Porn's search for a home
OUT-LAW Radio, 01/03/2007
The man behind proposed porn domain .XXX talks about government
influence on ICANN and self regulation in the adult realm, and we
get the inside story on Gary McKinnon's daring new defence.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to Out-law radio, the weekly Podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and coming up on this week's show we
talk to the man behind a 7 year multi-million dollar campaign to
create pornography's own home on the internet and we get a
debriefing NASA hacker Gary McKinnon's lawyer on the dramatic new
legal strategy they tried in the high court.
But first the news.
- Lawn mowing policeman can't claim anti-spy protection, and
- golfer sues over Wikipedia libel.
A former police officer filmed mowing his lawn while on a
disability allowance cannot claim that the filming broke the
Regulation of Investigatory Powers Act according to the
Investigatory Powers Tribunal. The former sergeant retired in
August 2001 from the police having made a claim dating from 1998
for an injury he said he sustained to his back after tripping on a
carpet in a police station while on duty. He was awarded £100,000
in 2002. He was also awarded an enhanced pension due to the
injuries but the police hired private eyes to check if he was as
disabled as he claimed. But the Tribunal ruled that it did not
count as a kind of covert surveillance for which police would need
a warrant.
US professional golfer Fuzzy Zoeller is suing an education
consultancy over allegedly defamatory Wikipedia postings made from
that company's internet address. Changes were made to Zoeller's
biography on the site which said that he was addicted to alcohol
and painkillers. They said that while under the influence of these
he beat his wife and his four children. The offending words have
since been removed. Zoeller has filed a lawsuit alleging that the
posts were defamatory. The IP address of the poster has been traced
to Josef Silny and Associates, a Miami educational consultancy
whose owner, Joseph Silny, says he knows nothing about the
postings. Zoeller's lawyers wanted to sue Wikipedia itself, but
realised they had to find the poster of the material and could not
take a case against the collaborative encyclopedia under US
law.
That was this week's out-law news.
Stuart Lawley made millions in the dotcom boom and has spent the
past seven long years trying to set up a pornography domain on the
internet. It has, he says, cost him millions and embroiled him in
political battles with the conservative US government. He is still
waiting on the conclusion to contractual wrangles that have, he
says, only affected his proposed domain, .XXX. Amidst all the
controversy Lawley took time out to tell OUT-LAW Radio about
porn, prurience and patience on the XXX campaign trail. He first
applied to have .XXX registered in 2000 and failed. He applied
again in a 2003 round when competition seemed to be more open.
Lawley: The big difference in this round was
that there was no limit on the number they were supposedly issuing
and they issued a set of criteria that were supposedly fair and
objective and the deal was as long you met the criteria you would
get your top level domain and in August of 2005 ICANN made the
decision that we had satisfied the criteria. We entered into
contractual negotiations which were just supposed to be about the
terms, the financial terms and the technical terms.
The domain was one of the eight chosen to be awarded their own
space on the internet but at the contractual stage the proposal hit
some pretty heavy political opposition.
Lawley: We were hoping to sign our
contract which was fairly much a standard contract that most other
registries had until the United States government intervened in
mid-August of 2005 asking for a further delay because they had been
lobbied very heavily by the christian conservative religious groups
here in the United States. We received documentation under the
United States Freedom of Information Act. It shows that up to a
certain date the Department of Commerce understood our application
and were mildly approving of it and then after several high level
meetings between christian conservative leaders and administration
and Department of Commerce officials the tone very much changed
overnight into how do we stop this and how do we kill it.
The proposal has been stuck in contract negotiations ever since
with Lawley claiming that they have gone on for two years where the
other application's negotiations lasted just two months. A new
contract was produced then voted down last year. Lawley has
negotiated another new contract, but earlier this year some ICANN
board members expressed reservations about the proposal which will
go before the board at its next meeting. Lawley says that he is
prepared to go the legal wire and take any necessary to make sure
.XXX is given the green light. In describing the rationale behind
.XXX Lawley promotes it as a kind of backdoor method of self
regulation for the porn industry.
Lawley: It’s a $5 billion a year
business. I don't know of many other industries worldwide that are
so large but don't have any kind of self-regulatory approach. From
our perspective the selling of the domain names on an annually
recurring basis would hopefully be a lucrative business for us, but
at the same time would allow the adult industry to group around the
top level domain and develop a set of policies, responsible
business practices built into the registration agreement.
