In an RFC prepared by Donald E. Eastlake 3rd and Declan McCullagh, an analysis is offered for proposals to mandate the use of a special top level name or an IP address bit to flag "adult" or "unsafe" material or the like. This document explains why these ideas are ill considered from legal, philosophical, and technical points of view.
In an October 1998 report accompanying the Child Online Protection Act, the House Commerce committee said, "there are no technical barriers to creating an adult domain, and it would be very easy to block all websites within an adult domain". The report also said that the committee was wary of regulating the computer industry and that any decision by the U.S. government "will have international consequences" [HOUSEREPORT].
British Telecom has backed adult top-level domains, saying in a 1998 letter to the U.S. Department of Commerce that it "strongly supported" that plan. The reason: "Sexually explicit services could then be legally required to operate with domain names in this gTLD [that] would make it much simpler and easier to control access to such sites..." [BT]. One of ICANN's progenitors, the GTLD-MOU committee, suggested a "red-light-zone" top-level domain in a September 1997 request for comment [GTLD-MOU].
Some adult industry executives have endorsed the concept. In 1998, Seth Warshavsky, president of the Internet Entertainment Group, told the U.S. Senate Commerce committee that he would like to see a .adult domain. "We're suggesting the creation of a new top-level domain called '.adult' where all sexually explicit material on the Net would reside," Warshavsky said in an interview at the time [WARSHAVSKY].
More recently, other entrepreneurs in the industry have said that they do not necessarily object to the creation of an adult domain as long as they may continue to use .com.
Conservative groups in the U.S. say they are not eager for such a domain, and prefer criminal laws directed at publishers and distributors of sexually-explicit material. The National Law Center for Children and Families in Fairfax, Virginia, said in February 2001 that it did not favor any such proposal. For different reasons, the American Civil Liberties Union and other civil liberties groups also oppose it.
Sen. Joseph Lieberman, the U.S. Democratic Party's vice presidential nominee, endorsed the idea at a June 2000 meeting of the federal Commission on Child Online Protection. Lieberman said in a prepared statement that "we would ask the arbiters of the Internet to simply abide by the same standard as the proprietor of an X-rated movie theater or the owner of a convenience store who sells sexually- explicit magazines" [LIEBERMAN].
In the 1998 law creating this commission, the U.S. Congress required the members to investigate "the establishment of a domain name for posting of any material that is harmful to minors", The commission devoted a section of its October 2000 report to that topic. It concluded that both a .xxx and a .kids domain are technically possible, but would require action by ICANN. The report said that an adult domain might be only "moderately effective" and raises privacy and free speech concerns [COPAREPORT].
The commission also explored the creation of a so-called red zone or green zone for content by means of allocation of a new set of IP addresses under IPv6. Any material not in one of those two zones would be viewed as in a gray zone and not necessarily appropriate or inappropriate for minors. Comments from commissioners were largely negative: "Effectiveness would require substantial effort to attach content to specific IP numbers. This approach could potentially reduce flexibility and impede optimal network performance. It would not be effective at blocking access to chat, newsgroups, or instant messaging".
In October 2000, ICANN rejected a .xxx domain during its initial round of approving additional top-level domains. The reasons are not entirely clear, but former ICANN Chairwoman Esther Dyson said that the adult industry did not entirely agree that such a domain would be appropriate. One .xxx hopeful, ICM Registry of Ontario, Canada, in December 2000 asked ICANN to reconsider its decision [ICM-REGISTRY].
In 2002, the U.S. Congress mandated the creation of a kids.us domain for "child safe" material. This was after being convinced that for reasons, some of which are described in the following section, trying to legislate standards for the whole world with a .kids domain was inappropriate.
Legal and Philosophical Problems
When it comes to sexually-explicit material, every person, court, and government has a different view of what's acceptable and what is not. Attitudes change over time, and what is viewed as appropriate in one town or year may spark protests in the next. When faced with the slippery nature of what depictions of sexual activity should be illegal or not, one U.S. Supreme Court justice blithely defined obscenity as: "I know it when I see it".
