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Critics say antiporn effort could affect wrong sites

Bill to flag sexually explicit sites could hit many unintended targets, they warn. Others say that's unlikely.

Photographer Ron Hildebrand believes the black-and-white nude portraits displayed in his online gallery are "more sensual than sexual."

Even so, the Nevada-based artist said he thinks people should take responsibility for the content they publish online, so he posts a brief disclaimer on his home page. Among his cautions: "Please do not enter if you are offended by such imagery."

That voluntary warning may not be enough if a bill backed by the Bush administration becomes law. Under the Stop Adults' Facilitation of the Exploitation of Youth Act--or Internet Safety Act--introduced last week in the U.S. Senate, all "commercial" Web site operators who fail to flag each page containing "sexually explicit material" could risk fines, up to 15 years in prison, or both.

While backers say they are mainly targeting child pornography and trying to keep kids away from mature content, legal experts argue that a broad range of less obvious material could be affected as well, including, for example, a news report that details a sordid sex crime, a computer animation that demonstrates condom use, or even an online lingerie catalog.

"By quite consciously not trying to limit the statute to real, live sex acts, they've swept in just a potentially huge universe of sites," said John Morris, director of the Internet Standards, Technology and Policy Project for the Center for Democracy and Technology.

Proposed last week by Arizona Republican John Kyl, the Internet Safety Act is, according to its backers, chiefly concerned with combating child pornography.

"Advances in technology have brought us many wonders," Kyl said in an editorial published Monday in the National Ledger, an online news publication. "Unfortunately, they have also brought to our children a whole new world of threats that were not there when we were children. This disturbing fact requires the vigilance of parents, and thoughtful action by government."

The Justice Department-backed proposal would, in fact, beef up penalties for those engaged in that criminal practice, introducing the possibility of life in prison for the most salient offenders.

Web labeling could allow sexually oriented sites to be picked up by filtering software and relegated to a child-safe blocked list. But the act's language appears sweeping enough to stretch far beyond pornography, public interest groups charged.

According to federal law and prior court decisions, the term "sexually explicit material" used in the Justice Department and now the Senate proposal covers not only various forms of sexual intercourse and abuse but also "lascivious exhibition of the genitals or pubic area of any person," even if clothed.

By that logic, "it would appear that the Victoria's Secret Web site may be sexually explicit," said Marv Johnson, legislative counsel for the American Civil Liberties Union.

'Instantly inaccessible'

The bill calls for Web site operators to include "marks or notices" developed by the Federal Trade Commission either in the source code of pages bearing "sexually explicit material," or, if that's not technologically feasible, on the pages themselves. It's unclear what those labels would look like or how they would actually work.

The law would exempt sites whose sexually explicit content is already restricted through password protection or other access control mechanisms.

Another piece of the Web labeling rules would require site operators to ensure that any matter that is "initially viewable, absent any further actions by the viewer," does not include sexually explicit material. That provision is intended to apply only to a site's "home page," an aide to Kyl wrote in an e-mail interview. But some said such a demand could in practice be nearly impossible to meet.

"The only way to do that would be for a Web site to have a drastically more controlled interface," such as the log-in prompts used by online publications that withhold linked content until registration or payment occurs, said the CDT's Morris.

A commercial Web operator who subscribes to a no-frills hosting service likely wouldn't have the ability to do such screening and, facing the possibility of criminal penalties, would have no choice but to remove any content that could be deemed sexually explicit, he added.

Previous attempts by the Justice Department and Congress to block access to adult-oriented Internet content have been stymied by First Amendment challenges. The U.S. Supreme Court indicated in 2004 that the Child Online Protection Act, which restricts the use of sexually explicit material deemed "harmful to minors" on commercial Web sites, may be overbroad and sent it back to a federal court for further review.

The justices also suggested that Internet filtering software may prove to be a more effective way of protecting children. The Internet Safety Act appears to be an attempt to cater to that idea.

Part of the problem with the new bill is that it proposes regulating speech in a way that could transcend the U.S. Supreme Court's decision in the landmark case of Miller v. California, First Amendment experts said.

