For the predicate blog post, click here.

Ben Metcalfe, quite rightly, is concerned about the precedent that Libya sets by the ad hoc imposition of Sharia law standards on the former http://vb.ly domain. The content there seemed too salacious for Khaddafi, and so the Libyan government either pressured or ordered nic.ly (the registrar for Libyan domestic names) to take the domain down.

Metcalfe makes reasoned appeals based on the terms of service of registration and the fact that there is no rule against the type of content he and his co-owner had posted. And yes, the underlying ideals to which he appeals are good ones. We should prefer free transmission of information over censorship.

On the other hand, Metcalfe’s response is lacking in pragmatism. First of all, when dealing with non-Anglo Saxon law, there is always a greater chance of decisions—administrative, judicial, executive, or monarchial—being that of cadi justice. That is, there’s always a greater chance that decisions will be made without a justifying reason. Also, we often make assumptions about the interpretations of contracts, statutes and rules based on assumptions that do not hold in other places. For instance, in Anglo-American law, whatever is not prohibited is generally allowed.

Metcalfe writes,

In other words we felt that the NIC.ly registry was claiming it has deleted our domain for infringements that do not actually form any part of their regulations.

True, but this complaint is made on two assumptions of Anglo-Saxon jurisprudence and political thought, which I share but which much of the world does not believe in, viz., that a) the attenuation of reasonably expected rights, i.e., to continue the operation of a domain, requires some sort of notice or due process, and b) whatever is not prohibited is allowed. Many nations simply do not care about these bedrock principles of ours.

Second, this is Libya. Caveat Emptor. I find it slightly incredulous that one would set up a domain using the domestic Libyan TLD and not expect there to be some form of censorship. Metcalfe should be so glad not to be in Libya right now. I think it is likely he committed crimes in that jurisdiction based solely on the content he posted to vb.ly—not that we should take any potential notion of such “crimes” seriously. Practically, however, Libya’s reactions seem not unexpected in light of its history and current widely-held belief system.

Third, speaking of jurisdiction broadly, while the internet in the abstract is free because of the millions of nodes it provides, the distributed nature of its structure, and the fact that it was built to withstand nuclear attack with the capability to reroute on the fly, it is hard to remember that nations still exercise traditional old-model notions of jurisdiction and control over whatever parts of the internet they can. It is not a sphere separate from the arbitrariness of conflicting law. Rather, it is a non-monotonic overlay.

It is a current fad to use exotic or esoteric TLDs to form cool domains, but we should remember that countries who “own” the distribution rights to those top level domains still exercise their backward (or forward) notions of legality upon those TLDs. There is less concern with very minute nations who use their TLDs as a source of revenue that they will clamp down on speech or information transfer they may disagree with.

One should not turn a blind eye, however, to the fact that the use of many TLDs may invite arbitrary behavior by the registrar, based on the laws of the jurisdiction in which the TLD is located. I am not saying what Libya did was right, and I am sorry for Metcalfe and his partner that this happened, but this was foreseeable.