In the U.S.A., obscenity is defined as explicit sexual material that, among other things, violates "contemporary community standards" — in other words, even at the national level, there is no agreed-upon rule governing what is illegal and what is not. Making matters more knotty is that there are over 200 United Nations country codes, and in most of them, political subdivisions can impose their own restrictions. Even for legal nude modeling, age restrictions differ. They're commonly 18 years of age, but only 17 years of age in one Scandinavian country. A photographer there conducting what's viewed as a legal and proper photo shoot would be branded a felon and child pornographer in the U.S.A. In yet other countries and groups, the entire concept of nude photography or even any photography of a person in any form may be religiously unacceptable.
Saudi Arabia, Iran, Northern Nigeria, and China are not likely to have the same liberal views as, say, the Netherlands or Denmark. Saudi Arabia and China, like some other nations, extensively filter their Internet connection and have created government agencies to protect their society from web sites that officials view as immoral. Their views on what should be included in a .sex domain would hardly be identical to those in liberal western nations.
Those wildly different opinions on sexual material make it inconceivable that a global consensus can ever be reached on what is appropriate or inappropriate for a .sex or .adult top-level domain. Moreover, the existence of such a domain would create an irresistible temptation on the part of conservative legislators to require controversial publishers to move to that domain and punish those who do not.
Some conservative politicians already have complained that ICANN did not approve .xxx in its October 2000 meeting. During a February 2001 hearing in the U.S. House of Representatives, legislators warned that they "want to explore ICANN's rationale for not approving two particular top level domain names — .kids and .xxx — as a means to protect kids from the awful smut which is so widespread on the Internet".
It seems plausible that only a few adult publishers, and not those who have invested resources in building a brand around a .com site, would voluntarily abandon their current domain name. Instead, they'd likely add a .xxx variant and keep their original address. The existence of .xxx could propel legislators in the U.S. and other countries to require them to publish exclusively from an adult domain, a move that would invite ongoing political interference with Internet governance, and raise concerns about forced speech and self-labeling.
In fact, the ultimate arbiter of generic top-level domain names — at least currently — is not ICANN, but the U.S. government. The U.S. Congress' General Accounting Office in July 2000 reported that the Commerce Department continues to be responsible for domain names allowed by the authoritative root [GAO]. The GAO's auditors concluded it was unclear whether the Commerce Department has the "requisite authority" under current law to transfer that responsibility to ICANN.
The American Civil Liberties Union — and other members of the international Global Internet Liberty Campaign — caution that publishers speaking frankly about birth control, AIDS prevention, gay and lesbian sex, the social problem of prison rape, etc., could be coerced into moving to an adult domain. Once there, they would be stigmatized and easily blocked by schools, libraries, companies, and other groups using filtering software. Publishers of such information, who do not view themselves as pornographers and retain their existing addresses, could be targeted for prosecution.
The existence of an adult top-level domain would likely open the door for related efforts, either policy or legislative. There are many different axes through which offensive material can be defined: Sex, violence, hate, heresy, subversion, blasphemy, illegal drugs, profanity, political correctness, glorification of crime, incitement to break the law, and so on. Such suggestions invite the ongoing lobbying of ICANN, the U.S. government, and other policy-making bodies by special-interest groups that are not concerned with the technical feasibility or practicality of their advice.
An adult top-level domain could have negative legal repercussions by endangering free expression. U.S. Supreme Court Justice Sandra Day O'Connor has suggested that the presence of "adult zones" on the Internet would make a future Communications Decency Act (CDA) more likely to be viewed as constitutional. In her partial dissent to the Supreme Court's rejection of the CDA in 1997 [CDA], O'Connor said that "the prospects for the eventual zoning of the Internet appear promising". (The Supreme Court ruled that the CDA violated free speech rights by making it a crime to distribute "indecent" or "patently offensive" material online.)
Privacy could be harmed by such a proposal. It would become easier for repressive governments and other institutions to track visits to sites in a domain labeled as adult and record personally-identifiable information about the visitor. Repressive governments would instantly have more power to monitor naive users and prosecute them for their activities. It's also implausible that a top-level domain would be effective in controlling access to chat, email, newsgroups, instant messaging, and new services as yet to be invented.
Reproduced with permission. Copyright (C) The Internet Society (2004). To read the full document including "Technical Difficulties" and "Security Considerations" of adult-related TLDs see RFC 3675.
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