WASHINGTON, DC – During a panel discussion hosted by the Congressional Internet Caucus Advisory Committee (ICAC) last Friday, an attorney from the U.S. Department of Justice Office of Legal Policy defended the DOJ’s proposal to impose stiff prison sentences on site operators who fail to label web pages containing sexually explicit material, comparing the proposed law with regulations that require convenience stores to use blinder racks to shield pornographic magazines from view.“We have what we consider to be a rather modest (proposal) to protect consumers,” said DOJ attorney Larry Rothenberg, according to reports on CNET.com. Rothenberg added that the measure “is not censorship” and “not a major break with First Amendment principles.”

Other panelists appearing Friday disagreed with Rothenberg’s characterization of the proposal, which has been included in various forms in several pieces of legislation currently before the House and Senate, including the “Internet Safety Act of 2006,” which was introduced by Senator John Kyl (R-AZ) in June.

Leslie Harris, executive director of the Center for Democracy and Technology (CDT), asserted that there is “no way to avoid vagueness, no way to avoid overbreadth, and, more important, no way to avoid chilling free speech,” according to CNET.

Under the bill proposed by Kyl, web pages that include content that meets the definition of “sexually explicit” specified in subsection (2)(A) of section 2256 of title 18 of United States Code, would not only need to be labeled as proscribed in the law, operators of such sites would also be required to “ensure that the matter on the website that is initially viewable, absent any further actions by the viewer, does not include any sexually explicit material.”

In an attempt to limit the scope of the labeling requirement, Kyl’s bill provides an exception for websites on which “the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.”

Kyl’s bill calls for violators to be “fined under title 18, United States Code, imprisoned not more than 15 years, or both.”

Critics of the proposal note that under the statutory definition of “sexually explicit” employed by the bill, images that depict fully clothed individuals might nonetheless be considered to contain actual or simulated “lascivious exhibition of the genitals or pubic area” of that individual, which would render such an image “sexually explicit” under the law.

“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,” said Harris of the CDT. “You just have a label that will disappear vast swaths of the Internet from peoples’ viewing.”

Kyl’s bill has not received serious consideration on the Senate floor, according to various media accounts, but similar language regarding website labeling has been included in two other legislative measures far more likely to come to vote in the near future; an omnibus communications bill (that has stagnated in part due to the debate over “net neutrality” provisions) and 2007 budget proposal that funds the US Commerce Dept.

While Rothenberg acknowledged that it might be a good thing for Congress to hear additional testimony from experts on the issue, he asserted that no such discussion would reduce the necessity of the law, hence the DOJ’s push to pass a mandatory labeling measure.

“At the moment we happen to think we’re well-intentioned and rightly guided,” said Rothenberg, “and that’s why we’re moving forward.”

Well-intentioned though they might be, the CDT and other critics note that even if the bill passes, the law could only be applied to websites based in the U.S., and would therefore be of very limited effectiveness, even if it does pass court scrutiny.

“Simply put, even if it were possible (and constitutional) to somehow make all U.S.-based sites completely inaccessible to minors, minors would still have hundreds of thousands of overseas sexual sites available to them,” the CDT states in a brief prepared for the ICAC.

“In contrast, a parental decision to use filtering technology has two critical advantages over criminal laws,” the CDT brief continues. “First, such technology avoids a one-size-fits-all solution, places the locus of decision for how best to protect kids where it should be: with parents able to tailor protection to their particular children. Second, such technology is equally effective in protecting children from domestic and overseas content.”

In addition to the CDT, other members of the ICAC include the Free Speech Coalition, the Association of Sites Advocating Child Protection (ASACP), the American Library Association, anti-porn activist group Enough is Enough, Google, Microsoft, the Business Software Alliance and the Internet Content Rating Association (ICRA).

For more information on the ICAC, including the full list of members and their one-page briefs submitted to the Caucus, see their website at http://www.netcaucus.org.