Wednesday, March 23, 2005

Utah to force ISPs to block porn websites

.
On C/Net: "Utah's governor signed a bill on Monday that would require Internet providers to block Web sites deemed pornographic and could also target e-mail providers and search engines."

While a very long thread on this topic appears on the NANOG list and on Slashdot, there is still no discussion of this issue in ICANN's ISP constituency. Perhaps someone in ICANN management can wake up the last three members of this constituency and have them join the discussions...

124 Comments:

At 2:15 AM, Anonymous Anonymous said...

For Icann or the ITU to drop behind a veil of Technology and so-to-state: 'we are only a
Technological administrators' is a shallow escape of polycentric-concerns (Public Concerns).

Nothing to my knowledge prohibits Icann from issuing a list of Prohibitive-Derogatory Domain Names that which would be incorporated in to its Policy of Accreditation (retro-actively) and to which Registries would then be compelled to conform.

There are constructive things Icann could be doing like, .911 (dot.911) for Emergencies / Relief: Pros, Orgs, Groups, and Systems.
[? what would the aftermath of the Tsunami disaster be like, if we would have had a .911 gTLD in place? A Global Emergency Alert system via internet enabled cell phones (wap) would save lives]

I'd even favor .Oil or .Nrg in this era, knowing that it may foster the development of IPO's
that weans us off our present petrol-dependency.

My point is that there are many more useful things to do with the Net instead of crippling ourselves with .XXX, .sex extensions for now. [? How many Porn IPO's could there be?]

Whether we like it or not, when we participate on the internet... we engage ourselves in a social contract in which there is a responsibility for one another, in a situation of polycentric concerns.

So... in the matter of R. Henderson vs. Registry .Pro (Circa.: GNSO/GA mail-list http://gnso.icann.org/mailing-lists/archives/ga/msg02437.html ) a similar question of pornographic appropriateness arise for us to explore.

In support of why we may want to look at all; gTLDs, Registers, and Registrants more closely, lets cut-to-the-chase and look at a hypothetical gTLD Registry called .INC (dot Inc) posthumous in a In Seriatim Judicial Opinion.

(Say that things go as they are, and they end up going all the way to the U.S. Supreme Court)

-Back Ground -

The Internet Corporation for Assigned Names and Numbers (ICANN) added .INC to the root severs and granted RegistryInc permission to run RegistryInc as the exclusive operator of the .INC top-level domain, under the terms & conditions negotiated within an exclusive contract. RegistryINC's top-level domain is the first and only domain extension exclusively for Incorporated entities on the Internet.


RegistryInc (Gen. Contractor)

.Inc offers a bundled solution for incorporations that enhances their corporate image on the Internet, establishes a secure electronic communications platform and confirms their membership in an exclusive Web address community.

[Please note the word 'community' for later reference]


Products/Features
Domain name

The .Inc Domain: A Unique Extension for Corporation Domain names are the most recognized and important part of any Internet endeavor. RegistryInc provides domain names that are uniquely valuable and distinct. Because it is a restricted domain
name, .Inc names are only associated with select Corporate communities.

Inc's fundamental purpose is simple: provide a secure, trusted platform that corporations can
leverage for their Internet presence, starting with a domain name.

Corporations can register second-level names e.g., Ford.Inc. Or, create an easily identifiable and scalable Web address with a third-level name: .Municipal .Inc, .SCorp.Inc, .LLC.Inc, .Closed.Inc, .Ltd.Inc, .Delaware.Inc. or Offshore.Inc.


Verification

Registrant Verification: Certification Required
The .Inc TLD is further distinguishable from other domain extensions because of its unique registration requirements, which encourages a community that serves Corporations and Internet users.

.Inc registration requires a two-step verification process:

Step 1: The identity information provided and self-certified by the registrant is verified.

Step 2: The self-certified corporation data, provided by the registrant, is verified against an appropriate licensing or accreditation database.

Example: A registrant seeking a .LLC.Inc domain name must provide State and Federal registration information that can be independently cross-verified in the jurisdiction in which he or she is doing business.


Registries (Brokers)

A small number of Icann accredited registries carry the .Inc extension under a subcontract
with RegistryInc (Gen. Contractor). Among these Registry Service Companies is InCorpra.

InCorpra vows to follow the stipulations denoted in the contract and goes about its business registering .Inc domain names (Domain-Name Broker). Each Registry Service sets their own price level for domain-name-products and competes for customers on the market.

[ Given the nature of the .Inc 'community', it is questionable whether it is an Open or Closed market place ]

After a time, InCorpra decides to lowers its prices to increase their market share and compete in an open market environment with other gTLD Domain Names Registers.


