“Keep the core neutral”
posted by Jonathan Zittrain
Internet founding parent David Clark was a guest in my cyberlaw class in the fall of 1997. We talked about Internet governance, although I don’t think anyone (including us) called it that yet. ICANN wasn’t a gleam in the U.S. Department of Commerce’s eye, but even then the amazing state of the domain name system — how it came into being, how it was managed — made for an extraodinary story.
Now lawyers and diplomats are all over the subject, and ICANN has ballooned into a multi-million dollar organization. I’ve argued elsewhere that arguments about ICANN and domain names don’t much matter except to those who want a piece of the financial pie, and I think predictions of domain names’ unimportance have largely proven true. Sure, IBM would not be happy if it lost ibm.com, but it’s at no risk of having that happen, and the fact is that most people find things by Googling them than by entering a domain name. So long as search engines can crawl to various destinations, a world in which we couldn’t use mnemonic domain names wouldn’t be much different than the one we have now.
With that background, I’ve been thinking about the global petition to “keep the core neutral” signed by fellow travelers like Wendy Seltzer, Larry Lessig, and David Post. Is it something worth signing?
The petition itself reads a bit vague to me:
Everyone has the right to seek, receive and impart information and ideas without interference through any media, including cyberspace.
As the new generic top-level domain name space emerges and policy choices are made about how ideas may be expressed at the Internet’s top-level, we ask ICANN to keep the core neutral of non-technical disputes and choose policies that respect freedom of expression and permit innovation in the new domain name space.
Encouraging the free flow of information is a foundational principle of public policy decisions related to information and communication technology. Freedom of expression rights, which are fundamental in an Information Society, foster democratic participation, individual empowerment, and economic development.
Cyberspace remains a unique and special place that bridges ancient divisions, where diverse communities interact readily, and all views are welcome. But only if these attributes are valued by policymakers who set Internet governance rules and incorporated into policies about how ideas may be expressed in domain names.
We ask that ICANN stay within its technical mandate and refrain from embedding particular national, regional, moral, or religious policy objectives into global rules over the use of language in domain names. It would be dangerous “mission-creep” for ICANN to adjudicate between conflicting policy objectives and set global standards for expression that are enforced through ICANN’s technical function. Please do not allow ICANN to become a convenient lever of global control by those seeking to censor unpopular or controversial expression on the Internet.
Please keep the Internet’s technical core neutral from national or other ideological conflicts, allowing freedom and innovation to flourish in cyberspace.
I’d be perfectly happy to see lots of new top-level domains, rather than halting steps towards domains like .museum and .aero. Some could be chartered, with particular requirements to earn a name there — such as the venerable .edu, which used to be limited to American two- and four-year degree-granting institutions, one to a customer. (Though somehow Harvard Business School snuck in with hbs.edu despite Harvard also having harvard.edu.) Trademark owners might be unhappy at the prospect of having to defend their mark in each new top-level domain, but with enough domains that might not be necessary, since Internet users would not expect to find International Business Machines at IBM.*.
So what to make of the petition? Dan Krimm, who is running the campaign and is a fellow at IPJustice.org, explained the idea behind it: ICANN is considering approving lots of new top-level domains, with an approval process that lets it eliminate candidate names for “moral” reasons or because particular governments object. All else equal, it might make sense for ICANN to simply have a cash-and-carry policy for registering new TLDs, just as original domain name registration in .com was first-come, first-served, with very few exceptions. (Single-letter domains were not allowed, although a handful like x.com slipped through, and is now held by PayPal/eBay. In 1994, someone tried to register fuck.com and had what appears to be an authentic exchange with the relevant pre-ICANN people that shows just how ad hoc policymaking was then.)
