TORONTO, ON – ICM Registry, the Canadian firm championing a voluntary .xxx sponsored top-level domain, has issued a statement in opposition to the “Cyber Safety for Kids Act of 2006,” a new Senate bill recently proposed by Senators Max Baucus (D-MT) and Mark Pryor (D-AR) that would make use of such a domain mandatory for websites that contain “material that is harmful to minors.”“While we are gratified that the Senators seem to understand the value of ICM Registry’s proposal,” begins ICM’s statement, “we are concerned that the legislation ignores the fact that ICANN was established as a privately controlled, international organization and not as the arm of any government.”
With regard to the notion of such a TLD being under the auspices of the US Department of Commerce (DOC), ICM notes that their existing “memorandum of understanding” (MOU) “contemplates that the DOC and ICANN will collaborate on developing policies and procedures for creating new TLDs” but that the MOU does not give the DOC authority to “select the top level domains that would be added to the root system.”
“That approach is unworkable given the Internet’s global reach and is antithetical to the concept of private sector management on which ICANN rests,” the company asserts in the statement published on the ICM website.
ICM also contends that “(A)ny mandatory adult domain would instantly face constitutional problems.” In support of this contention, ICM produced a legal “white paper,” authored by noted First Amendment expert Robert Corn-Revere, of the K Street law firm of Davis Wright Tremaine, LLP.
In his analysis, Corn-Revere makes an analogy between the voluntary TLD proposed by ICM and the motion picture ratings system created by the Motion Picture Association of America (MPAA) in the 1960’s.
Like .xxx, the MPAA’s rating system was envisioned as a tool to help parents and not a rigid set of regulations imposed upon filmmakers and movie studios. Corn-Revere points out that Jack Valenti, president of the MPAA, himself wrote that “from the outset the purpose of the rating system was to provide advance information to enable parents to make judgments on movies they wanted their children to see or not to see. Basic to the program was and is the responsibility of the parent to make the decision.”
“Although the creation of the MPAA system in the late 1960s spawned a number of attempts to incorporate it into regulatory regimes, all have failed,” Corn-Revere asserts in the ICM white paper. “Although the .xxx domain proposal is for an addressing system and not a ratings system, the principles articulated by the courts are equally applicable to this situation.”
Corn-Revere notes that mandating use of a specific TLD for a specific class of content would fly in the face of Supreme Court rulings which held that “zoning” measures cannot be based on the desire to restrict certain forms of speech, or access to specific content.
“If the government attempted to require certain websites to use a .xxx domain, it would not be able to avoid the clear import of the decisions on voluntary ratings by characterizing its requirement as a “content-neutral” zoning measure,” Corn-Revere asserts in the white paper. “There would be no doubt that such a requirement would be predicated on the presumed content on websites with a .xxx address. The fallacy underlying such an assumption, and its connection to any recognizable legal standard would provide a strong independent argument that would undermine such a rule.”
Corn-Revere also asserts that since there is no clear standard for what types of sites would be required to operate from the mandated TLD, the first step would be to decide which sites must utilize the TLD, and that step would be complex, time-consuming, and messy.
“Determining which websites must be included in any mandatory .xxx domain would further complicate the issue, because it would require a number of complex content-based judgments and would add new issues involving compelled association,” Corn-Revere writes. “As the United States Court of Appeals for the Third Circuit ruled most recently, the First Amendment generally precludes the government from requiring anyone to associate with (or to subsidize) speech with which they disagree.”
Corn-Revere’s conclusion is that “ICM and IFFOR should prevail in any ensuing litigation if any attempt is made by the government to require registration in a .xxx domain.”
On the prospect of such a legal battle with the government, ICM has stated its readiness to meet the challenge.
“To underscore its commitment to principles of free expression, ICM is pledging a legal defense fund of $250,000 to maintain the voluntary nature of the domain name system,” ICM states in the white paper.
The bottom line, according to ICM, is that the legislation is unnecessary, would likely fail to survive legal challenges, and that the process of creating the mandatory TLD would be time-consuming, delaying the implementation of the TLD indefinitely.
“ICANN has followed a thorough and rigorous process for evaluating new TLDs, including the ICM Registry proposal – a process that has taken more than two years,” ICM stated in the release on its website. “A voluntary TLD can provide the benefits sought by this Bill and can be operational within months. Under a mandatory approach, however, those benefits face years of legal challenges and may never see the light of day.”
