Porn Bills Raise Enforcement, Constitutional Questions

Republicans in both chambers already are being lobbied to support the measure, which Lincoln says would help relieve parental anxiety over the lack of control they can exert over what their children view online. “Parents live in red states and blue states and this is not a partisan issue at all,” Lincoln said.

S-1507, which drew ire from technology advocates and the adult entertainment industry when it was a mere rumor, would impose a 25% tax on adult site operators starting Jan. 1, 2006. The levy would support a govt.-managed trust fund underwriting a 24-hour Justice Dept. cybertip line, state-based Internet Crimes Against Children Task Forces, grants for research into Web filtering and state- level training to boost child Internet safety and reduce sex trafficking and sex crimes against children (WID July 27 p1).

Credit card firms, banks and other financial entities involved in adult site access would be required to process only age-verified credit card transactions, the bill states. A spokesman for the FDIC said he wasn’t sure of the bill’s implications for banks. The FTC workload would grow under the bill, which would instruct that agency to compel porn sites to use appropriate age-screening software and periodically test to ensure webmasters correctly and consistently use those tools. An FTC spokeswoman refused to comment on the bill before the commissioners have had a chance to review it. The bill doesn’t describe what enhancements are needed in existing age-verification systems -- only that better technologies need to be created.

A high-tech executive familiar with FTC deliberations said it’s going to be fascinating to see how the Commission proceeds. “This legislation has been a long time coming and this goes beyond porn. It’s now a political imperative affecting… anyone who sells and markets alcohol, tobacco, gambling and other adult- oriented products online,” he said: “The general sentiment is that this is a system whereby kids are being pitched or shown material that is objectionable and that system is broken.” The official said credit card firms, the true conduits of e-commerce, are wearying of their brands being used as a form of age verification. Those financial institutions likely will work with the Commission on the problem, he said: “The FTC has got to lay down the law on age verification and they have to do it soon because we've reached a tipping point.”

Kids today are growing up in different times, Lincoln said at a press briefing. They no longer walk down to the corner store to buy comic books and entertainment; they surf the Web. Unlike yesteryear’s brick-and-mortar stores, where clerks would seek proof of age before selling adult material, tobacco or alcohol, sales of online porn are widely open to youngsters with minimal security, she said. Historically, cities have had “red light districts” but individuals wanting to experience them had to “take the risk of going there,” Lieberman said, noting the Internet has “brought the red light district right into our homes,” exposing users to “unprecedented dangers.”

Lincoln, who has 2 young sons who aren’t allowed to go online without supervision, lauded the software industry and ISPs for trying to address the problem with filters. But many porn purveyors not only fail to keep their wares away from minors, they're “pushing those products in children’s faces,” she said. “It’s time we stand up and say, ‘Enough is enough,'” Lincoln said: “The Internet brings the world and all of its possibilities to the American family’s doorstep.. and it should remain a world of endless opportunities -- but it should not be a threat to our families.”

Today’s age verification system is “a joke [and] we have to do better,” Caper said. Children will gain access to sites they shouldn’t because of “2 facts of life in the 21st century,” he said: (1) The speed with which technology grows obsolete (2) The speed with which tech- savvy kids outsmart parents and content barricades. “At end of the day, there’s a clear choice to be made -- either we're with the parents or we're against them. Either we're for helping parents or we're on the side of the hugely profitable porn industry, which doesn’t have our kids’ best interest in mind,” Caper said.

Lawyer Rob Apgood, whose clients include age- verification sites like CyberAge, challenged the bill’s constitutionality. He said Congress is exhibiting a “knee-jerk reaction to what appears to be out-dated or misinformation.” He said a report by center/left think tank Third Way, which spurred the bill and was highlighted at Lincoln’s press conference, doesn’t get its facts straight, relying instead on “invalid assumptions and unsubstantiated ’statistics.'” The paper claims porn sites directly target children, asserting that the largest group of Internet porn customers are ages 12-17. Third Way’s report also states that 57% of 9-19 year olds with Web access have had contact with porn online and that the online porn industry has evaded state and federal law and societal mores on children’s buying and viewing of pornography.

Despite repeated offers by the adult entertainment industry trade group the Free Speech Coalition to aid lawmakers in drafting practicable legislation, Congress “summarily ignores these offers and persists in introducing and enacting draconian laws that clearly do not understand how the adult entertainment industry works,” Apgood said. The new bills imply a cavalier attitude on the part of purveyors of online adult material to exposing children to their wares, Apgood said. He said this ignores efforts by groups like the Assn. of Sites Advocating Child Protection -- an entity funded by members of the adult entertainment industry that aggressively pursues those involved in child pornography. “It’s time that Congress and the Executive [Branch] took the out-stretched hands of the FSC and other attorneys such as me in our offers to help them understand the industry and to devise realistic and workable laws,” Apgood said: “Similarly, it’s time that the people in the adult entertainment industry took an even more active role in restricting the access to legitimate expressions of free speech from children.”

The Center for Democracy & Technology (CDT) joined other technology policy groups in denouncing the bill. Progress & Freedom Foundation Senior Fellow Adam Thierer decried the bill Tues., calling it “the silliest idea to come out of Congress in a long time.” John Morris, dir. of CDT’s Internet Standards, Technology and Policy Project, said the bill has serious constitutionality implications. Courts repeatedly rejected similar legislative efforts, but if this bill should become law and be validated in court, its impact could be great in unexpected ways. “If any parts of this statute are upheld, the primary effect would be to drive Internet porn overseas,” Morris said. The adult entertainment industry, which has “tried pretty hard to abide by U.S. laws,” would lose the incentive to comply anymore, he said. “At the end of the day it will make the problem… somewhat worse rather than better.”

User-based filtering is “far and away the most effective way of protecting kids online,” Morris said, citing a 2002 blue-ribbon panel report from the National Academies’ National Research Council (NRC). The NRC committee, chaired by former U.S. Attorney Gen. Dick Thornburgh, concluded that “no single approach -- technical, legal, economic or educational -- will be sufficient to protect children from online pornography.” The group’s report said that the most important step adults can take to help children steer clear of potentially harmful online content is to supervise and be involved in their use of the Internet. “Criminal laws are unlikely to be effective,” Morris said.