The proposal has faced some criticism that it could lead parents
into a false sense of security. While a site may operate .XXX
domain, it can and doubtless will still host its content at .com
domains. Any parent simply filtering out .XXX domains will not in
fact be protecting their children from all adult content.
Lawley: This has never been proposed as a
silver bullet universal panacea and an overnight solution. This is
just a first step in the right direction. How we believe it will
work is that they will point their .XXX site, domain name sorry, to
the underlying site that already is pointed to by other domains in
other TLDs. Now one of the requirements in .XXX is the site that it
points must have these meta tag labels on the site. So, if you then
imagine that you have a labeled site with say an ICRA label an
Internet Content Rating Associations label, it wouldn't then really
matter whether you were trying to get to that site via .com,
.co.uk, .net, .org or .XXX. The site itself will be labeled
allowing any using user empowerment tools to either block or allow
access to that site.
Lawley's plan may be sound, but it will only work if the porn
industry backs it. ICANN has expressed concern that not enough of
the industry does back the plan. It said that just 23 of the 88
adult webmasters that contacted it were in favour of Lawley's
proposal. Lawley believes he does have the support of the
industry.
Lawley: We have submitted also to ICANN over
1,500 webmasters who have expressed support for .XXX in addition to
the original submission materials that we submitted back in 2004
from many of the world's largest dominant players in the adult
entertainment space.
And now despite seven years of fighting Lawley is still
optimistic about getting permission for .XXX, a domain he truly
believes will shortly become a reality.
Lawley: You know I think the time is now.
I think we're here and we're now, you know, it's all there ICANN
have looked at this for so long and in so many different ways, a
final decision on the contract just needs to be made.
NASA hacker Gary McKinnon's case entered the last chance saloon
a few days ago when his appeal against Home Secretary John Reid's
extradition order was heard in the High Court. In a dramatic turn
of events while McKinnon lay in hospital with stress related
serious illness, his legal team revealed that it had had secret
negotiations with US authorities. Karen Todner is his solicitor,
and her team argued in court that a plea bargaining process
conducted by the US years ago near the start of the case breached
McKinnon's human rights.
Todner: We were contacted by the American
authorities and invited to have meetings with them to discuss a
plea bargain for Gary to go back voluntarily, so, not to oppose the
extradition and simply to go back. And as a result if he went back
voluntarily they would allow him to receive a much shorter sentence
and they would ensure that he would be repatriated to England to
serve his sentence very quickly. But, they made it quite clear that
if he didn't cooperate they would ensure that he received, what
they considered to be a very lengthy sentence and that he would be
not be repatriated. We discussed that with Gary and Gary was not
willing to cooperate with it. He just, you know, he does not
want to go back there, he feels that he should be prosecuted here,
you know, absolutely. And we argued at the High Court that that was
in fact a coercive plea bargaining, and that if Gary is now
repatriated because he hasn't gone voluntarily, his rights to
repatriation and therefore his rights under Article 8 of the Human
Rights Act, which is the right to a private and a family life,
could be potentially breached because that they have already said
before he even gets there that he will not be repatriated.
All parties had agreed to keep the negotiations secret, but
Todner said it later emerged that the US authorities had used the
bargaining in their earlier arguments, so her team felt justified
in revealing their existence. She explains how the bargaining
breached his rights.
Todner: One of those human rights is
Article 8, which is the right to private and family life, so Gary
has the right to have his repatriation to this country
considered fairly and not arbitrarily. And essentially, the
prosecutors have already said that because he objected to the
extradition they will not allow his repatriation to take place, and
we have argued that is an abuse of the extradition process, that
that is not the way the extradition should take place.
We still await the judge's ruling which is expected in the
coming days but Todner revealed that McKinnon is planning one last
appeal should this one fail.
Todner: So we are also arguing that the
Secretary of State has an inherent discretion to consider
someone's human rights under the new Extradition Act, so we are now
going to go back to the Secretary of State and ask him to
reconsider his decision in relation to Gary. We are applying to go
back to John Reid again, and say, you haven't consider his Article
8 human rights and we want you now to consider those.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you have a
legal problem you would like us to discuss on air? Do you know of a
technology law story? We would love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew
Magee for International Law Firm Pinsent Masons.
