Dawn Nunziato has developed a strong paper on the connection between Internet governance and freedom of expression. Her law review article, published on SSRN and freely available here, argues that the Internet governance regime centered around ICANN “has failed to implement substantive norms of democratic governance, most importantly, protection for freedom of expression.” In her article, she challenges “the prevailing idea that ICANN's governance of the Internet's infrastructure does not threaten free speech.”
Efforts to alert the global community to the significance of global internet governance regimes has been undermined repeatedly by the insistence of a few well-placed intellectuals that the whole thing doesn't matter. These people, many of whom profess to be supporters of free expression, seem surprisingly cavalier about the whole problem. Witness in particular Professor Jonathan Zittrain, who wrote in reaction to the “Keep the Core Neutral Campaign:”
“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?”
I must confess that this comment astounds me. Only someone completely divorced from the realities of international politics and Internet control could make such a comment. Let us examine this comment first from the most basic, common-sense level, and then move to a more sophisticated analysis of politics and institutions.
Zittrain is basically saying that as long as you can put any content you want on a web site, a process for censoring the identifier used to label the content makes no difference. Let's test this idea. Imagine for a moment that a global agency passed a law requiring the titles of all books to be random strings of letters, and/or prevented any advertising of book titles. But assume that it took these actions without any censorship at all of the content of books. Would this constitute a significant intervention affecting the right of freedom of expression? Of course it would. Indeed, a US court has already considered and addressed this issue, in the case of the “Taubmansucks.com” domain name:
“We find that Miskoff's use of Taubman's mark in the domain name 'taubmansucks.com' is purely an exhibition of Free Speech, and the Lanham Act is not invoked. …In fact, Taubman concedes that Mishkoff is “free to shout 'Taubman Sucks!' from the rooftops….Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, [trademark law] cannot be summoned to prevent it.”
Yes, content on the web can be found without domain names, but that's like saying the Soviet Union's censorship didn't matter because anyone who was really interested in a dissident's samizdat had a decent chance of finding it.
But that is actually the least problematic aspect of Zittrain's argument. More disturbing is his completely apolitical conviction that a process for censoring domain names will somehow, miraculously, leave all other kinds of content untouched. Zittrain does not seem to understand the long term implications of setting up a political-institutional process, within ICANN or any other global institution, that can apply norms governing expression to the Internet in a binding, globally applicable manner. Long term, it matters little whether those norms apply to the content of domain names, broadcast content, web site content or anything else. What matters is this: once a strong enough political coalition is in place to demand such restrictions, and a precedent is in place for global application of them, and an institutional mechanism is in place for enforcing them effectively, then free expression is seriously threatened at the global level. The political and institutional mechanisms will inevitably expand beyond domain names — which everyone recognizes as a secondary issue — into broader areas, as mass communication becomes globalized.
Think about what is going on here. Why is ICANN proposing to censor domain names? It is not because ICANN itself, as an organization, has an interest in doing so. Rather, ICANN is looking over its shoulder at a number of very powerful political interests, which it hopes to assuage: national governments, religious and cultural communities, trademark owners. If those political interests can converge on ICANN and convince it to censor domain names, particularly in the name of established international conventions such as the Paris Convention, General Assembly resolutions on hate speech or the rights of the child, “morality and public order,” it is a very small step to gain global support among governments to extend controls to web site content along the same lines. Indeed, most of the debates about domain name cenorship within ICANN are not about the domains themselves! They are motivated by concerns about what kind of content might be encouraged by a particularly domain. The US government, for example, has been running around ICANN's GAC saying, “we wouldn't want someone to register .jihad, would we?” Clearly, it is not the word “jihad” that is objectionable, but their concerns about who might be using it and what they might be saying on that domain.
Once the precedent of domain name censorship is in place, on what basis would one be able to resist other forms of censorship? Surely if a domain name that suggests offensive cultural content can be legitimately censored by ICANN, why, the long term, would a web site with the same type of content be exempt from the same political pressures? How can you be indifferent to domain name censorship and start screaming when they start repressing other content?
I fail to see how anyone concerned with free expression can find it “hard to care” about this.