Loyola of Los Angeles Law Review Patty Chan
CROSSING OVER INTO THE TWILIGHT ZONE: THE CASE FOR FIRST
AMENDMENT ZONING OF THE INTERNET
Table of Contents
I. Introduction ................................................................................................................ 1
II. Another Dimension: The Domain Name System as a
Zonable Construct .................................................................................................. 10
A. The Internet and the Rise of ICANN ......................................................... 10
B. Juxtaposing Physical and Virtual Worlds ............................................. 13
III. The Fifth Dimension: The Constitutionality of
First Amendment Zoning of Internet Pornography ............................ 20
A. Traditional Land-Zoning Laws ....................................................................... 23
B. First Amendment Zoning of the Internet ............................................... 26
1. Applying Physical Zoning Laws to the Virtual World............... 27
a. Content-neutral regulation: secondary-effects
doctrine ....................................... 28
b. Substantial interest ........................... 42
c. Reasonable alternatives ........................ 45
V. Holder of the Keys: ICANN and the State Action
Doctrine ....................................................................................................................... 47
A. ICANN is a State Actor ...................................................................................... 49
1. The Symbiotic Relationship Test ............................................................ 50
2. The Nexus Test ..................................................................................................... 56
IV. The Middle Ground between Shadow and Light:
Policy Concerns about Regulating Internet
Pornography ................................................................................................................ 61
A. Opponents of First Amendment Zoning of
Internet Pornography........................................................................................... 62
V. Concluding Remarks ............................................................................................... 68
I. Introduction
In City of Renton v. Playtime Theatres, Inc.,1 the U.S.
Supreme Court upheld a zoning ordinance that allowed the
city of Renton, Washington to confine adult entertainment
to specific locations within the city. The ensuing
1
475 U.S. 41 (1986).
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secondary-effects doctrine has become known as “First
Amendment Zoning.”2 Although successful in controlling the
physical location of adult-entertainment establishments,
the government has not had similar success in restricting
adult material in cyberspace.3 So far, the courts have
2
See, e.g., Philip J. Prygoski, Content Neutrality and
Levels of Scrutiny in First Amendment Zoning Cases, 25
Whittier L. Rev. 79, 80 (2003) (referring to zoning cases
that involve ordinances targeting adult theaters and
bookstores as content-neutral regulation).
3
The terms “adult material” and “pornography” will be used
interchangeably in this article. According to Blacks Law
Dictionary, “adult” is defined as “[o]ne who has attained
the legal age of majority; generally 18 years.” Black’s
Law Dictionary 33 (6th ed. 1991). According to the
Attorney General, “pornography” is defined as “material
[that] is predominantly sexually explicit and intended
primarily for the purpose for sexual arousal.” Attorney
Gen.’s Comm’n on Pornography, Attorney General’s Commission
on Pornography: Final Report (1986), available at
http://www.porn-report.com.
However, any restrictions on pornography have been
deemed restrictions on the freedom of speech and
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expression, and any restrictions on pornography must
undergo scrutiny under the First Amendment. See U.S.
Const. amend. I, § 2 (establishing that “Congress shall
make no law...abridging the freedom of speech”). However,
the First Amendment specifically does not protect two types
of pornography: obscenity and child pornography.
Obscenity and pornography are not synonyms. Obscenity
is a form of “hard core” pornography. As explained in
Miller v. California, 413 U.S. 15 (1973), the Supreme Court
defined “obscenity” as material that “ ‘the average person,
applying contemporary community standards’ would find ...
appeals to the prurient interest;...depicts or describes,
in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and...taken as a
whole, lacks serious literary, artistic, political, or
scientific value.” Id. at 24. From Miller, the Court
concluded that only those who sell “materials depict[ing]
or describ[ing] patently offensive 'hard core' sexual
conduct” would be subject to prosecution. Id. at 27.
In contrast, the Supreme Court held in 1982 in New
York v. Ferber, 458 U.S. 747 (1982), that child pornography
is not subject to the Miller test. Ferber, 458 U.S. at
764. The court defined “child pornography” as works that
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visually depict sexual conduct of children under a state
specified age. Id. at 764 n.17. Although the Court gave
the states more flexibility to regulate child pornography,
the court in Ferber prohibited only the use of children in
the production of pornography and not their depiction. Id.
at 765. See also Ashcroft v. Free Speech Coalition, 535
U.S. 234 (2002) (distinguishing between actual and virtual
child pornography).
In this article, “adult entertainment” includes nude
dancing, adult book store, adult mini-motion-picture-
theater, adult motion picture theater, and adult cabaret.
Damach, Inc. v. City of Hartford, 239 F.3d 155 (2d Cir.
2000). “Adult cabaret” is defined as “a nightclub, bar,
restaurant, or similar establishment that regularly
features live performances that are characterized by the
exposure of specific anatomical areas or by specified
sexual activities.” Id. at 156. Moreover, “cyberporn”
includes hard core pictures, movies, online chat, and even
live sex acts that can be downloaded and viewed virtually
by anyone through the Internet. Kerby Anderson, The
Pornography Plague, Probe Ministries, 1997,
http://www.leaderu.com/orgs/probe/docs/pornplag.html.
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declared every attempt by Congress to regulate pornography
online as unconstitutional.4
However, the situation may be evolving for the
government to impose regulations on adult material on the
Internet. The 2005 United Nation (U.N.)’s World Summit on
the Information Society (WSIS) recently confirmed that the
Domain Name System will continue to be managed by Internet
Corporation for Assigned Names and Numbers (ICANN), a
California based non-profit corporation.5 The Domain Name
System holds the “root file,” which consists of generic
domains of .com and .info and two-letter country codes of
.uk and .us.6 While ICANN is an independent private
4
See generally, Elizabeth E. Blakely, Selected U.S.
Internet Law Summaries: Legislative Attempts to Regulate
Online Pornography, Internet Bus. Law Serv.,
http://www.uslaw.ibls.com/uslaw/docs_right.asp?langid=0&sec
=DOC&doc=06FA8DCD-10EB-484D-BF14-761993EEC417 (last visited
Feb. 14, 2006) (stating that legislative attempts to
regulate the online pornography have been generally held
unconstitutional under the First Amendment).
5
Id.
6
Kevin Poulsen, U.S. Maintains Control of Net, Wired News,
Nov. 16, 2005,
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corporation, the U.N. and other nations believe the U.S.
government possesses significant influence over ICANN and
truly controls the Domain Name System.7
This is bolstered by the fact that a few months before
the U.N. conference, ICANN approved an “.xxx” top-level
domain that was purportedly designed for adult websites.8
http://www.wired.com/news/politics/0,1283,69592,00.html?tw=
wn_tophead_1.
7
See, e.g., id. (quoting Ambassador David Gross, head of
the U.S. delegation to WSIS that U.N.’s confirmation
“preserved the unique role of the United States government
in ensuring the reliability and stability of the
[I]nternet”); Net Dust Storm Blows into Tunis, Wired News,
Nov. 15, 2005,
http://www.wired.com/news/politics/0,1283,69586,00.html
(stating that despite ICANN’s elected president and
international board, the U.S. government still holds the
reins).
8
Press Release, ICM Registry, ICANN Approves .xxx Sponsored
Top-Level Domain Application (June 1, 2005),
http://www.icmregistry.com/ICMPressRelease.pdf (indicating
ICM Registry, Inc. has met ICANN’s criteria and will soon
be entering into technical and commercial negotiations to
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But soon after its announcement, ICANN postponed
implementing the .xxx top-level domain due to several
national governments, especially the U.S. government,
objecting to the new domain on the grounds that it
legitimizes pornography and fosters its growth.9
In fact, online pornographic websites already indicate
steady growth. In 2005, the U.S. pornography industry
revenues alone totaled $12 billion.10 Moreover, 4.2 million
generate the .xxx top-level domain for “adult oriented
websites”). See also, Verisign, Inc. v. Internet Corp. for
Assigned Names & Nos., No. CV 04-1292 AHM, 2004 WL 2095696,
at *1 (C.D. Cal. Aug. 26, 2004)(explaining that the
Internet is comprised of numerous top level domains, and
some are generic Top-Level Domains like .com, .net, .gov,
and .biz while others are country code Top-Level Domains
such as .uk and .us).
9
Approval of '.xxx' Domain Delayed a Month, MSNBC.com, Aug.
17, 2005, http://www.msnbc.msn.com/id/8973683/; Declan
McCullagh, Bush Administration Objects to .xxx Domains,
CNET News.com, Aug. 15, 2005, http://news.com.com/2100-
1028_3-5833764.html.
10
Jerry Ropelato, Internet Pornography Statistics,
TopTenReviews, 2005, http://internet-filter-
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pornographic websites currently make up 12% of total
websites on the Internet, generating $2.5 billion or 4% of
worldwide pornography industry revenues.11 As a result,
Internet users, especially children, will most likely
stumble onto a pornographic site while innocently searching
for innocuous information. In a 2004 study by the London
School of Economics and Political Science on the
experiences of children and their parents with Internet in
the UK, more than half of the children between 9-19 years
old have encountered online pornography and close to 40% of
these children encountered online pornography while doing
something else or searching for other material.12
This article analyzes whether the U.S. government
could constitutionally implement legislation to establish
“First Amendment Zoning” of the Internet and force all
review.toptenreviews.com/internet-pornography-
statistics.html.
