The Other Porn Panic: .XXX Gets Approved By ICANN...A Breakthrough In Protecting Children, Or Just Another Bustout??

Like I said...plenty to talk about today.

Alongside the potential shoe drop of the condom mandate, the other shoe threatening to drop on the porn industry actually did so this weekend.

The .XXX level domain, so loved by those wanting to screen adult content into its own ghetto to be exploited for their own profits, so hated by both sides of the porn debate (it's something when Morality in Media AND the Free Speech Coalition are on the same side on an issue); and so despised by many Internet geeks....was cleared for takeoff by the Internet Corporation of Assigned Names and Numbers (ICANN), the board that supervises and approves top level domain (TLD) suffixes like [dot]com, [dot]net, and others.

Never mind that both pro- and antiporn organizations had virulently opposed adding the domain, for their own reasons. (The FSC, backed by many of porn's biggest honchos, due to the implied threat of regulation forcing adult websites into the .XXX ghetto and the costs of acquiring a .XXX domain name; the antiporn groups because it would "legitimize" content that they would much rather wipe out via obscenity laws.)

Never mind that even the ACLU had gone on record against .XXX, citing the potential abuse by cybersquatters seeking to blackmail legitimate owners of .COM and .NET sites, not to mention the windfall for illegal "tube" sites wanting to use .XXX as a license to steal.

And, never mind the fact that the proposal had been reccommended for rejection by ICANN's own Government Advisory Committee, made up of representatives from several companies, and that a similar effort in 2007 was handily defeated.

What was the difference this time around? Well, the .XXX proponents sold the proposal this time around as a means of protecting both the adult content from censorship AND as a means of protecting children from unwanted access by herding all adult content into the .XXX domain and making it easier for censorware and filters to block access to such material.

Mostly, however, they simply flooded the board with lots of money.

Because a .XXX domain will cost plenty more compared to a .COM or a .NET ($70 for a year sub as compared to $10 for other domains), the process of forcing adult websites into .XXX will produce a virtual money forest for ICM Registry, the group which owns the .XXX domain.  According to ICM head Stuart Lawley, he's already secured enough presubscriptions from scared adult webmasters fearing piracy or censorship to rake in nearly $26 million...and that was before it was even passed.  Lawley has even boasted that the potential killing from .XXX could reach as high as $200 million...not too bad in a recession.

Of course, all this means nothing unless current adult webmasters are forced into .XXX...which brings me to the one political force that may be open to imposing .XXX: Third Way Democrats and "Moderate" Republicans.

Already, US Senator Max Baucus (he of the Big Insura Forced Mandate/Bailout, aka "Health Care Reform") has introduced legislation forcing ISP's to require sites to move all adult content into the .XXX domain or face criminal penalties; and I'm sure that others will follow suit. Though most on the Right (especially the TeaPublicans) tend to be closer to the "just ban 'em" position of MiM and Porn Harms, they might be persuaded to support ghettoizing adult sites into .XXX as a stopgap measure to hold them out until they get enough power for outright censorship. As for the Left...well, suffice it to say that their stance has been somewhat incoherent, but I'd say that the 'protect children while maintaining a space for adult sites" logic will probably prevail over them enough to get their support as well.

Unfortunately, merely slapping a .XXX domain on a site brings forth some real issues.

Like....what about blogs like this one (or The Sexademic, or Julie Meadows, or Tiny Nibbles) who are not necessarily sexually explicit in imagery, but who report on issues regarding porn and include linkage to actual sites??  Would Blogger or WordPress be forced to impose a .XXX domain on popular porn blogs, or sex-education sites, or even sex bloggers?? Or..would they simply relent and just purge adult content from their platforms like Facebook and MySpace have already done?? And...would antiporn activist sites like StopPornCulture.com get exemptions based on their ideology alone??

And...who would be the arbeteurs of what constitutes "sexually explict" and whether a site would meet the criteria of being forced into the .XXX domain and enriching the back pockets of ICM?? The Miller Standards?? A local censor board??  Congress??