Resellers (Agencies)

Peter A. Prurienta is a New Yorker, an enterprising individual, he dabbles in lucrative ventures, some legit some not-so-legit. He and his associates (a Syndicate) feel the tides-of-time are changing and their customer base for the usual vices are finding new outlets on the Internet. Noticing that the Internet was launching a new .extension called .Inc, he cooked up an idea to corner-the-market in the new corporate.inc domain name commodity. In that way Corporations would have to come calling to him and he would set the price, controlling the market. (something akin to a cyber-extortion plot)

So Peter scraps together some money, some legit / some not-so-legit, from various partners & places. In all he gathers a nest-egg of $30,000 but thinking that, that was not enough, he sought a friend (a wiseguy) named Buggsy Meyer to spot him some cash. Buggsy listened to Peter and said he would front the extra cash to him if he used a friend-of-the-family's ISP in Reno.

Sunny Wiseguy ran an ISP that hosted factious Domain-Resellers pages (Web shells) purportedly located in San Francisco. Buggsy was please with this arrangement because he figured if Peter were to fall flat on his feet, Sunny would be taking in money directly through the Domain-Reseller sales shell. This would wash Buggsy's investment and also cover the 'interest' (at shark-rates).

Once Peter took control of the $70,000 purse he began to by .Inc domains. The job was some what tedious, he had to buy domains in increments of 100 (100 Domains at a price of $99 each - totaled $9,900 USD) to keep just under the IRS reporting limit of $10,000 per transaction per day [Cash Transaction Report, CTR, (IRS Form 4789 / FinCEN Form 104)]
He burned through about 30g's when he got a call from Buggsy who suggested that it might be good for his health & fringe benefits, if he were to purchase some domains like: C**t.inc,
F**king.Inc, and VoyerVideo.Inc etc...

He assured Peter that if the Domains didn't sell through the reseller-shell that they would be put to good use by another of Buggsy's family associates either here in the States or abroad.

Eventually Peter gathered together a portfolio of 700 .Inc Domains, for all practical purposes, becoming a 'Domain-Agent'. After some time Buggsy put the squeeze on Peter, and Sunny took control of the Vice-domains, filling their websites with content beholding of the domain name.
--

- In Seriatim Judicial Opinion -

Cyber Court


Prurienta et.al. v. United States,
583 U.S. 442 (2004).

Peter A. Prurienta et.al. ; Defendant here, Appellant below
United States; Plaintiff here, Appellee below

On appeal by petitioner Peter A. Prurienta (hereinafter "Prurienta" or "Petitioner")
from the U.S. Court of Appeals of the Second Circuit, which affirmed the decision of the U.S. District Court for the Southern District of New York. Wherein petitioner contends that the use of the use of criminal forfeiture provision under the Racketeer Influenced and Corrupt Organizations Act (hereinafter "RICO") 18 U.S.C. § 1963 (a) (Supp. 1993), as unconstitutional under the First Amendment as applied to RICO obscenity convictions.

Peter A, Prurienta owned and operated five Internet Domains , called: VoyeurVideos.Inc,
F**king.Inc, C**ts.Inc, and SlutsRus.Inc , all are registered in New York City under internet
RegistryInc via Domain register InCorpa, New York. Prurienta owned interest in Educational
Materials Ltd., which controlled the Domains (D.B.A.: www.EducationalMaterials.Ltd.Inc), and held as well, five titles of the properties on which the Domain Website Severs were located and the lease to the sixth Server run by ISPReno. ISPReno managed all the Severs (via remote access) and also ran a Domain-Reseller domain under factious means for the sale of Domains at marked up prices.

The Domain(s) contained a wide variety of materials ranging from children's films to sexually explicit magazines and movies. Beginning in January of 2003 a one year investigation was conducted by government investigators, in which they became members at the online video stores and purchased sexually explicit videos and webzines.

Petitioner was charged with: six counts of violating 18 U.S.C. § 1466 (1988) -- knowing possession of obscene materials with intent to distribute.; five counts of violating 18 U.S.C. § 1465 (988) -- knowing transportation of obscene materials in interstate commerce; and one count of violating 18 U.S.C. § 1962 (a) (1988) -- knowing participation in racketeering activity. The U.S. District Court for the Southern District of New York found Prurienta guilty by jury on all
counts. Certiorari granted


The issue in this immediate case is whether the use of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1963 (a), (Supp. 1993), (hereinafter "RICO"), is unconstitutional because it violates the petitioner's First Amendment rights.


It has been previously held in this Court that the purpose of RICO was "to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots...." Russello v. United States, 464 U.S. 16, 26-28 (1983).

In keeping with this esprit to effectuate its remedial purpose, This Cyber Court finds that:

It is held in response to Petitioners section I.

