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Why ICANN was right to reject .xxx

EDITORIAL: The internet's domain naming body has rejected a plan for a .xxx domain, a red light district for the internet. It was the right decision, but not for reasons suggested by the religious right in the US. It was right because the plan was flawed.12 May 2006

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.