That 1973 ruling established a three-part test for determining whether sexually oriented content enjoys full First Amendment protection. Among the factors courts must consider are whether an "average person" would find that the entire work "appeals to the prurient interest" and whether it "lacks serious literary, artistic, political or scientific value."

"Imagine then that I am NPR or CBS thinking about covering the use of rape as an instrument of terror in Darfur," said James Boyle, a Duke University law professor who teaches a course called the "Constitution in Cyberspace." "I may lose an entire element of my viewing public whose smart filtering software picks up the key word."

To be fair, it's unclear whether the Bush administration or Congress intended such a broad sweep.

Assistant Attorney General William Moschella wrote in a letter to congressional leaders that the system is designed to "prevent people from inadvertently stumbling across pornographic images on the Internet."

The Senate bill also would exempt situations in which the sexually explicit material composes a "small and insignificant part of the whole," though civil liberties advocates questioned how such a determination would be made.

The aide to Sen. Kyl said he thought it was "very unlikely that federal prosecutors would devote time to pursuing operators of unlabeled Web sites with a patently nonpornographic purpose."

Whatever the government's intentions may be, the bill's definition of sexually explicit material is "not sharply bounded," said Jonathan Weinberg, a law professor at Wayne State University. All marked pages would be "instantly inaccessible to a huge portion of the American public," such as those with filtering features enabled on their browsers, subscribers to "family-friendly" Internet access services and Web surfers at schools and libraries, Weinberg said.

A recipe for self-censorship?

By restricting the requirements to commercial sites, the law may not apply to nonprofit organizations like Planned Parenthood, which routinely disclose information about sex. But some said that exemption is far from certain.

"Suppose a sex education Web site sells T-shirts, (and) solicits donations and membership dues through its Web site," the ACLU's Johnson said. "A court could conclude that the site is operated primarily for commercial purposes, even though the organization was not selling access to sexually explicit material."

The CDT's Morris said he could also see the rules applying to nonprofit museums that sell tickets and other merchandise online, prompting them "to self-censor their online content, and remove perfectly lawful paintings, including many old masters that depict nude women."

The aide to Sen. Kyl dismissed many of the free-speech concerns raised by civil liberties groups. He indicated, however, that the rules would apply to the "very few" works of art that "portray sexual intercourse or 'lascivious' displays of the genitals, or lascivious acts on children," and that sexual-health sites could, indeed, be fair game.

"Even if their purpose in showing sexual intercourse on the Internet is innocent and nonpornographic, many parents still would not want their minor children to be viewing it," the aide said.

The proposed rules drew reservations from some major Web companies that host a wide variety of content.

eBay spokesman Hani Durzy said the online auctioneer hadn't yet reviewed the bill in detail, but that "in general, we are concerned about well-meaning legislation that places inappropriate, unreasonable or ineffective burdens on eBay, its sellers and other Internet marketplaces."

Yahoo spokeswoman Mary Osako noted the existence of "several voluntary rating and labeling systems" and deemed them a "preferable solution." Google also works closely with a number of groups on online safety and provides an optional filtering tool called SafeSearch, said spokesman Steve Langdon. The search giant planned to look closely at the bill for "both how effective it might be for helping protect children online and its consistency with the First Amendment," he said.

Others shrugged off the civil liberties community's outcry, rejecting the notion that they'd be covered by the labeling requirements.

Among the unconcerned set was the men's magazine Maxim, well known for an online presence featuring photographs of scantily clad women, candid sex-advice forums and lists of "living legends of sex" and "masturbation euphemisms."

A spokesman for Dennis Publishing, parent company of the publication, declined to comment on the details of the legislative proposal, except to say, "None of Maxim Online's properties are even remotely sexually explicit, so we don't expect this to have an effect on us at all."

It's precisely such varying interpretations of the rules that could create a chilling effect, civil liberties advocates said.

"Because the line is blurry, if there is any question about applicability, lawyers are likely to advise their clients to comply with the law," said the ACLU's Johnson.

Hildebrand, the Nevada photographer, said he wouldn't be opposed to a voluntary labeling system but rejects the idea of "imposed censorship."

"For one thing, it makes for lazy parenting," he said, "and for another, drawing clear and concise lines between acceptable and unacceptable in any given situation is nearly impossible."