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The Real Problem with dot-XXX

Shakespeare has Marcellus say in Act 1 of Hamlet, “Something’s rotten in the state of Denmark.”

Meredith Wilson, in the Music Man, sings, “Well, ya got trouble, my friend, right here, I say trouble right here in River City.”

Dick Darman, patron saint of Internet funding in the second Reagan Administration, said, “If it looks like a duck, if it walks like a duck, if it quacks like a duck, then it’s a duck.”

Milton Mueller, in his recent post to this site, would have us believe that since ICANN’s Board long ago agreed that ICM’s application for dot-xxx registry satisfied its own criteria for a sponsored TLD, then the only explanation for all the delay is, “I’m beginning to think that ICANN’s approach to TLD approval was cooked up by a demented sergeant from Abu Ghraib.”

Milton goes on to assert that ICM’s claim on dot-xxx is protected by the 1st Amendment.

If this is so, then why after more than six years of discussion, is dot-xxx still raising such a fuss?

Now, it’s certainly true that the porn industry, which definitely includes ICM, since it says it represents a consensus chunk of that business, has notoriously deep pockets for almost anything it fancies, from leading edge technology, to high priced lawyers, to expensive and well placed lobbyists.

But if this was a money issue, ICANN would have been bought, or not bought, by now and the fuss would be over.

No, there’s something more fundamental at stake.

There are limits to the First Amendment. The report of the U.S. Congressional Research Service [PDF] puts it this way:

“The First Amendment provides: ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’ In general, the First Amendment protects pornography, with this term being used to mean any erotic material. The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography.”

Herein lies the quandary. As a long list of indictments and successful prosecutions attest, Web-based pornography frequently slides into criminality. Not only that, but the freedom and openness of the net have established new frontiers in predatory behavior across state and national lines, to the point that in the US, it takes a joint federal-state task force of lawyers, net experts, FBI agents and local police to try to keep up with the illegal behavior of a pathological fringe.

So what we have, stripped down to essentials, is a moral contest. On the one side are the free expression advocates, such as Milton, who see the greater good in the avoidance of any form of censorship, accompanied by a laissez faire economic conviction that markets will solve most any problem in sight. On the other side are those who wonder how ICANN could have gotten itself entangled in a tawdry business that not infrequently preys on innocent youngsters and enjoys a lot of profit at the same time. How could any amount of rational sounding registry approval process be used as insulation from the downright evil acts which seek cover under the First Amendment?

Six years ago, ICANN’s Initial Board told the pornographers to go away, they weren’t in the business of finding a correct moral position in an ocean of sex. Pornography is the single most profitable application on the Internet, and it hardly needs its own registry to enhance consumer choice or expand its profit horizons.

Is the current ICANN Board going to hide behind process, or is it going to fulfill its own pledge of transparency and take sides on the morality of dot-xxx?

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Kieren McCarthy  –  Mar 14, 2007 10:26 PM

On a related tangent, I would like to quote from a new book called “The Regulation of Cyberspace” from London School of Economics (LSE) law lecturer Andrew Murray.

Murray says his book is an effort “to develop a distinctly European voice” in the Internet regulation area, specifically because the whole debate at the moment is “perilously parochial” through its “North American analysis”. As a Brit who has also followed Internet governance issues closely, I agree wholeheartedly with his view.

And one of the biggest areas that this US bias is most apparent is in the implicit assumption that any and all content on the Internet should be dealt with through the United States Constitution’s First Amendment. An amendment which not only doesn’t exist in all the other countries of the world but which has been the focus of huge and sustained argument within the US itself.

Murray raises this First Amendment bias in his book. He describes it as a “very US-centric view of the discipline of copyright” and points out that copyright was developed in the UK, not the US. He also points out that it took the US over 100 years to recognise the copyrights of other nations and when it eventually did so, it was through an extension of the already existing protectionist provisions NOT the First Amendment.

As such, I would argue that .xxx arguments seen through the lens of the First Amendment are being willfully ignorant of the fact that a gTLD is exactly that - global.

There is no doubt whatsoever that there is an Internet culture that we are all seeking to preserve - that of free-linking, uncontrolled protocols, freedom from state control - but it strikes me that many US actors are tending to bundle - and hence confuse - Internet values with American values. The two are not the same.


Milton Mueller  –  Mar 16, 2007 6:18 PM

Your journalistic skills seem to have dulled noticably since you left the Register. Show me one spot in this controversy where I said that ICANN should be guided by the U.S. First Amendment. Can’t, can you?