11
Id.
12
Sonia Livingstone & Magdalena Bober, London Sch. of Econ.
& Political Sci., UK Children Go Online: Surveying the
Experiences of Young People and Their Parents 2 (2000),
available at http://www.lse.ac.uk/collections/children-go-
online/UKCGOsurveyreport.pdf.
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U.S.-based pornographic websites to a generic top-level
domain such as .xxx. Part II discusses the similarities
between the virtual world of the Internet to the physical
world to establish that the Domain Name System is a zonable
construct. Part III of the article examines the
constitutional issues implicated by regulating pornography
on the Internet with First Amendment Zoning measures found
in traditional land-zoning laws and describes why such
regulations are constitutional when applied to the
Internet. Part IV of the article explores the case if
ICANN attempts to implement such regulation on the Internet
and whether the U.S. government’s control over ICANN
satisfies the “state action doctrine” as to also make it
subject to First Amendment restraints. In the last part of
this article, Part V considers whether the government
should impose First Amendment Zoning of online pornography.
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II. Another Dimension: The Domain Name System as a Zonable
Construct
A. The Internet and the Rise of ICANN
The Internet began as two smaller networks funded by
the government.13 One of these early networks was the first
in the world to implement a “packet switching”
communication system that could link with more than one
machine, allow the link to be shared, and parse information
13
The two networks were the Advanced Research Projects
Agency Network (ARPANET) and the National Science
Foundation Network (NSFNET). See Island Online, Inc. v.
Network Solutions, Inc., 119 F.Supp.2d 289, 292 (E.D.N.Y.
2000). The government funded both systems, with ARPANET
receiving its principal funding from the Department of
Defense and NSFNET deriving its financial support from a
government agency called the National Science Foundation
(NSF) along with other federal, private, and academic
agencies. See id.; Michael Hauben, Part I: The History of
ARPA Leading up To the ARPANET,
http://www.dei.isep.ipp.pt/docs/arpa--1.html (last visited
Feb. 14, 2006).
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for independent and separate routing.14 This process of
breaking down and reassembling information and of routing
the information to the correct destination became
respectively known as the Transmission Control Protocol
(TCP) and the Internet Protocol (IP) or TCP/IP.15 To ensure
that information is routed to the appropriate location,
TCP/IP assigns a unique number or “IP address” to every
computer connected to the Internet around the world.16
IP addresses eventually evolved into the Domain Name
System, where difficult-to-remember numeric IP addresses
were associated with recognizable alphabetic names: for
example, rather than four numbers separated by periods
(called dots) like “192.0.34.65”, people could type in
“www.icann.org“ with the domain name “icann.org” where
14
Wikipedia, ARAPNET, http://en.wikipedia.org/wiki/ARPANET
(last visited Feb. 14, 2006); Reno v. American Civil
Liberties Union, 521 U.S. 844, 850 (1977).
15
Howard Gilbert, Introduction to TCP/IP, PC Lube & Tune,
Feb. 2, 1996, http://pclt.cis.yale.edu/pclt/COMM/TCPIP.HTM.
16
Island Online, Inc., 119 F.Supp.2d at 292.
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“.org” is the top-level domain and “icann” is the
secondary-level domain.17
As the internet grew, responsibility of supporting the
domain name registration eventually rested with the
Department of Commerce.18 After the U.S. government
17
See Island Online, Inc., 119 F.Supp.2d at 292; ICANN
Information, http://www.icann.org/general/ (last visited
Feb. 14, 2006).
18
See Island Online, Inc., 119 F.Supp.2d at 293. Initially
Jon Postel managed the IP addresses in a project funded by
the Department of Defense. U.S. Gen. Accounting Office,
Office of the General Counsel, Department of Commerce:
Relationship with the Internet Corporation for Assigned
Names and Numbers 292 (2000), available at
http://www.gao.gov/new.items/og00033r.pdf. This project
later became known as the Internet Assigned Numbers
Authority. See Island Online, Inc., 119 F.Supp.2d at 292.
However, with the expansion of the Internet, a distributed
Domain Name System replaced Postel’s centrally managed
list. See Tracy LaQuey, A Beginner's Guide to Global
Networking (2d ed. 1994), http://archives.obs-
us.com/obs/english/books/editinc/iresourc.htm (discussing
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determined Internet governance should be consistent across
state and international borders,19 the Department of
Commerce in 1998 began searching for solutions, including a
call for the creation of a private nonprofit corporation to
assume responsibility over the Domain Name System.20 The
Clinton administration created ICANN to answer the call and
to manage the Internet.
B. Juxtaposing Physical and Virtual Worlds
Many similarities exist between the physical world and
the virtual world of the Internet. The U.S. Supreme Court
has held that First Amendment protections apply on the
Internet.21 In addition, as noted by Justice Sandra Day
O’Connor in a concurring opinion, “Cyberspace undeniably
the Domain Name System in Chapter 2 – Internet: The
Lowdown); Island Online, Inc., 119 F.Supp.2d at 293.
19
Matthew Edward Searing, "What's in a Domain Name?" A
Critical Analysis of the National and International Impact
on Domain Name Cybersquatting, 40 Washburn L.J. 110, 131
(2000).
20
Management of Internet Names and Addresses, 63 Fed. Reg.
31,741, 31,749-50 (June 10, 1998), available at
http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm.
21
Reno v. ACLU, 521 U.S. 844, 870 (1977).
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reflects some form of geography; chat rooms and Web
sites...exist at fixed ‘locations’ on the Internet.”22
Similar to a sprawling metropolis, the Internet is
made up of an organization of networks, consisting of
several private organizations,23 universities, and
government agencies.24 In fact, the Internet was estimated
in 1993 to include about 50,000 networks and 30 million
users.25 Recent statistics indicate approximately 972
million users worldwide or 15.2% of the 6.4 billion people
in the world.26 Just as smaller cities and towns sprawl
22
Id. at 890.
23
LaQuey, supra note 18 (discussing the private Internet
service providers and commercial online services that
provide access to the Internet in Chapter 1 – What Is the
Internet and Why Should You Know About It).
24
Id.
25
D. Crocker, Making Standards the IETF Way, 1 StandardView
48 (1993), reprinted in Internet Society, All About the
Internet,
http://www.isoc.org/internet/standards/papers/crocker-on-
standards.shtml.
26
Internet World Stats, Internet Usage Statistics - The Big
Picture,
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throughout the nation, regional networks also provide and
maintain Internet access within a geographic area.27
Moreover, similar to transportation channels like freeways
or air routes, some high-speed long-distance connections
called backbones carry Internet traffic across the country
and the world.28
Central to the Internet is the Domain Name System,
which is needed to complete such actions as displaying Web
http://www.internetworldstats.com/stats.htm (updating
statistics for December 31, 2005).
27
Brendan P. Kehoe, Zen and the Art of the Internet: A
Beginner's Guide to the Internet (1st ed. 1992),
http://www.informatik.hu-berlin.de/Themen/internet/zen-
1.0.html.
28
See generally, LaQuey, supra note 18,
http://archives.obs-
us.com/obs/english/books/editinc/whoruns.htm (describing
how the U.S. government through the National Science
Foundation initiated a nationwide backbone, which connected
many mid-level networks that in turn connected universities
and other organizations).
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pages.29 Just as realty is identified with a unique postal
address, each Web site resides on the Internet, taking up
“Web space” and possessing a unique IP address and domain
name.30
To access the Internet, an ordinary person usually
31
signs up for service with an Internet service provider.
Internet service providers are very similar to landlords
because they rent out a connection or an IP address to
29
Marshall Brain, How Domain Name Servers Work,
HowStuffWorks,
http://computer.howstuffworks.com/dns.htm/printable (last
visited Feb. 14, 2006).
30
Free Webhosting, Webspace (or Web Space),
http://www.webhosts4free.com/definitions/webspace.php (last
visited Feb. 17, 2006) (defining “web space” as data
storage space used to host websites and data files on a
computer).
31
Brad Fortner, 'Hands On' Internet Course Notes,
http://www.rcc.ryerson.ca/profdev/handson/internet/basics.h
tm#One (last visited on Feb. 17, 2006).
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individual people.32 Every single computer that accesses
the Internet is assigned a unique IP number.33
Therefore, in order to see a particular website, a
person would type into a web browser a website’s address or
Uniform Resource Locator (URL) (for example
“www.icann.org”). Because the computers that run the
Internet cannot understand the alphanumeric domain names, a
domain name like “icann.org” must first be matched to its
true IP address (192.0.34.65).34 A person’s web browser
must then complete the necessary process of checking name
servers, or computers responsible for tracking IP address
changes and translating between IP and domain address, in
order to retrieve the appropriate website information.35
Just as parts of a city are designated residential or
commercial, domain names also indicate important
32
Internet.com, ISP,
http://www.webopedia.com/TERM/I/ISP.html (last visited Feb.
17, 2006).
33
Fortner, supra note 31.
34
Brain, supra note 29.
35
See Marshall Brain, How Web Servers Work, HowStuffWorks,
http://computer.howstuffworks.com/web-server.htm/printable
(last visited Feb. 17, 2006).
