Free Speech Coalition opposes .xxx

[reedlee@xxxxxxxxxxxxxx]

COMMENTS OF THE FREE SPEECH COALITION
IN OPPOSITION TO THE .XXX STLD PROPOSAL

The Free Speech Coalition again stresses that the
adoption of a .xxx sTLD is a bad idea for many reasons.
We take this opportunity to outline some of the more
important of those reasons here.  As always, we remain
eager to discuss with ICANN and others our concerns over
the current proposal as well as our suggestions concerning
other, better ideas for preventing children and unwilling
adults from accessing or encountering Internet expression
which is perfectly appropriate among consenting adults.
We would thus welcome an on-going dialogue with ICANN con-
cerning these subjects.

We also take this opportunity to advise ICANN that, as
part of our efforts in this area, FSC will participate
in a seminar concerning .xxx on Wednesday, February 8,
2007.  That seminar will be conducted by XBIZ, one of the
leading journals of the adult entertainment industry, and
ICM has been invited to participate.  We urge the ICANN Board
to await analysis of the debates and exchanges occurring at
that meeting before proceeding further with ICM's .xxx
proposal.



A.   Adoption of the Proposed .xxx sTLD Will Hinder
     Rather than Promote the Sound Expansion of the
     Domain Name Space.
____________________________________________________

Perhaps the most fundamental reason why the Free Speech
Coalition has opposed the .xxx sTLD proposal for years is
our firm knowledge that it will inevitably focus censorship
efforts on the Internet in general and on ICANN in particular.
All along, FSC has been guided by our understanding of censor-
ship questions (developed in the thick of many such contro-
versies) which has always seemed obvious to us and which the
debate surrounding the .xxx proposal has now abundantly
demonstrated.

     The .xxx TLD is and will always be deliberately
     and inextricably intertwined with sexually oriented
     expression on the Internet.

     As such, it will be an inevitable and on-going focus
     of those who would censor such expression on the
     Internet and elsewhere.  The day when no substantial
     or powerful voice will be raised in opposition to such
     content on the Internet (even apart from the question
     of children and unwilling adults) is simply not in sight.
     We know this from our long and deep involvement in the
     public debate.  To the extent that a newcomer such as
     ICM suggests otherwise, we respectfully submit that it
     is either disingenuous or naive in the extreme.

     Especially in view of the on-going oversight which
     ICANN now proposes to undertake with respect to .xxx
     -- oversight which is unprecedented elsewhere and
     called for, if at all, solely on the basis of the
     content of the Internet expression involved -- .xxx
     will be a continual source of unwelcome censorship
     pressure directly on ICANN itself.

We wonder, in fact, why ICANN would invite that sort of
pressure.  Telephone companies, for instance, have done
quite well in maintaining a technically superb tele-
communications system without ever undertaking to regulate
the content of telephone calls or to segregate telephone
communication on separate channels based on its content.
And they have used just that fact to resist claims by
governments and others that they should be responsible
for censoring expression over the telephone lines.  By
holding to ICANN's purely technical mandate, ICANN can
follow suit and best insure that controversies over Inter-
net censorship will be directed elsewhere.  It is extremely
unlikely that ICANN can resolve the dramatically conflicting
claims concerning freedom or censorship of sexually oriented
expression worldwide.  Its best course of action, by far,
is to avoid them.

It is not as though one side in this controversy is urging
that .xxx is necessary if sexually oriented expression is
to survive on the Internet while other voices are urging that
.xxx is necessary as a tool for restricting such expression.
Under such circumstances, ICANN might effectively be forced
to take a position on the question, one way or the other.
But no one is really arguing the former position.  The
responsible adult Internet community is doing just fine
without .xxx, and it has never asked ICANN for any special
favors.  When ICM came asking for .xxx, it did not do so on
behalf of the adult Internet community.  As one of ICANN's
independent review teams initially observed, ICM never
demonstrated any substantial sponsored community support
outside of the United States, and virtually all in the
U.S. adult Internet community (some of whom did indeed
initially suggest support) now firmly oppose the current
.xxx proposal.  In addition to those voicing opposition
last May, this now includes all of the major adult enter-
tainment industry related publications, including AVN and
XBIZ.  The adult entertainment community is not asking
ICANN to get involved in its debates or fight its fights.
Only ICM seeks to put ICANN at the center of intractable
controversies in order to further ICM's own interest in
the profits to be derived from a .xxx TLD which no one
else really wants.

