2257 or .xxx which will it be?

Legal Protections for the Voluntary Nature of the .xxx Domain
To: "'stld-rfp-xxx@xxxxxxxxx'" <stld-rfp-xxx@xxxxxxxxx>
Subject: Legal Protections for the Voluntary Nature of the .xxx Domain
From: "Corn-Revere, Bob" <bobcornrevere@xxxxxxx>
Date: Fri, 30 Apr 2004 13:35:17 -0700

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Title: Legal Protections for the Voluntary Nature of the .xxx Domain
I am a partner in the Washington, D.C. office of Davis Wright Tremaine LLP and have been retained to advise ICM Registry and IFFOR about legal and constitutional issues arising from their proposal for a .xxx domain. By way of background, I have practiced First Amendment and communications law for 20 years and have argued various cases in federal courts, including a case in the United States Supreme Court. I also previously served as Chief Counsel to former interim Chairman James H. Quello of the Federal Communications Commission.

The ICM Registry and IFFOR proposal for a .xxx domain will enable responsible adult-entertainment website operators to self-organize and self-regulate on a voluntary basis. The proposal is based on the natural utility of the domain name system to allow content providers to organize their activities based on an Internet "address." This is not a "regulatory" proposal but is designed to preserve the purpose and function of the DNS. No website operator would be required to migrate to the .xxx domain.

Some comments posted to this site recently address the nature of the .xxx proposal and offer conclusions about whether it can, or should be made mandatory. In particular, I am referring to the comments posted on April 29 by Michael Bauser and D. Evangelista. Before addressing some of their specific concerns, it should be noted as background that the ICM/IFFOR proposal is designed very specifically to preserve and defend the voluntary nature of the system. As a practical matter, the global nature of the DNS would undermine any effort by a particular government to mandate use of a particular domain. But if the U.S. government tried to require use of a .xxx address by designated entities, such a regulatory scheme would likely be found to be unconstitutional. See Background Paper: Legal Protections for the Voluntary Nature of an Adult Internet Domain (http://www.icmregistry.com/legalprotections.pdf). Even some former critics of other adult domain concepts have commented that the ICM/IFFOR proposal has done a reasonable job of addressing their concerns. See Comments of Donald Eastlake 3rd, posted April 20, 2004.

Mr. Evangelista takes issue with this position, and argues strenuously that a .xxx domain must be made mandatory and subject to "US governmental regulation and enforcement by the FTC." His comments, however, misapprehend the nature of the DNS, both as a system for Internet addressing, not regulation, and as a global system that is not subject to any particular nation's assertion of control. Mr. Evangelista asserts that any claim that a mandatory .xxx is unconstitutional (under U.S. law) is "ridiculous" and "insane" and evidently put forth by "those that were asleep during history class." These conclusions, which appear to confuse strength of rhetoric with depth of analysis, seem to rest on two assumptions: (1) that a law which violates the Bill of Rights is not "unconstitutional," and (2) that the First Amendment protects only political dissent, and not other expression. This first assumption is predicated on a fundamental misunderstanding of the U.S. Constitution. The Bill of Rights is part of the Constitution (and not a part of the Declaration of Independence, as Mr. Evangelista later seems to assert). If a law violates the First Amendment, it is declared unconstitutional. The second assumption, that the First Amendment protects only political discourse, is belied by over five decades of well-developed case law on the subject. For a more detailed discussion of specific case law that relates specifically to the .xxx proposal, the background paper linked above should answer most questions.

The comments of Michael Bauser, while very different from those of Mr. Evangelista, similarly rely on name-calling rather than analysis. He repeatedly calls proponents of a .xxx domain "delusional" and "disingenuous." Much of his criticism is based on misconceptions about the technical nature and practical effects of a .xxx domain that are beyond the scope of my comment. With respect to legal issues, however, Mr. Bauser criticizes claims that a mandatory .xxx domain would be struck down as unconstitutional. He calls the legal analyses "disingenuous," because "[e]ven if the suspicious law remains on the books, it does nothing to affect non-xxx domains outside the United States." Far from providing a strong reason for opposing the ICM/IFFOR proposal, however, this statement sums up why a law in the U.S. (or any other country) requiring registration by certain websites in .xxx would be futile. More to the point, an unconstitutional law would not "remain on the books," but would be a dead letter.

To sum up: A voluntary .xxx domain can serve the needs of the Internet community for self-identification while avoiding the principal legal and policy objections to an adult domain. 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.

http://www.avn.com/index.php?Primary...tent_ID=229089

The Family Research Council issued a statement on Friday voicing its opposition to the .xxx sponsored Top Level Domain. Whether the group realizes it or not, its position matches one held by at least a portion of the adult industry.

Who knew adult entertainment and the religious right had so much in common?

Patrick Trueman, the FRC?s senior legal counsel and former chief of the U.S. Department of Justice's Child Exploitation and Obscenity Section, composed the organization?s statement. Ever the open-minded individual, he was at a loss to defend his position when contacted by AVNOnline.com.

?The Adult Video News? No. No. Not interested [in commenting],? Trueman said.

However, the obviously eloquent individual had the following to say in the position statement he prepared for the FRC:

?The new domain would do more harm than good. The .com domain has been a cash cow for the porn industry, and pornographers will not give it up and remove themselves to the .xxx domain. Instead, they will populate the .xxx domain and perhaps double the number of porn sites available on the Web.

"The .xxx domain also cloaks the porn industry with legitimacy. The industry will have a place at the table in developing and maintaining their new property.

?Creating a virtual red-light district may also discourage law enforcement from bringing obscenity cases on the notion that the problem is solved.?