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information about the website, especially the top-level
domain. For example, the .com domain is a top-level domain
indicating that the site pertains to commercial businesses
in contrast to the .gov domain for the U.S. government
except the military governmental information.36
Several organizations participate in the registration
of domain names. As part of its duties in managing the
Domain Name System, ICANN establishes agreements with
different Internet “registries” and “registrars.”37 Similar
to commercial services that record real property deeds,
36
ICANN, FAQs, http://www.icann.org/faq/#regrules.
37
ICANN is also responsible for the governance of the
authoritative root server. See U.S. Gen. Accounting
Office, Office of the Gen. Counsel, GAO/OGC-00-33R,
Commerce and ICANN 4, 6, 15-16 (2000), available at
http://www.gao.gov/new.items/og00033r.pdf (stating that the
government has authority to transfer to ICANN the
government’s control over the authoritative root server at
the top of the domain name system). Because ICANN
maintains the root zone files that direct IP number queries
to other top-level domain zone files or domain name system
databases, ICANN ultimately affects speed and consistency
on the Internet. Id. at 6.
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Internet registries are private companies that maintain a
directory and record all names registered within a top-
level domain.38 While Verisign, Inc. is the registry for
.com and .net domains and registers the names on these
domains, ICM Registry, Inc. would be the future registry
for the highly contested .xxx domain.39 Moreover, similar
to real estate agents, registrars are private companies
that make Internet domain names (such as “yahoo.com”)
available to people and businesses.40
Since real world constructs can be analogized to the
virtual world of the Internet, a logical extension is to
apply the same laws that bind the communities in the real
world to the virtual communities on the Internet.41 The
following section will analyze the proposal for applying
land-zoning laws to the virtual world and the
38
Dotster, Inc. v. Internet Corporation for Assigned Names
and Numbers, 296 F.Supp.2d 1159, 1160 (C.D. Cal. 2003).
39
Id.; Press Release, supra note 8.
40
Dotster, Inc., 296 F.Supp.2d at 1160.
41
See Daniel Benoliel, Law, Geography and Cyberspace: The
Case of On-line Territorial Privacy, 23 Cardozo Arts & Ent.
L.J. 125, 147 (2005).
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constitutionality of First Amendment Zoning of the
Internet.
III. The Fifth Dimension: The Constitutionality of First
Amendment Zoning of Internet Pornography
The First Amendment establishes that “Congress shall
make no law...abridging the freedom of speech,”42 and the
Supreme Court has held such freedoms include pornography
with the two exceptions of obscenity and of pornography
involving children in its actual production.43 Regardless,
governments still target adult-entertainment establishments
with land-zoning ordinances. While such restrictions
appear to regulate speech based on its content, governments
have successfully justified such land-zoning restrictions
on adult-entertainment establishments under the secondary-
effects doctrine.
Under the secondary-effects doctrine, governments
maintain they are regulating such establishments not for
content-based reasons such as the messages or forms of
expression of adult entertainment. Instead, governments
42
U.S. Const. amend. I § 2.
43
See, e.g., Miller v. California, 413 U.S. 15 (1973); New
York v. Ferber, 458 U.S. 747 (1982); and Ashcroft v. ACLU,
542 U.S. 656 (2003).
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assert their regulations are for the establishments’
content-neutral impacts, such as the negative side effects
of generating more crime and prostitution and causing
property value to diminish.44 Such reasoning seems
contradictory to the traditional interpretation that laws
were content-neutral only when the restriction on speech
did not take into consideration the content of the speech
itself.45
Unlike the traditional content-neutral analysis, the
secondary-effects doctrine allows governments to establish
land-zoning ordinances that seem to specifically target
adult-entertainment establishments.46 Even Justice
Rehnquist noted that such land-zoning ordinances “treat
theaters that specialize in adult films differently from
44
David L. Hudson Jr., Secondary-Effects Doctrine, First
Amendment Ctr.,
http://www.firstamendmentcenter.org/Speech/adultent/topic.a
spx?topic=secondary_effects_topic (last visited Feb. 17,
2006).
45
Prygoski, supra note 2.
46
Hudson Jr., supra note 44.
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other kinds of theaters.”47 Under the secondary-effects
doctrine, governments are allowed to consider the content
of an establishment’s speech when determining if any
detrimental effects impact the welfare of the surrounding
community.48 Since under a secondary-effects analysis,
courts consider such land-zoning ordinances to be content-
neutral, governments must satisfy a lower constitutional
standard of intermediate scrutiny in contrast to the strict
scrutiny standard for content-based regulations.49
The following section will review the key adult-
entertainment zoning cases from which the secondary-effects
doctrine arose and how such laws can be similarly used on
the Internet.
47
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,
47 (1986).
48
Prygoski, supra note 2.
49
Clay Calvert & Robert D. Richards, Stripping Away First
Amendment Rights: The Legislative Assault on Sexually
Oriented Businesses, 7 N.Y.U. J. Legis. & Pub. Pol’y 287,
296-98 (2004) (stating that the doctrine allows the
government in effect to sanitize a facially content-based
action and subject it to a lower standard of review).
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A. Traditional Land-Zoning Laws
Most governments have passed zoning ordinances that
either disperse adult-entertainment establishments
throughout the city or confine them to a certain location.50
The City of Detroit, Michigan promulgated the first type of
zoning ordinance in Young v. American Mini Theatres,51 the
first adult-entertainment establishment zoning case
espousing the secondary effects doctrine.52 The Supreme
Court upheld the city zoning ordinances that required adult
theaters to be dispersed from residential neighborhoods and
from other similar adult-business establishments.53 In
dismissing the claims that the zoning ordinances were
50
Hudson Jr., supra note 44.
51
427 U.S. 50 (1976).
52
Hudson Jr., supra note 44.
53
Young, 427 U.S. at 52 (detailing ordinances that amended
a former “Anti-Skid Row Ordinance” and required that an
adult theater must remain 500 feet from any residential
area and 1,000 feet from any two other adult-entertainment
establishments, such as other adult theaters, adult
bookstores, cabarets, bars, hotels and motels, pawnshops,
pool halls, public lodging houses, secondhand stores,
shoeshine parlors, and dance halls).
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content-based, Justice John Paul Stevens, writing for the
plurality, held that the city’s purpose in preventing
secondary–effects, like crime that would deteriorate its
neighborhoods, justified such adult theater ordinances.54
In contrast, City of Renton55 dealt with ordinances
that promulgated the second type of zoning ordinance, which
concentrated adult-entertainment establishments within
certain areas of the city in Renton, Washington.56 The
Supreme Court upheld the city zoning ordinances that
restricted adult theaters from a certain distance of any
residential neighborhood, church, park, or school.57
According to the Renton court, the city’s ordinance was
content-neutral because the focus of the ordinance was to
prevent the harmful secondary effects of the adult theaters
and not the theater’s film content or message.58
54
Id. at 71, 71 n.34.
55
475 U.S. 41 (1986).
56
Id. at 45.
57
Id. at 44 (prohibiting adult theaters from being located
within 1,000 feet of any “residential zone, single- or
multiple-family dwelling, church, or park, and within one
mile of any school).
58
Id. at 48.
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The court then continued to hold that the ordinance
also met the two-pronged test for content-neutral laws.
The first prong requires that the law serve a substantial
governmental interest and the second requires reasonable
alternative avenues of communication.59 Justice Rehnquist
wrote the majority opinion, holding that the city’s
ordinance satisfied the two-pronged content-neutrality
test. First, the ordinance pertained to important and
substantial governmental interest since its aim was to
preserve the quality of the communities surrounding the
adult theaters.60 Interestingly, although Renton based its
secondary-effects argument on the experiences of Seattle
and other cities, the Court held that an independent study
was not necessary so long as the city demonstrated such
evidence was reasonably believed to be relevant to the
city’s problems.61 Second, the Court held that adult
theaters had reasonable alternative avenues of
59
Id. at 50.
60
Id. (holding a city's “interest in attempting to preserve
the quality of urban life is one that must be accorded high
respect” (quoting Young v. American Mini Theatres, Inc.,
427 U.S. 50, 71 (1976)).
61
Id. at 51-52.
25
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communication even though the Renton ordinance left only
“520 acres or...five percent” of the city for adult
theaters to develop.62 The Court disregarded the theaters’
claims that no commercially viable adult theater sites were
left within the 520 acres, holding that the First Amendment
was not concerned with economic impact.63
B. First Amendment Zoning of the Internet
Legislation regulating pornography sites would
probably survive constitutional scrutiny as a content-
neutral restriction under the secondary-effects doctrine.
As the following will demonstrate, traditional land-zoning
laws regulating the location of adult-entertainment
establishments can be similarly applied to regulate the
location of pornographic sites on the Internet. Under the
secondary-effects doctrine, the following will show that
the government has the constitutional authority to
implement First Amendment Zoning of pornographic websites
by justifying the regulation as a restriction not on the
content of their messages but their negative side effects.
With a substantial interest in regulating pornography to
address these effects, the government could reasonably
62
Id. at 53-54.
63
Id. at 54.
26
Loyola of Los Angeles Law Review Patty Chan
force all pornographic sites onto the .xxx top-level domain
to further its interest.