But I find it hard to really care if ICANN wants to allow some names and deny others. I don’t see how a willingness to have some content-based process for determining new TLDs can become “a convenient lever of global control by those seeking to censor unpopular or controversial expression on the Internet.” How would this global control transpire, when one needs no particular domain name to put content up on the Net? Far more convenient would be search engines themselves, which can determine what is and isn’t visible on a casual search. Of course, one can be concerned about both. So: search engine content control will be the next post. …JZ
July 5, 2007 at 5:59 pm
Posted in: Technology
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Responses (7)
Dan Krimm - July 5, 2007 at 8:40 pm
Jonathan,
I’ve encountered this response (who cares?) previously, and I can understand the sentiment to some extent. In some sense, it seems as if there are bigger fish to fry.
The short answer is the procedural slippery slope: allowing ICANN to establish a procedural and jurisdictional precedent in the area of domain names where non-technical public policy can be formulated on a global basis may provide a very attractive venue to expand beyond DNS to matters of more general public policy in Internet Governance (IG).
IG is still very much in flux these days, and it is still in some very informal stages of development. The more that formal procedures are established anywhere in the IG realm, such as at ICANN with its ballooning budget and jurisdictionally acquisitive desires, the more those venues will likely be appealed to in the ongoing evolution of IG over time.
With the combination of ICANN’s intention to greatly expand the number of gTLDs approved per year, the increasing imposition of GAC members on ICANN policy matters of a non-technical nature, and efforts by ISPs in the US to abandon Net Neutrality (we consider Core Neutrality to be one aspect of Net Neutrality generally), this seems to present a useful opportunity to begin pushing back systematically at the mission creep at ICANN, and to begin involving the general public in consideration of matters of Internet Governance. This is the first such public campaign addressing ICANN per se, and it will be interesting to see what this experiment yields. We are hopeful that it will be productive in both the short term and the long term.
Ultimately, Internet Governance will not be sharply distinguishable from general Public Governance as time goes on, and the public needs to be engaged and informed about these developments moving forward.
We hope this campaign will be able to attract many non-expert members of the global public and broaden the discussion about how the Internet will affect us. It has been ICANN’s stated intent to broaden the stakeholder participation in its governance processes (in order to build the perception of legitimacy of its jurisdiction), and part of the mission of this campaign is to do exactly that!
Regards,
Dan
Jonathan Zittrain - July 6, 2007 at 9:29 am
Dan,
Thanks for the reply. Can you give me the nightmare scenario? What awaits us at the bottom of the slippery slope? I can’t think of anything that bad even in the worst case.
Trying to corral the general public into learning about IGs, GACs, etc, seems a non-starter to me.
Best,
JZ
Dan Krimm - July 6, 2007 at 6:49 pm
Jonathan,
Worst case? Hmm, that’s an excuse for broad-ranging creativity. Forgive me if any of the following seems outlandish, but given the fluidity of Internet Governance such as it is, I would question whether there are really any practical limits to how far this might go, given where we are right now.
Note: this embodies a good deal of blue-skying, and I’m sure others could come up with alternative scenarios. You could probably pick this apart in detail, but these specific examples are not meant to illustrate a precise path of expected evolution, merely the type of potential evolution.
Jonathan Zittrain - July 7, 2007 at 11:24 am
Dan,
Thanks for giving it a shot! It’s true, I’m not persuaded. Back in ICANN’s founding days I was on the membership advisory committee and shared many of these concerns — I thought a rank-and-file membership was needed as a check on the ICANN board, because of all the important decisions ICANN could make. Today I think that fear is misplaced. Sure, ICANN arranging for content filtering of Web pages would be awful — but the chances of that nightmare happening are 0%. Too many registries — such as all the ccTLDs — are completely independent of ICANN, and an attempt to demand that registries for names like .com start disabling names that lead to bad content would result in a simple break of the registry from ICANN. ICANN could then threaten to select a new registry, but most of the Net — ISPs, that is — would simply continue to point to the old one.