Remember, Lawley and ICM can't make their killing if current sites can continue to remain in .COM or .NET and pay the much less yearly sub fees for renewing their current domains. But..if such a law was passed, couldn't the case be made that it constituted content-based discrimination to force legal adult websites to pay more simply to exist for the benefit of a private organization??

Oh, who the hell am I kidding....this is Max Baucus I'm talking about!! Same Max Baucus known for taking corporate money under the table from the health care companies...so why wouldn't he do the same with ICM and ICANN??

Either way, the issue is far from resolved, even if ICANN and ICM is already accelerating the process for .XXX domain applications. The FSC has promised full action to review and repeal the decision, and I'm guessing that the antiporn folks are already blasting the ears of their reps in Congress to stop this.

We'll see soon if this really does become a bustout...or simply a bust.

Violet Blue (of Tiny Nibbles) has an excellent overview of the entire sitch over at the ZDNet site...feel free to go there and read up.  Also...see Julie Meadows.

Yet another bad law

In yet more censorship news, Indiana recently passed a law that, as of July 1, requires all newly licensed businesses in that state to register with the state if they sell sexually explicit material. To make matters worse, "sexually explicit material" is being defined by the notoriously broad/vague "harmful to minors" standard.

Coverage from the Indianapolis Star here, here, and here.

Thankfully, the law's sheer breadth has rapidly gotten everyone from the ACLU, to the Indianapolis Museum of Art, to the Comic Book Legal Defense Fund and American Bookseller's Association up against it. The flip side is that for some in the "great middle", the law's overbreadth is the only problem they have with it, with a recent Indianapolis Star editorial opposing the law conceding that it is in "a good cause". -- Sigh --

More analysis here from usual suspect Violet Blue, sex-poz blog Gloria's Oversexed Mind (this blog is new to me, but looks quite good), and from Indiana liberal political blogger Michael Wallack.

BREAKING: The Federal Sex Nazis Strike Again!!! Stagliano, Evil Angel Indicted on Obscenity Charges

John Stagliano, Evil Angel Indicted on Federal Obscenity Charges
(PDF file from Department of Justice website)

(h/t as well to Violet Blue and Fleshbot)

I figured that since they couldn't get Rob Black, the Erotic Star Chamber over at the US Department of Justice would attempt one last fling at sex fascism before the gravy train of the Bush Administration closes down on them for good next year.

But....WTF??? John Stagliano??? Isn't he, like, in all other aspects a political conservative??? A contributor to the Reason Foundation?? In short, one of those very conservatives Grover Norquist would otherwise support and fund???

And please....most people might not do anal fisting or female ejaculation or enemas, but to call them "obscene" and send producers of such material to JAIL???

But that's not the really scary part about this indictment, either....as Violet posted as a comment to her blog piece:

it’s this part everyone with a website (and every porn-loving adult, and those who want their teens to evolve healthy attitudes about sex on the web) should be worried about:

“(…) one count of using an interactive computer service to display an obscene movie trailer in a manner available to a person under 18 years of age (…)”

IMHO, that’s unenforcable. *but* it will work as a vague, undefined, Mafia-style scare tactic to scare webmasters from Flickr to YouPorn into removing their perfectly legal, consensual adult porn — or heavily censoring their users to the point of making us all feel like the Internet is only for 10-year-olds. it’s the suggestion of *not* knowing whether what we do in regard to adult content is legal or not that makes us scared — and that’s exactly how the Feds like to play it.

And that is the real goal of the sex censors, indeed...whether or not Stagliano beats the rap.

But...I'm sure that somewhere in the wilderness, Maggie Hays and Nikki Craft are applauding this.

It's the rest of us who should be concerned....and pissed off enough to do something about it.

BREAKING NEWS: 2257 Regulations Delared Unconstitutional by Sixth US Appealate Court

The story from XBiz.com, with a special bow down to Violet Blue via Tiny Nibbles and Fleshbot:

http://xbiz.com/news/85586

CINCINATTI — The 6th Circuit U.S. Court of Appeals ruled today that the federal record-keeping statute 18 U.S.C. 2257 is unconstitutional, holding that the law is overbroad and facially invalid.

