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Recent COPA Ruling Shedding Light on Usefulness of XXX as Voluntary Self Regulatory Vehicle?

ICM Registry applauds the decision yesterday of Judge Lowell Reed of the United States District Court for the Eastern District of Pennsylvania in ACLU v. Gonzales to permanently enjoin enforcement of the Child Online Protection Act (“COPA”). Praising Judge Reed’s meticulously documented opinion, ICM Registry President Stuart Lawley said, “This continues the unbroken chain of court decisions in the U.S. upholding free expression on the Internet, and it underscores the superiority of voluntary measures that empower users to select content compared with government regulations.” Lawley concluded, “Now, more than ever, it underscores the need for ICANN to approve the proposal for a voluntary .xxx domain as another alternative to government regulation.”

Judge Reed’s decision permanently enjoins enforcement of COPA, which has never gone into effect since it was adopted by Congress in 1998. The law is intended to prevent children from gaining access to commercial pornography, described as material deemed “harmful to minors.” But despite the law’s laudable goals, the court found that it violates the First Amendment because it is not narrowly tailored to achieve its objectives. In particular, the government failed to show that the law could be as effective as voluntary measures such as filtering of unwanted content. Finally, the court held that the law was both vague and overly broad.

The court’s analysis of voluntary filtering, based on an extensive record compiled after a month-long trial, demonstrated the futility of government regulations designed to control online speech. It found that “a significant amount of sexually explicit material on the Internet . . . originates from outside the United States” and that “COPA has no extra-territorial application . . . unlike Internet content filters which are able to block from view unsuitable material regardless of its origin.” At the same time, it found that voluntary use of filters can block unwanted content 90 to 99% of the time, and, unlike a law, can be tailored to meet the concerns of individual households and customized to meet the needs of different ages within each household.

“These findings fully support the approval by ICANN of the .xxx domain,” Lawley said, “because doing so would improve the accuracy of voluntary filters and would put in place ‘best practices’ by adult websites.” He added, “Not only could a .xxx domain help filters block access by minors to adult content, it could help reduce the rate of overblocking that the court identified.” The court found, for example, that some filtering products, depending on how they were configured, inadvertently blocked non-sexually explicit content up to 33 percent of the time or more. “The use of more precise labeling by virtue of a .xxx domain, as it has been proposed by ICM Registry, could reduce the incidence of overblocking and serve free speech interests.”

Finally, Lawley noted that the ACLU v Gonzales decision should help allay fears as expressed by some that lawmakers might attempt to create a mandatory domain for adult material. “Judge Reed’s decision shows that such regulatory approaches are unnecessary, heavy handed, and doomed to failure,” he said. “Among other things, the decision highlights the fact that any attempt to impose control by legislative fiat is inherently inferior to voluntary marketbased measures that can help parents control access to a global medium in their own homes.” He added, “This conclusion fully applies to current legislative proposals to impose mandatory labeling requirements.”

Lawley called on ICANN to end its delay and finally approve ICM Registry’s proposal for a voluntary .xxx domain. Failure to do so might well prompt lawmakers to champion additional regulations for the Internet. “Particularly now, after this further setback in the decadelong battle to implement COPA in the United States, we should focus on ways to make voluntary measures more effective and to move away from damaging and futile regulations.”

By CircleID Reporter

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Brandon Shalton  –  Mar 25, 2007 5:35 PM

This is an absurd argument that ICM has presented in referencing COPA.

Nowhere in history has any sTLD been pitched to be used to filter or block access.  ICANN’s expansion of sTLDs was to open up namespaces for the “sponsored community”.

.XXX has been stated by ICM that it will protect children from adult content, but it has failed to demonstrate how .XXX can do that, when a .XXX extension is VOLUNTARY.

ICM has also stated that .XXX will keep out pedofiles.  Today, pedofiles use .COM domains

Why does a registar allow “lolita” to be used in the domain name? 

