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.
"I hope that Congress will take up this legislation promptly," said Gonzales, who gave a speech about child exploitation and the Internet to the federally funded National Center for Missing and Exploited Children. The proposed law is called the Child Pornography and Obscenity Prevention Amendments of 2006.
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.
During his speech, Gonzales also warned that Internet service providersof their customers' activities to aid in future criminal prosecutions--a position --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.
An idea once proposed by Democrats
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 in their browsers.
The popularity of the idea of rating eventually faded, though, thanks in no small part to the. News articles can feature sexually explicit content (when reporting on a rape trial or sexual education), and major online publishers that they were going to refuse to rate themselves.
Because of those and other problems, courts have tended to take 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.
Eugene Volokh, a law professor at UCLA who has written a book on the First Amendment, said the Bush administration's proposal may be more likely to survive judicial scrutiny. Because the definitions of sexually explicit material have been used elsewhere in federal law, Volokh said, "it has the virtue of relative clarity. I think that's probably constitutional."
But David Greene, director of a free-speech advocacy group called The First Amendment Project, thinks it wouldn't survive a court challenge. "I believe the law would be struck down as impermissible compelled speech," Greene said. "The only times courts allow product labeling is with commercial speech--advertisements."
For the rating system's definition of sexually explicit material, the Bush administration proposal borrows language from existing federal law. It covers: sexual intercourse of all types; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person.
In practice, courts have interpreted those definitions quite broadly. In one case, U.S. v. Knox, the Supreme Court and an appeals court ruled that the "lascivious exhibition" of the pubic area could include images of clothed people wearing bikini bathing suits, leotards and underwear. That suggests, for instance, that photos of people in leotards and bathing suits would have to be rated as sexually explicit if the commercial Web site owner wanted to avoid going to prison.
There is one exception: Sexual depictions that constitute a "small and insignificant part" of a large Web site do not have to be rated.
In an unusual twist, Gonzales' remarks this week represent a high-profile reversal of two of the Bush administration's previous positions.
First, James Burrus, the FBI's deputy assistant director, told a Senate committee in January that there was no need for new laws to deal with child exploitation on the Internet. Second, the Justice Department has previously expressed (Click for PDF) "serious reservations about broad mandatory data retention regimes" such as the one that Gonzales proposed on Thursday.