Why I Voted For XXX
The ICANN Board voted today 9-5, with Paul Twomey abstaining, to reject a proposal to open .xxx. This is my statement in connection with that vote. I found the resolution adopted by the Board (rejecting xxx) both weak and unprincipled.
has followed on this issue since I joined the Board in December of 2005. I would like to make two points. First, ICANN only creates problems for itself
when it acts in an ad hoc fashion in response to political pressures. Second, ICANN should take itself seriously as
a private governance institution with a limited mandate and should resist
efforts by governments to veto what it does.
Role of the Board
This decision, whether to admit a
particular non-confusing, legal string into the root, is put before the ICANN
Board because (1) we purport to speak on behalf of the global internet
community and (2) the U.S. Department of Commerce defers to the judgments of
that community when deciding what to tell its contractor to add to the authoritative
root zone file.
As a Board, we cannot speak as *elected*
representatives of the global internet community because we have not allowed
elections for Board members. This
application does not present any difficult technical questions, and even if it
did we do not as a group claim to have special technical expertise. So this is not a technical stability and
security question. It seems to me that
the only plausible basis on which the Board can answer the question in the
negative (“a group of people may *not* operate and use a lawful string of
letters as a top level domain”) is to say that the people affected by this
decision have a broadly shared agreement that the admission of this string to
the root would amount to unjustifiable wrongdoing. Otherwise, in the absence of technical
considerations, the Board has no basis for rejecting this application.
Let me explain. The most fundamental value of the global
internet community is that people who propose to use the internet protocols and
infrastructures for otherwise lawful purposes, without threatening the
operational stability or security of the internet, should be presumed to be
entitled to do so. In a nutshell,
“everything not prohibited is permitted.”
This understanding, this value, has led directly to the striking success
of the internet around the world.
ICANN’s role in gTLD policy
development is to seek to assess and articulate the broadly shared values of
the internet community. We have very
limited authority and we can only speak on behalf of that community. I am personally not aware that any global
consensus against the creation of an .xxx domain exists. In the absence of such a prohibition, and
given our mandate to create TLD competition, we have no authority to block the
addition of this TLD to the root.
It is very clear that we do not
have a global shared set of values about content online, save for the global
norm against child pornography. But the
global internet community clearly *does* share the core value that no
centralized authority should set itself up as the arbiter of what people may do
together online, absent a demonstration that most of those affected by the
proposed activity agree that it should be banned.
Process
More than three years ago, before I
joined the Board, ICANN began a process for new sponsored top level
domains. As I have said on many
occasions, I think the idea of “sponsorship” is an empty one. *All* generic TLDs should be considered
“sponsored” in that they should be able to create policies for themselves that
are not dictated by ICANN. The only
exceptions to this freedom for every TLD should be, of course, the (very few)
global consensus policies that are created through the ICANN forum. This freedom is shared by the country code
TLDs.
Notwithstanding my personal views
on the vacuity of the “sponsorship” idea, the fact is that ICANN evaluated the
strength of the sponsorship of xxx (the relationship between the applicant and
the “community” behind the TLD) and, in my view, concluded that this criteria
had been met as of June 2005; ICANN then went on to negotiate specific
contractual terms with the applicant.
Since then, real and “astroturf”
comments (filed comments claiming to be grassroots opposition that have
actually been generated by organized campaigns) have come in to ICANN that
reflect opposition to this application. I
do not find these recent comments sufficient to warrant re-visiting the
question of the “sponsorship” strength of this TLD which I personally believe to
be closed.
No applicant for any “sponsored”
TLD could ever demonstrate unanimous, cheering approval for its
application. We have no metric against
which to measure this opposition, and thus we have no idea how significant it
is. We should not be in the business of
judging the level of market or community support for a new TLD before the
fact. We will only get in the way of
useful innovation if we take the view that every new TLD must prove itself to
us before it can be added to the root.