It bears noting in this last regard, that many in the
adult Internet community have indeed taken steps to reserve
second level domain names -- under ICM's unilaterally
announced free anticipatory registration scheme - in
the .xxx name space.  This most emphatically does not
reflect support -- enthusiastic or otherwise -- for the
.xxx proposal.  It reflects nothing more than the widespread
understanding that the adoption of the .xxx sTLD proposal
would unleash the most unseemly "landrush" for second
level domain names which the Internet has yet seen.  It
reflects the fact that adult webmasters - Internet
stakeholders entitled to ICANN's consideration, just as
any others -- understand that ICM is asking ICANN for the
power to essentially force current second level domain name
holders to buy from ICM what they already have.  The resulting
landrush might well have anticompetitive effects in the adult
Internet community by privileging large insiders with whom
ICM has communicated in the past.  Moreover, it will unleash
widespread disputes and inevitable litigation over trademark
and other intellectual property issues.

At least adult webmasters would have the unhappy choice of
'buying off' ICM against the possibility of allocating their
current second level domain names to others; and, in any event,
their trademark claims are likely to be particularly strong.
More problematic, though, is the situation faced by a general
business which has secured a second level domain name which
reflects its trademark.  That business will not be able to
foreclose ICM's allocation of its second level domain name to
a sexually oriented website because ICM will sell its second
level names only to adult sites.  Its only remedy will be
expensive arbitration or litigation.  These stakeholders too
have important concerns.  At the very least, these concerns
deserve to be addressed in the proposed registry agreement,
just as the pro-regulatory, pro-censorship concerns have been
in the most recent revision.

In our considered judgment, formed in the fray of the
contemporary debate surrounding sexually oriented expression,
the world is just not ready for a .xxx TLD except as a tool
to regulate and censor.  We see the most recent changes in
the proposed ICM registry agreement as reflecting just this
truth.  And we reiterate, that once ICANN establishes a
.xxx TLD, others will endeavor to make its use mandatory,
as indeed bills introduced in the last session of the U.S.
Congress demonstrate.  For these reasons, .xxx is and will
inevitably remain uniquely controversial.  Too controversial,
we respectfully submit, to contribute to the sound development
and growth of the domain name space.  Granting ICM monopoly
control over a portion of the domain name space designed for
some of the Internet's most controversial expression, simply
will not address - let alone resolve - the general and alto-
gether unrelated concerns raised by those who seek a vastly
expanded domain name space.  Since sound growth of the space
was a principal goal of the current round of sTLD proposals,
.xxx is particularly inappropriate as presently proposed.



B.   Adoption of .xxx Is Unnecessary to Enable Internet
     Filtering of Expression Which May Be Unsuitable for
     Younger or More Sensitive Viewers.
________________________________________________________

To the extent that the .xxx sTLD was promoted as a means
to promote Internet filtering, it has always been redundant
at best and a substantial interference at worst.  Indeed,
the new proposal, contained in the revised registry agree-
ment, to use ICRA metatagging on websites operating with
a .xxx TLD merely underscores just that redundancy.  Adult
websites can and do use that and similar labeling systems
already.  And so long as .xxx remains voluntary as ICM
proposes and ICANN stresses, it offers no new or additional
incentive for websites to adopt that sort of labeling.
Moreover, the adoption of a .xxx TLD could well interfere
-- or appear to interfere -- with the use of "xxx" as a
general Internet filter.  Without the adoption of the .xxx
TLD, adult websites are currently free to establish URLs
such as http://xxx.secondlevelname.com.  (At FSC, we have
dubbed this alternative "triple-x dot").  This option
facilitates exactly the sort of filtering which would be
available for http://www.secondlevelname.xxx (which we
term "dot triple-x").  Responsible adult webmasters can,
even without ICM, also create URLs such as http.www.second-
name.com/xxx/content (which we term "slash triple-x")
to facilitate filtering at the end-user's browser.
Neither of these clear, workable filtering alternatives
involves anyone paying ICM $60.00 per year for the privilege
of using "xxx" as a filtering signal for sexually oriented
expression.  ICANN should avoid putting itself, and ICM,
in the position of suggesting that it can charge money for
the privilege of enabling end users to recognize and, if
they choose, filter sexually oriented expression.  And on
this general filtering issue, FSC most emphatically agrees
with both the Government of Canada and the United State
Supreme Court that this sort of "destination" or end-user
filtering is best for the Internet and most consistent with
general free speech principles.

