What Zittrain Doesn't Get

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.

4 comments

  1. Anonymous

    Dear Milton,
    It's true, I don’t believe that domain names and ICANN matter a lot, enough so that the “global community” – the general public, that is – ought to care about them as political issues that break, say, the top one hundred debates in which they should participate. You put it well in Ruling the Root: “The dirty little secret of the whole affair is that domain names are not nearly as valuable or as important as the new institutional regime would like to pretend they are.” That was in 2002, and the five years that have followed have ratified that line of thinking.
    That’s part of why, when I witness the countless hours spent by diplomats, academics, and public interest advocates around tables and at conferences to gravely discuss the future of the domain name system, I feel bad: I think that enormous effort is misplaced. There are so many more threats to free speech online, along so many different dimensions, by actors both public and private, that to put so much emphasis on ICANN and domain names is a shame. One virtue is that the debates appear to be attracting lots of government officials who otherwise would be spending their time seeking to regulate some other aspect of the Net. (This is not to express a view on efforts beyond DNS issues undertaken through enterprises like the “Internet Governance Forum.”)
    Free expression is important to me – I’m one of the founders of the OpenNet Initiative, which invests a lot of effort in figuring out where Internet filtering is taking place and by whom, and alerting the public to it. Nonetheless, your example of a government censoring book titles (but not book contents) falls flat for me. Whether or not such a practice infringes rights of free expression (to be sure, I think it would), any such bizarrely limited censorship would have near-zero effect. People would still hear about and read the Letter from the Birmingham Jail even if its title were a number rather than a name, and they’d read 1984 even if it were preceded by 1983 (say, an auto parts manual) and followed by 1985 (the ICANN organizational chart). In fact, they'd come up with different ways of naming books — starting to refer to them, say, by the title of the first chapter, just as now we use title instead of an ISBN, even though titles aren't unique.
    I'm not even sure that censoring book titles is analogous to ICANN's power over TLDs. The petition that inspired my blog entry (that in turn inspired yours) was about top-level domains: as you know, things like .xxx and .museum. To have a say in those is not like the government censoring book titles. It’s a step even more removed, akin to government censoring the names of publishing houses. A book called “I Think People Who Disagree with Me Are Completely Divorced from the Realities of International Politics and Internet Control” can express its topic pretty readily even if its publisher were bizarrely compelled to be named “Rainbow and Buttercups Press” rather than “Regan Books.”
    Yes, it’s still absurd to regulate the names of publishers – just as I think it’s silly to have such strict caps on the number and titles of TLDs. But the existence of these caps just doesn't ring true to me as a front line free expression issue, any more than the fact that street names are chosen by the government, and red and blue staters alike sometimes must share an address on, say, “John F. Kennedy Street.”
    It seems to be very clear to you that allowing ICANN to select some new TLDs and not others must immediately touch all other kinds of content online. I'd love, then, an answer to the same question I asked Dan Krimm in our kindly back-and-forth on concurringopinions: how can control over top-level domains plausibly be leveraged into control over something more? So far I just see the claim that to think otherwise is to be ignorant. Maybe you think that accepting the mere idea of content-based decisions about TLDs is enough to encourage other parties elsewhere in the Internet system to censor other things. But they neither seek nor need such encouragement. The real danger has to be that ICANN itself could somehow become a tool for broader censorship by despots. And there, for reasons I’ve explained in my review of your excellent book, the way domain names work largely precludes that, issues about WHOIS and UDRP notwithstanding. We are guarding the wrong door when we try to rally the global public around the mess of domain name management rather than around the places where censorship that truly bites is happening, and where it can expand.
    As the review said: the idiosyncratic position in which we found the domain name system—conclusively owned by no one, and with all hands more or less agreeing that it should be operated according to varying notions of the public interest—likely will not be repeated for newer Internet developments. For example, Google can knock down a web site’s karma in a heartbeat, something with a far greater impact on speech than a domain name placed on hold, and yet no one thinks Google should be run as a public interest organization. Myspace or Facebook or WordPress can pull someone's cherished online nest, and point to their flexible terms of service prohibiting anything “objectionable.” I see those puzzles as much more pressing and vital. The firms that offer these applications, the ISPs who carry bits to and from their users, and the makers of the physical devices we use as our windows onto the network are the actors to watch: their activities are the most important test cases for theories of Internet governance.
    …JZ

  2. Anonymous

    I don't get it either. Is it “Taubmansucks.com” that is important or is it the “taubmansucks” bit that is important? It could be a .info or .biz just as easily as .com.
    If someone were to register internetgovernance.biz (it is available) or internetgovernanceproject.org (also available)
    Would the IGP act to try and “censor” that domain name?

  3. Anonymous

    Call me a conspiracy theorist, but all the DNS, ccTLD and TLD noise seems like a huge exercise in stalling to me… I'd not be surprised if we see an internet governance framework suddenly appear in about 3 years, and then be adopted (possibly through ITU) quickly, with no time for reactions. But then again, I could be wrong… the fate of the 'casting treaty at WIPO is a bit of a reason for optimism…

  4. Anonymous

    So is it true or false or the wrong question to be asking?
    Q to Miguel Danielson: What’s the worst thing ICANN could do if it ran completely amok?
    Out of control – policies would not correspond with what constituencies wanted.
    Zittrain: Worst thing ICANN can do is to deny someone a domain name? But ICANN doesn’t run the database that actually controls where, say, CNN.COM goes; that’s NSI’s job as the registry for .COM. But ICANN has (rather, will soon have) a contract with NSI; ICANN could set policy binding NSI or other registries.
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