Jackson Heights, New York, February 7, 2016 – The draft Licensing Agreement for the city’s neighborhood domain names has several significant limitations. In a previous post we wrote about a “Without Cause” clause that allows the city to withdraw the right to use a neighborhood domain name at its whim – without explanation and without cause. We opined about this limiting the ability of a developer to garner the resources necessary to create an effective dotNeighborhood.
Today we’re focusing on more substantive problems, content limitations presented in the draft Licensing Agreement. There, in Exhibit B, the Acceptable Use Policy, one finds “Prohibited Content,” which details a dozen restrictions on categories of information that can be presented. We have serious problems with five of them.
Prohibited Content #1: “campaign-related materials or partisan political materials;”
We’ve always imagined the dotNeighborhoods as significant new venues for presenting and considering the qualification of candidates for elective office. Who better knows the needs of the neighborhood and the qualification of candidates than the neighbors~voters?
The first problem with the campaign prohibitions is the lack of definitions. What is “campaign- related” and “partisan?” Is there an impartial watchdog to enforce it? Who appoints its members? How are violations enforced?
But perhaps we should take a different approach. If we’re trying to create a better democracy, keeping money from polluting the candidate selection process, which we do very well here in New York City, perhaps the Licensing Agreement should require that dotNeighborhoods maintain a “campaign zone” where election materials can be posted free, or for a nominal fee. The license might also require that when elections approach these zones provide a prominent space on the dotNeighborhood’s home page announcing “It’s Election Time” and provide links to candidate promotional materials. There might be some restriction on the nature of the materials – for example, length limitations on video materials – intended to level the playing field by reducing the necessity for significant investment.
Prohibited Content #2: “offensive sexual material, as described in New York Penal Law § 245.11, as it may be amended from time to time and/or material that contains image(s) of a person, who appears to be a minor, in a sexually suggestive dress, pose, or context;”
We don’t have a problem following the prescriptions of the state penal law, but when the prohibition gets into the “and/or materials” that extend its reach, we get concerned. We wonder who is going to determine the type of dress, pose, or content that is suggestive. Who is it that selects these censors? What are their qualifications? What penalties may they impose? And who sets the rules they are to follow?
Prohibited Content #3: “words that match, contain recognizable misspellings of or are otherwise recognizable variations of any of the seven words identified in Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978);”
Here the city imagines that the 7 filthy words and their variations are going to be hidden from the tender eyes and ears of youth. Here again definitions are a problem – “recognizable variations?” And what’s the remedy and who enforces it? Must the operators of the dotNeighborhood keep a vigilant eye on every comment posted?
And beyond the spirit offered here, isn’t it a bit silly for New York City to proscribe the words its residents use? The “Filthy Words” pertain to a national broadcast TV standard, not what New Yorkers say on their neighborhood websites. Let the First Amendment rule here.
Prohibited Content #4: “promotes unlawful or illegal goods, services or activities;”
Obviously we don’t want the dotNeighborhoods promoting illegal activities. But does livestreaming a non-permited rally constitute promoting an unlawful activity? Must the operator of a dotNeighborhood keep watch over all posted content, checking for parade permits before allowing a link? Again, a problem with definitions and regulatory enforcement.
Prohibited Content #5: “image(s) or information that demean an individual or group of individuals, on account of actual or perceived race, creed, color, national origin, gender, sexual orientation, age, whether children are, may or would be residing with such victim, marital status, partnership status, disability, or alienage or citizenship status as such categories are defined in § 8-102 of the Administrative Code of the City of New York (as it may be amended from time to time) or, for those categories not there defined, as they are commonly understood;”
Again, this is well intended, but adding the concluding phrase “as they are commonly understood” leaves too much room for abuse by the regulatory apparatus.
If you add all these ambiguities of definition together with the city’s recourse to the “Without Cause” clause, you end up with a chilling effect that will crush speech, innovation, and experimentation in the neighborhoods: a Sword of Damocles capable of jerking the basic platform away without cause.
Our next post on the draft Licensing Agreement will focus on the innovation eviscerating requirement that dotNeighborhood operators receive prior approval from the city before adding secondary level domain names (here).