Dear Milton,

Thanks for the reply. This conversation has been very useful to me, and I hope to you too.

The core of your view, I think, is a sort of ICANN exceptionalism: ICANN is, by your account, "the only truly global institution with globally binding authority over aspects of the Internet," and that makes the stakes high. But regardless of its global charter, I think ICANN's potential range of action is, as a political and operational/technical matter, very narrow. Let's run through some examples that David Post provided in another forum:

ICANN adopts a rule: no registrations of names to any person found (in a UDRP-like proceeding??) to have infringed copyright more than X times in the last Y years. It flows the requirement through to registries, registrars, and everyone further down the domain name chain.

Or, how about a UDRP for "pornography"?

First, I'm curious how possible you think either of these policies is. My own sense is that, under ICANN's current structure, they are non-starters. ICANN would not promulgate such policies, not least because most of the interests in the room -- even after subtracting the public interest advocates that you think are not sufficiently staffing the barricades -- are indifferent or opposed to both of these ideas. The first policy is an administrative nightmare, of course -- I really can't imagine even the publishers wanting to go for it, especially because most of the infringement they care about is taking place through P2P nets, which rely on domain names not at all. There'd have to be theories of contributory infringement -- a la Youtube -- and once in that zone, there are very powerful interests who would stop it before it started. This is not an argument from theory, of course; new facts could undermine my belief.

So suppose ICANN did pass these policies. First, there exist, and will continue to exist indefinitely, ccTLDs that have not agreed to flowed-down requirements from ICANN like the UDRP. People would migrate their domain name business there. (Reason enough for registries like .com to resist any new requirements.) Those individual TLD operators -- often themselves independent sovereigns -- would have to be forced into acceding to a scheme that they haven't even subscribed to for simple cybersquatting. Second, try to force those TLDs into line through ICANN's own power -- whether or not the TLD is part of the root -- and indeed there would be a precipitating event that would cause major ISPs and others who make use of DNS information to get their information elsewhere. I don't know if it would truly and fully split the root, but they would simply manually cache the information about where, say, .tv could be found, and only subscribe to the ICANN root for data about everything else. The inertia of the existing system is strong. The same could be said for IANA and the regional registries in numbering: imagine a policy that somehow came out that said "people who do X will lose their IP addresses." IPs cannot be yanked; they can merely be allocated in the sense of broadcasting to the world that conflicts will arise if anyone other than the designated party tries to use them. If the allocator tries to work too much policy into maintaining blocs (much less individual IPs!) that have already been assigned, the ISPs who control the routing tables will give a shrug. A map might indicate a road going into the ocean, but the driver will break rather than follow the map.

So, we return to the question of how much to try to involve the public at large on this. I certainly don't begrudge you the time you've committed to watching ICANN and participating in its processes. But from the point of view of legal academia, I see no shortage of attention and articles about ICANN. I think ICANN's exceptional position as a global body concerned with the Internet is indeed what draws people to those meetings. They provide valuable networking opportunities and perhaps test runs of how to collaborate on policy issues that defy the borders of a single sovereign. But I do not see the link between this and some special lever that realistically can be deployed to effect major censorship. Our starting point was content-based decisions about new TLDs. That has ICANN's power at its height, because there's not the inertia of an existing TLD. Add none, add five, or add a hundred -- I don't see much difference, except perhaps in the price of a name.

Best,
JZ

Jon:

Glad you replied, Yes it has been useful and I was wondering whether there would be any more engagement. It seems an important dialogue and one that needs to be continued.

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From: Jon Zittrain [mailto:zittrain@cyber.law.harvard.edu]

>The core of your view, I think, is a sort of ICANN exceptionalism:

Actually for about the past 3 years I’ve been trying very hard (and I think succeeding) in getting away from _Internet_ exceptionalism. This means that ICANN and other forms of IG must be placed in the same context as other forms of global governance; e.g., trade, environmental policy, collective security, etc. If you compare ICANN to other global governance mechanisms, e.g. the WTO, you find that it is quite unique in terms of its governance model, and unusually powerful in its area of activity. If the WTO dispute resolution mechanism makes a decision that China or Russia or the US doesn’t like, they can basically ignore it and there’s not much anyone can do about it except perhaps to retaliate in other bargaining arenas. But if ICANN makes a decision regarding the DNS root, or the RIRs make decisions regarding address allocation, they are indeed binding, short of splitting the root, which is extremely costly and risky.