1. Applying Physical Zoning Laws to the Virtual
World
Just as governments have regulated adult-entertainment
establishments by designating permissible locations within
a city, governments can similarly concentrate pornographic
sites to a specific area on the Internet. Much like adult-
entertainment establishments that are scattered throughout
a city that does not have land-zoning regulations,
pornographic websites are currently dispersed with
different secondary domain names at various top-level
domains like .net, .biz, and .com. Quite typically, an
owner of an adult-entertainment establishment will also own
a similar pornographic website. For example, Larry Flynt
owns both a Hustler adult-entertainment establishment
located in California and a HustlerClubs website on the
Internet. Just as the Hustler adult-entertainment
establishment has a unique postal address in Los Angeles,
the HustlerClubs website has the unique domain name of
“HustlerClubs.com” with a secondary domain of
“hustlerclubs” and a top-level domain of “.com”.
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Loyola of Los Angeles Law Review Patty Chan
As discussed above, with the secondary effects
doctrine, governments have been able to pass land-zoning
ordinances requiring all adult-entertainment establishments
like Hustler to be concentrated within a certain area of a
city. Similarly, under the same doctrine, the government
should be able to pass legislation requiring the Hustler
Clubs website to be located at a particular location on the
Internet, specifically from “.com” to “.xxx”. To determine
the constitutionality of such regulation, the government
must show its zoning legislation is content-neutral,
furthering a substantial governmental interest focused on
the negative effects of pornographic websites and offering
reasonable alternative channels of communication.64
a. Content-neutral regulation: secondary-
effects doctrine
As described above, the Internet is a “virtual
community” made up of different IP addresses representing
governmental, business, and educational organizations and
ordinary users.65 Just as every computer on the Internet
has a unique IP address, the domain name is also unique
because of its distinctive secondary domain associated with
64
Id. at 50-51.
65
Fortner, supra note 31.
28
Loyola of Los Angeles Law Review Patty Chan
66
an identifying top-level domain. As such, the
government could contend that pornographic websites
currently found scattered on the Internet with top-level
domains of .com, .net, and .biz may have negative
secondary-effects that impact the welfare and quality of
others in the virtual Internet community, specifically
other organizations or users on the same top-level domain.
One major problem of applying the secondary-effects
doctrine to sites on the Internet is that the adverse
secondary-effects typically associated with traditional
adult-entertainment establishments are not applicable to
justify the regulation of online pornographic sites.67 As a
result, the traditional secondary-effects of decreased
property value and increased crime and prostitution that
are applicable to the Hustler adult-entertainment
establishment may not be clearly applicable to the Hustler
Clubs website.68 While many studies exist that allegedly
66
Id.
67
David L. Hudson Jr., What's on the Horizon, First
Amendment Ctr.,
http://www.firstamendmentcenter.org/speech/adultent/horizon
.aspx?topic=adultent&SearchString=voyeur_dorm.
68
Id.
29
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reveal repeated exposure to pornography increases sex
crimes and leads people to aggression, misogyny,
pedophilia, chauvinism, sexual problems, marital
dissatisfaction, infidelity, divorce, promiscuity, and
addiction,69 such effects are not considered secondary-
69
See, e.g., Attorney Gen.’s Comm’n on Pornography, supra
note 3; Ryan Singel, Internet Porn: Worse than Crack?,
Wired News, Nov. 19, 2004,
http://www.wired.com/news/technology/0,1282,65772,00.html;
Why the Government Should Care about Pornography: Hearing
on Pornography's Impact on Marriage & the Family Before
the Subcomm. on the Constitution, Civil Rights and Property
Rights of the S. Comm. on the Judiciary, 109th Cong. (2005)
(statement of Jill Manning, Sociologist, Brigham Young
University),
http://new.heritage.org/Research/Family/loader.cfm?url=/com
monspot/security/getfile.cfm&PageID=85273; Studies on the
Effect of Pornography, www.netspeed.com.au/ttguy/refs2.htm
(last visited Feb. 17, 2006); Why the Government Should
Care about Pornography: Hearing on Pornography's Impact on
Marriage & the Family Before the Subcomm. on the
Constitution, Civil Rights and Property Rights of the S.
Comm. on the Judiciary, 109th Cong. (2005) (statement of
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effects but rather primary effects, indicating people’s
reaction to the content of the speech.70 However, the
following secondary-effects may be constitutionally viable:
one being that pornography could arguably diminish the
value of other secondary domains located on the same top-
level domain and another that pornographic sites increase
crime and promote computer “viruses” or computer programs
that can automatically download onto an unsuspecting user’s
Pamela Paul, Author of Pornified),
http://judiciary.senate.gov/testimony.cfm?id=1674&wit_id=48
24; Victor B. Cline, Pornography's Effects on Adults and
Children, Morality in Media,
www.obscenitycrimes.org/clineart.cfm. Cf. Compare Milton
Diamond & Ayako Uchiyama, Pornography, Rape, and Sex Crimes
in Japan, 22 Int'l J.L. & Psychiatry 1 (1999) (arguing that
an increase in available pornography in Japan, U.S., and
other nations actually decreased sexual crimes); David
Linz, Neil M. Malamuth, & Katherine Beckett, Civil
Liberties and Research on the Effect of Pornography, in
Psychology and Social Policy 149-164 (Peter Suedfeld &
Philip E. Tetlock eds., 1992).
70
Reno v. American Civil Liberties Union, 521 U.S. 844, 868
(1977).
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Loyola of Los Angeles Law Review Patty Chan
computer without consent and then harm the computer.71 The
first possibility may be too unquantifiable to be an
effective secondary effect since lost revenues are
difficult to measure.72 However, with recent advancements
in technology,73 the second possibility is already
happening.
Internet fraud and other computer crimes have kept
pace with the Internet’s growth. In 2004, the Internet
Crime Complaint Center formerly known as the Internet Fraud
Complaint Center received 207,449 complaints, which was a
66.6% increase from the 124,509 complaints logged in 2003.74
71
Christopher T. Furlow, Erogenous Zoning on the Cyber-
Frontier, 5 Va. J. L. & Tech. 7, 19-24 (2000).
72
Id.
73
Michael Kanellos, FAQ: Forty years of Moore's Law, CNET
News, Apr. 1, 2005,
http://news.com.com/FAQ+Forty+years+of+Moores+Law/2100-
1006_3-5647824.html.
74
Nat'l White Collar Crime Ctr. & the Fed. Bureau of
Investigation, IC3 2004 Internet Fraud - Crime Report 3
(2005), available at
http://www.nw3c.org/cfres_info_form.cfm (check "Internet
Fraud" or "IC3 2005 Internet Fraud Report" checkbox; fill
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Loyola of Los Angeles Law Review Patty Chan
Of the 2004 totals, nearly half were committed over the
Internet or similar online services.75 While a majority of
fraud cases occurred by electronic mail (E-mail) contact,
23.5% of the 2004 reported cases occurred by contact with a
web page.76 Scammers have employed methods like “page-
jacking,” where Internet users are diverted to an
illegitimate Web site and tricked to believe they reached
their intended website with copied Web pages from that
site,77 and “mouse-trapping,” where Internet users are
out registration information; then click the "Continue"
button).
75
Id.
76
Id.
77
Internet.com, PageJacking,
http://www.webopedia.com/term/p/pagejacking.html (last
visited Feb. 17, 2006); Working Group on Unlawful Conduct
on the Internet, Electronic Frontier: The Challenge of
Unlawful Conduct Involving the Use of the Internet app. B-3
(2000),
http://www.usdoj.gov/criminal/cybercrime/append.pdf.
33
Loyola of Los Angeles Law Review Patty Chan
unable to leave a website.78 “Cybersquatting” or the act of
obtaining domain names and then selling them to the
rightful trademark owner at an extremely high price has
been deemed a type of online extortion.79 At the end of
1999, Jupiter Communications estimated 98 percent of the
words in the English language will be registered as domain
names.80 About 1 million domains are up for renewal each
78
Internet.com, Mousetrapping,
http://www.webopedia.com/TERM/m/mousetrapping.html (last
visited Feb. 17, 2006).
79
Internet.com, Cybersquatting,
http://www.webopedia.com/TERM/C/cybersquatting.html (last
visited Feb. 17, 2006); Nolo, Cybersquatting: What It Is
and What Can Be Done About It,
http://www.nolo.com/article.cfm/objectID/60EC3491-B4B5-
4A98-BB6E6632A2FA0CB2/111/228/195/ART (last visited Feb.
17, 2006); Net4TV Voice News Staff, Cybersquatting: One Way
Not to Make Money on the Net, Net4TV, October 24, 1999,
http://www.net4tv.com/voice/Story.cfm?storyID=1579.
80
Eastern Europe: City Names Are Prey for Cybersquatters,
Balkan Info, July 11, 2000, http://www.b-
info.com/tools/miva/newsview.mv?url=news/2000-
34
Loyola of Los Angeles Law Review Patty Chan
month, and trafficking domains has been quite lucrative81.
Unfortunately, for domain names that are not trademarked,
owners of pornographic websites have been eager to seize
and claim such sites when not renewed.82
Most frequently, owners of pornographic websites
employ the deceptive technique called “typo-squatting” by
registering domain names that are very similar to other
companies and entities but for a slight variation in
07/text/jul11a.rfe (last visited Feb. 17, 2006)
[hereinafter Eastern Europe].