The attempt to discredit free expression advocates as US biased is wrong and unfair. Most human rights advocates are globalist in orientation; they believe that individual human beings qua individuals have certain rights and that those rights must not be violated by states, regardless of the race, color or culture of the states—or the individuals—involved. In the free expression domain, if they invoke anything it is Article 19 of the UN charter—which has been ratified by nearly all states.

British anti-slavery activists in the 19th century didn’t limit their campaign to Britain. Nor should anti-censorship activists of the present day limit their campaigns to one country.

Amnesty International, which is based on London, and RSF, which is based on Paris, have strong free expression mandates which they are now extending to the Internet.

In fact, the issue of .xxx is being seen through the lens, not of a particular US law, but of “ICANN as technical coordinator” vs. “ICANN as illegitimate and overbearing regulator.” ICANN should assign top level domains based on defined, objective criteria, criteria which should have nothing to do with the semantics of the name or the content of the web sites that might go under them. Those issues can be handled in other ways. It ain’t ICANN’s job. And it ain’t your job Kieren, I hope, to issue lame propaganda supporting an expansion of ICANN’s role.

Tell me, Kieren: if as you point out gTLDs are global, and national views of free expression differ, how can ICANN legitimately restrict or regulate a TLD based on content concerns?

Have you now dropped the old line that ICANN does technical coordination and are you admitting that it makes global policy, despite having no legitimate process for the representation of individuals globally?

If you are concerned about US parochialism, what do you have to say about the bit and bridle through ICANN’s nose held by the US government? Isn’t it a bit disingenuous to complain about the (supposedly) ill effects of the First Amendment and overlook that? Who do you think you’re kidding?

No, Kieren, methinks you are the one being parochial. Internet governance doesn’t need a “European voice” or a “British voice” or an American voice, it needs a global process and global legitimacy. (And befeore you claim proudly about the British invention of copyright, read a little history about the British invention of press censorship via licensing and the royal monopolies from which copyright evolved, and their effects. Or are you getting nostalgic for Henry VIII?)

Both Kieren and Mike Roberts overlook the fact that by assigning a domain name ICANN neither condones nor condemns the services offered under it. All of those horrible web sites that Roberts is worred about already exist, under .com. The .xxx domain might actually improve things a bit by making them more identifiable. Thus, if a future site registered under .xxx is illegal under US law because it is “obscene” or “child pornorgraphy” there are all kinds of ways to stop it. This moaning about bad porn and child predators is hypocritical. All those things exist, and will continue to exist, whether or not .xxx is approved.

Milton Mueller  –  Mar 16, 2007 6:25 PM

Michael Roberts: you say:
“Milton goes on to assert that ICM’s claim on dot-xxx is protected by the 1st Amendment.”

Please review the exchanges. I claim that ICANN’s approach to TLD regulation inhibits free expression rights, but not first amendment rights.

Sorry, Mike, your assertion was wrong. Please own up to your mistake.

Kieren McCarthy  –  Mar 16, 2007 7:03 PM

I don’t really know what to say in response to that Milton.

I make a point about US-bias in perspectives over online content and I receive in return a personal attack and a meandering diatribe smothered with yet more ICANN conspiracies.

I think the *really* shocking thing about .xxx is how incredibly poor the discussion about it has been. It has barely been below hysterical at any point in the past two years. In this atmosphere it’s no wonder the whole thing has been a mess.

If there’s one lesson to learn from this it’s that we need to devise a system in which future issues such as this are considered dispassionately and logically.


Milton Mueller  –  Mar 16, 2007 11:02 PM

There’s no “personal attack” in holding you to account for accuracy and a logical consistency.

You asserted that I was calling for global extension of a U.S. law. I asked you (and Mike) to document that, because I’m quite sure it’s false, and the whole “US bias” thing is a red herring in the .xxx issue.

I also explained that human rights are often conceived as universal, not as national, and that one can be concernd about ICANN-based limits on freedom of expression without being a US chauvinist. 

What I got in response was a lotta dismissive name calling:

“a personal attack and a meandering diatribe smothered with yet more ICANN conspiracies”

Would you like to stick to issues?

The Famous Brett Watson  –  Mar 17, 2007 9:49 AM

Michael Roberts starts this article with a quotation from “The Music Man”, among others. “Professor” Harold Hill, who proclaimed “trouble right here in River City”, was a classic American con man: he whipped up fear where none was warranted, declared the moral superiority of billiards over the evils of pool (for Pete’s sake!), and spouted finely honed rhetoric which masterfully distracted the listener from its complete and utter lack of substance. He persuaded the credulous masses that they were in the grip of a plague so that he could sell them his phony cure.