A well-known (at least in the political science lit) quality of institutions is that they serve as magnets and amplifiers of political activity. ICANN attracted all that attention in WSIS because it was the only thing people can really get their hands on when it comes to the global regulation of the Internet. I know, you think they were all chasing a chimera. But even if they were, a community is built around the institution; the community propagates norms and ways of thinking. Those spread into other areas, including national institutions and other international institutions.

Maybe I am not making myself clear here. The danger of ICANN censoring TLD strings come not only, or even primarily, from the suppression of controversial names or ideas in the top level. It comes because you are building an international consensus around the idea that Internet content must conform to certain hierarchically imposed standards and that it is legitimate for global institutions to define and enforce such standards. As I stated in my first post, the people who are proposing to do this are really not talking about the strings, they are warning about what kind of content might be encouraged by the existence of those tld strings.

I don’t need to claim that the stakes of involvement in ICANN are “higher” than, say, stakes of engagement with US domestic Internet policy. I only claim that it does matter, and that it’s a bad idea to leave that arena uncontested. I argued for complementarity and a division of labor. I would not claim that you should join me on the “barricades,” I only hope to convince you not to publicly claim that it doesn’t matter or urge other people not to join me.

>But regardless of its global charter, I think ICANN's >potential range of action is, as a political and >operational/technical matter, very narrow. Let's run >through David's queries:
>
>ICANN adopts a rule: no registrations of names to any >person found (in a UDRP-like proceeding??) to have >infringed copyright more than X times in the last Y years. >It flows the requirement through to
>registries, registrars, and everyone further down the >domain name chain.
>Or, how about a UDRP for "pornography"?

>
>First, I'm curious how possible you think either of these >policies is.

Hmm, this is a good argument for my point of view and a bad one for yours. First, the political unlikelihood of an action by ICANN does not in any way refute the assertion that it has the institutional authority to do, or try to do, such things. Second, if such courses of action are _politically_ unlikely, it is because of the opposition and resistance they would generate, which means that you need to pay attention to ICANN and be active within it. Which is precisely what we are doing.

>So suppose ICANN did pass these policies. First, there >exist, and will continue to exist indefinitely, ccTLDs that >have not agreed to flowed-down requirements from >ICANN like the UDRP. People would migrate their domain >name business there. (Reason enough
>for registries like .com to resist any new requirements.) >Those individual TLD operators -- often themselves >independent sovereigns -- would have to be forced into >acceding to a scheme that they haven't

[snip]

Remember, we are talking about a specific question: whether or not it makes sense to resist ICANN’s current, entirely non-hypothetical attempt to impose a form of content regulation in the one little area it actually controls.

With that in mind, it seems to me there is something circular or illogical about your argument. You seem to be saying that because various people (ccTLDs, registries, ISPs) already are suspicious of ICANN’s power and would resist overreaching or abuse, then we don’t need to be suspicious and resist ICANN’s power. Am I missing something here? It seems to me that censoring TLD strings is exactly the kind of overreaching we need to resist. No, the world will not end and the Internet’s diversity and freedom will not collapse instantly if they do censor tlds. But those of us who are already active within ICANN have the responsibility to nip this kind of thing in the bud.

All of your descriptions of the various power distributional mechanisms that act as checks on ICANN are true, and I guess I am surprised that you would think that I am not aware of them. But insofar as you are restating the David Johnson argument that ICANN derives all its authority via consensus of the governed and that its authority will; vanish as soon as it abuses it, we are pretty far apart. Governance institutions have power, and strong distributional effects, that is why people compete to control them. Migrating away from or abandoning an established institutional framework is a horrendously costly and risky enterprise, especially when you are talking about global communities. Switching costs and sunk costs are high. There are, in fact, conflicts of interest in the world.

As a reductio ad absurdum, would it not be possible to make the same argument about, say, the Communications Decency Act? Would you argue that there was no need to mobilize against the CDA, because people could get around the identification check in various ways, and requiring an age check wasn’t all that burdensome anyway, and a US crackdown on online content would not extend to other jurisdictions, banished content will just “migrate” to other jurisdictions, where people could get access to it in various ways, etc. etc.?

I believe that if the US constitution had not knocked down the CDA the example it would have set for the world would have had a major (and bad) effect on the future of global content regulation, quite apart from the actual impact on access to “indecent” content in the US. Similarly, when ICANN invokes strictures against TLD strings that violate “morality and public order” it entrenches and reinforces and strengthens the kind of controlling behavior that we both hope it will not pursue. So why not resist it?