It seems to me that what is meant
by “sponsorship” (a notion that I hope we abandon) is to show that there is
enough interest in a particular TLD that it will be viable. We also have the idea that registrants should
participate in (and be bound by) the creation of policies for a particular
string. Both of these requirements have
been met by this applicant. There is
clearly enough interest (including more than 70,000 pre-registrations from
1,000 or more unique registrants who are members of the adult industry), and
the applicant has undertaken to us that it will require adherence to its
self-regulatory policies by all of its registrants. To the extent some of my colleagues on the
board believe that ICANN should be in the business of deciding whether a
particular TLD makes a valuable contribution to the namespace, I differ with
them. I do not think ICANN is capable of
making such a determination. Indeed,
this argument is very much like those made by the pre-divestiture AT&T when
it claimed that no “foreign attachments” to its network (like answering
machines) should be allowed, in part because AT&T asserted there was no public
demand for them. The rise of the
internet was arguably made possible by allowing many “foreign attachments” to
the network – called modems.
We established a process for sTLDs
some time ago. We have taken this
applicant through this process. We now
appear to be changing the process. We
should not act in this fashion.
Politics
Discomfort with this application may
have been sparked anew by (1) the letter from individual GAC members Janis
Karklins and Sharil Tarmizi (to which Amb. Karklins has told us the GAC acceded
as a whole by its silence), and (2) the letter from the Australian
government.
I am not at all opposed to receiving
advice from the Government Advisory Committee.
But the entire point of ICANN’s creation was to avoid the operation of
chokepoint content control over the domain name system by individual or
collective governments. The idea was
that the US would serve as a good steward for other governmental concerns by
staying in the background and overseeing ICANN’s activities, but not engaging
in content-related control. Australia’s
letter, and concerns expressed in the past by Brazil and other countries about xxx,
are explicitly content-based and thus inappropriate, in my view.
If, after creation of an xxx TLD, certain
governments of the world want to ensure that their citizens do not see xxx
content, it is within their prerogative as sovereigns to instruct internet
access providers physically located within their territory to block such
content. Also, if certain governments
want to ensure that *all* adult content providers with a physical presence in
their country register exclusively within xxx, that is their prerogative as
well. (I note that such a requirement in
the U.S. would violate the First Amendment to our Constitution.) But this content-related censorship should
not be ICANN’s concern, and ICANN should not allow itself to be used as a
private lever for government chokepoint content control by making up reasons to
avoid the creation of such a TLD in the first place. To the extent there are public policy
concerns with this TLD, they can be dealt with through local law. Registration in (or visitation of) domains in
this TLD is purely voluntary.
If ICANN were to base its decisions
on the views of the Australian (or US, or Brazilian) government, ICANN would
have compromised away its very reason for existence as a private
non-governmental governance institution.
Conclusion
I continue to be dissatisfied with
elements of the proposed xxx contract, including but not limited to the “rapid
takedown” provision of Appendix S,[1]
which is manifestly designed to placate trademark owners and ignores the many
due process concerns that have been expressed about the existing UDRP. I am confident that if I had a staff or
enough time I could find many things to carp about in this draft contract. But I am certain that if I complained about
these terms my concerns would be used to justify derailing this application for
political reasons. I plan, therefore, to turn my attention to the new
gTLD process that was promised for January 2007 (a promise that has not been
kept) in hopes that we will someday have a standard contract and objective process
that can help ICANN avoid engaging in unjustifiable ad hoc actions. We should be examining generic TLD applicants
on the basis of their technical and financial strength, and we should avoid
dealing with “content” concerns to the maximum extent possible. We should be
opening up new TLDs. I hope we will find a way to achieve such a sound
process in short order.
[1] “5. Rapid Takedown. Analysis of UDRP disputes indicates that the
majority of UDRP cases involve obvious variants of well-known trademarks. ICM
Registry does not believe that the clearest cases of abusive domain
registration require the expense and time involved in traditional UDRP filings.
Accordingly, ICM Registry will institute a rapid takedown procedure in which a
response team of independent experts (qualified UDRP panelists) will be
retained to make determinations within 48 hours of receipt of a short and
simple statement of a claim involving a well-known or otherwise inherently
distinctive mark and a domain name for which no conceivable good faith basis
exists. Such determinations will result
in an immediate termination of resolution of the domain name, but will not
prejudice either party’s election to pursue another dispute mechanism. The
claim requirements will be modeled after the Digital Millennium Copyright Act.