81
Jeffrey Benner, Sites Forlorn When Reborn as Porn, Wired
News, Dec. 10, 2001,
http://www.wired.com/news/ebiz/0,1272,48903,00.html;
Whitehouse.com For Sale, Reuters, Feb. 12, 2004,
http://www.smh.com.au/articles/2004/02/11/1076388445084.htm
l?from=storyrhs; Net4TV Voice News Staff, supra note 79;
Eastern Europe, supra note 80.
82
Dina ElBoghdady, When Domains Go Unrenewed, the
Opportunists Swoop In, Washington Post, November 22, 2001,
at E5, available at http://www.washingtonpost.com/ac2/wp-
dyn?pagename=article&node=&contentId=A1229-2001Nov22.
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Loyola of Los Angeles Law Review Patty Chan
spelling.83 These “typo” domain names are registered with
“deliberate missing-dot typos, character omission typos,
character permutation typos, character replacement typos,
and character insertion typos.”84 Thus, by mistyping a
website’s secondary domain name or top-level domain name,
Internet users may find themselves visiting a pornographic
site.85
One such infamous pornographic website (now sanitized
and under new ownership) was “whitehouse.com”, which
boasted 85 million visitors from 1997 to 2004 and probably
surprised many Internet users who were searching for the
U.S. President’s website, “whitehouse.gov”.86 With a few
incorrect keystrokes, Internet users may find themselves
83
David Carney, Page Jacking and Mouse Trapping, Tech L.J.,
Dec. 8, 1999, available at
http://www.techlawjournal.com/internet/19991208.htm.
84
Ryan Naraine, MS Research: Typo-Squatters Are Gaming
Google , Eweek, Dec. 19, 2005,
http://www.eweek.com/article2/0,1895,1903695,00.asp.
85
Jeff Pelline & Courtney Macavinta, When a Typo Leads to
Porn, CNET News, July 14, 1997, http://news.com.com/2100-
1023-201416.html.
86
Id.; Whitehouse.com For Sale, supra note 81.
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not on “Google.com” but on “Booble.com,” a powerful search
engine dedicated to pornographic websites.87
Children are just as susceptible as adults. In
searching for the popular teen magazine “Seventeen,”
teenagers can easily mistype “Seventeen.com” and stumble
into pornographic websites just by adding an additional
letter like “s” or “n” to the secondary-domain name.
Another example is “www.cheerleading.com”, which
legitimately sells cheerleading apparel for girls.
However, by typing in “cheerleaders” or mistyping and
switching the “a” and “e”, children will find themselves on
pornography sites.
With these “typo” domain names, typo-squatters
generate revenue by monitoring the number of clicks in
their false website and selling advertisements for high-
traffic websites.88 The advertisement dollars may derive
from competitors and from advertising related products or
87
Third Way, The Porn Standard: Children and Pornography on
the Internet 6 (2005), available at http://www.third-
way.com/data/product/file/14/porn_standard.pdf.
88
Anti-Spam League, What is Cybersquatting,
http://www.anti-spam-
league.org/articles/What+is+Cybersquatting.
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Loyola of Los Angeles Law Review Patty Chan
services of the mimicked website.89 However, the government
has since determined that typo-squatting is illegal. In
2000, John Zuccarini, who possessed more than 5,500 “typo”
domains, became the first person to be charged, fined, and
later imprisoned for violating federal law for directing
90
children to pornography with his typo-squatting
89
Id.; Naraine, supra note 84.
90
In October 2001, the Federal Trade Commission charged
John Zuccarini with unfair and deceptive practices in
violation of federal law. Press Release, Fed. Trade
Comm'n, Court Shuts down Cyberscam Permanently, May 24,
2002, available at
http://www.ftc.gov/opa/2002/05/cupcake.htm. Mr. Zuccarini
was forced to give up $1,897,166 and barred from running
his “typo” domains. See Judgment, Fed. Trade Comm'n v.
John Zaccarini, No. 01-CV-4854 (E.D. Pa. 2002), available
at http://www.ftc.gov/os/2002/05/johnzuccarinijudandpi.pdf.
Then on December 10, 2003, Mr. Zuccarini was charged for
violating the federal Amber Alert law. To avoid civil
damages, Mr. Zuccarini pled guilty and was sentenced to 2 ½
years in prison for directing children to pornography using
“typo” domain names. John Zuccarini Jailed for Scheme to
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Loyola of Los Angeles Law Review Patty Chan
Another method used to increase traffic to
pornographic websites involves the “Trojan horse” or
computer programs that seem benign but can actually cause
serious damage to computers and “viruses,” or programs that
replicate themselves and harm computers.91 On June 25,
2004, Internet engineers found certain websites contained a
computer virus, which redirected visiting Internet users to
a Russian site and then downloaded software unknowingly
onto their computers.92
While information is not available about whether such
viruses stemmed from pornographic websites, certain Trojan
horse programs and viruses have been found to directly
benefit pornographic sites. For example, the “Troj/Delf-
IT” Trojan horse remains inactive on an Internet user’s
computer until it encounters certain words from a website’s
Lure Children to Porn, Assoc. Press,
http://www.whois.sc/news/2004-02/john-zuccarini.html.
91
Marshall Brain, How Computer Viruses Work, HowStuffWorks,
http://computer.howstuffworks.com/virus.htm/printable.
92
Robert Lemos, Web Site Virus Attack Blunted, CNet News,
June 25, 2004,
http://news.com.com/Web+site+virus+attack+blunted/2100-
7349_3-5248279.html.
39
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title, such as “beauty”, “outdoor”, “domination,” and
“spanked.”93 Over 50 phrases and words trigger the Trojan
horse and many of the words seem to be specially triggered
if the Internet user was already visiting a pornographic
site.94 Once the Trojan horse is triggered, it then
downloads code and redirects the Internet user’s browser to
95
other pornographic sites.
Other Trojan horses similarly force Internet users
onto pornographic websites: for example, “Trojan.Exlife”
steals the user name and E-mail address and registers the
user to a pornographic website;96 “Trojan.Gurepirls”
likewise steals E-mail addresses and registers the stolen
addresses on a pornographic site but then requests users to
93
Porno Trojan Horse Lies in Wait for Seedy Web Surfers,
Says Sophos, Sophos, Nov. 17, 2004,
http://www.sophos.com/pressoffice/news/articles/2004/11/va_
delfit.html [hereinafter Porno Trojan Horse].
94
Id.
95
Id.
96
Kaoru Hayashi, Trojan.Exlife, Symantec,
http://securityresponse.symantec.com/avcenter/venc/data/tro
jan.exlife.html (last visited Feb. 17, 2006).
40
Loyola of Los Angeles Law Review Patty Chan
pay for access to the site;97 and “Troj/TCXMedi-C” alters
computers to run the Trojan horse at start up and to
secretly download pornographic images from a website onto
users’ computers.98 No evidence links the viruses and
Trojan horses directly to pornographic websites.
Similarly, viruses replicate themselves and may also
wreak havoc on an Internet user’s computer.99 For example,
the “VBS/Confi-A” virus repeatedly loads an Internet user’s
browser onto a pornographic website.100 A computer security
company notes the possibility that owners of pornographic
websites may have had a hand in the viruses and Trojan
horse programs since such programs are deliberately
97
Kaoru Hayashi, Trojan.Gurepirls, Symantec,
http://securityresponse.symantec.com/avcenter/venc/data/tro
jan.gurepirls.html (last visited Feb. 17, 2006)
98
Sophos, Troj/TCXMedi-C,
http://www.sophos.com/virusinfo/analyses/trojtcxmedic.html
(last visited Feb. 17, 2006)
99
Brain, supra note 91.
100
Sophos, VBS/Confi-A,
http://www.sophos.com/virusinfo/analyses/vbsconfia.html
(last visited Feb. 17, 2006).
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designed to increase traffic and revenue to pornographic
sites.101
Often with deceptive domain names, pornographic
websites play a strong role in computer crimes and promote
computer viruses. By strengthening the connection between
criminal activity and pornographic websites, the government
will be better able to advance its argument that secondary-
effects from online pornography are just like the ones that
the court allowed to be zoned by the Renton ordinance.
b. Substantial interest
After establishing that secondary-effects exist, the
government can claim that it has a sufficiently substantial
interest in regulating pornography on the Internet. The
Renton court has recognized the government’s interest in
preventing crime.102 Just as the city of Renton had an
interest in protecting the quality of life in its
communities,103 the government could similarly argue that it
has an interest in protecting the virtual communities on
101
Porno Trojan Horse, supra note 93.
102
See City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 50 (1986).
103
Id.
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the Internet from the secondary-effects of pornographic
websites.
Computer related crimes result in significant costs.104
In 2004, computer crimes cost businesses an estimated $17
billion, and costs stemming from computer viruses alone was
an estimated $55 million in damages.105 Identified as one
of the fastest-growing criminal activities in the world,
computer crimes include fraud, extortion, and virus
attacks.106 In 2004, the Internet Crime Complaint Center
received 103,959 complaints of fraud that totaled $68.14
million or $219.56 per complaint.107 In December 2005, an
antivirus software company estimated over 114,000 different
kinds of computer viruses, Trojan horses, and other
104
BBC, Life of Crime - Part 5,
http://news.bbc.co.uk/hi/english/static/in_depth/uk/2001/li
fe_of_crime/cybercrime.stm.
