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The politics of .xxx

If the porn domain remains voluntary, that's one thing, says CNET New.com's Declan McCullagh. But what happens if politicians make it mandatory?

Now that pornographers have a domain name suffix reserved exclusively for them, look for politicians to become more eager than ever before to target sexually explicit Web sites.

Last week, the Internet Corporation for Assigned Names and Numbers approved the creation of .xxx, a kind of virtual red-light district that's scheduled to go live by the end of the year.

Permitting sexually explicit material online is, of course, only objectionable among advocacy groups that would love to outlaw anything as daring as "Heather Has Two Mommies." (Nobody is forced to click on links pointing to raunch and ribaldry, after all.)

But the politics of .xxx are more complex--and worrisome.

If .xxx remains truly voluntary, that's one thing. But what happens if politicians make it mandatory? What if controversial material like information on homosexuality, abortion and sex education comes under pressure to move to a virtual area that can be easily blocked?

Permitting sexually explicit material online is only objectionable among advocacy groups that would love to outlaw anything as daring as "Heather Has Two Mommies."

This is no mere theoretical concern. ICANN's decision represents an abrupt turnabout from the group's earlier stance: In November 2000, the ICANN staff rejected the first proposal for an .xxx registry.

Then politicians began to ratchet up the pressure. At a hearing a few months later, 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., complained 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."

Like any other bureaucracy, ICANN instinctively shies away from controversy--especially from political bigwigs. No wonder they changed their mind this time around.

Months from now, after .xxx domains become available and popular, expect these same politicians to suggest that adult Webmasters should be forced to permanently relocate from .com.

"You're definitely going to find some pressure on sex sites to move there," predicts David Greene, director of the First Amendment Project in Oakland, Calif.

What's more, the existence of an .xxx suffix will make it more difficult to challenge such a law in court. U.S. Supreme Court Justice Sandra Day O'Connor has suggested that the presence of "adult zones" on the Internet would make a future Communications Decency Act more likely to be regarded as constitutional.

In a split decision, O'Connor voted for and against different portions of the CDA in 1997, but only because "we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today." In the future, however, O'Connor warned, "the prospects for the eventual zoning of the Internet appear promising."

Even if the U.S. government maintains a hands-off approach, what about other governments that lack the constraints of a First Amendment?

Next steps
Backers of the .xxx domain claim they've thought this through.

Stuart Lawley, a British entrepreneur living in Jupiter, Fla., has created a company called ICM Registry to 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, will be in charge of setting the rules for .xxx. It will have a seven-person board of directors, including a child 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.

To his credit, Lawley is pledging a legal defense fund of $250,000 to "maintain the voluntary nature of the domain name system."

Robert Corn-Revere, a lawyer who's representing ICM Registry, said that they've laid the groundwork for a possible legal challenge. "You know how regulators are in this area," he said. "They look for something to do. We've anticipated the possibility that some people may think this is such a good idea it ought to be mandatory. That was one of the purposes of my being involved in this area. We've put a great deal of thought into it."

After .xxx domains become available and popular, expect these same politicians to suggest that adult Webmasters should be forced to permanently relocate from .com.

"Our conclusion was that assuming that such an effort were attempted one day, it wouldn't succeed," Corn-Revere said. "You can't compare content regulation to zoning. They're apples and oranges."

The next step is for Lawley and ICANN to work out any last remaining details, and then .xxx can be added to the root servers.

There's one last potential hitch: The Bush administration, hardly a fan of sexual expression, has to agree with the addition. (A government report notes that the Commerce Department "has reserved final policy control over the authoritative root server.")

"For .xxx to go into the root is going to require positive action on the part of the United States government," said Karl Auerbach, a former ICANN board member and frequent critic of the organization. "That would constitute an endorsement of a red-light district on the Internet."

Will the antiporn forces in the Bush administration like the idea of .xxx, as some politicians did five years ago, or will they move to block it? The conservative advocacy group Family Research Council already is trying the second approach. "The '.xxx' domain also cloaks the porn industry with legitimacy," FRC legal counsel Patrick Trueman said in a press release on Friday. "The industry will have a place at the table in developing and maintaining their new property."

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