Most everyone with an interest in the business of Internet porn has heard of the .xxx Top Level Domain (TLD) – the proposed virtual home for the world’s smut dealers beside .com, .org and .biz – but despite its potentially seismic impact, accurate information within the adult community about .xxx often seems mixed with half-truths, misconceptions and unlikely speculation. By the end of this summer, the Internet Corporation for Assigned Names and Numbers (ICANN) is expected to decide on the establishment of a global .xxx Internet extension. Here’s the lowdown on who’s behind the proposal and what its acceptance might mean to the adult Internet industry, in terms of both dollars and cents and potential legal repercussions.
TLDs 101
The CliffsNotes version of ICM Registry’s proposal goes like this: .xxx will be a sponsored TLD as opposed to a general TLD. Sponsored TLDs, like .museum or .aero, are maintained for the use of a specific industry or group; general TLDs like .org and .com are for anyone’s use. Should it be approved, look for a TLD specific to the adult industry to be available sometime in 2005. Webmasters who choose to adopt .xxx domain names will be voluntarily identifying themselves as members of the adult community; in spite of the sincere hopes of the Religious Right and the worst fears of free speech advocates, no one will be forced into accepting a .xxx address and dropping their .com... at least under current law and this proposal.
Should the .xxx TLD be established, an interested party will buy a domain name from a re-seller (much like .coms are purchased now.) ICM registry will sell them to middlemen for around $60 each, and the reseller's mark-up to consumers will likely push the price to around $75 per. After that, the new domain names will "work" the same way .coms and .nets function.
Ideally, those who choose to adopt a .xxx TLD will belong to a more responsible group of Webmasters. They will have a trade organization to speak on their behalf as well as an established set of responsible business practices to live up to. The non-profit trade group, The International Foundation For Online Responsibility (IFFOR), will be funded by the sale of .xxx domain names, and, in a perfect world, will provide heretofore-unknown legitimacy to the adult Internet industry.
Who’s Behind .XXX?
The current bid for a .xxx TLD is sponsored by ICM Registry, a tech company with no previous ties to the porn world. Founded in 1996 and run by entrepreneur Stuart Lawley, ICM Registry’s first bid for a .xxx TLD was back in 2000. “ICM Registry’s application was not selected to be one of the ‘proof of concept’ test-bed TLDs in the 2000 application round,” says ICM Registry’s vice president of strategic business development Jason Hendeles. “The previous round was more of a ‘beauty pageant,’ whereas this round is based on more objective criteria.”
Since then, ICM Registry has worked to build the kind of broad support ICANN needs to accept their TLD proposal this time around. The list of adult companies standing behind .xxx includes heavy-hitters likeVivid, Webquest, AdultShop, Python and Hustler; however, the XXX industry is joined by a range of other organizations rarely on the same side of any debate with porno professionals. “We’ve engaged in an outreach program to explore the concerns of the broader Internet community,” Hendeles explains. “The diverse group of stakeholders includes child and family safety groups, free speech advocates, information technology experts, and public policy leaders, both from Washington and internationally.”
While ICM Registry will handle the technical side of maintaining the .xxx TLD, IFFOR will represent the community of .xxx Webmasters in its interactions with the “outside world,” as well as establishing a set of best business practices. The specifics of these practices have yet to be determined, but are likely to prohibit some kinds of spamming and pop-ups as well as fraud and other illegal practices. Other than restrictions on unlawful material like child porn, there will be no content restrictions.
Past attempts to organize the adult technology industry have been less effective than many would prefer (remember The Global Internet Association?), perhaps due to the individualist nature of many members of the community; but the backers of .xxx think they’re on to an effective means of herding the adult Internet’s cats. “The key distinction that may result in success for IFFOR, where other, similar groups have failed, is the mandatory allocation of a percentage of domain name registration funds for these organizing efforts,” says First Amendment and online entertainment attorney Lawrence Walters, a partner in the firm of Weston, Garrou & DeWitt.
According to the proposal currently before ICANN, The IFFOR Board of Directors will be composed of seven voting directors and four support organizations that will develop and recommend policy. The board will be made up of a broad cross-section of experts, including a Child Advocacy Expert, a free expression professional and a representative from the adult entertainment industry.
The Upside and the Downside
“The [adult entertainment community] is going to benefit through significant funding for a trade group to advance the interests of the adult Webmaster... with real ability to influence policy issues and industry image on a global level,” says Walters.