Too tired to go on, but I am still extremely curious about what you do think is a threat to freedom of expression and what policies and strategic arenas you see as the best place to defend against such threats.

Actually, I think ICANN's institutional authority is very circumscribed. The UDRP only happened because NSI was willing to go along with it as part of exiting the transitional uncertainties that also yielded ICANN. [I know you think this isn't so, and that NSI had to go along with intense pressures of the time; what I mean is that the pressures weren't coming from ICANN -- they were coming from sources that would exist with or without ICANN.] I don't see either of David's examples as something that ICANN actually has the authority on the ground to implement.

We might be able to converge on actions ICANN can take that affect the larger world in some way. Controlling the chartering of new TLDs is one of them. I think it is using overly valenced language to describe a content-based process for determining what new TLDs should come into existence as a form of "censorship." It might be better for ICANN to simply hold a lottery or somesuch among all applicants, a content-neutral way of awarding new TLD slots if it insists that there can't be hundreds or thousands. But yes, I still believe that a decision to, say, exclude .XXX -- aside from the harm to any settled expectations of the would-be .XXX operator -- is not in the same category as speech-affecting decisions like those to filter Internet traffic itself or to arrest people who petition the government for a redress of grievances.

It's true that I've weighed in a few times on how much domain names "matter," and have offered the answers "not much," or even "not as much as many people say." (This is still short of "running around" telling people to go away, but that's a matter of degree, and of perception.) While you and I may not come to agreement on that, I think it would be very helpful to the cause of drawing people into the debates to be very sober about where they might matter and where they won't. To me, phrases like "lever of global control" are too suggestive of something larger than I think even the people who invoke them mean to say. When they're used, and then fire up politicians and nearby public interests organizations, their interest then wanes when they fail to see the connection they've been primed to see. I don't think a consensus that ICANN can choose what TLDs to add using content-based factors -- perhaps one of "avoiding controversy" -- translates to a consensus or practice overall about censorship on the Net or even more broadly. And too often people hint darkly at "control of the Internet" in the same breath as ICANN, when we all know that that is a devastating simplification.

I see the CDA as a very different creature. There the full gun-toting power of the world's most powerful government to put people in jail had been brought to bear directly against individuals. Put something on the Net later deemed harmful to minors, without checking for a credit card, and you can become a felon. That's an act in a completely different category from anything that ICANN could conceivably do, and certainly from deciding what TLDs to introduce. The introduction (or not) of .XXX or .protest or dot-anything else is neither a meaningful subsidy or barrier to the production of information thought related to that TLD's signified concept. (I'd still be happy to see a .protest come about! Certainly harder for companies to argue trademark confusion there.)

By the way, I completely see how the way the situation is viewed can vary by discipline. Some OII colleagues in the social sciences have had a hard time even parsing a sentence like "ICANN doesn't matter." Their response is: whether it matters is an empirical question that depends on ... whether people think it matters. So long as people are showing up at the meetings, ipso facto it matters. I think that may be a genus of your institutional flypaper point: it's a common meeting place for people who want to exercise authority in these areas, especially because there are not obvious others.

On what I see as the threats to speech/freedom: there are the known but still powerful ones, and the less known and therefore even more dangerous ones. In the first category I'd put increasingly sophisticated government surveillance, including dragnets/vacuum cleaners, deployed against a comparatively unsophisticated public that will not be using PGP and hushmail. I'd also put the straightforward blocking/filtering of Internet content undertaken by national governments in that category. In the less known category I'd put peer-produced systems of surveillance and reputation aggregation, and also the rise of "tethered appliances" -- devices like iPhones and BlackBerries that are eminently more controllable by their vendors (and not much modifiable by anyone else), and thus able to serve as constricting points of information flow. I'd also raise our current crop of natural monopolies: Google as a search engine -- its rankings are far more subtle and powerful than whether a new TLD is chartered, and yet no one calls for Google to be governed by a board representing the world and the public interest -- and those other "private sheriffs" in a position to shape what we can do, see, and express on the network. Apart from writing about it, my own zone has been in prototyping tools and proto-institutions that can better the status quo, such as stopbadware.org. Helen Nissenbaum's Track-Me-Not would fit into that zone, too. And I think we can persuade some private parties -- whether the likes of Microsoft or Cisco -- to build speech- and privacy- protective technologies into what they develop. Of course, there are many ways up the mountain!

Best,
Jon