105
Fiberlink, Market Statistics: Knowledge Base,
http://www.fiberlink.com/release/en-
US/Home/KnowledgeBase/Resources/Stats (citing the CSI/FBI
2004 Computer Crime and Security Survey).
106
BBC, supra note 104.
107
Nat'l White Collar Crime Ctr. & the Fed. Bureau of
Investigation, supra note 74.
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computer threats.108 Another antivirus software company
recorded 10,248,989 infections worldwide in the second
quarter of 2005, or a 22% increase from the first
quarter.109 Infections can cause thousands of dollars in
lost data and loss of confidential information as well as
lost productivity.
Of the 300 organizations surveyed, thirty-six percent
responded that their computers were down for one hour or
less after a virus attack, with the median downtime being
21 hours.110 The average recovery time was about 20 days,
108
Sophos, Sophos Security Threat Management Report 4
(2005), available at
http://www.sophos.com/virusinfo/whitepapers/SophosSecurity2
005-mmuk (complete registration material; then click the
"Submit" button; then follow "Sophos Security Report 2005"
hyperlink).
109
Alberto Feliciano, Maria Angelea N. Flores, & Jose
Benjamin Perez, Trend Micro Inc., Q2 2005 Virus Roundup 10
(2005), available at
http://www.trendmicro.com/NR/rdonlyres/1D333BB8-55BA-4A92-
94AF-D6C8E4A5F3ED/16469/Q22005Roundup.pdf
110
Trend Micro Inc., The Real Cost of a Virus Outbreak: Why
is Antivirus Needed? 4 (2002), available at
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with average costs estimated at the median of $10,000 and
the average of $120,000 in direct costs.111
With the financial and social costs on individuals and
businesses, the government will have demonstrated its
substantial interest in regulating computer crimes.
Moreover, the government need not conduct an independent
study as asserted by the Renton court.112 Whether it’s to
prevent crime or a loss of productivity, the government has
sufficient interest to satisfy this prong of the content-
neutral test.
c. Reasonable alternatives
Lastly, even if the regulation promotes a substantial
government interest, it must also provide reasonable
alternative channels of communication for dissemination of
the speech.113 Requiring pornography to be located on a
dedicated top-level domain like .xxx would likely meet this
standard.
http://www.trendmicro.com/NR/rdonlyres/02A09EAE-3758-41C9-
8ED0-1FAF851BA256/2774/realcostwhitepaper.pdf.
111
Id.
112
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,
51 (1986).
113
Id.
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Just as the Renton ordinance affected only the type of
theaters producing the unwanted secondary effects,114
legislation requiring pornographic websites to be located
at a .xxx top-level domain should also be found reasonable,
being narrowly tailored to affect only pornographic
websites that cause the negative effects. Moreover, the
government may impose restrictions to the extent that the
public maintains reasonable access to the expression.115
Moving the pornographic websites onto the .xxx top-
level domain still affords the public access to such sites.
Typing in .xxx is just as easy as typing in .com. In
addition, even though it will cost $60 to register each
domain name on .xxx116 and such a move may produce lower
profits than on another top-level domain like .com, the
Court has indicated that the First Amendment is not
114
Id. at 52 (holding the Renton ordinance was “narrowly
tailored”, affecting only that category of theaters that
produced the unwanted secondary effects).
115
Id. at 53.
116
Ted Bridis, Internet Group OKs 'xxx' Web Addresses, S.F.
Gate, June 1, 2005, http://www.sfgate.com/cgi-
bin/article.cgi?f=/news/archive/2005/06/01/national/w162114
D19.DTL.
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interested about the commercial viability of such a move or
about getting a bargain price for such sites.117
V. Holder of the Keys: ICANN and the State Action Doctrine
Since the U.S. government has delegated management of
the Internet to ICANN, one may think ICANN as a private
entity, could zone the Internet free from constitutional
restraint.118 However, ICANN’s designation as a non-profit
117
City of Renton, 475 U.S. 53-54.
118
The U.S. Constitution does not generally restrict the
action of private actors, including the activities of
private corporations like ICANN. See Paul Schiff Berman,
Cyberspace and the State Action Debate: The Cultural Value
of Applying Constitutional Norms to ‘Private’ Regulation,
71 U. Colo. L. Rev. 1263, 1266 (2000) (“[h]aving its
genesis in an 1883 Supreme Court decision overturning
Reconstruction-era civil rights legislation, the state
action doctrine...rests on the observation that most
constitutional commandments proscribe only the conduct of
governmental actors”). For the purposes of this article,
the term “state action” encompasses all levels of
government from national, state, to local. Alliance for
Cmty. Media v. F.C.C., 10 F.3d 812, 181 n.4 (D.C. Cir.
1993) (overruled on another aspect of law).
47
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corporation does not determine its legal status.119 Because
the line between public and private action is unclear,120
119
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
531 U.S. 288, 296 (2001) (stating that courts apply the
state action doctrine to determine if private actors are in
fact acting as state actors regardless of their official
legal characterization).
120
Perkins v. Londonderry Basketball Club, 196 F.3d 13, 18
(1st Cir. 1999). It should be noted several critics have
indicated that the cases are often inconsistent and may
overlap. See Erwin Chemerinsky et al., Constitutional Law
405-06 (2001) (providing that some of the reasons for
inconsistency include: (1) “the government always has the
power to regulate private behavior,” (2) “the government is
involved, to some extent, in almost every activity,” (3)
“[t]he inconsistencies...reflect social realities” of
courts applying an expansive state action doctrine between
the late 1940s through the 1960s and a more narrow
definition afterwards, (4) “[t]he inconsistencies...reflect
the reduced need to rely on the Constitution to reach
private racial discrimination,” and (5) “the Court [was
just] not clear as to which exception it [was]
discussing”). See also, Donna M. Nagy, Playing Peekaboo
48
Loyola of Los Angeles Law Review Patty Chan
courts will examine whether ICANN is a state actor on a
case-by-case basis, determining facts and circumstances of
the government’s involvement.121 As a result, this section
examines whether ICANN’s decision to postpone approval of
the .xxx top level domain constitutes state action.
A. ICANN is a State Actor
Under the state action doctrine, ICANN could be a
state actor under the symbiotic relationship test, the
nexus test, the traditional public function, or the
with Constitutional Law: The PCAOB and Its Public/Private
Status, 80 Notre Dame L. Rev. 975, 981 (2005) (stating that
“constitutional law scholars have described the Supreme
Court's state action doctrine as incoherent and a
conceptual disaster area”).
121
See Brentwood Acad., 531 U.S. at 295 (stating “[w]hat is
fairly attributable [to the state] is a matter of normative
judgment, and the criteria lack rigid simplicity”). See
also Perkins, 196 F.3d at 18 (citing Burton v. Wilmington
Parking Auth., 365 U.S. 715, 722 (1961), which stated
courts must review each case by “sifting facts and weighing
circumstances [so that] the nonobvious involvement of the
State in private conduct [can] be attributed its true
significance”).
49
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government encouragement test.122 ICANN only needs to meet
one of these tests to be a state actor.123 Of the four
tests, the first two are most applicable to ICANN if it
attempted to zone the Internet.
1. The Symbiotic Relationship Test
A court should find a symbiotic relationship exists
between the U.S. government and ICANN. Courts have held
that a corporation is a state actor when the government and
the private party are so entangled to appear as if they are
acting in concert.124 The U.S. government holds
considerable influence over ICANN due to its involvement in
the creation of ICANN, especially in its contracts with
122
Air Line Pilots Assoc., Int'l v. Dep't of Aviation of
City of Chi., 45 F.3d 1144, 1149 (3d Cir. 1995).
123
See Brentwood Acad., 531 U.S. at 302-03 (holding a
conclusion of state actor under one criterion is sufficient
even though the other criteria of state action may not be
satisfied).
124
Wickersham v. City of Columbia, 371 F.Supp.2d 1061, 1079
(W.D. Mo. 2005) (stating that when the circumstances
confuse people and give the appearance of state action, the
reality is that generally such is the case).
50
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ICANN and its ongoing oversight of ICANN.125 Thus, a
symbiotic relationship exists because the U.S. government
sets the legal standards that circumscribe ICANN.126
In transferring management of the Domain Name System
to ICANN, the Department of Commerce entered into three
agreements with ICANN, which included a 1998 Memorandum of
Understanding (MOU) for a joint Domain Name System
project.127 The MOU required ICANN to work together with
the government to “jointly design, develop, and test the
mechanisms, methods, and procedures” to facilitate the
transfer.128
125
U.S. Gen. Accounting Office, supra note 37, at 4, 12,
16.
126
Dobyns v. E-Systems, 667 F.2d 1219, 1223 (5th Cir. 1982)
(stating that government in setting legal standards evinces
state action).
127
U.S. Gen. Accounting Office, supra note 37, at 15
(stating the other two agreements were a joint agreement to
study the root server system and a sole source contract to
perform certain technical functions relating to the
coordination of the Domain Name System).
128
Id. at 16. ICANN also inherited the same implied
antitrust immunity that the government expressly granted
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Courts have also held a symbiotic relationship exists
when the government does not completely relinquish control
over a project.129 Here, the government maintains a
and the courts have upheld to the party managing the Domain
Name System. See PGMedia, Inc. v. Network Solutions, Inc.,
51 F.Supp.2d 389, 405 (SDNY 1999), aff'd sub.nom.
Name.Space, Inc. v. Netwrok Solutions, Inc, 202 F.3d 573
(2d Cir. 2000).