“A new .xxx TLD would be a boon for the industry,” agrees attorney Gregory Piccionelli of Brull, Piccionelli, Sarno, Braun & Vradenburgh. Piccionelli, who has represented many high-powered players in adult, added, “I believe it would open up new markets and new products.”
Advocates say industry self-regulation and organization may result in better relationships with credit card companies, protection from some types of legal prosecution, and ultimately more trust between consumers and Websites.
Critics aren’t so sure. Some fear that regulation itself could lead to government interference with the industry. Although the Free Speech Coalition has not taken a position on the establishment of the new TLD, their Board Chair, criminal defense attorney Jeffery Douglas, has definite reservations about the proposal. “They can regulate it because we’ve self-defined,” says Douglas. “If you don’t self-define, they can’t regulate, because they can’t define who in the hell they’re trying to reach.”
Credit Cards and Billing
Many see the establishment of a sponsored .xxx TLD as a potential answer to one of adult’s trickiest problems: billing. Unlike most other industries, adult has no industry-adopted business standards, which may be a reason Visa and others handle porn transactions with such caution (and high fees). Some proponents foresee self-regulation as the key to helping make adult an easier sell for credit card companies. “There is the potential, once the framework for representation for .xxx has been developed, for that entity to have a dialogue with the credit card companies, and for .xxx to become a form of disclosure,” says ICM Registry’s Hendeles. “We will be pursuing every possible means for driving value for .xxx registrants. We want .xxx names to drive substantial traffic, and we want .xxx names to be that much more reliable when it comes to credit card practices. And that could, potentially, become part of the best practices.”
A Better Climate for Business
The influx of new domain names that will result from the establishment of .xxx may result in more Webmasters, but it will also result in surfers who are easier to target and perhaps more trusting of the sites they visit. Eventually (so the argument goes), consumers will begin to distinguish between merchants who have chosen to adopt the .xxx TLD and those still on .com or .net. “Increased consumer confidence offers adult Webmasters the potential to legitimize their online businesses and the opportunity to create more qualified traffic and reliable transactions,” says Hendeles. In other words, if surfers know that .xxx porn sites have an organizing body to answer to, they might be less afraid of fraud and more apt to give up the credit card digits. Part of IFFOR’s role will most likely be to “market” this aspect of .xxx to consumers.
Some security companies, like not-for-profit, security-focused organization TRUSTe, have weighed in on the side of .xxx as well. “The .xxx approach, instead of relying on new laws, puts the forces of the free market to work in order to manage the inevitably huge flows of adult content, while preserving or enhancing the overall integrity of the Web,” explains Charles Jennings, founder of TRUSTe, on the .xxx public comment board. “The .xxx approach helps build trust and confidence in the public network, generally, by categorizing responsible adult content into one domain, and excluding those with anti-social, deceptive practices.”
Child Protection
The potential for protecting children from viewing adult material is of tantamount importance to many of the backers of the .xxx TLD. Although opinion is split among these groups as to the efficacy of an entirely voluntary “Internet Red Light District,” moderate voices suggest this could be a useful tool in protecting children from undirected spam e-mail and pop-up windows. The clear demarcation of materials inappropriate for children explains the interest of child advocacy groups like Wired Safety in pushing for an adult TLD. “As people learn to demand more and better choices about if, when, and how they will access sexually explicit content or allow unintended pornographic intrusions into their – or their child’s – online activities, the market will select the most responsible sites,” Wired Safety’s Parry Aftab writes.
The ease with which .xxx addresses can be filtered is a double-edged sword, however. Many fear that ISPs may filter adult material as a matter of course, or that the companies responsible for the infrastructure of the Internet may quietly filter out material they find objectionable. “The switching computers that are the backbone of the Internet are privately owned,” says Chicago First Amendment attorney Reed Lee. “No one can say whether pressure could be brought on the companies that own them, or whether they might voluntarily decide that .xxx isn’t coming through their switches.”
“But I Already Have a .xxx Domain Name... ”
If you’ve already purchased a .xxx TLD through New.net, Registeryfly.com, or any of the several other companies that have been offering sexy domain names for the past few years, you might be out of luck. Their domains are not A-root domains, so they require a browser plug-in in order to be viewed. As of press time, no deal has been struck between any of the registry companies and ICM Registry regarding the fate of those who have purchased .xxx domains, although New.net is hopeful.
