Prof. Mueller's Comment

[Reed Lee <reedlee@xxxxxxxxxx>]

I note that this comment, and the comments
preceding this one, including my earlier comment
are submitted on March 9, 2007, despite the
contrary indication on this page.

Earlier today, Professor Mueller posted a comment
to the effect that ICM's .xxx sTLD proposal should
be approved because ICM has spent a good deal
of money and has done what's been asked of it.

It is news to me that spending money and jumping
through hoops should be enough to push a bad idea
through.

But what is most troubling about Prof. Mueller's
argument (and I have watched him with a good deal
of admiration in the past as he has articulated his
governance concerns) is his suggestion that ICM
has _already_satisfied_ the concerns surrounding
the sponsoring community -- its definition and its
support.  In his blog, Prof. Mueller links his state-
ment of this proposition to the _questions_asked_
by the independent evaluators, not to the answers
given.  The independent evaluators lengthy report
is here:

http://www.icann.org/tlds/stld-apps-19mar04/PostAppD.pdf

A reading of the relevant portions of the report
-- or even a cursory review of pages 110 and 114 --
clearly shows that ICM _failed_ independent evaluation
on these very points.  As I said in my earlier comment,
this remains a concern to us at the Free Speech Coalition
and, as I noted, to the GAC as well.

What happened after the independent evaluation
report was filed is that the ICANN Board decided 
to authorize negotiation of a proposed registry agreement
to see whether the independent evaluators' concerns
could be addressed.  ICANN's procedures (about which
Prof. Mueller is right to be concerned) always provided
for a comment period and then an independent Board
evaluation and vote on any resulting proposed agree-
ment.  When the Board voted last May, it rejected
the agreement as it then stood. 

That rejection was in large part because the contract
negotiations show just what a problem the ICM proposal
is.  There is no guarantee, and never was any, of course,
that the relevant problem can, in fact, be solved in any
contract; and it has indeed become abundantly clear that
it cannot.

Here's why.  As Prof. Mueller recognizes, .xxx is
controversial.  It is controversial precisely because
the expression to which it is tied is controversial.
Quite apart from legitimate questions and aspirations
for the domain name space, there are forces in this
world that want to limit or eliminate the sort of speech
in question.  And there are forces -- which I happily
represent -- who think that consenting adults should
be able to say pretty much whatever they want to one
another, over the Internet and otherwise.

ICM's proposal tosses ICANN between these forces.
Last Spring saw objections from the GAC and else-
where that the proposal was too vague concerning
its promises of _regulation_ of the speech at issue.
Contract and related provisions were renegotiated
in order to put some teeth in those promises.  But
that aroused the concern of those, such as the
Government of Canada, that ICANN would be straying
from its technical mandate into content regulation.
That's the unavoidable squeeze.

Unavoidable, that is, so long as ICANN approves
.xxx.  The problem, though,  lies not in ICANN's
procedures or in the procedural history of this 
application.  It lies in the .xxx proposal itself.
At bottom, it just doesn't make any sense as a
voluntary proposition, and powerful forces stand
ready to try to make it mandatory, against the
wishes of the supposedly sponsored community
and against the interests of free speech on the 
Internet.

I for one won't fault ICANN if -- at the end of
this long and indeed somewhat winding road --
ICANN says "no" to the possibility of a mandatory
.xxx.   I won't even fault ICANN if it respectfully
declines to get involved in the worldwide
pornography debate.  That's just not ICANN's job.

It really can stay out of that debate by rejecting
.xxx.  No one involved with sexual expression or
freedom of speech is asking for .xxx.  Only ICM
-- which has never seen a free speech fight in its
life -- is asking for .xxx, and that only to make some
money.


To Prof. Mueller, ICANN, and all of the Internet
community, I humbly say:
 
I really do have great respect for efforts to 
expand the domain name space.  But there are 
surely some domain names which will _not_
promote that sound expansion.  I ask only that 
all of you technical folks at least listen to the
concerns raised by us free speech folks.
Please, don't let your legitimate enthusiasm for
your technical positions blind you to the very
real and very harsh political and legal realities
of this world.

The .xxx TLD should be rejected because it's
a bad idea for free speech.  And I trust that
-- despite his frustration with comment periods --
even Proof. Mueller still thinks free speech is a
good thing.

Reed Lee.