Ars Technica, 6/28/06 - In April, Attorney General Alberto Gonzales put out a call for Congress to pass laws requiring "web labeling" to protect children from pornography, and in an election year, that's like dangling pig bones from a rawhide rope at the rabid dog kennel. Or something. To be sure, Senators are happy to oblige, and there will be no less than three separate attempts to sponsor legislation aimed at delivering Gonzales' wish. That wish includes a government ratings system for online obscenity and jail time for offenders. Mandatory ratings system, here we go!

Last week you met the Internet SAFETY (Stop Adults Facilitating the Exploitation of Youth) Act, born of the mind of Senator John Kyl (R-AZ). This week there's another amendment being proposed that deals with the same topic. By and large, they're the same legislation with the same ends, even if the language differs somewhat.

The SAFETY Act contains a host of Internet-related provisions, but of most interest to site operators will be the sections on labeling. The first requirement is directed against against both traditional "porn sites" and in fact any other website that hosts materials that could be considered "pornographic." In the bill's language, it would be illegal to lure users to pornographic materials through "deception."

"Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title and imprisoned for not less than 2 years nor more than 10 years."

Those who intended to deceive minors can expect to spend at least five years in jail. Also, note that this section of the bill only covers "misleading" terminology. The bill states that accurate terminology such as "sex" or "porn" (yes, this is actually in the text) are acceptable. In fact, if you look at the logic of the bill closely, you can see where this is headed: the only safe thing to do is label anything that might be porn as porn.

Hence, the second labeling requirement directs site operators who do host sexually explicit content to make it clear to viewers that such material is present on their site—and to do it before any of such material is visible. Webmasters must not fail:

"(1) to include on each page of the website that contains sexually explicit material, the marks and notices prescribed by the Commission under subsection (c); or

(2) to ensure that the matter on the website that is initially viewable, absent any further actions by the viewer, does not include any sexually explicit material."

As we previously reported, some technology advocates such as the Center for Democracy and Technology see hidden dangers in these requirements, claiming that they "would undermine First Amendment free speech protections and do nothing to protect children on the Internet." The CDT also believes that such legislation would "have a profoundly damaging chilling effect, deterring bloggers, artists and even health advocates from posting legitimate information that could expose them to jail time."

A more recent amendment to the Telecommunications bill running through the Committee includes language aimed at empowering the government to devise a ratings system for online obscenity. The amendment, which is backed by the Bush administration, but also shows similarities to Clinton-era proposals, would require the Federal Trade Commission to establish a ratings system which would then be required to be prominently displayed on websites before users might see any objectionable materials. The attempt will draw attention, as mandatory ratings systems have historically failed in the face of First Amendment challenges. Most ratings systems in use today, such as that for video games and movies, are voluntary.

As we pointed out last week, while the bills might cut down on the amount of accidental porn seen by children, it's important to remember that it covers the US; offshore porn remains tantalizingly out of reach for regulators. The legislation is a reminder of the reality that the Internet truly has no borders. That doesn't mean that it's impossible to regulate (*cough* China *cough*), but it does mean that Internet regulation in a free and connected society will always be of limited value.

From CNET News - 6/27/06 ...

Web site operators posting sexually explicit information must slap warning labels on their pages or face prison terms of up to five years, according to a proposal adopted by a U.S. Senate committee on Tuesday.

During a day of debate on a wide-ranging communications bill, the Senate Commerce Committee approved an amendment backed by the Bush administration that proponents claim would help clean up the Internet and protect children online.

It says that commercial Web sites must not place "sexually explicit material" on their home pages upon pain of felony prosecution--and, in addition, they must rate "each page or screen of the website that does contain sexually explicit material" with a system to be devised by the Federal Trade Commission.

"This will protect children from accidentally typing in the wrong address and immediately viewing indecent material," said Sen. Conrad Burns, a Montana Republican who is the co-founder of the Congressional Internet Caucus.

Burns said that politicians "have to take a bold step in this world of danger to our kids, and there are some people out there who prey on young children and they use the Internet and other methods to feed their sickness."

Civil libertarians have opposed the mandatory labeling proposal, saying it violates the First Amendment's guarantee of freedom of speech. Also, courts have taken a dim view of mandatory rating systems: In a 1968 case called Interstate Circuit v. Dallas, the U.S. Supreme Court ruled that Dallas' ordinance requiring that movies be rated was unconstitutional because the criteria for rating were unclear and vague.

Burns' seven-page amendment is virtually identical to a standalone bill introduced earlier this month by Sen. Jon Kyl, an Arizona Republican. Both proposals follow from a speech in April during which Attorney General Alberto Gonzales called on Congress to "promptly" enact such a law.

Sen. John Kerry, the Massachusetts Democrat, had planned to offer a "very similar" amendment and Senate aides would combine the two before a floor vote, said Ted Stevens, the Alaska Republican who serves as the committee chairman.

Stevens also postponed discussion of what has proven one of the thorniest provisions of the massive telecommunications bill: Net neutrality. Senators plan to begin debate on that topic on Wednesday at 10 a.m. ET, with votes on a number of amendments expected.

The entire communications bill won't become law unless it receives final approval by the committee and, later, the full Senate. It must also be reconciled with a House of Representatives version that differs in many respects, including having no Internet labeling requirements.

From XBiz - 6/28/06 ...

First Amendment Attorney Lawrence G. Walters offers a different point of view.

“Forcing speech on a publisher is problematic,” Walters told XBIZ. “I’m not against voluntary labeling. In fact, we need to do that to ward off government regulation. Many adult sites label their content with warning pages, but it might not have been widespread enough. I think the government will find that voluntary labeling is pervasive among adult sites, but we don’t have a uniform system. Most adult sites already comply.”

Walters mentioned the video game, music and movie industries as examples of the effective use of self-labeling.

“Unfortunately, web content has been fractured and inconsistent with labeling because of how unwieldy the international web is,” Walters said, citing the Internet’s tremendous worldwide scope and operations. “Depending on the final wording — and it still has a long way to go yet — I think this [bill] would technically be hard to enforce given how much content is out there. It’s unfortunate the adult industry couldn’t do enough to head off this type of legislation.

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