Internet Labeling Law Proposed

Declan McCullagh details a proposal from the Bush administration to ensure that Web sites with sexually explicit content are viewed only by those who want to be there.

Web site operators posting sexually explicit information must place official government warning labels on their pages or risk being imprisoned for up to five years, the Bush administration proposed Thursday. A mandatory rating system will “prevent people from inadvertently stumbling across pornographic images on the Internet,” Attorney General Alberto Gonzales said at an event in Alexandria, Va. The Bush administration’s proposal would require commercial Web sites to place “marks and notices” to be devised by the Federal Trade Commission on each sexually explicit page. The definition of sexually explicit broadly covers depictions of everything from sexual intercourse and masturbation to “sadistic abuse” and close-ups of fully clothed genital regions.

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A second new crime would threaten with imprisonment Web site operators who mislead visitors about sex with deceptive “words or digital images” in their source code–for instance, a site that might pop up in searches for Barbie dolls or Teletubbies but actually features sexually explicit photographs. A third new crime appears to require that commercial Web sites not post sexually explicit material on their home page if it can be seen “absent any further actions by the viewer.”

A critic of the proposal said that its requirements amount to an unreasonable imposition on Americans’ rights to free expression. In particular, a mandatory rating system backed by criminal penalties is “antithetical to the First Amendment,” said Marv Johnson, legislative counsel to the American Civil Liberties Union.

The outrage of Libertarian Republicans and ACLU types notwithstanding, the free speech argument strikes me as a canard. The content described here is clearly “obscenity” within the long-established definition and thus subject to regulation. We’re not talking about Maxim, or even Playboy here. Certainly, trying to prevent those looking for information on the Teletubbies from landing on hard core porn sites is within the bounds of reason.

The main problem here is technical rather than constitutional. All one would have to do is offshore the sites to make the law meaningless. Making ISPs responsible for the actions of foreign site owners certainly would not pass constitutional muster.

During his speech, Gonzales also warned that Internet service providers must begin to retain records of their customers’ activities to aid in future criminal prosecutions–a position first reported by CNET News.com–and indicated that legislation might be necessary there as well. Internet service providers say they already cooperate with police and appear to be girding for a political battle on Capitol Hill over new regulations they view as intrusive.

This, however, strikes me as highly problematic. Granting that these records already exist to some degree and that the expectation of privacy on the Web is illusory, the government’s rationale for forcing companies to maintain these records absent specific probable cause and a warrant is hard to justify.

The Bush administration’s embrace of a rating system backed by criminal penalties is uncannily reminiscent of where the Clinton administration and a Democratic member of Congress were a decade ago. In the mid-1990s, the then-nascent Internet industry began backing the Platform for Internet Content Selection, or PICS. The idea was simple: let Web sites self-rate, or let a third-party service offer ratings, and permit parents to set their browsers to never show certain types of content. Netscape and Microsoft soon agreed to support it in their browsers.

At a White House summit in July 1997 hosted by President Clinton and Vice President Al Gore, the head of the Lycos search engine proposed that only rated pages would be indexed. (Bob Davis, the president of Lycos at the time, said: “I threw a gauntlet to other search engines in today’s meeting saying that collectively we should require a rating before we index pages.”) Sen. Patty Murray, a Democrat from Washington state, suggested that misrating a Web site should be a federal crime. And Australian government officials began talking about making self-rating mandatory.

This is an issue where politicians respond to pressure from voters rather than ideology. While conservative Republicans are more prone to want to regulate pornography than Democrats, parents across the political spectrum want to protect their kids. That the kids are likely actively looking for porn and not stumbling on it while looking for sites about Barbie dolls likely hasn’t dawned on them.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.