March 6, 2007

Letter from MIM President to Assistant Secretary, U.S. Department of Commerce, regarding proposed Internet .XXX domain

March 6, 2007

 

John Kneuer, Assistant Secretary                                                                                                                           U.S. Department of Commerce

Dear Mr. Kneuer:

On January 5, 2007, the Internet Corporation for Assigned Names and Numbers (ICANN) announced that it had published a “revised proposed agreement” with ICM Registry providing for designation of a new .XXX Sponsored Top-Level Domain registry.

We are writing to urge you to oppose the “revised proposed agreement” with ICM Registry for a new .XXX Sponsored Top-Level Domain registry.

There are at least four problems with the proposed “XXX” domain.

First, unlike zoning of “adult uses” in real space, pornographers in cyberspace will not be required to use the new .XXX domain, and many (most) won’t. Others will use the new domain, but will also retain their current .COM domain. If anything, there will be more porn websites.

And make no mistake about it: what ICM Registry is proposing is a voluntary system. The Proposed ICM Registry Agreement for XXX (Appendix S, Part 1) states that the proposed .XXX domain is for “websites that provide Adult Entertainment…operated by webmasters who have voluntarily determined that a system of self-identification would be beneficial.”

According to an article published in CNET News.com [“The politics of .xxx,” 6/6/05], ICM Registry chairman Stuart Lawley also pledged a legal defense fund to “‘maintain the voluntary nature of the domain name system,'” and ICM Registry retained the services of Robert Corn-Revere, the attorney who persuaded five Justices of the Supreme Court in 2000 to invalidate a much needed law that would have required cable TV operators to completely scramble the signal for pay porn channels so that the signal wouldn’t “bleed” into homes of non-subscribers.

Were Congress to pass a law requiring pornographic websites to register only in the .XXX domain, one argument that would most assuredly be made in court is that websites based abroad would be unaffected by Congressional action. And how would Congress define “adult entertainment” (a term used by ICM Registry) so as to satisfy the U.S. Supreme Court?

Second, the .XXX domain will provide protection for children only to the extent that parents utilize filtering/screening technology; and for a variety of reasons (including the cost and difficulty of installing and operating the technology and parental language barriers, disabilities, naiveté, indifference and neglect) many won’t use it. Furthermore, parental use of technology cannot protect children outside the home, and tech savy kids can circumvent technology.

Even assuming that the .XXX domain could prevent children from accessing “adult websites,” it would not shield them from the flood of pornography downloaded by parents, older siblings, co-workers and others into countless PCs, laptops and cell phones at home, work and elsewhere. Many websites also distribute pornography in video and DVD formats. Children have a knack for finding pornography that adults bring into the home, workplace and elsewhere.

Nor would the .XXX domain protect children from sexual predators who use “adult porn” (i.e., no minors depicted) to entice, arouse, desensitize and instruct their child victims.

Third, the .XXX domain will not protect society from hardcore pornography. As the Supreme Court observed in a 1973 obscenity case, Paris Adult Theatre I v. Slaton (413 U.S. 49), there are “legitimate governmental interests at stake in stemming the tide of obscene materials, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby” (413 U.S. at 57) which include maintaining “a decent society” and protecting “public safety,” “family life,” “the total community environment” and “morality.”

Fourth, the .XXX domain will be used as an excuse by some federal investigators and prosecutors to not enforce obscenity laws, just as the zoning of “adult businesses” in real space was used as an excuse by some state investigators and prosecutors to not enforce obscenity laws. With “adult businesses” in real space, however, the law at least requires zoning.

Furthermore, it would appear the XXX domain is intended to promote legalization of obscenity.

The Proposed ICM Registry Agreement (Appendix S, Part 8, at p. 86) states that the Registry Operator “will prohibit child pornography;” and ICM Registry chairman Stuart Lawley has said, “Apart from child pornography, which is completely illegal, we’re really not into the content-monitoring business” [“Porn-friendly ‘.xxx’ domains approved,” C/NET News.com, 6/1/05].

In the United States, however, distributing obscenity on the Internet is also illegal, and long before the Supreme Court in 1982 upheld laws that prohibit child pornography, the Court said this about obscenity in a 1942 case, Chaplinsky v. New Hampshire (315 U.S. 568, at 571-572):

[I]t is well understood that the right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene…

The Proposed ICM Registry Agreement (Appendix S, Part 8, at p. 90) states that the Registry Operator will “(i) promote the principles set forth in the United Nation’s Declaration of Human Rights related to free expression and (ii) prohibit child pornography…”

The clear implication of the above statement is that pornography, other than child pornography, constitutes “free expression” within the meaning of the UN Declaration. But as the Supreme Court observed in the 1957 Roth v. United States (354 U.S. 476, at 484-485) case:

The protection given speech and press was fashioned to assure unfettered interchange of
ideas for the bringing about of political and social changes desired by the people…But
implicit in the history of the First Amendment is the rejection of obscenity…This rejection…is
mirrored in the universal judgment that obscenity should be restrained, reflected in the
international agreement of over 50 nations… [In a footnote, the Roth Court cited the
“Agreement for the Suppression of the Circulation of Obscene Publications, 37 Stat. 1511;
Treaties in Force 209 (U.S. Dept. State, October 31, 1956)”]

The Proposed ICM Registry Agreement (Appendix S, Part 1, at p. 64) also states that the proposed .XXX domain is intended to “serve the responsible online adult-entertainment community,” generally defined as those businesses that “provide online, sexually oriented adult entertainment intended for consenting adults…”

In Paris Adult Theatre (see above), however, the Supreme Court stated (413 U.S. at 57):

Although we have often pointedly recognized the high importance of the state interest in
regulating the exposure of obscene materials to juveniles and un-consenting adults…this
Court has never declared these to be the only legitimate state interests permitting regulation
of obscene material.

