Here's What We're Scared Of

[Reed Lee <reedlee@xxxxxxxxxx>]

Kathy Kleiman asks:  "what are we scared of?"

This question, of course, can be asked and answered
from a number of different perspectives.  It is entirely
natural that many within this debate are primarily
concerned with policies relating to the ideal domain
name space and to good Internet governance.  I 
do not question the legitimacy of those concerns in
any way.  Indeed, I personally sympathize with many
of those concerns.

But there is at least one other perspective which is
also relevant here:  that concerned with protecting
and maintaining freedom of speech on the Internet.
It  would be a tragic mistake, in my humble opinion, to
let enthusiasm for domain name space policies or even
Internet governance policies blind the ultimate decision-
makers to the free speech issues.  Happily, I don't
see anyone advocating that ICANN should ignore
free speech issues, and I don't see anyone arguing
that the .xxx TLD should be approved at _all_ costs,
even if it would wind up promoting outright censorship.

Instead, many of the voices promoting -- at least
mildly -- .xxx (for reasons connected with Internet
governance or domain name space policy) consider
the free speech questions answered by the proposition
that ICM's proposal is for a _voluntary_ TLD.  Aside
from a few details which I'll address later, I agree that
a .xxx TLD forever free and voluntary is much less
worrisome than what I fear.  It is one thing to ask
"what are we scared of?" with respect to a voluntary
TLD; I think all agree it is quite another to ask that
question if the .xxx TLD, once approved by ICANN,
were to be made mandatory by governments.

And this gets to the answer to Ms. Kleiman's question.
As I pointed out in a piece I wrote last year (a copy
of which I attach here), ICANN cannot really decide
whether .xxx will be mandatory or voluntary.  All
ICANN can do is decide whether it will exist or not.
If it does exist, _other_forces_ will decide whether
it will be voluntary or mandatory.  It is for that reason
that I make the case that a rational decision-maker
in ICANN's position not only can but _must_ use what
Ms. Keiman refers to as the ""crystal ball."  Unless 
ICANN, Ms. Kleiman, or anyone else would find
a mandatory .xxx preferable to none, my piece shows,
I think, that a rational decision maker would say no
to .xxx.

This is because ICM's proposal puts ICANN into
something like the classic prisoners' dilemma, as
I show in some detail in the attached piece.

It would be different, of course, if free speech
advocates were stepping forward in droves to say
that it will be easy to keep a .xxx voluntary.  But they
are not.  They're not saying this with the respect to
the USA and they're certainly not saying that with
respect to other countries.  When ICM's .xxx sTLD
proposal first arose, I expressly asked one of ICM's
principals to see what the ACLU and EFF -- who were
and are in the thick of Internet free speech struggles
(in the U.S.) with the fight against COPA -- had to say.
He never did.  I believe that he knew better than to try.

And what does ICM have to say about this matter?
It promises to set aside some money to challenge
efforts to make .xxx mandatory.  Aside from questions
about whether ICM or IFFOR would even have standing
to sue over that issue, what would the outcome be?  If
you think that an easy question, take a look at the adult
use zoning cases in the U.S.  Then you'll begin to get a
sense of what we're "scared of."

Now ICM says that it's lawyer is also a free speech
lawyer just like I (and other .xxx critics) am.  And indeed,
ICM's lawyer litigates issues concerning broadcast and
cable television.  We sincerely wish him well in those
endeavors.  But this gets to another thing we're "scared
of."

Ms. Kleiman speaks -- apparently favorably -- of the history
of motion picture self-regulation (apparently in the U.S.,
though she doesn't actually specify).  That history, of course,
includes the Hays Code (which was technically voluntary) as
well as the current rating system.  Either way, I submit,
that history simply does not reveal a free medium.  If _that_
is the standard that ICM or Ms. Keiman or ICANN would raise
to judge what might become of the Internet, I respectfully
submit that it's just not free enough.  To move the line
of scrimmage from where I defend free speech to where
the defense is made out for broadcast television or even
major Hollywood motion pictures would -- tragically --
concede a considerable loss of freedom of speech on the
Internet.  We can all get behind reasonable efforts to fight
spam, but reducing what consenting adults can say, hear,
and see over the Internet to U.S. television standards
is _precisely_ one of the things I am "scared of."

