Senators propose labels for adult Web sites

Legislation requires "harmful to minors" Web pages to be tagged so kids can beware, but a wealth of constitutional problems loom.
Written by Declan McCullagh, Contributor
Operators of Web sites with racy content must label their sites and register in a national directory or be fined, according to a new U.S. Senate proposal that represents the latest effort among politicians to crack down on Internet sex.

The requirements appear in legislation announced Thursday by two Senate Democrats, Mark Pryor of Arkansas and Max Baucus of Montana, that they say will "clean up the Internet for children."

The proposal, which the senators describe as a discussion draft, relies on the idea of embedding a new tag--such as <L18>--in all Web pages that the government deems unsuitable for minors. Then future Web browsers used by minors could be configured to reject L18-labeled Web pages.

An earlier Web-labeling idea
The Department of Justice during the Clinton administration proposed Web labeling, but a federal court took a dim view of it. Here's an excerpt from the 1996 opinion.
The government's tagging proposal would require all content providers that post arguably "indecent" material to review all of their online content, a task that would be extremely burdensome for organizations that provide large amounts of material online which cannot afford to pay a large staff to review all of that material. The Carnegie Library would be required to hire numerous additional employees to review its online files at an extremely high cost to its limited budget. The cost and effort would be substantial for the library and frequently prohibitive for others.

"We want to keep our kids safe when they're on the Internet," Baucus said in a statement. "Parents and teachers shouldn't worry about their kids when they're on the computer at home or in the classroom. This bill will help keep kids safe and give parents peace of mind."

Web sites with "harmful to minors" content on pages that are initially viewable to visitors must use the tag to be devised by the U.S. Department of Commerce or face civil fines. Pryor's office says the federal government would be able to "shut down" noncompliant sites, but that portion is not actually in the bill.

Another section of the Cyber Safety for Kids Act of 2007 would require the owner of any Web site with adult content on it to say so when registering the domain with the Internet Corporation for Assigned Names and Numbers. The owner must also give ICANN the Web site's Internet Protocol address and other information.

"The labeling part of it is going to be constitutionally problematic," said Marv Johnson, legislative counsel for the American Civil Liberties Union. "They are in essence requiring labels on this material. There are some cases that have talked about labels on movies, which is why that's 'voluntary' rather than government-mandated. They're going to have some problems with that."

Web labeling's checkered history
This is hardly the first time that the idea of mandatory Web labeling has surfaced in Washington.

Attorney General Alberto Gonzales called for it in a widely publicized speech in April 2006, and a Senate committee approved such a requirement that included prison terms of up to five years for anyone who did not comply. The Bush administration has repeatedly defended it as a "rather modest" proposal, though the full Senate failed to vote on the legislation last year.

It's not a partisan issue: the Clinton administration came up with the same idea a decade earlier by proposing the L18 label. The Justice Department's idea at the time, suggested during the Communications Decency Act court case, was that "indecent" Web pages would be rated as L18.

But a three-judge panel in Philadelphia took a dim view of L18. In a 1996 opinion, the judges called it "extremely burdensome for organizations that provide large amounts of material online which cannot afford to pay a large staff to review all of that material." (The U.S. Supreme Court upheld the panel's ruling.)

The current Democratic proposal--like the one that a Republican-dominated Senate committee approved last summer--is strikingly similar to the one floated more than a decade ago. One difference, though, is that the 1996 proposal referenced "indecent" material and this week's legislation requires labeling for "harmful to minors" content.

In practice, that difference may not be enough to let the measure survive judicial scrutiny. In a ruling last month, a federal judge said that discussions about proper condom use, news articles at Salon.com, and sexual education information at SexualHealth.com could be viewed as "harmful to minors" and therefore restrictions on them could run afoul of the First Amendment.

The current Pryor-Baucus legislation includes no exemption for news organizations, meaning that media outlets that do not rate articles or videos touching on sensitive topics could find themselves fined (or their domain names possibly deleted). If they do rate "harmful" articles, however, minors using certain Web browsers would be blocked from reading them.

Harmful to minors is defined in the legislation as any type of material that appeals to the prurient interest by depicting or describing an actual or simulated sex act--and lacks serious scientific, literary, artistic or political values for minors.

Besides L18, another likely candidate for a labeling scheme is a set of Web ratings created by the Internet Content Rating Association. The ratings refer to topics like "visible sexual touching" and "erections/explicit sexual acts." (See CNET's special report on keeping children safe online.)

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