In addition, FSC reiterates our concern that a TLD
Deliberately and inextricably linked to some of the
Internet's most controversial expression will facilitate
filtering which is much more problematic for free speech
concerns and much more sinister for the future of the
Internet itself.  As we have said, destination or end-user
filtering is consistent with the free speech principle
which leaves to the hearer or reader the decision whether
to engage in communication:  my right to speak does not
ordinarily entail your duty to listen.  But .xxx would
facilitate switching-system filtering which is flatly at
odds with that principle.  It would enable a middle-man
to decide what expression gets through the channel, even
as between a willing speaker and a willing listener.
ISPs, for instance, and others who undertake to resolve
domain name inquiries could refuse to return an IP address
for any domain name in the .xxx space.  At a time when NC-17
motion pictures still cannot even purchase advertising space
in major U.S. daily newspapers, this concern seems very real
to us at FSC.  If such a precedent were established with
respect to sexually oriented expression, governments could
require it and even extend the censorship to other disfavored
Internet expression.  In a world where all too many governments
remain all too hostile to all too much expression, this
prospect is frightening indeed; and it could destroy the
Internet as a vehicle for spreading speech worldwide.

Finally, ICM's claim that IFFOR will somehow be able to use
the proceeds from .xxx registrations to promote free expres-
sion efforts remains both vague and fanciful.  To suggest
that a portion of the .xxx registration fee represents a
sort of 'tax' on those who disseminate lawful, sexually
oriented expression to consenting adults is both unnecessary
and disturbing.  FSC, as the trade association for the adult
entertainment industry in the U.S., wants no part of any such
'taxation,' as we expressly told ICM very early on in this
sTLD process.  FSC, and our counterparts throughout the world,
are fully content to operate as truly voluntary organizations,
raising the funds necessary for our operations directly from
our members without intermediaries such as IFFOR and without
dangerous schemes such as .xxx.  Moreover, we continue to fail
to see any credible evidence that ICM (which suggests no
particular background or expertise on free speech issues
-- or, for that matter, on child protection concerns) is
equipped to contribute to free expression debate.  And we
certainly have no assurance that the yet-to-be-established
IFFOR will be in any better position to do so.  Just as the
adult Internet community has not asked ICANN to ensconce
itself in free speech controversies concerning sexually
oriented expression, it has not asked for the formation
of a new organization which will use TLD registration
proceeds to do so.  Even if we wanted such an organization,
we would need real contractual commitments -- not merely
vague ICM generalities -- concerning the structure and
make-up of IFFOR and the limits of its regulatory and
advocacy roles.  Just as GAC requested changes in the
registry agreement to address its concerns, the stake-
holders in the adult Internet community would be entitled
to contractual assurances addressing our legitimate concerns.
But, in the end, all of us are better off if ICANN and the
registries and registry-related organizations concentrate
on the technical and policy issues required to bring a vibrant
and open Internet to the world.

For our part, the Free Speech Coalition is prepared to
Hold its own in the debates which concern our members.
We we emphatically urge that ICANN refuse ICM's invitation
to vastly complicate that debate worldwide.  For all of the
foregoing reasons, ICANN should reject ICM's .xxx proposal.



Diane Duke
Executive Director
Free Speech Coalition

Jeffrey Douglas
Chair, Board of Directors
Free Speech Coalition

Reed Lee
Board of Directors
Free Speech Coalition
(principal author)