The Financial Times is reporting that an international row broke
out yesterday, over concerns that the California-based board of the
Internet Corporation for Assigned Names and Numbers – ICANN – bowed
to pressure from the Bush administration when announcing its
decision on Wednesday.
A spokesman for European Commissioner Viviane Reding called it
"a clear case of political interference in ICANN," according to the
FT. ICANN Chairman Paul Twomey rejected this accusation as
"completely ill-founded and ignorant."
It seems that the UK, Denmark, Sweden, Brazil and Australia had
objections, too. And whether politics interfered or not, ICANN made
the right decision.
The Board voted 9 to 5 against the proposal from ICM Registry.
The idea for a .xxx domain was first pitched to ICANN five years
ago. This week's decision on the latest proposal had been delayed
several times.
ICANN has not yet provided the full reasons for its decision,
but has promised to provide them soon. It said
the meeting before the vote involved discussion of the terms of
contract proposed by ICM, "including compliance issues related to
key terms associated with public policy concerns."
Among ICM's arguments for a .xxx domain was the suggestion that
it would help families to protect their children from adult
content. That is a genuine problem for many parents. And it would
be easy to set a filter to forbid visits to anything ending
.xxx.
But that assumes the rest of the material on the internet is
clean. It is not. Purveyors of porn would likely buy .xxx names –
but continue to operate under .com names. There is no incentive for
them to abandon the names that made them rich, and ICM's plan was
that participation in the .xxx would be voluntary.
Indeed, porn operators are presented with disincentives. ICM's
plan came with a set of Best Business Practices, which many will no
doubt consider an unnecessary inconvenience. These include the
protection of intellectual property rights and customer privacy,
accurate labelling and meta-tagging. What a hassle.
Accordingly, domain name sellers and the inevitable
cybersquatters would make money; but most others would see no
benefit.
Various Christian groups in the US have objected to .xxx on
moral grounds. In an
opinion piece for USA Today, Patrick Trueman, senior legal
counsel at the conservative Family Research Council, wrote:
"creating a designated domain for pornography would simply have the
effect of legitimizing much material that is likely illegal."
No it wouldn't. If the material is illegal in the .com domain,
it stays illegal if it migrates to the .xxx domain. A .xxx name
seems an unlikely badge of integrity. And another argument
sometimes voiced that a .xxx domain condones or promotes
pornography is a bit like suggesting that a pharmacy supports
heroin abuse by dispensing methadone.
Still, if ICM's proposal looks destined to fail in one its own
key objectives (the third in
a list of four), ICANN is right to exercise its veto.
So is there scope for an alternative .xxx proposal? Perhaps, if
there is a political will to clean up the net. But it's a long
shot.
It has been suggested that a .xxx domain could work with the
backing of a law that requires all porn sites to operate
exclusively in that domain. Others say that such a law would fail
in the US because of the constitutional right to free speech.
US courts have established that the right of free speech does
not protect obscenity. But the problem is that the boundaries of
legality and illegality have always been hard to define. In 1964,
Justice Potter Stewart famously said that although he could not
precisely define pornography, "I know it when I see it." Then, in
1973, a definition was adopted by the Supreme Court: a work is
obscene if it would be found appealing to the prurient interest by
an average person applying contemporary community standards,
depicts sexual conduct in a patently offensive way and has no
serious literary, artistic, political or scientific value. That
definition remains the benchmark for US law.
So law enforcement in the US has the power to prosecute porn
site operators whose material meets this definition, and test cases
might clarify the boundaries. Under Bill Clinton, law enforcement
showed no appetite for action. But last May, the Department of
Justice launched a
taskforce to crackdown on obscenity. That might take some
operators off-line altogether. But if lawful porn – i.e. that which
falls short of being "patently offensive" – can be defined without
falling foul of the First Amendment, perhaps it can be
coralled.
Not everyone will comply, of course. It would be hopelessly
naïve to suggest otherwise. But if the majority of porn on the
internet were to be held in the .xxx domain, parents might feel a
little more confident about their children surfing without
supervision. It won't fix the current problem of people finding
porn who shouldn't, whether because they are too young or because
they weren't looking for it; but it reduces its scale.
This is no easy task: there are an estimated four million porn
sites. And they're not all in the US. A .xxx domain would be
international – and other tests of legality will apply beyond US
borders. Harmonising the laws of the whole world would be a
near-impossible task.
But if US lawmakers can require US operators to work within the
boundaries of .xxx, and UK lawmakers follow suit, and so on,
perhaps it is possible to make progress. This is what happens with
other laws on the internet: safe havens dwindle as legislatures
catch up. Sure, the existence of any safe haven means the problems
are not eliminated; but this is about damage limitation, not
elimination.
So while it might work, the barriers to implementation are
enormous and there might be easier ways. An obvious step is to make
it a requirement that porn sites are more difficult for minors to
enter, for example.
I am not advocating international laws for a .xxx domain; I just
don't think that, in principle, it's as dumb an idea as some
make out. It has been reported that ICM has a right of appeal and
whether it appeals or not, this is unlikely to be the last we hear
of a .xxx domain. In the meantime, I think ICANN was right to
reject the current proposal. Because it does little more than add
yet another domain to the internet that nobody needs.
By Struan
Robertson, Editor of OUT-LAW. These are the personal
views of the author and do not necessarily represent the views of
Pinsent Masons.