(ICM welcomes IP community input on this procedure.)”
Education/communication
Today's overarching issue: how ICANN educates and communicates. The organization had trouble telling people that new top level domains had been opened up (like .museum and .info) and so for years some web sites and applications that asked for email addresses rejected any TLD that wasn't com/net/org or a recognized country code.
Today during the public forum we heard from a lot of people who want better education/communication efforts. Registrants need to know about the risks of registering a domain name and not keeping their information up to date with a registrar — and might need to understand how the system works and what they're really getting when they register a name. Hardware manufacturers might want to know about IPv6 and that they'd save effort/money by dealing with it now rather than waiting for later. Users might want to know about IDN and what it means. IANA might want to find a way to describe what it does so that people don't send them 13,000 emails a month complaining about things that IANA doesn't do.
Oh, and we also discussed .xxx. More about that tomorrow.
Big moment
The room wasn't actually buzzing with energy (in fact you'd have to say it was near empty), but there was a big governance biological petri dish moment today: the ICANN experiment may become a private international organization, based in the US. There are lots of steps between here and there, but it's starting.
Needed: much more detail about accountability — without the backstop of the USG and litigation pressures, and with no ability to remove Board members or GNSO Council members, who's going to tell ICANN when they've overstepped in some way?
Increasing professionalism
Most of the public forum this morning at the ICANN Lisbon meeting was taken up with presentations about what ICANN is doing: the President's Report [not yet available online], the report on the organizational plan, reports about the new web site [coming soon] and the new public participation site. The increased transparency efforts are very good indeed. [Joichi Ito is taking pictures.]
There was a discussion about the RegisterFly situation — again, very good communications at this meeting, with a fact sheet available, and an experienced group of commentators available to speak from the stage (from the At Large Advisory Committee, the registrars, and the Security & Stability Advisory Committee, among others).
Now we're in a public forum about new top-level domains, and Bruce Tonkin is pointing out that “natural persons no longer necessarily associate themselves with countries, but with international communities of interest.”
Sunday at ICANN
Well, today for me began with an early morning committee meeting, then moved into a “welcome to ICANN” panel, and now I'm in a Board meeting that will last all afternoon.
The “welcome to ICANN” session, ably led by Paul Levins, had some interesting moments. The chair-elect of the Governmental Advisory Committee, Amb. Janis Karklins, in answer to a question about why some GAC meetings are closed to the public, indicated pretty firmly that he was working on opening up those sessions. That's good news.
New top level domains
“Top level domains” are things like .com, .net, .de. Historically, we haven't had very many of them, and the process for creating new non-country-code domains (.de and .fr are country codes) has been slow and often inexplicable from the outside.
The policy advice arm of the generic top level domain world within ICANN is called the Generic Names Supporting Organization. (Generics are domains other than country codes, in general. Generically.) That group has a leadership council called the GNSO Council.
The GNSO Council is right now working on a set of policy recommendations about how to create new top level domains in a standard way. As you might imagine, there are many questions being raised about how to resolve conflicts among applicants and what strings (sets of letters and numbers) should be considered acceptable — also which strings should be “reserved” (made unavailable for various reasons). ICANN's current draft operating plan puts aside more than a million dollars for this process.
The same communications principles/decisions keep coming up as part of this discussion. What is ICANN's role? Are new TLDs (that's the lingo) like spectrum allocation decisions (traditionally viewed as public resource management, in which the licensee takes on public trustee obligations) or like potential new newspapers (traditionally viewed as private actors subject to no particular licensing regime other than compliance with applicable law)?
My view is somewhere in the middle. I think that the scarcity we now have in gTLDs has been entirely artificially created, and that it should be possible to have many more of them — subject to the resource constraints of making sure that the applicants are technically and financially viable. These resource constraints might require creation of a limited number of TLDs each year. It's fine with me to have some kind of minimal “objections” regime to show whether there is some global consensus against the creation of a new string. But in the absence of such a consensus, I'm not sure that ICANN has any particular legitimacy to serve as a gatekeeper for the content of particular strings.