129
Dobyns, 667 F.2d at 1226-27 (finding that a branch of
the State Department was ultimately responsible for the
purportedly government-transferred project; several
government personnel remained and worked on the mission;
the government indemnified the private corporation’s
employees; and most significantly, the government retained
disciplinary power over the private corporation’s
employees). See also Air Line Pilots Assoc., Int'l v.
Dep't of Aviation of City of Chi., 45 F.3d 1144, 1149 (3d
Cir. 1995) (holding an interdependent relationship existed
between the city and a private company when the city had
authority to reject advertisements at its discretion; paid
for display lighting and construction-related relocations;
provided office and storage space at no charge to the
private company; had authority to review and order
52
Loyola of Los Angeles Law Review Patty Chan
financial interest in ICANN because it facilitates the
growth of technology and increases U.S. productivity.130 In
addition, the government has a strong political interest in
intervening in the approval process of top-level domains
like .xxx to appease its constituents.131 The U.S.
government further showed its political interest by
opposing U.N proposals for the Domain Name System to be
termination of the private company’s employees; and was
entitled to 60% of all revenue received by the private
company).
130
Pamela Samuelson & Hal R. Varian, The 'New Economy' and
Information Technology Policy 7-8 (UC Berkeley of Info.,
Paper No. July, 18, 2001), available at
http://www.sims.berkeley.edu/~pam/papers/infopolicy; Nancy
J. Victory, Assistant Sec'y for Communc'n & Info., Keynote
Speech at the GBDe Sherpa Meeting (July 11, 2002),
http://www.ntia.doc.gov/ntiahome/speeches/2002/gbde07112002
.htm.
131
Kevin Poulsen, Worst Tech Moments 2005, Wired News, Dec.
27, 2005 http://www.wired.com/news/technology/0,69918-
0.html?tw=wn_tophead_2.
53
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reassigned from ICANN to a multinational agency.132
International organizations think the U.S. government
controls ICANN, and others have compared ICANN’s function
to the Federal Communications Commission in its regulatory
conduct.133
ICANN’s postponement of the .xxx domain further
reveals the extent of the U.S. government’s control. The
two U.S. government officials on ICANN’s Governmental
Advisory Committee134 convinced the committee chairman to
132
Poulsen, supra note 6. See also ICANN Watch, ICANN for
Beginners, http://www.icannwatch.org/icann4beginners.shtml
(stating interest in the Domain Name System stems from the
fact that the Domain Name System confers substantial power
over the Internet, allowing what new families of “top-
level” domain names can exist (e.g., new suffixes like .xxx
or .union) and how names and essential routing numbers will
be assigned to websites and other Internet resources).
133
Jonathan Weinberg, ICANN, Internet Stability, and New
Top Level Domains, in Communications Policy and Information
Technology: Promises, Problems, Prospects 3 (Lorrie Cranor
& Shane Greenstein eds. 2002).
134
Under Executive Order 12046, 43 Fed. Reg. 13,349 § 2-4,
2-5 (1978), and NTIA’s statutory authority, amended 47
54
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request additional time for governments to consider the
.xxx top-level domain.135 This letter, along with another
U.S.C. § 901(c)(3) (2005), sets forth NTIA's responsibility
for facilitating and contributing the full development of
competition, efficiency and free flow of commerce. See U.S.
Gen. Accounting Office, supra note 37, at 20 (stating the
Department of Commerce reserves the right to participate in
ICANN’s open meetings and on ICANN’s Governmental Advisory
Committee). While the Department of Commerce maintains
that it does not participate in any decision making on
ICANN at these meetings, Id., the government holds great
influence over ICANN. Under ICANN’s bylaws, the
Governmental Advisory Committee provides nonbinding advice
on ICANN activities related to governmental concerns,
especially regarding ICANN’s policies and laws or
international agreements. See ICANN, Bylaw for Internet
Corporation for Assigned Names and Numbers,
http://www.icann.org/general/archive-bylaws/bylaws-
19apr04.htm.
135
Letter from Mohamed Sharil Tarmizi, Chairman of the
Government Advisory Committee, to ICANN Board of Directors
(August 12, 2005),
55
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from the Department of Commerce,136 postponed and possibly
ended the lengthy and expensive process that would have led
to the adoption of the .xxx domain.137
2. The Nexus Test
Courts could also deem ICANN a state actor under the
nexus test. A close relationship must exist between
government and the private party so that the action of the
http://www.icann.org/correspondence/tarmizi-to-board-
12aug05.htm.
136
Letter from Michael Gallagher, Assistant Sec'y for
Commc'n & Info., Dep't of Commerce, to Vinton Cerf,
Chairman of the Bd., ICANN (Aug. 15, 2005), available at
http://www.icann.org/correspondence/gallagher-to-cerf-
15aug05.pdf.
137
Press Release, Internet Governance Project, Statement
Opposing Political Intervention in the Internet's Core
Technical Administrative Functions (Aug. 23, 2005),
available at http://dcc.syr.edu/miscarticles/statement-
xxx.pdf; Letter from Stuart Lawley, Chairman of the Bd.,
ICM Registry, to Paul Twomey, Chief Executive Officer,
ICANN (Aug. 15, 2005), available at
http://www.icann.org/correspondence/lawley-to-twomey-
15aug05.pdf.
56
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latter is attributed to the government.138 Courts focus on
whether the government exercised coercive power or provided
express or implied encouragement.139
Here, ICANN’s delay in approving the .xxx top-level
domain evidences a close nexus between ICANN and the
federal government.140 First, the U.S. government has the
authority and interest in delaying the .xxx top level
domain. A government report hints that the government has
authority to unilaterally block approval of the .xxx top-
138
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
(1974).
139
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
140
See, e.g.,. Air Line Pilots Assoc., Int'l v. Dep't of
Aviation of City of Chi., 45 F.3d 1144, 1150 (3d Cir. 1995)
(finding requisite state action when the City had complete
discretion to veto contracts based on the advertisement
content even though the private company had been the last
party to refuse the association’s message and the
impossibility of determining which party really decided not
to display the message given that both the City and the
advertising company wanted to avoid displaying the
message).
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level domain.141 In addition, the Bush administration is
motivated in protecting the interests of its political
constituents.142 After all, the request to suspend the
already approved .xxx top-level domain resulted from “[t]he
Department of Commerce [having] received nearly 6,000
letters and e-mails from individuals expressing concern
143
about the impact of pornography.” These letters were
sent by the Conservative Petitions144 and Family Research
Council,145 both politically conservative organizations that
support the Bush Administration.146
141
McCullagh, supra note 9.
142
Id.
143
Id.
144
See Conservative Petitions, Managed by Response
Unlimited,
http://www.responseunlimited.com/datacard.lasso?list=1617;
Conservative Petitions, FAQ,
http://www.conservativepetitions.com/petitions.php?action=f
aq.
145
See Family Research Council,
http://www.pfaw.org/pfaw/general/default.aspx?oid=4211.
146
Regina Lynn, Bush, Pornographers Bash .xxx, Wired News
(2005),
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Second, ICANN’s recent decisions regarding the .xxx
top-level domain reveals the federal government’s coercive
power over the process. In November 2000, ICANN originally
rejected the .xxx top-level domain.147 In response,
Congressional representatives criticized ICANN, demanding
approval of the .xxx top-level domain.148 As a result, five
years later, ICANN reversed course and approved the .xxx.
top-level domain.149 However, ICANN once again responded to
government pressures when it delayed “final approvals” of
the .xxx domain.150
http://www.wired.com/news/culture/0,1284,68640,00.html;
Press Release, supra note 137 (“Concern about the US
intervention is particularly strong in this case [regarding
NTIA’s recent intervention in the .xxx proceeding] because
of the open acknowledgment in the NTIA’s letter of the
influence of an organized campaign by domestic religious
groups devoted to content regulation of the Internet”).
147
McCullagh, supra note 9.
148
Id.
149
Press Release, supra note 8.
150
McCullagh, supra note 9. Conservative Petitions
“harnesses Internet technology to help conservative
Americans...let those in charge know what [they] think.
59
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“[N]o motion for a delay by ICANN or its Governmental
Advisory Council [existed] until after the NTIA sent its
letter.”151 Not only had this matter been before ICANN five
years ago, but the .xxx top-level domain had been publicly
debated for 18 months with ICANN actively soliciting views
and providing opportunity for anyone concerned to present
their views.152 With the approval of the .xxx top-level
domain still pending, a court should find that ICANN really
is a state actor and an instrument of the federal
government.
[The site provides] news and information about crucial
issues [and]...[provides] petitions that voice...concerns
to the people who need to hear it -- all in one convenient
location. See Conservative Petitions, Welcome Page,
http://www.conservativepetitions.com/petitions.php. The
Family Research Council is a non-profit organization that
believes “that God is the author of life, liberty, and the
family” and “promotes the Judeo-Christian worldview as the
basis for a just, free, and stable society.” See Family
Research Council, About FRC,
http://www.frc.org/get.cfm?c=ABOUT_FRC.
151
Press Release, supra note 137.
152
Letter from Stuart Lawley, supra note 137.
