Wednesday’s announcement that the Internet Corporation for Assigned Names and Numbers has entered into commercial and technical negotiations with ICM Registry for the sponsored Top Level Domain (sTLD) .xxx raised more eyebrows than excitement. If all goes according to schedule, domains in the new sTLD will be available sometime between November 2005 and February 2006.
Support From the Industry
Although it is being marketed as a way to do away with child pornography and to keep minors away from adult entertainment, not everyone sees it that way.
While ICM has engaged in discussions with free speech groups and advocates like the Free Speech Coalition, the Center for Democracy and Technology, Internet Content Rating Association, and adult industry attorneys Bob Corn-Revere and Larry Walters, it has not received support from all of them.
The Free Speech Coalition went as far as to release a statement saying it does not support .xxx. “The Free Speech Coalition does not now and never has supported a .xxx TLD, because the membership voted it down,” FSC Communications Director Tom Hymes told AVNOnline.com. “We don’t think it’s consistent with the best interests of the industry.”
The organization voted on the issue last year. Three sources told AVNOnline.com that several new members were registered shortly before the vote in an effort to stack the odds in support of the measure. Among the critics of that action was Spike Goldberg,chairman of Internet Media Protection Association and CEO of Homegrown Video.
“When this thing came to Free Speech a year ago, it was brought in politically by people who had a stake in it,” Goldberg said. “We want to see everyone run a business ethically and above board and do everything we can to keep these things away from children, but what I don’t want to see is some carpetbagger walk into the industry and take money from people under false pretenses.”
However, ICM is not deterred by naysayers. The company’s yet-to-be-appointed seven-member board will include a member to speak for free speech.
“Free speech concerns are extremely important to us, and as such, we have taken the extraordinary measure of creating a legal defense fund of a minimum of $250,000,” Jason Hendeles, vice president of strategic business development for ICM Registry, told AVNOnline.com. “In addition, one of the board members of the foundation will represent free speech issues and will work with [the International Foundation for Online Responsibility] to ensure that our charter is secured,”
The Price of Support
The per-year registration cost for .xxx domains reportedly will be $75 each. Domains currently go for $35 a year at Network Solutions, and for as little as $7.95 a year at other registrars.
Goldberg referred to the situation as “a backroom, handshake” type of deal. “If these guys really wanted to help kids out, they should be selling these domains for the same amount as other domains out there,” he said.
Of the $75, $10 will go to the non-profit International Foundation for Online Responsibility, which was created by ICM to oversee and establish a best-practices policy for webmasters who operate sites at .xxx URLs. According to IFFOR, its funding will be used to encourage the adoption of .xxx within the adult industry, encourage communication between the adult industry and the Internet community at large, promote the principles of free expression, protect the privacy and security of consenting adult consumers, and “promote the development of business practices to safeguard children online and combat child pornography,” among other things.
In some cases, the organization’s funds will be divested among industry groups in pursuit of IFFOR’s goals.
“Obviously, a high priority is battling child pornography, and we’d prefer to support groups that are better positioned to handle those functions than we are,” Hendeles said. “Groups that support free speech and battle child porn, we will sponsor those groups, but we have not made any specific commitments yet.”
Hendeles’ remarks notwithstanding, the adult industry news organization owned by Association of Sites Advocating Child Protection founder Alec Helmy reported on Wednesday that “of those proceeds, a percentage will be donated to the Association of Sites Advocating Child Protection and the battle against child pornography.”
Helmy was not available for comment. The ASACP officially went non-profit in January of this year.
Although she wrote a letter to ICANN in May 2004 applauding IFFOR’s efforts to monitor the sTLD for child pornography and report any suspicious materials, ASACP Executive Director Joan Irvine stopped short of professing support for the sTLD when reached on Thursday.
“I have absolutely no opinion on whether it should be established or not, “she said. “Our concern is if it’s being established that we can help in their child protection efforts.”
Irvine also noted that ASACP would not be the only child-protection organization benefiting from IFFOR investments. She also said IFFOR has mentioned supporting WiredSafety.org.
