[governance] RE: Human rights and new gTLDs

Mon Oct 1 11:16:21 EDT 2007

> I understand the auction method we advocated has been rejected 
> for a beauty contest approach of picking winners and losers.  

It seems this is a classic dilemma of our new digital times: how to allocate
new space in an uncertain market that *could* become worth a fortune.

My intrinsic bias is for auctioning because it is free market and it removes
the beauty contest ability for a small number of people to make important
decisions.

But I can think of two recent examples in the UK where the auction method
has proved disastrous. 

The auctioning of 3G mobile licences provided the UK Treasury with over £20
billion - which was then promptly used to pay off national debt. But the
bidding only went so ridiculously high because all the companies were
worried that without a licence they would be out of business in five years.

The money paid was so large that the companies then couldn't afford to
produce the infrastructure or roll out the services. They have also upped
the prices of other non-3G phonecalls in order to recoup the money they
spent. So the consumer ends up paying more for less. 

A second example was when a lot of WiMax spectrum was auctioned off region
by region. Because of the rules put in place, a lot of companies that won
the auction for their region then had little choice but to sell their
licence to a company that had carefully gobbled up the most profitable
sectors. One region refuse to sell and tried to run its own service but
after a few months, the economies of scale weren't there and it sold it up
as well - leading to some, including me, to posit whether it hadn't actually
launched a shoddy service just to be able to demand more money from the
acquisitive company. 

The result was: a cut-price monopoly for a clever and aggressive company.
Who it seems may now end up not providing a consumer service at all because
there are other, more profitable, uses for the spectrum. 

Maybe the lesson to be learnt is that auctions have to be just as carefully
reviewed and structured as the mechanisms that are put in place to keep
beauty-contest organisations on the straight and narrow.

Kieren

-----Original Message-----
From: Lee McKnight [mailto:LMcKnigh at syr.edu] 
Sent: Monday, October 01, 2007 2:52 PM
To: kierenmccarthy at gmail.com; governance at lists.cpsr.org
Subject: RE: [governance] RE: Human rights and new gTLDs

Kieren,

I appreciate your engagement even if your use of the word 'inevitable'
was unfortunate; since very little is truly inevitable in the course of
human events.   

As you may recall folks, including myself and Milton, have developed
and advocated 'regular, transparent and objectuve' procedures for gTLD
allocation for some time, and offered concrete suggestions on how those
could be implemented. As have the OECD.

I understand the auction method we advocated has been rejected for a
beauty contest approach of picking winners and losers.  

As they say, beauty is in the eye of the beholder; best of luck to
ICANN implementing a 'regular, transparent and objective' method for
measuring beautiful gTLDs and not so beautiful gTLDs.

Lee

Prof. Lee W. McKnight
School of Information Studies
Syracuse University
+1-315-443-6891office
+1-315-278-4392 mobile

>>> kierenmccarthy at gmail.com 10/1/2007 9:36:37 AM >>>
> Yet, despite your mockery, that is more or less how we define 
> censorship in the US.  We even have a name for the false doctrine you

> approve of: "the heckler's veto"

I wasn't mocking anyone. And I don't think a reasonable review of what
I
wrote would reveal anything approaching mockery.

I admire your semantic efforts of "false doctrine" and "heckler's veto"
to
undermine a point of view without engaging on the actual points but
unfortunately all that leaves is one blinkered and aggressive response
to
one attempt at broader discussion and understanding.

And your attempt to argue that I am presenting the concept of "well
meaning
censorship" would be insulting if it wasn't so silly.

I think there are two broad points here:

* The Internet is global, and so any attempt to impose one prevailing
philosophy over it are doomed to failure. Everyone would do well to
remember
that.

* The approach to discourse that sees anyone with a dissenting view
attacked
with little or no effort to review what they actually said is never
going to
provide any useful conclusion, and so all its resulting fire and heat
will
end up being ignored. 

Danny Younger actually makes an effort to engage in a later post I
see,
arguing that there is the possibility for a huge number of new gTLDs to
be
blocked.