Attorney Lawrence Walters told XBIZ that the court’s opinion, while a very significant victory, is not the final word on the question of 2257’s constitutionality and cautioned that adult webmasters should not view it as the end of their 2257 concerns.

“Generally, you have to be very careful with reacting too rashly to any opinion,” Walters said. “This is a panel ruling, and it is not final. The government could ask for an en banc rehearing by the full circuit, and they can appeal the decision.”

Walters also noted that the decision only applies to the portion of the U.S. that is covered by the 6th Circuit – namely, Kentucky, Michigan, Ohio and Tennessee.

The good news, Walters said, is that the government’s options in getting the opinion overturned are all “long shots,” and he said the court’s reasoning in the opinion was very sound.

“The judges on this panel are renowned for being tremendously bright and it shows through in this ruling,” Walters said. “There’s no doubt that the 1st Amendment arguments here were strong, and the court recognized that the law clearly sweeps in too much protected speech, and there are just too many problems with the law, generally.”

The court’s decision came in the case Connection Distributing vs. Gonzales, a case that reaches all the way back to 1995, when Connection, a publisher of swingers-themed magazines and websites, first challenged the constitutionality of 2257. Following a long history of rejections and appeals, the path eventually led back to the 6th Circuit court of appeals, and today’s ruling.

Writing for the majority, Judge Cornelia G. Kennedy stated in the opinion that the court’s hands were tied in terms of trying to impose any limiting construction on the statute that would comport with the intent of Congress, leaving Congressional amendment of the statute the only option for rendering 2257 constitutional.

“The plain text, the purpose and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record-keeping important in battling all of it, without respect to the creator’s motivation,” Kennedy wrote in the opinion. “There is, therefore, no narrowing construction.”

The government argued in the case that 2257 was aimed only at conduct and not speech. Had the court accepted this argument a lower standard of review would have been applied, and the court may have ruled that 2257 was a valid regulatory statute. The court rejected the government’s assertion that 2257 merely regulates conduct, however, in very direct fashion.

“This argument is unpersuasive,” Kennedy wrote. “While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument.”

Kennedy also noted that the child abuse, “the actual conduct in which the government is interested, is already illegal.”

“Child pornography, while speech, can be considered more like conduct because the conduct depicted is illegal, and if that illegality did not occur, no images of child pornography would be created,” Kennedy wrote. “Adult sexual conduct is not illegal and it is in fact constitutionally protected … The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct. It is, therefore, a regulation of speech, because both the photograph and the taking of a photograph ‘bear … [a] necessary relationship to the freedom to speak, write, print or distribute information or opinion.’”

Kennedy said the court was not unaware of the serious scourge of child
pornography — it just believes that there has to be a less burdensome option for
attacking the problem.

“We do not belittle the despicability of child pornography, and we appreciate the difficulties faced by the government,” Kennedy wrote. “There are a myriad of limitations available, however, that would reduce the breadth of the recordkeeping requirements and would more narrowly focus on the government’s interest and therefore remove some of the protected speech from the statute’s coverage. Such limitations have been suggested by witnesses who testified before Congress and by the plaintiffs here.”

Ultimately, Walters said adult webmasters and business owners should take a “wait and see” approach to the ruling, but there’s no question that the ruling should be counted as a victory in one 2257-related battle, even if it is not the decisive shot of the overall war.

“People should treat this as a step in the ladder towards total invalidation of 2257,” Walters said. “It certainly provides a roadmap for future arguments, as well.”

J. Michael Murray, the attorney for Connections Distributing, was not available for comment at press time.

Considering that the ruling applies only to the Sixth District's immediate jurisdiction and that it has no bearing on another suit currently ongoing involving The Free Speech Coalition's efforts to neuter 2257 nationwide, it nevertheless is a huge victory...and probably the beginning of the end for these regs.

Maybe we can finally have some sanity in this country concerning sexual expression after all??