I'm also not sure that the demand to create these things is limitless, and I think given the important roles played by search engines people will run out of energy to invest in a new TLD. People “find” things online without searching for particular strings in their browsers — instead, they search for names inside search engines. But for the moment, there are applicants who want to run new TLDs and they should have a predictable process to go through. Once they're created, they'll need to be subject to global consensus policies about stability etc.
If you have any interest in this subject, follow the links above and you'll see where the GNSO is.
==update: and there's a public forum on this topic on Monday here in Lisbon, from 2pm to 4pm (five hours ahead of NYC). It will be webcast and you'll be able to send in comments before and during the forum.
Collective licensing: the answer we keep getting to over time
Three years ago, EFF proposed a voluntary collective licensing system. (The Progress and Freedom Foundation didn't like it.) People who download music won't have to pay, but if they do pay some small monthly amount ($5), they'll be immune from infringement actions. The fee will be bundled into monthly access bills, and you'll scarcely notice it. If you're caught not paying, then you'll have to pay up.
This was/is similar to the fine work of Terry Fisher in Promises to Keep, first talked about several years ago.
Both EFF and Fisher have some mileage to cover: how to get all the music companies to sign up to a single collective rights society for online downloads, how to get the charges flowing, how to get the payments flowing back to labels (and maybe to artists, but we all know that labels get the royalties).
But it's clearly the answer, and we'll get there eventually. Just a lot of mudslinging between here and there. I realize that it isn't terribly bloggy to write about something that EFF and Fisher have been talking about for years, but it seems like a good moment to bring it up — what with all the lawsuits these days. Now that it's clear that other recording industry efforts just aren't working (WSJ headline: Sales of Music, Long in Decline, Plunge Sharply), maybe collective licensing will start to look like a better idea.
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Speaking of mudslinging, I'm in Lisbon for the next ICANN meeting. A huge list of issues:
Board decision on .xxx
DNS Root server attack
Management Operating Principles on Transparency and Accountability
MOU signings with new
Regional At Large Organizations
President’s Strategy
Committee final report
WHOIS
data
Registerfly
accreditation termination and broader discussion of accreditation processes
IDN
laboratory testing and next steps
ICANN Operating Plan
discussion
I'll try to keep up with things here, but check all of those more-open-these-days ICANN sites and blogs for information.
COPA/FCC
Today a federal judge in Philadelphia permanently enjoined enforcement of COPA. This isn't, of course, the end; the statute has already been on two round-trips through the appellate system on the way to the Supreme Court. But it's a good moment for the First Amendment.
Justice Kennedy's 2004 Supreme Court COPA opinion remains one of my favorite legal and data-visualization moments. And now we have another judge reminding us that filters are less restrictive and more effective than vague government mandates. Filters aren't perfect, of course, but they provide a way for every family to choose what online content they want their children to bump into. And that's less restrictive than imposing criminal penalties on speech that is legal for adults.
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I've just been watching the open FCC meeting online. The big items so far were (1) reclassifying wireless broadband access as an information service, and (2) opening a Notice of Inquiry on network neutrality.
Commrs. Copps and Adelstein seem to feel they are in the uncomfortable position of having to vote for things that they don't really believe in. Making wireless broadband an information service throws us (over and over again) into the featureless soup of Title I as the FCC makes rules about the most important economic engine of our time — the internet. We've never had a national debate about whether the Commission should be in the business of making rules for the internet. It's just happening, through deference, design, and Congressional inactivity. Copps expressed some of this, pointing out that the “indeterminate Title I limbo doesn't amount to certainty” for investors, businesses, or end-users. And Adelstein noted somewhat sourly that no one had asked for this regulatory re-classification.
Commr. McDowell made some very effective points about the Notice of Inquiry on network neutrality. Sure, there's concern that an NOI just puts things on the back burner — but no one has filed any NN complaints or petitions for rulemakings. So this is the time to gather information about what's going on. Adelstein said the true thing: of course network providers are on their best behavior now, but we should be concerned about their public statements and their clear intent to discriminate.
