educational

The Real Danger: .XXX

Gregory Piccionelli
Editor's note: this article was written before yesterday's decision by ICANN to reject .XXX for a third time. It is still relevant, however, since some observers feel that we still haven't heard the last of .XXX:

If you follow the adult entertainment industry's trade news publications or participate in the industry's boards or blogs, you might reasonably conclude that the business is beset by legal dangers on all sides. From the threat of 2257 inspections to the risk of federal and state obscenity prosecutions, proposed new laws and tax online adult businesses, it's getting harder for a typical adult entertainment entrepreneur not to believe that his government is out to get him.

Because of this perception, I am often asked to share what I feel is the biggest danger faced by an adult entertainment business today. My response is often greeted with surprise because my answer is not "2257 inspections" or "the threat of obscenity prosecutions." Instead, I believe that the single greatest danger to the adult entertainment business is the resurrected, and potentially imminent, threat that the Internet Company for Assigned Names and Numbers (ICANN) will grant a new .XXX top level domain (TLD). When asked why I feel the .XXX TLD is so dangerous, I refer to the following quote from one of Abraham Lincoln's speeches given at a time when the threat of Civil War loomed over our nation:

"At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant to step the ocean and crush us at a blow? Never. All the armies of Europe, Asia and Africa combined could not, by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years. At what point then is the approach of danger to be expected? I answer that if it ever reach us, it must spring from amongst us; it cannot come from abroad. If destruction be our lot, we ourselves must be the authors and finishers."

Free Speech Survives
Providers of adult entertainment in the United States have always had to contend with the fact that a significant number of Americans are hostilely opposed to erotic materials and those who sell them. As a result, adult entertainment entrepreneurs and their attorneys have been forced to fight innumerable legal battles over the years against governmental attempts to destroy their businesses and send them to jail. Fortunately, thanks to the protections of freedom of expression guaranteed us by the U.S. Constitution and the constitutions of the states, the industry has not only survived, it has enormously grown, despite the relentless efforts of its enemies to destroy it.

In fact, in contrast to the opinions of many of my colleagues, I firmly believe that the adult entertainment industry is on the verge of winning the culture war being waged against it. Despite the efforts of the industry's enemies, global acceptance of mainstream erotica continues to grow, and many now believe that it will not be long until some segments of the adult entertainment business will merge with — and be indistinguishable from — some segments of the "legitimate" mainstream entertainment business.

So, at what point should the adult business expect the approach of danger? Should the industry expect some massive obscenity prosecution sweep to crush the adult business in a blow? Unlikely. Adult entertainment is now a part of American culture, in our homes, hotels and communities virtually throughout the land. Proving that mainstream porn violates community standards almost anywhere in the U.S. will be a difficult task. Instead, shall we expect 2257 prosecutions to bring the industry to its knees? I think not. Thanks to recent amendments, that most perverted of laws is now more vulnerable than ever to constitutional attack.

So at what point is the approach of danger to be expected? If ICANN approves the .XXX TLD, it may well be that the next real threat to the business will spring from the industry itself: acceptance and use of the .XXX TLD.

The .XXX TLD poses a threat unlike any the industry has seen before. It is a danger that deceptively cloaks itself as a friend to the adult entertainment business like a wolf in sheep's clothing. It seeks to seduce industry entrepreneurs with promises of increased traffic and increased domain name asset value while it quietly lays the groundwork to subvert the very basis of the industry's online success: uncensored access to constitutionally protected adult materials by adult web users. But most importantly is the fact that a .XXX TLD can wreak catastrophic damage upon the adult entertainment industry and the free speech rights of millions even if no government ever mandates its use.

Here's why: Politicians in the U.S. and in other countries have traditionally exploited their constituents' discomfort with sexual materials by enacting regulations restricting the creation or distribution of adult content for the stated purpose of "protecting minors."

Unfortunately, many bad laws and a lot of damage to free speech rights have resulted from the enactment of laws under the guise of protecting kids. One particularly egregious example is, of course, the 2257 regulations.

.XXX has been promoted by some also as a tool to protect children by providing a means to effectuate user filtering of adult websites using that TLD. This seemingly commendable purpose masks a great threat to the adult online industry and to the free speech rights of millions: the likely probability that a voluntary use of .XXX by the adult entertainment business will soon become a mandatory obligation for distribution of adult content under U.S. law or the laws of other countries. If you doubt this assertion and are wondering if there actually is governmental interest in "ghettoizing" adult websites with a mandatory TLD, look no further than the U.S. Senate where the Cyber Safety for Kids Act of 2006 was introduced. The bill, which fortunately failed to become law, would have required any commercial website publishing sexually explicit materials register and operate under a new special adult TLD that would be established through ICANN. The sponsoring senator has promised to reintroduce the proposed bill this term.