And I suppose I could add something like "mission creep"
on ICANN's part.  We don't advise ICANN to stay away from
the world pornography debate because that's a scary 
place to be.  We're there.  And we know its worth being
there for the fight.  We advise _ICANN_ to stay away
because it departs from ICANN's mandate.  The telephone
companies worldwide have run a generally excellent physical
communications network without tasking themselves to 
channel telephone expression by content.  ICANN should
follow that model.  And if that means very occasionally
saying no to an apparently innovative idea because it turns
out -- on reflection -- to be bad for free speech, I just do 
not see how that will deter future innovation which does
not raise free speech concerns.

And that really does raise the question of whether ICM's
.xxx sTLD proposal is really so innovative at all.  The filtering
mechanisms which ICM has recently added as an afterthought
do not require any particular TLD.  As the Free Speech Coalition
pointed out on February 5 (and I concede, I drafted that comment)
there are other ways to use the "xxx" string to promote legitimate
destination or end-user filtering.  They involve no payment to ICM
and no danger of censorious middle-man or switching-system
filtering.  And we've also pointed out before that IFORR, at
least as currently proposed, has nothing to do with _self-_
_regulation_.  As ICM itself stresses, it never had any connection
with the supposedly sponsored community -- or with free speech
struggles, for that matter -- before it saw a profit opportunity
in an TLD proposal.  And finally, even Ms. Kleiman contemplates
that matters critical to free speech and self-regulation issues
will be "codified in contract."  Well, the current proposed agree-
ment and allied documents come nowhere close to doing that,
and we have little reason to believe they ever will.  That is
yet another thing we're "scared of."

And all of this _is_ related to the sponsorship question which
is of such legitimate concern to the ICANN Board.  These are the 
reasons why ICAM cannot show in a current and _transparent_
process that it has substantial support.  (We continue to object to 
any purely private, ex parte showing on ICM's part).  The so-called
sponsored community has thought it through and actively and
vociferously opposes .xxx because it too is "scared of" the foregoing.
Any remnant support is just too small to make ICM's promise of
voluntary cooperation work -- and _much_ to small to make the
foregoing risks even close to worth taking.

Ms. Kleiman correctly notes that the world is watching.  Part of
that world, to be sure, is primarily concerned with policies
concerning
the domain name space and even the elimination of artificial scarcity
there.  And part, too, is legitimately concerned with the process
of Internet governance.  I honestly respect that.  But others in the 
world are watching too.  Others in the "land of the free" and else-
where who don't always think that freedom is such a good thing.
Others who, metaphorically speaking,at least, have sharp knives
at the ready to deal with speech that they think should be sup-
pressed.  They are watching too.  Some are content with no .xxx
(for reasons clearly contrary to mine).  But if ICANN hands .xxx
to the world, they will have little choice but to try and make it
mandatory.

And when that happens, Ms. Kleiman and those concerned with
the domain name space and Internet governance will stay here
and continue to fight those good fights.  But I (and other honest
.xxx opponents) will be stuck in the difficult trenches of another
free speech battle not of our making and certainly not of our 
choosing.  Ms. Kleiman recognizes that the future offers no
guarantees.  and she mentions motion pictures:  a medium
which started out with considerable freedom in its very earliest
day, and then _lost_ that freedom for decades as a result of
unfortunate decisions by governing bodies about "voluntary"
standards. 

Our plea to those of you who have used your technical expertise
to make the Internet the wonder that it is -- and who struggle to
use that expertise to make it even better -- is just this:  Please,
on this occasion, where free speech issues are so plainly implicated,
listen to those who speak from another expertise, borne out of long
and continuing experience in the trenches.  Listen to the voice
of free speech.  Because a technically perfect Internet without
very substantial freedom of speech will represent a failure -- a
failure in what we all, together, could have bequeathed to the world.

Reed Lee.

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