Everyone has commented on the initial reports concerning the new ".xxx" top level domain approved by ICANN. For example, see my initial post (ICANN Approves '.xxx' Top Level Domain). However, there is more to learn as the decision is analyzed.
Of course, those behind the domain are very concerned with the free speech issues involved. They've even brought well-known First Amendment attorney Robert Corn-Revere onboard as retained counsel. In a post to the ICANN ".xxx" thread, he defends the .xxx domain from charges that it will be made mandatory in the US (Legal Protections for the Voluntary Nature of the .xxx 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.
Ok, so it would be unconstitutional to mandate use of ".xxx" in the US. But would it be unconstitutional to require libraries and schools to block access to ".xxx" on pain of not getting federal funds so long as a patron can view .xxx domains by asking specific permission? Properly drafted, probably not, following
US v. ALA, the
CIPA case.
Well, that wouldn't be too bad, would it?
Requiring websites to adopt the .xxx domain might be illegal in the US, but other nations *cough*China*cough* are not so legally restrained. If China, or another nation, decides to require certain websites to use the .xxx domain there is little that Corn-Revere will be able to do. Not a big deal? Well, if you're in a US library, suddenly you might not be able to access such a website. You could ask for specific permission, but you might not even know the site exists due to the filtering. And try sending email from a .xxx domain. Furthermore, the content of the site would be tarnished by its association with .xxx.
China's censors are experts at their work. If they can use .xxx to make their censorship more effective both internally and externally, they will.
Remember, poorly thought out changes to the registry system don't censor, governments do. It won't be their fault, let them assure you.
via Infothought
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
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