ICRA also has been involved in the .xxx process for several years. “The guys involved [with ICM and IFFOR] first spoke to us three or four years ago, and we broadly support any effort to create more safety within the Internet,” ICRA CEO Stephen Balkam told AVNOnline.com “This is not the answer. It’s not the total solution, but it is a very interesting concept that we’ve broadly supported, as they have strongly supported us.”
Where’s My Domain?
The announcement of ICANN's approval of ICM's .xxx application drew unsubstantiated rumors of pre-registration almost immediately. Hendeles hastened to assure webmasters their existing trade names are safe.
“Be assured that not a single domain name has been pre-registered or will be squatted upon,” Hendeles said. “While there is always the risk of fraud, we are confident that the registration agreement and company policy and procedures will both prevent and correct any abusive registrations.”
In fact, no domains can or will be registered until ICANN puts the finishing touches on .xxx. “We anticipate our process will take somewhere from six to nine months before the ICANN board actually approves the agreement,” ICANN spokesman Kieran Baker told AVNOnline.com.
Along those same lines, ICM plans to implement policies to protect brands that are already established in existing online realms, though what those policies might be is not clear yet.
“With respect to generic words, there is no party which has a proprietary claim,” Hendeles said. “However, we will be implementing policies that preserve consumer expectations relative to established brands and to protect against abuse of trade[mark] or service mark rights in them.”
“We have these issues now,” LightspeedCash owner Steve Lightspeed told AVNOnline.com. “The day I come out with a new site, like EricaLightspeed.com, some asshole will register Erica-Lightspeed.com to try to get one-up on the search engines. That is why we have trademarks on our important names.”
Others are in a different boat, though. Gary Kremen, owner of Sex.com, said he would go to court if someone were allowed to purchase Sex.xxx.
Voluntary to Mandatory?
Although .xxx is not established yet, the prophets of doom already are predicting the new sTLD is an open invitation for governments to step in and regulate. Further, some believe that while registration of a domain under the .xxx sTLD is voluntary, it could become mandatory.
“I fully expect that at 2 o’clock in the morning, when Congress is winding down in the present session or next session, Senator Brownback is going to stand up and attach it to some bill that absolutely has to get passed because it appropriates funds for caskets for American G.I.s’ bodies returning from Iraq,” First Amendment attorney Joe Obenberger told AVNOnline.com. “He’ll attach .xxx as a mandatory domain. I expect something like that will happen. We’re seeing the rollout 1.0, and 2.0 will be mandatory. Jason [Hendeles] will have plausible deniability and say, ‘We didn’t do it.’
“Any effort made by the government to coerce the use of this will be met by Constitutional litigation by free speech lawyers,” Obenberger continued. “I believe the ghetto-ization of the adult Internet would be the first step towards its extermination. You round up the people you don’t like, you give them an insignia, and then you exterminate them. It’s happened before in other areas of society.”
Hendeles called the notion of a mandatory domain “nearly impossible.” Others agree with him.
“There are checks and balances,” ICRA’s Balkam said. “For the most part, governments have not acted in this way, particularly in the United States where there are First Amendment protections. Being part of the [Child Online Protection Act] Commission in 2000, I’m very aware of what all the options are, both with the industry and government, and I think it’s extremely unlikely that government would try and regulate this.”
Corn-Revere, a partner in the Washington D.C. law firm Davis Wright Tremaine LLP, has worked with ICM and IFFOR on the voluntary-versus-mandatory issue. In a letter to ICANN, he laid out the legal protections for the domain’s voluntary nature, stating in part, “… [A] law in the U.S. (or any other country) requiring registration by certain Web sites in .xxx would be futile. More to the point, an unconstitutional law would not ‘remain on the books’…. Significant legal barriers exist to mandating registration in an ‘adult’ domain, and the proposal of ICM Registry and IFFOR for .xxx includes a commitment to maintaining the voluntary and non-exclusive nature of the domain.”
While some, like Obenberger, are skeptical about Corn-Revere’s claims, others see .xxx as just another bump on the adult information superhighway. “People are freaking out,” Lightspeed said. “I can understand some of it, but this is still a business and .xxx will be just another business challenge to deal with. Nothing will stop this industry as long as there is a demand for porn.”