Fight Without Protection?
It is important to understand, however, that even if the U.S. never enacts .XXX use for the online adult entertainment industry, since the World Wide Web is truly world wide, the problems of filtered exclusion and ghettoizing adult websites will occur if other countries make the TLD mandatory. Also, it is important to remember that in the case of foreign mandatory .XXX regulations, the industry will not have the mighty sword of the First Amendment to smite its foreign enemies.

Perhaps more importantly, however, is the fact that the use of a .XXX TLD by adult websites might become a mandatory requirement imposed not by governments, but by providers of critical services to adult site owners, such as merchant bankcard processing and search engine placement. It is not hard to imagine that if .XXX is established, relatively soon thereafter payment processors could, and probably will, announce a new "Visa regulation" requiring participating sites to operate in the .XXX domain only.

Therefore, given that a .XXX TLD would allow not only in-browser filtering, but also source filtering or — even worse — switching system filtering, the TLD imposed by governments and/or providers of critical services could provide the adult industry's enemies with the technical means to severely constrict the industry's online presence at a time when virtually all adult content distribution is migrating to a web-based platform. Thus, if the industry embraces a voluntary .XXX TLD, it starts down a path that will likely provide the industry's enemies with the means to accomplish what they have so far failed to do through obscenity or 2257 legislation: severely limit the size, scope and power of the adult entertainment business. It would be a truly unfortunate act of self-destruction at a time when the industry at last stands poised to join the ranks of mainstream business.

If it is approved by ICANN, the chief proponent and would-be operator of the .XXX TLD, ICM Registry (ICM), promises that it and the non-profit organization in charge of setting the rules for the TLD's use, the International Foundation For Online Responsibility (IFFOR), will fight to keep .XXX voluntary. But such promises are, at best, unlikely to result in the prevention of mandatory .XXX use for a number of reasons.

First, neither ICM nor IFFOR are likely to have sufficient funds to effectively fight every country in the world that may try to require adult websites to use the .XXX TLD. Such an endeavor could cost tens of millions of dollars.

Second, even if ICM, alone or in conjunction with IFFOR, were able to fund such battles, it would be fair to question their level of motivation to fight and win them. After all, it seems virtually certain that a mandatory regime requiring the use of a .XXX TLD by adult websites would result in greater registrations, and therefore, greater income to ICM than a purely voluntary opportunity to use the .XXX TLD.

Even assuming what appears to be an impossible scenario, namely that through litigation or luck, no country requires mandatory participation by adult sites, the online adult entertainment industry could, and probably would, be confronted with the more formidable challenges associated with the TLD's use required by private parties as a condition to receive critical services. For example, it is clearly foreseeable that certain parties, such as credit card processors, might be pressured into requiring that adult websites only use .XXX web pages and comply with all .XXX requirements imposed by IFFOR as a condition for doing business with the processor.

History has shown that this type of private censorship can be even more severe and intractable than governmental censorship. For example, for decades throughout the middle of the last century, producers of motion pictures did not dare shoot or attempt to release a film that did not comply with the Motion Picture Production Code of 1930 (Hays Code). The reason why producers and movie studios strictly adhered to the Hays Code was simple: virtually no theaters would screen a film that was not in compliance with it. As a result, from the 1930s until the late 1960s, moviegoers virtually never saw couples in the same bed, interracial love scenes or even "lustful kissing," as all of these depictions were strictly prohibited by the Hays Code.

Today, the successor to the Hays Code, the MPAA rating system, also effectuates a powerful form of private censorship, insomuch as producers intentionally avoid creating films that include content that will cause the film receive an "R" or an "NC-17" rating because many newspapers, as well as many radio and television stations, will not run advertisements for motion pictures with those ratings.

The Poison Pill
ICM has repeatedly tried to assure the adult entertainment industry that concerns about mandatory adult website use of the .XXX TLD by law or by critical service providers is overblown and that it has the industry's interests at heart. However, given the magnitude of potential damage to the adult entertainment industry that would result if .XXX becomes mandatory, it seems clear that the industry cannot just rely on ICM's repeated "trust me" assertions.

Consequently, I believe that if ICM has been sincere and truthful about its representations that it will operate the .XXX TLD for the benefit of the adult entertainment business, it should include in all its agreements a "poison pill" that would terminate the TLD in the event that its use actually becomes a mandatory requirement by any government or critical service providers, such as credit card processors. Unfortunately, I have presented this suggestion to the President of ICM on several occasions over the last two years, without any serious response to date.

Finally, the Free Speech Coalition is adamantly against the adoption of a .XXX TLD. Consequently, if you are concerned about the matter and do not want ICANN to approve its use, please contact the Coalition at (866) FSC-9373.

It is said that the easiest way to stop smoking is not to start. Analogously, I suggest that the easiest way to avoid the catastrophic problems that would be associated with a mandatory use of a .XXX TLD is to not let it become a reality in the first place.

Gregory A. Piccionelli is an Internet and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com.

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