[Infowarrior] - Gonzales calls for mandatory Web labeling law

Fri Apr 21 08:21:05 EDT 2006

Gonzales calls for mandatory Web labeling law

By Declan McCullagh
http://news.com.com/Gonzales+calls+for+mandatory+Web+labeling+law/2100-1028_
3-6063554.html

Story last modified Fri Apr 21 04:20:31 PDT 2006

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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.

"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 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.

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 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.

The popularity of the idea of rating eventually faded, though, thanks in no
small part to the knotty problem of labeling news sites. News articles can
feature sexually explicit content (when reporting on a rape trial or sexual
education), and major online publishers decided in August 1997 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.