is unconvincing because it ignores the second-order
>> consequences of using the DNS as a designation of content.  It's the
>> wrong road to go down.
>>
>> --andrew
>>
>>
>> On 4/3/07, Vittorio Bertola <vb at bertola.eu> wrote:
>>
>>> Robin Gross ha scritto:
>>>> From my cyberlaw blog:
>>>> http://ipjustice.org/wp/2007/04/02/icann_board_votexxx
>>>
>>> Well, once in a lifetime, we disagree completely :-)
>>>
>>> I have had the luck to witness personally the last three months of
>>> discussions in the ICANN Board. So, believe it or not, your
>>> interpretation of the reasons and the value of this vote is IMHO quite
>>> wrong. Let me explain.
>>>
>>> First of all, ICANN had a process for TLD applications (which,
>>> incidentally, is quite a bad process, starting from the meaningless
>>> "sponsorship" idea, but that's what we had at the moment), and the vote
>>> was meant to judge whether the application meant the requirements. There
>>> was no discussion on whether "adult entertainment" is good or bad or
>>> whether it should be censored. There was, however, discussion on whether
>>> the criteria were met; some directors thought they were, most thought
>>> they weren't. That's how the vote went. Susan and another director - not
>>> even all the five who voted against rejection - apparently assumed that
>>> those who disagreed with them did so due to political pressure or desire
>>> for censorship. This was entirely their assumption and many of the
>>> others felt personally offended by it.
>>>
>>> Even if you forget about the process and think about the idea in itself,
>>> it looks like a bad idea. Adult entertainment sites do not want to be
>>> labelled, exactly because they are afraid of being censored; many of
>>> them - basically all, according to some's judgement; for example, there
>>> was no single adult webmaster speaking in support of .xxx in the entire
>>> meeting - made it clear that they'd not have used the new domain. So the
>>> only purpose for this domain would have been defensive registrations,
>>> e.g. transfering money from consumers to the company who would have run
>>> it. Personally - and especially given that I represent consumers on the
>>> ICANN Board - I think that this would have been publicly detrimental.
>>>
>>> Then, let's discuss about "censorship". I think that the statement that
>>> not approving .xxx is "content-related censorship" is impossible to take
>>> seriously. You write:
>>>
>>>> By voting to turn down the .XXX
>>>> application for public policy reasons, the Board indicated it will go
>>>> beyond its technical mission of DNS coordination and seek to decide
>>> what
>>>> ideas are allowed to be given a voice in the new domain name space.
>>>
>>> Do you seriously mean that since there is no .xxx there is no porn over
>>> the Internet?
>>>
>>> Actually, if .xxx had been approved, then many governments could have
>>> passed laws to force porn sites into it, thus actually making censorship
>>> easier. The only reply I got to this observation was "yes, but in the US
>>> we have the First Amendment that would make it impossible". And what
>>> about the rest of the world?
>>>
>>> All in all, of course there are sociopolitical aspects in some of the
>>> decisions that ICANN has to take. Even refusing to consider these
>>> aspects, and embracing the hyper-liberalistic, totally free market
>>> approach of approving each and every application for a new TLD no matter
>>> how controversial it is, which you and others seem to advocate, is a
>>> political choice. It's way too common to hide behind memes such as "it
>>> should be a technical decision only" or "let the market decide", but
>>> these are political choices as well, with lots of implications. I am
>>> surprised by how so many brilliant people from the liberal US
>>> environment seem unable to accept diversity on this issue, to the point
>>> of questioning the legitimacy or good faith of decisions when they go in
>>> a different direction.
>>>
>>> I'll stop here, pointing at the comment I left on Susan's blog -
>>> http://scrawford.blogware.com/blog/_archives/2007/3/30/2845638.html#882501
>>>
>>> - for further consideration about the "cultural diversity" issue.
>>>
>>> Ciao,
>>> --
>>> vb.                   Vittorio Bertola - vb [a] bertola.eu   <--------
>>> -------->  finally with a new website at http://bertola.eu/  <--------
>>>
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>>
>>
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-- 
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A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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