At any rate, it's to be hoped that there will be a lot of energy devoted to getting useful empirical information to the FCC in response to the NOI. One enormously important point to be made: We have no idea what's happening inside these networks because they're all proprietary. No researchers are allowed in. So how can we know whether discrimination short of outright blocking is actually happening?
Assignment Zero
Here's Jay Rosen's Wired piece on Assignment Zero. Here's the key blog that Jay says is the way to keep in touch with the project.
In the last week, 650 people have joined the team. They're looking for assignments and ready to go — the first meta story is about the crowdsourcing phenomenon itself. So yesterday someone noted that the 3,000 US Attorney-firing-related emails had been extensively dug through by the online world just after their release. That's a story. And they're planning to interview key crowdsourcing people and entities. It's a sprawling, lively, idealistic, graphically-pleasing project, and it's just getting started.
I love it when the NY Times arrives at my doorstep every morning, and I never want to miss it. But Jay's “pro-am” work is inspiring and will likely produce unexpected and rich results. As he says:
In this project, we're trying to crowdsource a single story, and debut a site that makes other such reports possible down the road. But we don't know yet how well our site and our methods work. Our ideas are crude because they are untested. By participating, you can help us figure this puzzle out.
This is exciting, but it needs critical mass. They've got professionals there to sift, assign, and help edit. If you've got any interest, try the amateur role. Help Assignment Zero collectively figure out how to harness the power of minds online to produce a new kind of journalism.
Two things
1. Yesterday I heard a talk by Gunther Teubner. Teubner is the key person who writes about law and autopoiesis. Some key snippets from my perspective (paraphrasing mine):
We're always tempted to say that there are democratic deficits everywhere. We look for delegation and binding to political processes. But we've gradually exhausted our democratic imagination through all of these experiments. Maybe we should turn things around and look outwards at social institutions that are not necessarily democratic and yet are making great contributions to the world in their various sectors. . ..
By “self-regulation,” I don't mean a closed field that doesn't look at the outside world. Regulation is only possible when external pressure persuades/moves a system to change its direction. Regulation only works with inclusion, so law does of course include political processes but re-understands and reconstructs them.
Teubner says that modernity is characterized by a lack of embeddedness/connection to particular nations or regimes. He's not particularly easy to understand — this was a very dense talk — but the links between what he says and the internet are fascinating.
It may be that we are at an interesting juncture in our history of explanations as to why some people get to tell other people what to do. Online, there is no sovereign to whom we owe allegiance; things are all very modern in Teubner's terms. But we still have regimes/systems online that have rules that we pay attention to because we've joined in. These non-state actors are often given deference in various ways, and could be said to have “constitutions.” All in all, a thought-provoking time with Teubner.
2. When I was spending time on E911 last year I was very grateful for a 2003 paper [pdf] by Dale Hatfield that explained exactly why 911 was so hard for wireless carriers to implement. So I was troubled to read last week that the FCC had apparently squashed a 2006 report by Hatfield about more E911 implementation issues. Here's the squib:
Satellite-based emergency 911 technology often can't pinpoint the location of cellphone users dialing 911 from homes, offices, sports arenas and other indoor locations, a never-released report commissioned by the Federal Communications Commission concluded last year. More than 60% of wireless usage now takes place inside buildings. The report's author, Dale Hatfield, found that the rush to embrace wireless has only exacerbated the problem with the 911 service designed for mobile phones. So what happened? Hatfield's report says the public never heard about his concerns because the FCC decided to terminate the study a few days later. His report, details of which were presented to FCC staff, was never finished or released. He never presented the report directly to Chairman Kevin Martin or the other commissioners. “(The study) was terminated,” says Hatfield, who performed the work on contract.. . . Hatfield says the unpublished report was supposed to be a follow-up to a 2003 report he did for the agency on the same subject.
A Pennsylvania Congressman, Mike Doyle, recently asked the FCC why this happened. My personal theory is that the Commission doesn't want anyone to know just how hard it is to provide mobile 911 service — and how much harder it is for VoIP providers to do it. VoIP providers were given a few months to figure this out, while wireless providers have had a decade or more. [Here's the paper I wrote about all this.]
Just another day at the FCC.