Thus, there is a certain aptness in the use of the quotation, although I’m fairly sure it was unintentional. As usually happens when the subject involves “porn” in any way, rhetoric is chaffing up the channel, making rational discussion nigh impossible. This tends to develop into negative feedback, and we’re now at the stage where Milton has lost his cool and is demanding retractions for misrepresentation. The fact of the matter is that he was grossly misrepresented by Michael: I can find nowhere where Milton bases anything on the First Amendment, for instance. But that’s no longer the point: the point is that the discussion has degenerated into a slanging match and angry “you take that back” language. The facts in hand are no longer directly relevant to the subject of discussion: we’re down to bickering about form.

I’ve held my tongue on the issue of ICANN and .xxx partly because I’m deeply cynical: I believe that no amount of rational debate or stating the obvious about the emperor’s nudity will make any practical difference. However, I hate to see a generally sensible forum like CircleID degenerate, and I believe that calling the debate to order may be within the realms of possibility. So first up, chill out, the lot of you. If I had a gavel right now, I’d be banging it and calling “order”. I suspect that Kieren would then order a beer. We would chuckle, and move on.

Here are some suggested issues for discussion. Try to discuss them one at a time, because you’ll get nowhere if you try to discuss them all at once or allow one to drift into another.

1. What is ICANN’s official mandate with regards to the approval of new TLDs? The term “technical oversight” is frequently used: what are the technical requirements a TLD must meet? If the official scope exceeds the purely technical, then what else does it cover? Determining scope is the first step towards determining whether the entity is acting within that scope. Note that the subject is ICANN’s actual, current, official mandate, not what that mandate ought to be in principle.

2. Is ICANN “shifting the goalposts” with regards to proposals such as .xxx? Regardless of the actual requirements being imposed, are those requirements being imposed consistently, or is this a game in which the requirements can be changed post hoc such that an applicant can be tied up in red tape indefinitely at whim? If the approval process is so truly nondeterministic that meeting the stated requirements of approval is not sufficient to gain approval, then it becomes impossible to tell whether ICANN is acting within its mandate or abusing the process to exceed it.

3. Given a particular understanding of ICANN’s mandate, discussed in point #1, argue whether ICANN is explicitly exceeding or failing to meet that mandate in any way. Such a discussion must start with, “for the sake of argument, let us suppose that ICANN’s official mandate is such-and-such.” The mandate itself is not subject to question here, although one could express an argument in terms such as, “they are operating outside their mandate; if their mandate were extended in such-and-such a way, it would fall within their mandate.”

4. Assume, for argument’s sake, that the entity called ICANN is responsible for assessing the pure technical workability of any TLD proposal, and that it does so efficiently and accurately. Should all technically workable proposals be implemented, or should further requirements of a social, legal, or economic nature be imposed on them? Is there any way we can come to universal agreement on these requirements? Is there any way the need for universal agreement can be avoided without resort to imperialism? This discussion brings into focus the difficulty of pleasing all the people all the time, and the need to work around it. Bear in mind that each additional requirement reduces the total number of possible proposals, and mutually conflicting requirements immediately eliminate the possibility of any further development at all.

This isn’t a complete list, but it covers a substantial portion of the actual arguments taking place at the moment. Just remember: one argument at a time, please.

Milton Mueller  –  Mar 18, 2007 6:37 PM

Famous Brett:

Excellent contribution. I plead guilty to losing my cool and accept the gavel. And picking up on the “Professor” Hill con metaphor is a gem. Here’s my quick attempt to answer your questions:

1. What is ICANN’s official mandate with regards to the approval of new TLDs?

Unfortunately that question cannot be answered in general terms until the gTLD addition process is complete. For this (2003 sTLD) round, however, the mandate was stated in the RFP. The most salient aspects of the RFP have to do with what is a “sponsored” domain. Quoting directly:

“The following characteristics, among others, should be present in an sTLD:

(a) registrations must be limited to registrants from a well-defined and limited community, including members of a Sponsoring Organization (if indeed the Sponsoring Organization is a membership organization);

(b) the scope of activity and the limits of registrations must be circumscribed by a clear charter;

(c) in a hierarchical policy environment, the charter must clearly define which policy responsibilities are delegated from ICANN to the Sponsor;

(d) open and transparent structures must be in place that allow for orderly policy development and the ability of members and registrants to influence the policy development and implementation process and for the Sponsoring Organization to be receptive to such influence; and

(e) the Sponsor must commit to adhere to ICANN policies as they may change from time to time through consensus processes.”

I think ICM meets all those criteria. It says very clearly a “limited” community and the idea that ALL pornographers must approve it is neither possible nor reasonable to expect.

2. Is ICANN “shifting the goalposts” with regards to proposals such as .xxx?

The initial problem came not from ICANN, but from the US Government and the GAC. The internventions from Commerce and GAC clearly constituted a massive shift of the goalposts. Since then, however, I see other shifts regarding the requirements for enforcement, for subsidizing interests unrelated to the domain, and for the level of “community support” required.

