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Mandatory Labeling Law Moving Quickly in the Senate
By: Layne Winklebleck (Free Speech Coalition)
Washington, DC — A provision for mandatory labeling of sexually explicit content online has been inserted — without a hearing — into a "must pass" Senate Appropriations bill (H.R. 5672) which has already been voted out of the Commerce Committee. These are the same labeling provisions that had already been included in the controversial Senate Telecom bill that has also passed out of the Commerce Committee but has yet to be put to a vote on the floor, with a filibuster threatened. Inserting mandatory labeling into an appropriations bill is a bit of a dirty trick because there are rules against legislating in an appropriations bill.
Under the labeling provisions, website operators are forbidden to place sexually explicit content (including lascivious display of the genitals as broadly defined in section 2256(2)(A) of title 18) on the first page of a website, and must place a mark or notice (to be determined by the Federal Trade Commission) on any page that does contain such content, unless such pages have restricted access through a password or other access restriction mechanism. Violators face fines and up to five years in prison.
Also inserted in H.R. 5672 are provisions outlawing misleading words or images on the Internet. These provisions appear (on first reading) to duplicate the language in Section 703 of the Adam Walsh Act (which has already been signed into law) that also deals with “Misleading words or digital images on the Internet.” One difference between the H.R. 5672 provisions (which will presumably be dropped once Senators realize they are writing the law twice) and the Adam Walsh Act is that the penalties are substantially less, 2 year and 4 year maximum sentences for the same violations that can result in 10 year and 20 year draconian penalties under the Adam Walsh Act. (See X-Press report, “Source Code Law Part of Adam Walsh Act, 7/28/06)
Some form of mandatory labeling law has seemed likely since Attorney General Alberto Gonzales called for the legislation in April. (See X-Press report, “Justice Proposes Legislation,” 4/21/06).
If mandatory labeling becomes law it will probably have little or no effect on online availability of adult oriented content to children. More than half of adult websites – hundreds of thousands of sites – are located outside of the United States and thus are beyond the reach of the U.S. law, as noted by the Center for Democracy and Technology (CDT) in letters sent to key Senate committee chairs. Nor would the law pose problems for the vast majority of adult producers in the United States, most of whom, following industry “best practices,” already voluntarily label sites, or are easily filtered due to content that makes it obvious that the sites feature adult entertainment. In fact, as CDT notes, voluntary labels can be far more robust and informative than the one-size–fits-all labels mandated in this legislation, and should be encouraged.
Perhaps the worst aspect of a mandatory labeling bill is the damaging chill it will cast over a broad range of mainstream, non-adult content on the Internet. As CDT notes, the broad language of the bill – which would apply to all “depictions” that are “sexually explicit” (including depictions with no nudity or actual sex acts) — would apply to many R-rated movies, some PG, PG-13 and TV-PG content, music lyrics, art, and pages of text in online books, magazines and other publications. When content creators, fearing legal penalties, self-censor by attaching a “digital scarlet letter” to their site, filtering technologies will cause their material to disappear for an audience that desires and would value the content. The First Amendment issues are obvious. If mandatory labeling becomes law, a constitutional challenge is virtually inevitable.