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

[Michael Froomkin - U.Miami School of Law]

There is much to commend in Vittorio Bertola's remarks.

It certainly leads one to this: The way to get out of these horrible 
debates is to have a new process, one which is focued entirely on 
technical merits (meeting some threshhold), and in which ICANN has none or 
at most minimal input/veto on semantics (one might, for example, have a 
rule that no gTLD that is confusing with existing ccTLDs, or even all 
existing TLDs is allowed -- but NO semantic/contect regulation).

Then this need never happen again!  If someone decides to run .xxx or 
.hate or whatever, that's then their problem, not ICANN's.

On Tue, 3 Apr 2007, Vittorio Bertola 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,
>

-- 
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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