Yesterday, after the last public sessions of the ICANN meeting here in San Juan, I found myself fine dining at a wonderful restaurant called Marmalade, 317 Fortaleza street in the old city, with a few colleagues among which Bertrand de la Chapelle, Milton Mueller, and Robin Gross the initiator of the ICANN-related campaign “Keep the Core Neutral“. The food was really good, and the portions not “aggressive” as someone put it (by contrast to ‘mainland US’). I even spotted on the desert card, between the sweeties and the cognacs, the famous French wine (Sauternes) “Château d’Yquem” but you wouldn’t want to ask for the price. They said they have in average one client for it per year. Anyway, the dinner wasn’t only stimulating for the palate, but also for the mind.
We (including the 3 above mentioned) had an interesting conversation about the campaign and the freedom of expression (FoE) argument, which peaked with an interesting exchange between Bertrand and Robin. According to the former, is not the right argument (both analytically and tactically.) He argued that the right to apply and be granted a name/string at the top level of the Internet DNS is an issue of community recognition, not of FoE; in other words, he would rather invoke freedom of Association (FoA) in support, not the FoE. Robin first said FoA is a FoE issue – put otherwise, the right to association of one’s liking derives from freedom of expression. And later, she also said, FoE is a subset of FoA. Bertrand recognized that there is overlap, but clearly rejected the idea that those freedoms mean the same or lead to the same consequences. He gave the example that a bunch of people can get together and create an association of mumblers and meet periodically for mumbling. Or an association aiming at getting discounts on hotel accommodation, etc. Bertrand’s thinking is apparently based on homology between the “real world” enacted and regulated by states and parliaments, and the cyberspace enacted and regulated through the DNS by its authorities. So the way different sets of rights are used and applied to people and communities in the first world should be reproduced (through the relevant authorities) to Internet users and online communities (who form together the Internet polity.) It also seemed to me that his conception of association is broader (and that there’s no conceptual argument against that) while Robin’s approach is more political, whereby the need to create an association often matches the pursuit of some political or social expression (as a statement to be made).
So the new argument (Bertrand’s) is less political at the surface, but still… it also ties into the right to self determination or autonomy. For example (as per the conversation) if the gay community organizes itself and come up with a request for .gay TLD, then it must be authorized on the basis of freedom of association. In that line of thinking, the freedom of expression will only apply to what can be found in that name space, i.e. the forms and contents of expression.
But it seems to me that there still is a subtle or discrete gap to be addressed in that resoning… Association as a structure is one thing, the name given to an association is another thing. Between FoA and FoE, is there possibly another set of rights that might serve as basis to public authorities to reject the naming of an ssociation while accepting its creation (including its objectives). Because surely enough, an insitution like ICANN cannot deny anyone the right to association, even in the cyberpace and particularly in the Internet DNS. But what is in debate here is the right of ICANN to appreciate the appropriateness of how the association is named. That’s when and where FoA & FoE get blurred and seem to fuse in each other. Because people do a lot of things with names; it’s first an identifier, and as such it may as well be a form of expression. Probably, that’s also when and where the concept of self-determination becomes useful to bridge the discrete gap.
In a nutshell. subject to operational and technical criteria, ICANN shall then accept any application string on the basis of freedom of association and right to self-determination of all comminities. It’s analytically a sound argument; I’m just not sure whether it makes the whole issue less controversial than using the freedom of expression argument.