I find the “pick your worst nightmare” exercise useful, and I don’t mean to suggest that there couldn’t ever be a scenario that would have me worried. But as I think through the possibilities, the plausible abuses I see have much more to do with financial improprieties or windfalls internal to the domain name industry than anything that gets at speech. …JZ
Dan Krimm - July 7, 2007 at 3:22 pm
Thanks Jonathan,
I understand your position, and I suppose the final comment I have is that “financial improprieties” have a funny way of getting at freedom of expression around the back door. In any case, the recent experience with the .xxx application is substantially unnerving at the very least.
These are highly fractal times we are living in, and so it’s hard for me to predict anything with any precision. In particular, it’s difficult for me to see where you get your “0%” from…
It’s literally impossible to know, IMHO. Even if your prediction of a registry/registrar/ISP break from ICANN comes true (and certainly the current developments at ICANN suggest an image of a strong hand trying to control a fragile empty egg shell by squeezing it ever harder — one strong potential is that the shell will be destroyed in the process), all that does is throw open the entire domain of DNS to completely unknown dynamics, where prediction becomes even less reliable, and “extraneous” dynamics have increased potential to influence evolution of policy.
So for me the question is, what is the best time and point of attack to push back at developments that could establish well-defined and well-funded institutions for controlling content on the Internet? It is entirely reasonable to me that the time is now and the point of attack is the currently-in-flux ICANN gTLD process. Perhaps our butterfly wings can begin to build a dynamic that pushes back against the flock of butterflies flapping away on the opposing side that are trying to create the nefarious hurricane of global censorship.
After all, many of the same lobbies are pushing against Net Neutrality. Their strategies tend to be on multiple fronts (think of them as “investing in a diverse policy portfolio” — think of WIPO, TRIPS, the “Section 301″ and bilateral trade agreement process, etc.), and it’s really all part of a larger campaign with many fingers, this being merely one finger.
There is a *lot* of money associated with the information market, and constraint of it could be extremely lucrative for some. (In fact, Andrew McLaughlin at Google just recently made an appeal to the USTR and others to consider “censorship as trade barrier” as described in a recent blog post at http://googlepublicpolicy.blogspot.com/2007/06/censorship-as-trade-barrier.html .)
In any case, it is entirely understandable that thinking people can disagree on this. We hardly ever understand where we have been until we’re quite a ways past it.
Thank you for the opportunity to make our case, and I’m sure we share many missions along the way. At least I take comfort in knowing that you are not *averse* to the goals of our campaign, even if you do not prioritize them at this time.
Best,
Dan
Kieren McCarthy - August 22, 2007 at 12:10 pm
If I can jump in here, I have to say I find the determination to locate conspiracy within ICANN and then react in the real world as if that conspiracy has since become true, absolutely extraordinary.
The concept that second-level domains are no different to top-level domains is just daft. But the idea that ICANN would ever be able to end up in a position where it was able to control content on the Internet is beyond sci-fi, bordering on bonkers.
All ICANN is doing wrt the new gTLD process is learning from experience. It reflects what has been garnered from the previous two rounds. The *whole point* is that .xxx situation is not repeated.
But these are minor points compared to the major misunderstanding here. All the talk surrounding ICANN comes from an outdated era. ICANN is spoken about as a single organisation that makes decisions that you have to then rail against in order to somehow force it to change its mind.
In fact, ICANN is a co-ordination body. It doesn’t move forward until all the different bodies have had their say and a consensus has been broadly drawn. The advantage of this is that the various conspiracies as outlined above are effectively impossible. They only become even vaguely feasible if people don’t bother to walk through the open door and participate.
ICANN’s systems are open for review, people are more than able to have their views heard. Don’t believe me?
This very freedom of expression campaign was launched at an ICANN meeting, in the main hall during that meeting. It was webcast and audiocast by ICANN, transcribed by ICANN, and it was all posted on a specific webpage created on the ICANN website for the meeting that also contained a chatroom for remote participants. That page is still there at: http://sanjuan2007.icann.org/node/47.