Wherein its application §1963 operates as a punishment for a criminal offense , the provision does operate as a "content-neutral" forfeiture of profits. The RICO forfeiture in the obscenity arena, is intended to sever the defendant from his enterprise and prevent him from engaging in further criminal activity.

It is held in response to Petitioners section II.

Where the Petitioner claims that because the statute intends to separate a defendant from his means of expression , §1963 distinguishes and punishes a defendant based on the content of his speech. In this way, the provision is not content neutral, Id at 1121-22.

This Cyber Court finds that §1963 did not impose an infraction on the First Amendment, freedom of speech. Within the issue presented, we find that the Government has remained "content-neutral" as found in: Police Dept. v. Mosley, 408 U.S. 92 (1972), and that "RICO seeks forfeiture of only those assets that constitute the profits of the crime." United States v. Pryba, 900 F. 2nd 748, 755 (4th Cir,) cert. denied, 498 U.S. 924 (1990).

Furthermore the Petitioner had no cause of action, because of the content of his speech, and that which was forfeited is entirely all that which constitute the profits of the crime.

The First Amendments rights to free speech have been addressed by this court, and it is determined that free speech is not absolute, In writing for the Court, Justice Holmes offered his "clear and present danger test" in which he penned his famous admonition against "shouting fire in a theater." Schenk v. United States, 294 U.S. 204 (1919). This chain of thought was extended further to cases which developed "bad tendency" test to curb speech that is posed threats or danger to society. Frohwerk v. United States, 294 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919).

To apply this encompassment of the questioned free speech brought within this case, to Justice Holmes' clear and present danger test against "shouting fire in a theater." This court finds
that petitioner 'speech' is entirely obscene. This speech of 'Obscene-Pornography' incorporated into Domain-Names and their websites is shouting fire in a crowded theater. It is the liable of that audience.

The discord of this case is between the First Amendments Free Speech clause (Freedom of the Press i.e. Medium) and the Civil Rights Act. The dielectric is this; If you act upon the rights of pornographers by protecting them under the First Amendment, then you violate Women civil rights of equality of the Civil Rights Act. and conversely if you protect Women's rights of equality by the cover of the Civil Rights Act , then you violate the rights of pornographers First Amendment Free Speech.

The Inter-state Commerce Clause has effectively incorporated Title II of the Civil Rights Act of 1964. Where this Court held in, Heart of Atlanta Motel v. United States 379 U.S. 241 (1964). the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, were found by the Court that the public accommodation provision is validly held. Also the Title II of the Act [of 1964] §201(a) provides that;

"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the grounds of race, color,
religion or national origin." ..."(3) any motion picture house... ".

Which in the immediate case includes 'VoyerVideo.Inc Websites'
(i.e. www.VoyeurVideos.Inc).

This Court has routinely held that certain forms of "injurious speech such as the 'lewd and obscene'" do not enjoy First Amendment protection (Jacob 623, quoting the Chaplinsky Court). Speech which causes direct harm is likewise excluded from Constitutional protection.

Further in, Roth v. United States 354 U.S. 426 (1957)
Held that obscene material is not protected speech and tendered a basic definition of obscenity: “Whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.” The case
involved a publisher (Roth) who had been convicted for mailing obscene materials and who then
appealed to the Supreme Court on the ground that his First Amendment rights to freedom of speech had been violated. Although the Court found against him, its ruling was based on an attempt to
balance individual freedoms with the interests of the community. Subsequent decisions would place greater emphasis on local standards in the definition of obscenity and broaden the
protections accorded to publishers.

In Miller v. California, 413 U.S. 15 (1973),
The Miller Court developed a three-part test (still in use) for defining "obscenity," holding,
in pertinent part:
. . . the basic guidelines for the trier of fact must be: (a) whether the average person,
applying contemporary community standards, would find that the work, taken as a whole, appeals
to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific valueBthere being
no requirement that the work be "utterly without redeeming social value" or "social importance"
. . .. (Miller at HN 8A and 8B).

By reference to the foregoing case law this Court finds that Petitioner's use of domains names
such as: C**t.Inc, F**king.Inc, and VoyerVideo.Inc does not have serious literary, artistic,
political, or scientific value and did not meet local standards within the interests of the .Inc community.

This Cyber Court finds that Sexually Explicit Domain Names promote trafficking and distribution of pornography which enters into the relationship of an actionable offense of discrimination. Pornography is a practice of discrimination on the basis of sex, on one level because of its role in creating and maintaining sex as a basis for discrimination. It harms many one at a time and helps keep all effected persons (women) in an inferior status by defining subordination as sexuality and equating that to gender (women).

