.XXX -- A Bad Idea Getting Worse

[Reed Lee <reedlee@xxxxxxxxxx>]

I offer the following thoughts on ICM's sponsored
.xxx tld proposal and proposed contract as they
now stand:

1.
I have always thought that a .xxx tld is a bad idea.
For one thing, it seems to me to reverse the presumption
of freedom which should prevail on the Internet.  To be
sure, children can benefit a great deal from the Internet,
but they won't likely be permitted to surf freely if they
can find pornography --  perfectly appropriate for the
adults who want to see it -- at the drop of a hat or the
click of a mouse.  But the solution to this problem has
always seemed to me to be a bicycle lane for the Internet,
not limiting free traffic on the information superhighway
so that kids can play in the middle of the highway.  And
this has seemed especially true in light of the struggles
to keep the Internet mainstream free for those who need to
reach people with messages about such things as birth
control or suicide prevention -- messages that many people
really think are inappropriate for children and so also
belong in some roped-off corner of the Internet, if indeed
they belong anywhere at all.  Without a better understanding
of and common agreement on what expression constitutes
"material harmful to minors," .xxx seems dangerously
premature at best.  Neither ICM nor any of .xxx's few
supporters have done anything to advance that understanding.
ICM never, so far as I know, contacted the ACLU or EFF as I
suggested, to see what those who are in the thick of free
speech fights on the Internet think of the proposal.  It
did contact the Free Speech Coalition, which rejected and
opposes the ICM .xxx proposal.

2.
Roll-out of .xxx would also come at a particularly bad
time in the development of the Internet DNS.  With so
few existing tlds, second-level domain names have undeniably
become valuable commodities, and handing a new set to a
single additional registry for adult entertainment would,
as many have noted, create instant wealth for ICM and make
for what some have called -- speaking metaphorically, of
course -- extortion.  At the very least we'd be likely to
see an unseemly land rush for the second level, with nearly
endless disputes over intellectual property rights.  At some
point in the future, rolling out a (perhaps unsponsored)
.xxx tld along with a .sex tld and several others designed
for adult entertainment would at least avoid the current
problem of the sort of oligarchical monopoly (not even an
oligopoly, really) which exists today in the tld field.
But until ICANN is in a position to do this, the second-level
domain name monopoly for ICM in the adult entertainment
sector will remain a serious problem.  I am sympathetic
to those who would expand the domain name space precisely
in order to get by the current undue influence on second-
level domain names, but rolling out a _single_ new tld for
adult entertainment operated by a _single_ new registry
simply does not avoid the monopoly problem within the adult
entertainment sector.  Unleashing that problem now will
not help the image of the Internet in the eyes of its users,
and it will, in my view, have serious and undesirable
anti-competitive effects in the adult entertainment Internet
"community."  The haves always seem to want more in this
world, and I have sensed from the beginning of ICM"s sponsored
.xxx proposal that a few haves are chomping at the bit to snap
up the second-level domain names that some measly little user
beat them to under the other tlds.

3.
The adult entertainment sector of the Internet is undeniably
substantial, but it is simply not the sort of "community"
which fits ICANN's published ideas about sponsored tlds.
It lacks any sort of natural internal organization, and,
speaking as one who serves on the Free Speech Coalition
board of directors, it has little impetus to organize itself
except in opposition to direct regulatory threats (as,
indeed, many in this "community" view .xxx).  Organizing
support for any sort of trade association or advocacy group
has been a daunting task over the years, and it is pure fantasy
to dream that IFFOR will be seen as an organization of, by,
and for the adult entertainment industry.  I've done political
organizing in several fields for a long time now, and I know
that all true "community" organizations grow up from the
grass roots, they are not imposed from above.  IFFOR will
not be seen as an adult entertainment industry organization
nor as a vehicle for genuine _self_-regulation.  I respectfully
submit that if ICM has convincingly said otherwise, it has
seriously misled ICANN.  There is a place for sponsored tlds
directed toward groups or industries which already have a
substantial internal organization when the internal organiza-
tions _themselves_ approach ICANN and ask for one.  But this
is not what happened here.  IFFOR does not yet exist even now.
It will be created only to allow ICM to imagine an organized
community behind its sponsored .xxx proposal.

4.
None of this is to say that there is not a substantial
number of what ICM calls "responsible" adult webmasters.
Indeed, there are many who have no desire to peddle their
product to children or, for that matter, to unconsenting
adults.  The trade in sexual expression among adults is
doing just fine for them, and they hardly need the animosity
and the financial headaches (i.e. credit card chargebacks)
which come with trying to foist their wares upon the unwilling.
But the myriad "responsible" webmasters don't need IFFOR or
.xxx.  They are actively working through the Free Speech
Coalition and other industry organizations on ways to promote
end-user filtering of Internet expression while avoiding the
prospect of either switching-system filtering by IPSs and
other middle-men or mandatory source filtering of their
expression.  And, as they work through such organizations,
they are assured that free expression considerations remain
central to the efforts.  One of the problems with the .xxx
proposal is that ICM has no history at all with any free
speech concerns and ICANN deliberately (and understandably)
says that censorship is no part of its mission.  But it is
one thing to say ICANN won't undertake censorship on its own,
it is quite another for ICANN to ignore the censorship poten-
tial in proposals brought to it.  A major problem with the
ICANN review process so far is that it has ignored this
potential with .xxx.  ICANN does Internet freedom no favors
by burying its head in the sand or by saying "that's not
my problem" when it is being asked to do something which
could promote censorship.  The .xxx tld would be the first
which is deliberately designed to enable filtering (and
which could thus encourage censorship).  All others, on
the contrary, fit comfortably within the basic sponsored
tld concept of _promoting_ access to the site using them.