What’s more: all this material and those real-world resources were made available completely free of charge thanks to the ICANN budget that is disparagingly referred to several times above.
If you want ICANN to consider one policy or another policy, there is only one surefire way to achieve that. Engage and participate. If there is any bias within ICANN’s ultimate policies it’s in favour of those that go to the trouble of communicating, engaging and participating within the organisation’s processes.
I note for example that no one has bothered to raise this campaign’s concerns on ICANN’s own public participation site – found at http://public.icann.org. Why not? That’s what it’s there for. Nothing on the blog either. You can find that at http://blog.icann.org.
You want to raise your point with ICANN? Well, posting the material directly onto an ICANN website would seem like a pretty good place to start to me. Instead the debate is happening off on websites and on blogs that are already a part of the campaign. The idea of a campaign is to persuade others of your cause. Presumably those in the campaign are already persuaded.
In fact, I am going to make it even easier for you. I will create a page on the public participation website right now. You are hereby officially invited to turn up and explain your points.
This issue about new gTLD policies is proudly focused at ICANN. Great. But why stand outside the room, marching around outside getting angry and upset, when all you have to do is turn the handle and walk in?
There are very good reasons, slowly and carefully worked through over years, openly, within ICANN processes, that explain why the new gTLD process is as it is.
Those reasons have been built up by people talking to one another, understanding their different issues and perspectives and reaching a careful and deliberate compromise.
That someone who didn’t turn up would fail to understand why those decisions were reached is hardly surprising. But then neither is the fact that their belated, shouted input is not given the sort of weight they feel it ought to be.
Jon Zittrain is right – the rampant and vague fears behind this campaign are nonsense.
I think he is hopelessly wrong about the importance (or lack of it) of the domain name system – just ask the Holy Google how much it needs the DNS to make decisions about the value of content – but that’s the kind of debate that a) might prove useful and b) is based on understanding and intelligent extrapolation rather than groundless fears and arm-waving scaremongery about “rights”.
My advice if you want to find out why the gTLD process has ended up where it has is to calm down and talk to people.
All the best,
Kieren McCarthy
ICANN’s general manager of public participation
Dan Krimm - December 5, 2007 at 9:12 pm
Sorry for not seeing this until now. I won’t go into the details surrounding accountability in policy-making at ICANN, but suffice it to say that there is legitimate room for disagreement there. KTCN simply disagrees with Kieren’s analysis of ICANN/GNSO’s gTLD policy recommendations, and we think there is good reason, and it is not nonsense.
Personally, I’d be a lot more sanguine if ICANN’s bylaws contained not only a positive mandate to address technical matters about the Internet’s stability and reliability, but also a negative mandate drawing clear lines around its jurisdiction (it doesn’t even constrain itself specifically to IP addresses and DNS in the positive mandate).
Right now, anything that ICANN proclaims is “related” to Internet technical issues seems to be fair game. What KTCN is asking for here is a clear recusal of ICANN to involve itself from using semantic criteria of any kind in designing it regulations.
ICANN’s monopoly over DNS (via ISP contract provisions that may be included in Registry and Registrar agreements) can be extended in ways that cannot be predicted. If “the idea that ICANN would ever be able to end up in a position where it was able to control content on the Internet is beyond sci-fi, bordering on bonkers” then there should be no problem putting that in writing somewhere in ICANN’s bylaws, right?
The fact that this is not the case, and that the intellectual property lobby is clearly pursuing its self-serving maximalist agenda at ICANN as well as many other venues presents a cause for “conspiracy” because that’s exactly what the IP lobby has been doing for a few decades now. It’s no secret at WIPO, WTO, etc.
If we can get such jurisdictional limitations in set writing, then there would be a lot less controversy about it. ICANN should not be the venue where “morality” issues such as the .xxx TLD should be either debated or adjudicated. There are other much better jurisdictions to handle such inescapably political issues.
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