When ever there is an assertion that there is discrimination, this court applies three tiers of test to qualify the charges, Arguments by; Principle, Policy, and Practices, are interpreted by
the Court to provide for a venue of solutions. It is the opinion of this Cyber Court that this
practice has been expanded to include a fourth tier that being, Arguments by Inclusion. This
requires the use of a new test in which the law must find the single most unifying apportionment means available to achieve a compelling argument that avoids malapportionment of justice that
may violate the Equal protection Clause of the Fourteenth Amendment. Which brings the issue of equality around full circle and whole in principle, and acts as an end as well as a means to equality (polycentric completion).

This Cyber Court believes that in judicial contest the weight of this argument lies on the
issue of women lives & opportunities (harm) and their rights to free exercise, over the
cost/benefit analysis of the pornographer’s rights [a.k.a.: Internet Domain Holder(s)].

We also contends that if the perspective is accepted that there is a difference between male
paradigms, and the female paradigms, then this acceptable relationship makes the harm of civil inequality invisible. Broadly speaking the harm made invisible as harm because it has become accepted as the sex difference. In Frontiero v. Richardson, 411 U.S. 677, 684-685) (1973).
Customs of earlier times were " no longer tenable" to exclude women from injuries. Again in 1973 the Court ruled that publications which presented 'Male Interest" and "Female Interest" are prohibited , in Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 367, 392 (1973). Title VII of the Civil Rights Act of 1964 is not limited to economic or "tangible" discrimination. A claim of "hostile environment" because of sexual harassment is a valid basis, in Meritor Savings Bank v. Vonson, 477 U.S. 57 (1986).

In the interest of demonstrating the Rational Principle Test of the 'Arguments by Inclusion',
consider the following analogy:

If you see Black people as different, there is no harm to segregation; it is merely a recognition of that difference. To neutral principles, separate but equal was equal. The injury of racial separation to Blacks arises 'solely because [they] choose to put construction upon
it.' Epistemologically translated: how you see it is not the way it is. Similarly, if you see women as just different, even or especially if you don't know that you do, subordination will not look like subordination at all, much less like harm. It will merely look like an appropriate recognition of the sex difference.

This test is to insure that what precludes us from reaching an effective law is not 'tainted
moral fabric' from within our society.

If the perspective is accepted that there is a difference between male paradigms, and the female paradigms, then this acceptable relationship makes the harm of civil inequality invisible.
Pornography dose treat the sexes differently, so the case for sex differentiation can be made here. Men as a group (although some individuals may be) do not tend to be treated the way women are in pornography. As a social group, men are not hurt by pornography the way women as a social group are. Their social status is not defined as less by it. So the major argument dose not turn on mistaken differentiation, particularly since the treatment of women according to pornography's dictates make it all too often accurate. The salient quality of a distinction between the top and the bottom in a hierarchy is not difference, although top is certainly different from bottom; it is power. Thus the major argument is: subordinate but equal is not equal.

In the immediate instance the Domain Names used and their respective Website(s) content
constitute a violation of this principle of Inclusion, of which the Internets' polycentric
atmosphere provides.

This Cyber Court in delivering its opinion on Prurienta v. United States, concludes that this case is Affirmed in part and Remanded in part with instructions to follow accordingly.
Find that the all the materials; the Registry, the Registrars, the Registrants and their entire
portfolios confiscated, encompassing the entire property & profits of the crime, are subject to RICO.

End of Opinion
--

In the post-mortum the New York Times ran a short article on the aftermath:

RegistryInc and InCorpra were sold at Federal Auction today after find themselves embroiled in
organized crime and its economic roots. Varisign was said to have picked up the registry for
pennies-on-the-dollar. Varisign's marketing department was quoted as saying: .Inc the new Porn free domain name extension. Wall Street seems to agree.

As for; Peter, Buggsy, and Sunny, their doing hard time at Camp Pancake.
Eventually they will be released, publish a book for 5 mil., and host a television show on FOX
called: The Corp. Intern

Icann, having embarrassed the House Subcommittee on Telecommunications and the Internet, lost their renewal of its MoU and has subsequently been incorporated into the ITU.


(P.S.: the Truth can be stranger than fiction :)
-- -- -- -- -- -- -- -- -- -- --

We'll I'm no John Grisham, but I think you get the idea.
Its is not entirely unreasonable to think that U.S. Law enforcement is not enabled to tackle this scenario given the current Administration and its Attorney General. Indeed the timing is ripe. A Complaint can be registered with the U.S. Department of Justice,
So if you can't clean it up, the U.S. Attorney Generals office can and will. (and the State of Utah)

There were some subtle hints for Icann & Registries in this saga of .Inc If they continue on the path set now, they'll have: the Left and the Right upon them.


yrs,

Jackie Chiles
"If the Domain-Name does not fit (the porn-profile) - you must acquit"

 
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