LOS ANGELES - Creation of a dot-xxx domain will not significantly assist parents because, even if all American adult Web companies joined the domain, that would leave hundreds of thousands (or millions?) of offshore websites free to continue their business outside of dot-xxx.
Creation of a dot-xxx domain will force American website operators to consider taking their businesses off shore so they have the same advantages this bill creates for foreign businesses. Consequently, this bill could increase unregulated foreign adult content.
Dot-kids is preferable to dot-xxx because the domain operator will be able to control the granting of domain registrations, limiting them only to websites with content appropriate for children, thereby creating a guaranteed safe area on the Web. Creation of dot-xxx will not accomplish that, because innumerable foreign adult websites will exist outside the dot-xxx domain.
Existing American adult Web companies have committed significant money and effort to developing their brands. Branding in the context of the commercial Internet includes popularizing the domain on which the website exists (usually either dot-com or dot-net). Forcing American adult Web companies to abandon their brands (like “Hustler.com” or “Vivid.com”) will impose severe and unwarranted economic penalties on American adult Web companies, while leaving foreign companies free to exploit the dot-com and dot-net domains.
Forcing existing American adult Web companies to switch to a dot-xxx domain will make “Web Sooners” out of them. Established companies will be forced to race to obtain dot-xxx domain registrations that most closely resemble their current URLs, and there is absolutely no guarantee that such registrations will be available or granted pursuant to standards protecting the established companies. Of course, trademark and copyright protections may prevent third-party use of lawfully established marks, but it is inevitable that involuntary application of the dot-xxx domain will create extensive and costly litigation.
Given the number of American adult websites that will be affected by the dot-xxx domain bill, it is inconceivable that the domain operator appointed by ICANN will be able to process all of the applications and grant all of the domain registrations within the six-month registration period set forth within the bill.
The bill requires that the operator of the dot-xxx domain establish a board “with diverse membership” that will be responsible for creating the criteria governing acceptance of registrations for the domain. The bill fails to establish qualifications for board membership and limitations on the exercise of board members’ discretion in forming and applying criteria for acceptance of domain registration applications, thereby creating the opportunity for board members to interject personal, moral, or subjective agendas into the registration acceptance process. For instance, the board members might decide that dot-xxx domain registrations will not be granted to websites the board deems obscene in light of the board members concepts of that standard.
Section 5(b)(1) exempts the dot-xxx domain operator from civil liability for actions voluntarily taken by it in good faith to “restrict to minors access to the new domain to, or availability through the new domain of, material that is harmful to minors.” This strongly suggests that the dot-xxx domain operator will be permitted the freedom not only to restrict minors’ access to the domain (perhaps by requiring ISPs to use filters, instead of leaving it to parents), but may also be permitted to regulate content offered within the dot-xxx domain. This obviously raises significant First Amendment issues.
Paul Cambria is a preeminent First Amendment attorney and the general counsel for the Adult Freedom Foundation, an organization dedicated to protecting First Amendment rights and countering attacks on the adult entertainment industry.
Legal
- By