5.
Throughout the .xxx controversy, ICM has maintained that
the tld will remain voluntary.  But neither ICM nor ICANN
can assure that.  Even as I write, a bill has been introduced
in the United States Senate, S.B. 2426, to make .xxx manda-
tory for all materials which are "harmful to minors."
Again, we have little clue as to what this term includes,
as a practical matter, but the very fact of the bill is
enough to show how fleeting are ICM's promises of choice.
The ICANN board should not proceed with any .xxx proposal
without studying -- or referring for study -- all of the
censorship-related issues.  And these issues include poten-
tial reaction not just by governments but also by private
institutions such as ISPs and financial institutions.  As
I noted above, .xxx is not just another tld, it is one with
unique and unprecedented censorship implications.  The
review process simply must take account of this reality.

6.
Perhaps because the .xxx tld idea could, at first glance,
appeal to two very different groups of people (those who
see it as promoting access to adult expression vs. those
who see it as a tool for public or private censorship),
ICM seems to have done a good deal of talking out of both
sides of its mouth.  ICANN should open its review process
to insure that all can see what ICANN has said to the adult
entertainment industry, on one hand, and to government
and private regulatory authorities, on the other.  ICM
told adult webmasters, for instance, that they could keep
their .com domain names and operate those sites without
any change at all.  But it is hard to see how, under
those conditions, .xxx could promote the filtering which
ICM touted to others.  At best, ICM appears to have left
something unsaid somewhere.  Beyond this, I was very
concerned (though, alas, I may be too jaded to have been
surprised) to learn from the recent Department of Commerce
letter that ICM had apparently made regulatory commitments
to GAC which seem contradictory to the picture it earlier
drew for the adult entertainment industry.  Spidering of
websites and record-keeping requirements, for instance,
simply were not part of that picture, but they have now
made into the contract.  As the Free Speech Coalition
actively fights a burdensome and Byzantine set of U.S.
record-keeping requirements, it is understandably
concerned about the references to such a thing as part
of the .xxx/IFFOR protocol.  We are obviously not prepared
to trade one oppressor for another; and, at the very least,
we deserve to know the specifics of the regulatory practices
which IFFOR will impose.  If ICM had told the adult enter-
tainment industry that it would impose its own Section
2257-like requirement even if the U.S. law falls for
constitutional reasons, virtually no one in the adult
entertainment sector would support its proposal.  But
ICM seems to have said just this to GAC or perhaps to
the U.S. Commerce Department.  This is but one of many
examples (the format of this comment page seems to mili-
tate against comprehensive treatment) of the potential
regulatory issues which the present ICM-ICANN contract
leaves open.  These matters cannot be left for later.
Since they are essential to judging the censorship poten-
tial of .xxx tld, they must be spelled out now in detail
in the ICANN-ICM contract.  Even if ICANN were satisfied
with IFFOR's ability to legislate these matters in the
future, the supposed "community" to be served by .xxx
most decidedly is not.

7.
One of the difficulties with a multi-stakeholder model
for an international regulatory agency is that small
stakeholders and those with unique concerns risk being
lost in the deliberative process.  I concede that, in a
technical sense familiar to ICANN and its staff, .xxx
could work without causing the DNS to come crashing down.
On the other hand, does ICANN really want to approve .xxx
if the vast majority of its users buy second-level domain
names and park them only to prevent others from getting
them (but leaving them otherwise unsued because of unsettled
censorship concerns)?  I realize, too, that ICM presents
itself as a technically competent potential registry with
likeable representatives in the mold, for example, of the
most solid and responsible telecommunications conglomerate.
But neither ICANN governors nor its staff should be swayed
or satisfied by the fact that ICM seems to be a responsible
business with a plan to profit by the Internet.  ICANN owes
a responsibility to the Internet and all who benefit by it
to _also_ consider whether ICM's idea is a good one, on
balance, or a dangerous one.  When all of ICM's claims
about benefits to "responsible" adult webmasters and
the like are seen to be as lame as they truly are, ICM
seems to be left with a business plan to sell (in a sense
_re_-sell) second level domain names to grudging buyers
who may well not put them to any good use.  With pending
legislation to grab control of .xxx away from ICANN at
least in order to make it mandatory, ICM's quest is just
too dangerous.  At the very least it warrants much more
careful study of its censorship potential and the other
matters I've outlined here.  But it is frankly difficult
for me to see how the inherent dangers in the ICM .xxx
proposal could be overcome in the foreseeable future.