Suppose that 100,000 adult .COM websites registered .XXX:

1) there are still 100,000 .COM websites that children can find combined with 100,000 .XXX domain names newly added

2) parental filters aren’t install on a childs computer that could block the adult .COM today. There are several free and paid software that can block a large majority of adult sites today.

3) there is easily over 1M adult related domains that the “protection” comes down to swiss-cheese coverage for the minority of domains that “voluntarily” use .XXX.

.XXX can only achieve a closer level of protection, if it made mandatory by ICANN or governments.

ICANN could say that all adult related content must move to .XXX and give up its .COM

Governments could say if you are hosted in our country, you are required to move your adult .COM content to .XXX and turn off the .COM

ICM’s profit model is based on the selling of .XXX domains at a premium rate of $60/domain/year.

It would be their most profitable business case that .XXX be used as a mandatory tool.

The applauding of COPA’s enjoinment is a thin vale for what the wizard really wants.

.KIDS TLD combined with simple white-list filtering inclusion in web browsers and search engines is really the best way to truly protect children in addition to good parental controls and interest in their children’s online activities.

Lastly, ASACP.org (Association of Sites Advocating Child Protection), which is an organization funded by adult online entertainment companies, created its own labeling system found at http://www.rtalabel.org which is FREE and can serve as a filtering mechanism for software applications.

The Famous Brett Watson  –  Mar 26, 2007 8:43 AM

This is an absurd argument that ICM has presented in referencing COPA.

I disagree. The short version is that the overthrow of COPA, being yet another in a long line of defeats for censorship laws enacted in the name of child protection, demonstrates that the legislative approach is ineffective. The “.xxx” proposal offers a means whereby sites can identify themselves as unsuitable for minors, thus facilitating private filtering of the Internet at the recipient level, and making a positive contribution to the protection issue. I see nothing absurd about this argument.

.XXX has been stated by ICM that it will protect children from adult content, but it has failed to demonstrate how .XXX can do that, when a .XXX extension is VOLUNTARY.

The “.xxx” domain can be used to protect minors from adult content. It can’t be used to protect minors from all adult content, or even that subset of adult content which is on the Internet, but it can protect them against that subset which appears in the “.xxx” domain. If the exact same material appears in a different domain, the listing in “.xxx” can still be used to identify the other material as unsuitable for minors, although this is clearly a more sophisticated technique than simply blocking resolution of “.xxx” domain names.

.KIDS TLD combined with simple white-list filtering inclusion in web browsers and search engines is really the best way to truly protect children in addition to good parental controls and interest in their children’s online activities.

I grant that there is no substitute for parental involvement. In fact, it is primarily the responsibility of the parents to decide what material is suitable for their children. All simplistic mandatory classification schemes work against this end by drawing the line somewhere that is too permissive for some, too restrictive for others, and along the wrong boundary entirely for still others.

A voluntary “.kids” domain for sites intended to cater to children is not in itself a terrible idea, but it would need much tighter restrictions and policing than “.xxx” by nature of its use as a whitelist. It would represent the intersection of beliefs in a community as to what is suitable material for children, and thus be extremely restrictive: every additional voice can further restrict, but not expand the set. It would be the kind of “walled garden” that has failed to attract popular interest when the wild and woolly World Wide Web has been available as an alternative. I also suspect that “child-safe certification” is better implemented through some means other than the issuing of second-level domain names.

But go ahead and propose a “.kids” domain, even if I think it’s a non-starter. I’ll turn your accusations of “absurdity” back against you if you consider it an alternative to “.xxx” (as opposed to an additional mechanism), however. There’s nothing inherently mutually exclusive about them. Those who would oppose “.xxx” should do so on the basis of how it might be actively harmful in its own right, not on the basis that it does not further a particular agenda, or provide a perfect solution to some problem or other. If “.xxx” doesn’t solve your problem, that’s probably because it’s not obliged to do so, and it’s unreasonable of you to expect it to do so. If it creates some new problem for you, on the other hand, then you have a legitimate complaint.

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