Web labeling mandate surfaces in Senate

Operators of commercial sites containing sexually explicit content would have to post warning labels--or face up to 15 years in prison.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
4 min read
Operators of commercial Web sites with sexually explicit content would have to post warning labels on each offending page or face imprisonment under a new proposal in the U.S. Senate.

Caving to earlier demands from the U.S. Department of Justice, the 24-page proposed law focuses on a medley of new penalties related to child pornography and other sexual content on the Internet. For instance, Internet service providers that fail to report to authorities any sightings of child pornography on their networks would have to cough up fines that are triple those written into current law: $150,000 for the first violation and $300,000 thereafter.

"The increase in Internet use has given sexual predators new ways to prey on children," said Sen. Jon Kyl, an Arizona Republican, who joined eight members of his party in introducing the bill on Tuesday. "This bill, among other things, is intended to shut down these opportunities, and severely punish the degraded individuals who are involved in the sexual exploitation of our youth."

Called the Stop Adults' Facilitation of the Exploitation of Youth Act, or Internet Safety Act (PDF), the bill actually beefs up the Justice Department's suggested penalties for negligent Web labelers. It would impose up to 15 years in prison--an increase from the five years suggested in the original proposal--on any commercial site operator who fails to place "clearly identifiable marks or notices" prescribed by the federal government in either the site's code or on the pages themselves, according to a copy of the bill seen by CNET News.com.

The bill would also create a new crime out of "using misleading domain names to direct children to harmful material on the Internet." Conviction would carry a prison sentence of up to 20 years. A similar sentence would apply to anyone who knowingly embeds words or images in the source code of their sites with the intent of deceiving minors into viewing "harmful" content.

Attorney General Alberto Gonzales originally called for the new laws while speaking at an event at the National Center for Missing and Exploited Children in April. He said a mandatory rating system is necessary to "prevent people from inadvertently stumbling across pornographic images on the Internet."

At the same event, Gonzales also raised the possibility of requiring Internet service providers to retain records on their subscribers for a set period of time to aid law enforcement in investigations. The Justice Department has since held several private meetings with ISPs, as first reported by CNET News.com.

No such mandate made it into the Internet Safety Act, though other members of Congress have floated proposals bearing those requirements in recent months.

Criticized as ambiguous
The latest proposal drew criticism from civil liberties advocates, who said it presents enough ambiguities to prompt self-censorship of Web content.

"Whether artistic works or political commentary or any type of images that may arguably come close to this category, people may not publish them for fear of being sent to jail for 15 years," said David Greene, director of a free-speech advocacy group called The First Amendment Project.

It's equally unclear how to draw the line between "commercial" Web sites, covered by the regulations, and "noncommercial" sites, which appear to be exempt, the bill's critics said.

"They may sell T-shirts or do things that are unrelated to the image or the content that is labeled," Greene said. "When their commercial transaction doesn't relate to the image, to the sexual content, there's a great danger in these laws."

To some extent, it was the thorny issue of labeling online news sites, which sometimes feature material considered to be sexually explicit as part of their regular coverage, that caused support for an Internet self-rating system to fizzle out during the Clinton administration years. At that time, in the late-1990s, Sen. Patty Murray, a Democrat from Washington state, proposed that misrating a Web site be made a federal crime.

The Internet Safety Act pulls its definition of sexually explicit material 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.

The Senate proposal grants just one reprieve: Sexual depictions that constitute a "small and insignificant part" of a large Web site do not have to be labeled.

Also problematic, they said, is that, in addition to the labeling requirement, Web site operators would have to ensure that "any matter that is initially viewable" does not contain sexually explicit content.

"What if someone deep links to an image, and someone clicks on that image, and it's the first one they see?" asked Marv Johnson, legislative counsel for the American Civil Liberties Union. "Has the law been violated?"

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