“If a new .xxx TLD is approved by ICANN, it would be our every intention to work with the applicants to ensure a smooth transition for current New.net .xxx name holders and avoid consumer confusion,” says New.net CEO Dan Sheehy. “Also, having operated the .xxx registry for over three years, we’re confident that we could help impart some of our practical experiences operating the .xxx TLD, and that this could have the promise of a great business relationship between New.net and ICM.”
“The New.net domains, as much as they are technically functional, don’t integrate properly with BIND or a lot of the other technologies that make the Internet work. So you’re not going to be able to use your e-mail, or properly perform the functions that a normal A-root performs,” says ICM Registry’s Hendeles. “If a customer bought those domain names believing they were going to get something other than what they got, then there’s an issue.”
Mandatory Vs. Voluntary
A quick look at Webmaster boards reveals a common misconception about .xxx: Many seem to believe that this proposal means a forced relocation from .com to .xxx. “The most frequent misplaced concern I encounter regarding the .xxx TLD proposal is that, somehow, use of the .xxx TLD will become a legal requirement for online adult entertainment businesses,” says attorney Piccionelli. “It would clearly not be required by ICANN, if ICANN approves the new TLD. As to whether use of the .xxx domain would, at some point in the future, become mandatory to disseminate adult content via the Web under United States laws, that is theoretically possible, but very unlikely.”
“The big fear is the U.S. government is going to force all adult Webmasters into that zone, but I don’t think, constitutionally, that can be done, based on prior precedent,” says Walters. “The bottom line is that any kind of voluntary categorization or rating system cannot be used by the government, constitutionally, to punish or impose restrictions on free speech.”
Not everyone shares Walters’ and Piccionelli’s assurance, however. “I don’t see why [Walters] is so confident of that,” answers Lee. “Thirty years ago, one might have thought there’s no possible way the government can apply differentially restrictive zoning laws to bookstores... but The Supreme Court has a standard of review for laws that is more generous to the government when the government isn’t trying to ban something outright, but merely saying, ‘Say it over here rather than over there.’”
Free Speech and .XXX
Most on both sides of the argument have little realistic hope that .xxx will establish any kind of legal protection against the Federal and local obscenity prosecutions that seem to loom over the adult world. “That’s a pipedream,” says Lee. “Under current law there’s no corner of either an adult bookstore, adult movie theater or some corner of the Internet that can be set up where ‘anything goes.’”
While .xxx will not create a “free-for-all” zone on the Internet, it could protect against prosecution involving the Truth in Domain Names Act and other laws. “Certain safe harbors are provided if the Webmaster uses a domain name with the words ‘porn’ or ‘sex’ as part of the selected URL,” writes Walters. “It is not impossible that the government would consider expanding the scope of the safe harbor provided by this Act to any site using a TLD indicative of adult content, such as .xxx.... An argument can be made that any .xxx domain name should be exempt from prosecution under child protection legislation, such as COPA, seeking to impose methods of age verification on commercial adult content. Since filters could effectively block .xxx domain names at the choice of parents, such age verification requirements may logically be rendered unnecessary.”
“If you see ‘.xxx’ at the end of an address, it’s hard to argue that you didn’t know it was an adult site,” adds Hendeles.
The Cash and the Control
Potential benefits for the Web notwithstanding, no one is doing this for the love. ICM Registry stands to make a fortune off the sale of .xxx domain names. Initial projections are between 50,000 and 100,000 domain names sold at $60 each. As you’d expect, this has generated some intense discussion among certain members of the adult community. “They came to the Free Speech Coalition because ICANN rejected a .xxx proposal before, because they didn’t have the support of the adult Internet community,” says Lee. “Aren’t there people who have been around the adult industry a lot longer who would deserve to be in a position to put this proposal forward, and would deserve to be in a position to profit from it?”
“The FSC debated the .xxx issue at length, on a board level and amongst its members. Despite their membership being 95 percent offline and only 5 percent online, the FSC held a special members’ meeting on [Aug. 23, 2003], and a majority of the members [by a show of hands] supported the proposition,” says Hendeles. “As Bill Lyon was an opponent, and was not happy with this result, he rejected the outcome of the vote and decided that the Board would decide on the matter. The Board was split, and we were informed that the FSC would neither endorse nor oppose the application.”