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IV. The Middle Ground between Shadow and Light: Policy
Concerns about Regulating Internet Pornography
With the increasing profitability of online
pornography and the growing number of pornographic
websites, self-regulation by the pornography industry has
resulted in inconsistent outcomes and prompted some
Internet users to call for government intervention, mostly
out of concern of protecting children from online
pornography.153 However, many people believe the Internet
should remain free of government regulation, even
outweighing the risks of exposing children to online
pornography.154 This section of the article presents some
of the main arguments against government regulation of the
Internet.
153
Jim Wagner, Report: Online Pedophilia up 300 Percent,
Internet News, Mar. 31, 2005,
http://www.internetnews.com/stats/article.php/3494241.
154
Marvin J. Johnson, The Ten Commandments of Regulating
Inappropriate Material on the Internet, National Academies,
http://www7.nationalacademies.org/itas/whitepaper_4.html
(last visited Feb. 17, 2006)
61
Loyola of Los Angeles Law Review Patty Chan
A. Opponents of First Amendment Zoning of Internet
Pornography
The primary argument against zoning or any regulation
of the Internet is that zoning discourages free speech.155
Most people would generally agree that free speech is
fundamental in society.156 Opponents of government
regulation of the Internet argue that Internet zoning will
result in censorship by making information inaccessible and
157
increasing overall costs of Internet activities. The
concept of zoning requires some agency, usually a
governmental body, to assert control over the discourse in
making a determination about the speech.158 By doing so,
opponents of Internet regulation fear governments will
abuse such discretion and attempt to control or eliminate
155
Yulia A. Timofeeva, Worldwide Prescriptive Jurisdiction
in Internet Content Controversies: A Comparative Analysis,
20 Conn. J. Int'l L. 199, 220 (2005).
156
Id.
157
Id. at 220-21.
158
Steven G. Gey, Fear of Freedom: The New Speech
Regulation in Cyberspace, 8 Tex. J. Women & L. 183 (1999).
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Loyola of Los Angeles Law Review Patty Chan
information on the Internet.159 Examples abound around the
world of governments attempting to ban what they deem as
disruptive messages on the Internet.160 Moreover, to comply
with regulations, costs for Internet development will most
likely increase.161 With rising costs, smaller Internet
developers may not be able to afford to broadcast their
message.162 Furthermore, development costs will most likely
be passed to Internet users, inhibiting access to the
Internet.163
159
Id. stating that once political paternalism in one area
becomes the new model of speech regulation, it will be
difficult to stop that model from expanding into every
other area of First Amendment jurisprudence); Timofeeva,
supra note 155, at 220.
160
Wikipedia, Censorship in Cyberspace,
http://en.wikipedia.org/wiki/Internet_censorship; Ryan
Paul, China Declares War on Internet Pornography, ARS
Technica, Dec. 31, 2005,
http://arstechnica.com/news.ars/post/20051231-5873.html
161
Timofeeva, supra note 155, at 220.
162
Id.
163
Id.
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Such fears were almost realized in Australia when a
conservative party proposed legislation in 2004 that
required Internet Service Providers to impose mandatory
filtering in order to protect children from pornography.164
The initiative was estimated to cost AU$45 million
(approximately US$33.7 million)165 per year to implement and
AU$33 million (approximately US$24.7 million)166 per year to
maintain.167 Not only would such an initiative drive
164
Kimberley Heitman, Australian Net Censorship Bill,
Internet Freedom, May 31, 1999,
http://www.netfreedom.org/news.asp?item=63; Lester Haines,
Oz Conservatives Demand Porn-Busting Net Levy, Register,
Sept. 27, 2004,
http://www.theregister.co.uk/2004/09/27/net_levy/print.html
.
165
XE, Universal Currency Converter,
http://www.xe.com/ucc/convert.cgi (last visited Jan. 9,
2006).
166
Id.
167
Govt Rejects National Net Porn Filter, Fairfax Digital,
Dec. 1, 2004, http://www.theage.com.au/news/Breaking-
News/Govt-rejects-national-net-porn-
filter/2004/12/01/1101577543022.html
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smaller Internet Service Providers out of business, but
Internet users were expected to pay an additional AU$7 to
AU$10 (approximately US$5 to US$7)168 per year to cover the
proposal.169 The Australian government rejected the
proposal a few months later.170
Some of the other issues raised by opponents of
Internet regulation and which also surfaced with
Australia’s mandatory filter proposal included the
potential for government regulation to slow the Internet
and the ineffectiveness of the regulation in solving the
problem.171 The ineffectiveness of government regulations
has been attributed to the multi-national nature of the
Internet. Since countries have different views about
decency and morality, agreement between nations on what
168
XE, supra note 165.
169
Haines, supra note 164.
170
Govt Rejects National Net Porn Filter, supra note 167.
171
Posting of Rik Panganiban to
http://mailman.greennet.org.uk/public/plenary/2004-
December/010133.html (Dec. 2, 2004, 14:35:05).
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content should be regulated is unlikely.172 Without
agreement between the different nations, Internet users can
circumvent Internet restrictions simply by searching on
overseas sites.173
In addition, even if all pornographic websites were
forced to an .xxx top-level domain, the government would
have difficulty on a technical level in preventing owners
of pornographic websites from creating links or domain
names with the .com top-level domain that immediately
redirected Internet users to a corresponding .xxx
website.174 For example, the “Guba.com” website offers free
adult video downloads in addition to its ordinary selection
of videos. By typing in the Uniform Resource Locator
“www.guba.net”, Internet users are immediately transported
to the corresponding “www.guba.com” website.
If the government attempted to shut down or to seize
the corresponding .com website, such actions would most
likely constitute a government taking and trigger a host of
172
Donald E. Eastlake, .sex Considered Dangerous (Motorola
Laboratories, Network Working Group, Paper No. RFC3675),
http://rfc.net/rfc3675.html.
173
Heitman, supra note 164.
174
Eastlake, supra note 172, at 9.
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other legal ramifications well beyond the scope of this
paper.
Although obtaining international consensus on
regulating pornography can be exasperating, the threat of
the U.S. government imposing restrictions unilaterally
175
would have international repercussions. From the 2005
U.N.’s WSIS Conference, other countries are already wary
about the U.S.’s predominant control over the Internet via
the Domain Name System.176 Any action that the U.S. takes
regarding the Internet will be greatly scrutinized and used
to reignite arguments for control of the Internet to be
transferred to a multinational agency.177
As a result, even though the U.S. government may pass
constitutional muster to zone the Internet under the
secondary-effects doctrine, the technical, political and
economic issues associated with taking such action make the
feasibility of implementation unlikely anytime soon.
175
Net Dust Storm Blows into Tunis, supra note 7.
176
Id.; Bill Thompson, Preserving the Essence of the Net,
BBC News, Nov. 18, 2005,
http://news.bbc.co.uk/1/hi/technology/4448564.stm
177
Poulsen, supra note 6.
67
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V. Concluding Remarks
In the coming years, the government will need to
encourage rather than discourage children from
understanding and exploring the Internet. An ominous 2005
report indicates that a labor crisis may be imminent with
over 50 percent of workers with science, technology,
engineering and math degrees currently older than 40 years
of age.178 In order for the U.S. to stay globally
competitive, an information technology trade organization
is advocating the government to increase the number of
graduates in these fields from approximately 430,000 to
860,000 within the next 10 years.179
It is no wonder that schools are expending more
dollars per student on technology under programs like the
federal No Child Left Behind Act.180 However, along with
178
Info. Tech. Ass'n of Am. (ITAA), Innovation and a
Competitive U.S. Economy: The Case for Doubling the Number
of STEM Graduates 3 (2005),
http://www.itaa.org/workforce/docs/Innovationwhitepaper.pdf
.
179
Id. at 2.
180
School Districts Meeting Adequate Yearly Progress (AYP)
Requirements Spend Significantly More Per Student on
68
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the increasing importance the Internet plays in people’s
lives is the growing concern about the seedier side of the
Internet, primarily online pornography.181
Just as dangers exist in the real world, the virtual
world of the Internet holds similar threats. As this
article suggests, the government may be able to implement
First Amendment zoning of the Internet with the secondary-
effects doctrine, which was first introduced with
traditional land-zoning cases of Young and then reinforced
in Renton. The government currently has a compelling
argument that pornographic sites increase the likelihood of
such secondary-effects as crime and computer viruses that
threaten the virtual communities of the Internet. Thus,
even if ICANN is determined to be a state actor, ICANN
would be able to force all pornographic material onto a
specific top-level domain with the secondary-effects
doctrine.
Technology and Plan to Spend More in 2005-2006, Scholastic,
Sept. 13, 2005,
http://www.scholastic.com/aboutscholastic/news/press_091320
05_CP1.htm
181
Wagner, supra note 153.
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However, even though the government may
constitutionally be able to zone the Internet, the
political and technical realities may prove that the
Internet is immune to any government regulation including
First Amendment zoning. As described by the inventor of
the web, Tim Berners-Lee, perhaps in the not so distant
future a more apt analogy for the Internet will be that of
the human mind,182 and the only boundaries are that of the
imagination.
182
Net Guru Peers into Web's Future, BBC News, Sept. 25,
2003,
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.c
o.uk/2/hi/technology/3131562.stm.
70