I have to confess this is my concern as well - which is why it is vital
that
the actual mechanisms for deciding a new gTLD when it is queried is
where
the attention should be focused.

But all the while that the proponents of a far less
intellectual-property
view of the world spend shouting and refusing to engage, the more the
underlying system will take on the characteristics of those that seek
to
build, rather than impose, consensus.

Kieren

-----Original Message-----
From: Michael Froomkin - U.Miami School of Law
[mailto:froomkin at law.miami.edu] 
Sent: Monday, October 01, 2007 1:48 PM
To: governance at lists.cpsr.org; Kieren McCarthy
Subject: RE: [governance] RE: Human rights and new gTLDs

On Mon, 1 Oct 2007, Kieren McCarthy wrote:

> You know, I have given these claims about human rights and new gTLDs
some
> consideration and I still just don't see the logic.
>
> Is it censorship to stop certain new gTLDs from being approved? In
one
> sense, yes. But only if you define censorship as stopping people
from
doing
> whatever they want despite the clear offence that will be taken by
others.

Yet, despite your mockery, that is more or less how we define
censorship 
in the US.  We even have a name for the false doctrine you approve of:

"the heckler's veto" (the doctrine that centralized authority can
suppress 
speech because of its concern for a 3rd party's reaction) -- and we
VERY 
strongly disapprove of it.  That B claims offense *cannot* be allowed
to 
muzzle A, or else A's *right* to speak is illusory.

The rest of your note proceeds under the assumption that it's somehow
not 
cencorship if it's well meaning.  It would be more persuasive to talk
of 
'balancing' rights than to try to argue somehow that this isn't
censorship 
when it clearly is.

To shift to a 'balancing' view does, however, require that one
articlute a 
'right not to be offended' equal in value and weight to the right to 
speak, and also equal in likely long run effect to the prophylactic
rule 
that governments (or quasi-governmental entities for that matter) ought

not to be trusted to regulate speech.  This is not easy to do, although

some have tried.

> This type of "censorship" is more simply defined as the rules that
hold
any
> society together.
>
> Is it our "human right" to say whatever we want without regard to
others'
> sensibilities? No, it's not. We do have a right to not be prosecuted
or

It is so long as it does not creat physical harm, or the risk of
imminent 
physical harm (shouting "fire" in a crowded theater).

You have defined the problem away.  But it's still there.

> intimidated for expressing an opinion, but that is a quite different
matter.
>
>
>
> The important question to ask is: does not allowing certain new
gTLDs
result
> in the removal or stymieing of discussion of a certain topic?

No, the important question to ask is, "Who decides" -- opinions differ
so 
the question is at which level will the decision be made, the
governmental 
(or quasi-governmental) or the individual level.  In the US we in the 
large majority of cases, do not trust institutions with the power to 
decide these questions.

>
> And the answer to this is quite clearly no.

And the answer to this question is in fact that opinions differ, which
is 
why history teaches us that the power question is central.

>
> This human rights argument appears to completely ignore the actual
reality
> of the Internet. There is actually comparatively little connection
between
> domain names and content and to pretend otherwise is frankly
bizarre.
>
>

The argument for the heckler's veto seems to ignore completely the
reality 
of the diversity of viewpoints, and the many things that offend
someone.

I could go on, but I think you get the point....

[...]

> I can't for the life of me understand why so much effort is being put
into
> shouting at policies drawn up and agreed to by large sections of the
ICANN
> community over several years when the really important discussion to
be
had
> is how exactly the inevitable policies are implemented.
>
>

It is very hard to believe that well-educated people can so blithely
whisk 
away the lessons of history.  Assuming that you mean the above
seriously, 
all I can say is that there's a powerful body of modern history that 
teaches that Very Bad Things tend to follow from giving institutions 
chokeholds over speech.  I do agree that in the grand scheme of things,

control over TLD content is (today) pretty small beer.  I personally
get 
more excited about Guantanamo.  But I do understand and respect the
people 
who argue that one must fight the question of principle when it is
small, 
and can be won, rather than waiting until it is big, and much harder to

deal with.

--
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 
                          -->It's warm here.<--

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