S.3499 would impose up to 15 years (!) in prison – an increase from the five years suggested in the DOJ 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 huge penalties in the bill would surely create a chilling effect that would cause websites to blanket pages with meta-tags, even in very marginal cases, if there was any chance whatsoever that the materials might be seen as sexually explicit.
"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 of The First Amendment Project.
The problem is magnified by the vague and subjective nature of what constitutes “sexually explicit” under the current federal code. 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. Courts in some instances have held that "lascivious exhibition" of the pubic area can include images of clothed people wearing bikini bathing suits, leotards and underwear. Another obvious example of the ambiguous reach of the law is the question of exactly what constitutes “sadistic or masochistic abuse.” Kinky imagery has become ubiquitous in modern media. Will all such images require labels?
Yet another area of concern by free speech advocacy groups has to do with documentaries, informational websites and news reports. As CNET News.com commentator Declan McCullagh notes, the idea of mandatory self-rating is not new. It goes back at least as far as a White House summit in 1997. However, the popularity of the idea eventually faded, thanks in no small part to the 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 that they were going to refuse to rate themselves.
The Senate proposal includes a concession that sexual depictions that constitute a "small and insignificant part" of a large website do not have to be labeled. However, what website owner is going to risk a 15 year prison sentence on the hope that a jury will consider their website sufficiently large and the sexual depictions on it sufficiently small?
S.3499 would also criminalize "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 intention of deceiving minors into viewing "harmful" content.
Information is drawn from Anne Broache, Silicon.com, 6/14/06.