Michael Yuri

I just read this article on Findlaw's Writ about the proposed .xxx top level domain. Unfortunately, this article manages to completely miss all of the nuances in the debate, by hiding a critical premise underlying the author's argument.

Here's how the author frames the issue:

Let's face it -- adult content, including explicit sexual pornography, runs rampant on the Internet. Internet users can implement specific searches looking for such content, and normally they will find what they are looking for. Other times, people inadvertently will stumble onto such explicit content when searching for something else; indeed, a domain name may give one the impression that the site is suitable for a general audience of all ages, only to turn out that it displays graphic sexual content that is inappropriate for minors or adults not wishing to view such content. So, what to do?

So the problem is that people who don't want to access explicit content have difficulty avoiding it because it is so ubiquitous. Okay, fair enough. But how does creating a new top level domain solve the problem?

Well, the author tells us:

[A]n Internet user easily could judge, based on seeing a .xxx domain name, whether the user truly wanted to visit such a site to view adult content, or if the user wanted to avoid visiting and seeing such content.

And:

[I]f one knows in advance the type of content displayed on a Web site by way of a domain name designation, that individual then has the power and free will to decide whether or not to view that content.

So what's missing? There's no explanation of how simply creating a new top level domain will do anything whatsoever about the innumerable adult websites already existing outside of it or any new ones that may be created even after the .xxx domain comes into existence. The hidden assumption here is that the creation of the .xxx domain will accomplish this goal by working in conjunction with some sort of purge and forced relocation of adult sites in the existing top level domains.

And this exposes the real battle lines of the debate. If the new domain is completely voluntary and has no effect on the use of the existing domains, then free speech advocates have immediate complaints. But this doesn't make the anti-indecency crusaders happy at all. It does nothing to reduce the glut of pornography already out there under .com or .net or anywhere else.

On the other hand, anyone who's concerned about civil liberties on the internet should be worried about the possibility that the anti-indecency side might win out and leave the .xxx domain the only acceptable place on the internet for explicit sites. All the familiar arguments over where the line is drawn on indecency and who gets to draw it (especially with international organizations like the UN itching to take a bigger role in controlling the internet) will be back in play.

The proponents of the new top level domain have tried to stake out a position in the middle. Use of the domain will be completely voluntary, but it will be overseen by a governing board, and will provide a forum in which the industry can self-regulate.

This kind of self-regulation may provide a benefit to porn consumers if it really provides a place where they can be free of malicious sites and credit card scams associated with the seedier side of the internet, but it will do nothing to benefit people who are trying to avoid pornography unless its accompanied by additional measures to force explicit sites out of the other top level domains.

Some have suggested that the whole thing is a protection racket. Pornography companies will buy .xxx domains to demonstrate that they are following the rules and being good citizens to avoided being targetted by politicians looking to crack down on obscenity.

I think it looks more like a classic case of Bootleggers and Baptists regulatory capture. The established players in the industry want to create the "voluntary" standards. They hope these standards will eventually be imposed on everyone, imposing heavy costs on low budget operations and limiting competition. Meanwhile, the anti-indecency crowd is hoping that the existence of self-regulation among the more "respectable" companies will give them the ammunition to go after the non-complying companies.

This outcome is hardly far-fetched. Joi Ito, a member of ICANN's board who is a proponent of the new .xxx top level domain, has responded to censorship concerns by saying:

I think the .XXX proposal is more about creating incentives for legitimate adult entertainment sites to come together and fight "bad actors" and is not focused on forcing people to use the .XXX domain.

But how do the "legitimate" sites have any power over bad actors if there's nothing compelling these sites to buy into the .xxx domain? Later in the post, Ito endorses another blogger's summary of the situation which says in part:

The fact that .XXX could be a political hook on which the governments of the world could hang Internet zoning laws could make the decision more palatable, but it's still a political minefield for ICANN.

In other words, governments will buy into .xxx because it will give them political cover for internet censorship. Politicans like Joe Lieberman endorsed the creation of the .xxx domain for the explicit purpose of forcing all adult sites out of the wider internet. Vinton Cerf, the Chairman of ICANN, explained in a Congressional hearing the reasons for ICANN's initial rejection of .xxx:

[O]ne of the problems that we encountered is not knowing how we would prevent any pornographic sites from registering in other than xxx. The principal question was enforcement. It wasn't clear how to do that and whether it could be effectively done.

But all of these issues are hidden if you ignore the ugly details of how the proposal could actually achieve the promised results.