Justice Dept. defends mandatory Web-labeling bill

Bush administration dismisses free-speech impact of prison time for not labeling "sexually explicit" Web pages.

Anne Broache
Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
3 min read
WASHINGTON--The U.S. Department of Justice has stepped up its defense of a proposal to imprison Web site operators who don't label pages containing sexually explicit material.

The idea, outlined in an April speech by Attorney General Alberto Gonzales, is approaching a vote in Congress. Even though there have been no hearings, the legislation has been attached to two separate measures--a massive communications bill and a bill to fund large portions of the federal government including the State Department--that are likely to be considered by the full Senate this fall.

The proposed restrictions are no different from requiring multipurpose stores like 7-Eleven to shield pornographic magazines with so-called blinder racks, Larry Rothenberg, an attorney in the Justice Department's Office of Legal Policy, said at a panel discussion here hosted by the Internet Caucus Advisory Committee on Friday.

"We have what we consider to be a rather modest (proposal) to protect consumers," Rothenberg said. "This is not censorship. It's not a major break with First Amendment principles."

His critics, however, remained unconvinced. "There's no way to avoid vagueness, no way to avoid overbreadth, and, more important, no way to avoid chilling free speech," said Leslie Harris, executive director of the Center for Democracy and Technology.

Under the proposal, all commercial Web site operators would have to place "identifiable marks or notices," to be determined by the Federal Trade Commission, in the code of each page that contains "sexually explicit material" as defined by existing U.S. criminal statute. The idea, supporters maintain, is to make it easier for Web-filtering programs to pick up objectionable sites.

Sen. Jon Kyl, an Arizona Republican, was the first politician to latch onto the Justice Department's plan, introducing a bill in June that mirrored its demands but upped the possible prison sentence to a 15-year maximum.

That bill hasn't gone anywhere on its own, but its major components have since appeared in two seemingly unlikely places: as amendments to the massive communications bill approved earlier this summer by the Senate Commerce Committee and to a 2007 spending bill that will fund the Commerce Department, the Justice Department and some science-related agencies. Both amendments reduced the possible prison sentence to two and five years respectively.

Although the future of the Senate's communications bill remains up in the air, thanks to an ongoing tussle over the concept of Net neutrality, the spending bill's approval is a virtual inevitability.

The question that remains is whether the Web-labeling proposal will be altered or rewritten, as it's hardly unusual for amendments to be altered at the last moment. The issue may not be resolved for several weeks. An aide to Senate Majority Leader Bill Frist, who spoke on condition of anonymity, said it's unlikely the spending bill will be voted on until after the November elections. (This is not the first time a measure designed to target sexually explicit speech on the Internet would be attached to a spending bill: It's happened at least once before.)

Civil liberties advocates blast the approach as overly sweeping. That's in part because courts in the past have ruled that the same definition of "sexually explicit" referenced in the legislative proposal could be applied to fully clothed genital areas, making perhaps unintended sites fair game. The proposals do offer one minor carve-out: Content that constitutes only a "small and insignificant part" of a large Web site does not need to be labeled.

"When you have a label that applies to hard-core porn, Victoria's Secret, an episode of 'The Sopranos' from HBO, and an outsider artist that has a Web site, and all of them put the same label on, you don't have a label that empower parents," the CDT's Harris said. "You just have a label that will disappear vast swaths of the Internet from peoples' viewing."

An absence of hearings on the Justice Department's proposal and the hasty amendments indicate that Congress is trying to sneak through a bad proposal without proper vetting, opponents argued. The best way to protect consumers and children from Web content they don't wish to see, they said, is for the government to encourage education, innovation on the filter and parental-control front, and collaboration with the Internet industry.

It may be a good idea for Congress to hear additional testimony on the matter, but that wouldn't diminish the need for such a law, the Justice Department's Rothenberg said, adding: "At the moment we happen to think we're well-intentioned and rightly guided, and that's why we're moving forward."

CNET News.com's Declan McCullagh contributed to this report.