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.

-------------------------------------------------------------------------------- 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.