Academic journal article Stanford Law & Policy Review

ICANN, the ".Xxx" Debate, and Antitrust: The Adult Internet Industry's Next Challenge

Academic journal article Stanford Law & Policy Review

ICANN, the ".Xxx" Debate, and Antitrust: The Adult Internet Industry's Next Challenge

Article excerpt

INTRODUCTION

Our republic has prospered on the principle that the government should not repress a particular subject matter or unduly impede legally compliant commerce. No medium of communication has epitomized this ideal more than the Internet. Therein, a myriad of ideas and businesses have flourished, available to the public at the click of a mouse. This Article will focus not on regulation by traditional governmental authority, but rather from a private organization authorized to administer the vast Internet domain name system (DNS).

This organization, the International Corporation for Assigned Names and Numbers (ICANN), has now used its authority to promulgate new rules for assigning generic top-level domain names (TLDs) in a manner that targets the lucrative adult web industry through the creation of an ".xxx" TLD.

ICANN's conduct could ultimately place tremendous strain on both the adult Internet market and the marketplace of ideas generally. These actions demonstrate a willingness by ICANN and registries authorized to promulgate their terms and conditions to impose content-based restrictions on speech on a particularly vulnerable subject matter.

Accordingly, this Article will discuss the impact that this recent ICANN initiative has had on domain name expression, as well as its overbroad regulation of even implied child pornography. It will posit that the implicitly coercive imposition of an .xxx domain name on the adult online industry will unjustifiably curtail its ability to compete in the relevant product marketplace. In addition, this Article will propose that the contractual provisions offered by ICM Registry LLC (ICM), the registry assigned to carry out ICANN's mandate, impose restrictive policies that have been designed solely to bolster ICM's market power while curtailing a particular segment of protected market activity. Both of these scenarios may constitute a violation of the Sherman Antitrust Act.

I. THE HISTORY OF ICANN

Every website on the Internet is assigned a specific Internet Protocol Number (IPN) designed to provide "identifying information that ... allows a request for a web page to reach the right computer across the Internet." (1) Since remembering a long string of numbers would be particularly difficult for most consumers, alphanumeric domain names (ADNs) consisting of a TLD (e.g., .com, .net, etc.) and a "second level domain" (SLD) (e.g., the "ACME" in ACME.com) were introduced. (2)

The most restrictive component of this alphanumeric domain name is the TLD. Making a change to this system requires accessing a host computer and entering a certain combination and IP address in its database that will allow for automatic translation when an Internet user enters a specific domain-name registration. (3) Accordingly, the entity that controls the "host computer" has the power to determine which TLDs are available on the Internet, and which registry's database will be considered the authoritative source of information concerning those TLDs. (4)

ICANN obtained sole control over this computer through a series of events beginning in 1997. As it became apparent that the Internet was a viable resource for both commerce and expression, mounting pressure from both trademark holders and foreign governments over the degree of control that the United States possessed over this increasingly critical element of global commtmication (5) led our government to consider privatization of the DNS as vital to the continued growth of the Internet. As a result, on July 1, 1997, the Clinton Administration authorized the Secretary of Commerce "to privatize the [DNS] in a manner that increases competition and facilitates international competition in its management." (6)

ICANN subsequently incorporated as a nonprofit and entered into a Memorandum of Understanding with the Department of Commerce on November 25, 1998, beginning the transfer of Internet governance from federal to ICANN control. …

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