3. is not really a question but a point about the logical form the argument should take, so I’ll skip it (but agree with the point made).

4. is a bunch of questions. To take the first one:
4. Assume, for argument’s sake, that the entity called ICANN is responsible for assessing the pure technical workability of any TLD proposal, and that it does so efficiently and accurately. Should all technically workable proposals be implemented, or should further requirements of a social, legal, or economic nature be imposed on them?

For better or worse, ICANN has always insisted on “further requirements of a legal and economic nature”, such as trademark protection and whois requirements, (silly) attempts to assess business viablity and marketing plans, etc. Most of these requirements cannot be supported by ICANN’s mission statement, however, and many of us have argued that that is wrong. To some extent the sponsored TLD round did include some policy concerns derived from the GAC principles (no country names). But until .xxx (and the current new gTLD process proposal), there has been no concern about the semantics of the string or the nature of the content that might fall under the TLD.

Is there any way we can come to universal agreement on these requirements? Is there any way the need for universal agreement can be avoided without resort to imperialism?

There will probably never be universal agreement on content regulation policies across states, constituencies, and cultures. Since ICANN imposes a uniform and global regime on DNS, therein lies the problem.

John Berryhill  –  Mar 18, 2007 9:18 PM

Another entry on MR’s list of “freedoms we need to fear”, along with voting and universities….


“Terrorists do vote; they infiltrate democratic institutions and
processes while they are putting their attack together.  The openness of free universities plays into their hands.”

—Mike Roberts, September 17, 2001

The Famous Brett Watson  –  Mar 19, 2007 3:46 AM

John, although that is an accurate quotation, it’s not directly relevant to the discussion of “.xxx”. To the extent that it is relevant, it can only be described as ad hominem—drawing attention to the speaker, not the argument. Although it does not attack or judge Michael (which would directly contravene CircleID codes of conduct), it serves no other purpose than to invite judgement by others.

Would you please consider making an attempt to raise the standard of debate, rather than seeing how narrowly you can stay within the bounds of acceptable behaviour?

John Berryhill  –  Mar 20, 2007 1:36 AM


I agree that rational debate is one thing.  Mr. Roberts suggests that the .xxx proposal is the gauntlet of a “moral contest”.  The “Real Problem” with the .xxx proposal is that it is the playground of a “pathological fringe” of child molesters, apparently.  To fail to recognize that the .xxx proposal is for a more content-restrictive and rule-bound namespace than, for example, .com, can only be a consequence of deliberate ignorance.  To at least that extent, the “debate” over the First Amendment, or a broader principle of “free expression” is irrelevant.  There will be prospective registrants who would prefer not to be associated with the “pathological fringe” and voluntarily adopt the practices required in the TLD, and there will be those which do not, and oppose the TLD.  To the extent that there is a debate about “free expression”, I do not believe that either Mr. Roberts’ nor Professor Mueller’s positions as they may bear on the ICM Registry application are particularly relevant.

I could not resist the observation that there is always a mindset is threatened by “too much freedom”.

The call here is to “take sides on the morality of dot-xxx”.  In that case, the only thing that matters is which hominem is to take which side in this decision by a “technical coordinating body”.

Michael Dillon  –  Mar 29, 2007 8:08 PM

.XXX is just a plain dumb idea. It doesn’t help the porn industry because they already can get all the domain names that they want. It doesn’t help people who want to filter porn because they won’t trust the porn industry to label it.

The only thing that .XXX seems to accomplish is to waste people’s time fretting about it and discussing it. Perhaps that was the real goal of the .XXX applicants all along. Or maybe it was just another dumb business idea that hung on long after it should have been dust because the backers believed the story when they were told, “We’re just waiting for official approval to go ahead.”.

Ed Phillips  –  Mar 30, 2007 11:57 AM

Thinking that .xxx won’t work is fair enough. Thinking that it shouldn’t be tried because you think it won’t work isn’t logical.

If there is a specific way that .xxx will be harmful, then you can oppose its introduction until that risk is dealt with. If it is just useless, why not let them waste their money and try it.

If it fails, that’s their problem, and at least they and ICANN can stop spending money on lawyers and waste it on something novel. If it succeeds, against your expectation, (a) good for them and (b) you’ll secretly be glad you were wrong.

The .xxx debate reminds me of the debate that was had in London before they brought in congestion charging for cars. Many opposed it on the basis that either (a) it couldn’t work or (b) that it would work and have the wrong effect. That debate could have gone on forever - but instead the system was tried, and we’re all much the wiser, and better off for it.

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