One of ICM Registry’s websites (www.icmregistry.org) also states that the International Foundation for Online Responsibility (IFFOR) will serve as the “policy making body for the .xxx TLD” and that IFFOR will engage in various programs and activities, including, “Supporting free expression to allow Internet users’ right to choose the content they desire.”

In the 1973 Miller v. California case, however, the Supreme Court said (413 U.S. 15, at 34):

[T]o equate the free and robust exchange of ideas and political debate with commercial
exploitation of obscene material demeans the grand conception of the First Amendment and
its high purposes in the historic struggle for freedom. It is a “misuse of the great guarantees of
free speech and free press.”

We would also point out that for years the Motion Picture Association of America used the “X-rating” for films that were unsuitable for children but presumably legal for adults. Pornographers also used the “X” rating, usually by adding an X or two (as in “XX” and “XXX”) to signify ever more graphic and perverse (but still, the pornographers claim, legal) forms of pornography.

We also take issue with the notion that hardcore pornographers that voluntarily relocate in the proposed .XXX domain and that voluntarily comply with the new domain’s rules (which include no child pornography, no porn spam, no fraud, and no deceptive marketing techniques) would thereby become part of a “responsible online adult-entertainment community.”

Even assuming that children and un-consenting adults could be shielded from the floodtide of hardcore pornography and that unscrupulous pornographers could be persuaded to follow good business practices, there would still be grievous harms to individuals and society, because the distribution and consumption of (and addiction to) hardcore pornography:

  •   Contribute to the epidemic of sexually transmitted diseases, including AIDS
  •   Contribute to the decline in marriages and the breakup of marriages
  •   Contribute to a decline in worker productivity
  •   Contribute to sex crimes against adults and children
  •   Contribute to the breakdown of morality and erosion of decency
  •   Contribute to the coffers of organized crime

Furthermore, those who produce and distribute pornography that graphically depicts, among other things, adultery, bestiality, bigamy, excretory activities, orgies, incest, prostitution, male rape, pseudo child porn, teen sluts, unsafe sex galore and the degradation, rape and torture of women (some of whom were trafficked into sexual slavery) are the antithesis of “responsible.”

We think that the much-preferred alternative to “XXX zoning” of obscenity is vigorous enforcement of Internet obscenity laws
. Vigorous enforcement of these constitutional laws will result in many hardcore pornographers being put out of business and many other hardcore pornographers deciding to get out of the business. Vigorous enforcement will also discourage illegal and offensive marketing methods likely to draw unfavorable attention. “Mainstream” cable and satellite TV operators and hotel chains can also be expected to reevaluate whether pursuing big porn profits is worth the risk of facing a RICO-obscenity indictment.

Law is also a teacher and better that the law teach that distributing hardcore pornography in cyberspace is wrong than that a “voluntary” approach teach that hardcore pornography is OK as long as it is properly “zoned” and doesn’t depict actual children engaging in sexual conduct.

Sincerely.

Robert Peters, President, Morality in Media
Pat Trueman, former Chief, U.S. Justice Department’s Child Exploitation & Obscenity Section
Bill Johnson, President, American Decency Association
Gary Cass, Executive Director, Center for Reclaiming America
Charlie Butts, Religion Editor, USA Radio Network
Donald E. Wildmon, Founder and Chairman, American Family Association
L. Brent Bozell III, President, Media Research Institute
Robert H. Knight, Director, Culture & Media Institute
Michael J. McManus, syndicated columnist (“Ethics & Religion”) and President, Marriage Savers
Roger T. Young, FBI Special Agent (retired), Obscenity Investigator
Peter LaBarbera, President, Americans For Truth
David E. Smith, Executive Director, Illinois Family Institute
Captain Isaiah Allen, The Salvation Army (Easton, PA)
Jan LaRue, Esq.
Steve Ensley, Executive Director, Cleanwww Inc.
Tom Minnery, Vice President for Government & Public Policy, Focus on the Family
Terry Schwartz, Alliance to Combat Trafficking & Slavery (Rock Church, San Diego)
Rick Schatz, President & CEO, National Coalition for the Protection of Children & Families
Dena Hoff, President, Help Our Moral Environment (Nevada & Utah)
Ted Baehr, Chairman, Christian Film & TV Commission
David Caton, Executive Director, Florida Family Association
Dallas Erickson, President, Montana Help Our Moral Environment
Peggie Miller, President, Good News Together We Stand (Lancaster, PA)
Jim Backlin, Vice President for Legislative Affairs, Christian Coalition of America
Tom Rodgers, Detective Lieutenant, Retired, Indianapolis Police Department
Joseph Sergio, Ph.D., President, Citizens for Community Values of Indiana
Dorn Checkley, Director, Pittsburgh Coalition Against Pornography
Dr. Victor B. Cline, Professor Emeritus, Dept. of Psychology, University of Utah
Kristiam M. Mineau, President, Massachusetts Family Institute
P. George Tryfiates, Executive Director, Concerned Women for America
Phil Burress, President, Citizens for Community Values
Rose Marie Briggs, Executive Director, Family Leader Network
Thomas McClusky, Vice President for Government Affairs, Family Research Council

 

Morality in Media is a national nonprofit organization, with headquarters in New York City, which works to curb traffic in illegal obscenity and to uphold standards of decency in the media. MIM operates the www.obscenitycrimes.org website – where citizens can report possible violations of federal Internet obscenity laws to Federal prosecutors.

Author: MIM   03/06/2007

Further Reading