The battle over triple 'x'

CNET News.com's Declan McCullagh explains the gathering storm over a proposed .xxx Internet registry.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
By the end of this year, Internet users could have an extraordinarily convenient place to find pornography: a new .xxx top-level domain.

Stuart Lawley, a 41-year-old entrepreneur in Jupiter, Fla., is the unlikely champion for the online equivalent of a red-light district. A British citizen, Lawley swears that he's no smut seller himself. "I have no current or historic links to the adult industry in any form," he asserts.

That appears to be true. Lawley started Oneview.net, a U.K. business Internet provider, in the 1990s and cashed out at the height of the dot-com craze in March 2000. A profile in the Guardian newspaper a few months earlier pegged his net worth to be in the tens of millions of dollars.

After a brief, sunny retirement in the Bahamas, where he learned how to golf and spear fish, Lawley moved to Florida and got the itch to get involved with the Internet again.

"Sex is a very big area on the Internet," Lawley said. "Our research staff surprised me. I couldn't believe how prevalent it was and what the actual statistics were for the number of sites and the number of users."

Under his proposal, submitted last week to the Internet Corporation for Assigned Names and Numbers (ICANN), .xxx domain names would be sold for $70 to $75 each. Child pornography would be verboten, but pretty much anything else would be permissible, Lawley said. "Apart from child pornography, which is completely illegal, we're really not in the content-monitoring business."

Instead, Lawley and his partners are in the business to make money. A report from Reuters Business Insight in February 2003 calculated that sex represented two-thirds of all online content revenue in 2001 and that it had ballooned to a $2.5 billion industry since then. Lawley estimates that 25 percent of all Internet search queries are related to sex and that more than a million adult domain names exist. Owning the rights to sell pieces of .xxx real estate, he concluded, would be a perfect way to make money off consumers' insatiable appetite for online raunch and ribaldry.

Free-expression issues
The way the proposed .xxx registry would work is twofold. Lawley's company, ICM Registry, would handle the technical aspects of running the master database of .xxx sex sites. For its troubles, it would charge $60 a domain name and let resellers add their own markup of perhaps $10 to $15 per domain.

A second, nonprofit organization, the International Foundation For Online Responsibility would be in charge of setting the rules for .xxx. It would have a seven-person board of directors, including a child advocacy advocate, a free-expression aficionado and, naturally, at least one person from the adult entertainment industry. As president and chairman of ICM Registry, Lawley gives himself just one vote on the board.

The foundation's charter is intentionally quite protective of free speech. It aims to "protect the privacy and security of consenting adult consumers of online adult entertainment goods and services" and references the free-expression principles in the United Nations Universal Declaration of Human Rights.

The problem is that, as soon as .xxx launches, conservatives in U.S. Congress will begin to clamor for laws to make the domain mandatory for sex-related Web sites.
Unlike other online suggestions for innocuous top-level domains like .travel or .jobs, the proposal for .xxx plunges the Internet into a U.S. political stew that's already at a roiling boil. The Federal Communications Commission has recently been tossing around penalties for "indecent" radio broadcasts, while Attorney General John Ashcroft has indicated that a crackdown on obscene Web sites is about to take place.

The problem, in other words, is that as soon as .xxx launches, conservatives in Congress will begin to clamor for laws to make the domain mandatory for sex-related Web sites. That may not be a big deal for hard-core pornmeisters who prefer that virtual street address, but what about sex education sites that include explicit graphics and don't wish to be blocked by filtering software? And where should Salon.com--which features images of topless women--or Playboy.com--which publishes important interviews with U.S. presidents--end up?

Protecting children
This is not just a theoretical concern. Back in 2000, before Lawley got involved as president, ICM Registry applied to run the .xxx domain. But ICANN shot down the proposal.

It didn't take Congress long to get involved. At a hearing in February 2001, Rep. Fred Upton, R-Mich., demanded to know why ICANN didn't approve .xxx "as a means of protecting our kids from the awful, awful filth which is sometimes widespread on the Internet." Sen. Joseph Lieberman, D-Conn., griped to a federal commission that .xxx was necessary to force adult Webmasters to "abide by the same standard as the proprietor of an X-rated movie theater."

Stuart Lawley estimates that 25 percent of all Internet search queries are related to sex and that more than a million adult domain names exist.
To his credit, Lawley is pledging a legal defense fund of $250,000 to "maintain the voluntary nature of the domain name system." He's also hired Robert Corn-Revere, a top-notch lawyer at Davis Wright Tremaine, who has represented Playboy Entertainment Group before the U.S. Supreme Court, to research whether Congress could get away with ordering sex-themed Web sites to slap .xxx at the end of their address. Corn-Revere's conclusion: The .xxx folks "should prevail in any ensuing litigation, if any attempt is made by the government to require registration in a .xxx domain."

Barry Steinhardt, head of the ACLU's technology and liberty program, isn't nearly as optimistic. "I am not quite so confident that we will prevail" under existing First Amendment precedents, Steinhardt said.

But the ACLU's real concerns with the proposal lie overseas. "There are nations all over the world that will undoubtedly try to force Web sites into the .xxx (top-level domain) or to block Web sites in it that they somehow view as offensive," Steinhardt said. "I don't think the operators have taken sufficient account of that problem. It will become a worldwide red-light district for the Internet, into which speakers who have free-expression rights and should be able to reach a mass audience will be forced."

Maybe U.S. politicians have matured in the last four years. Perhaps courts can now be trusted to do the right thing, upholding the First Amendment's guarantee of freedom of expression. But given that the House of Representatives voted by an 18-to-1 margin just two weeks ago to boost the penalties for "profane" broadcasts, the initially voluntary .xxx district may turn out to be a one-way street.