Warning: Web-Site Labeling Ahead

School library advocacy groups see warning labels as a threat to free speech

By Joan Oleck -- School Library Journal, 9/1/2006

The media are trumpeting it, and parents and teachers are demanding it: online predators must be stopped; and children must be protected from online porn. No wonder Congress is scrambling to suppress these dangers. But a new initiative to require “warning labels” for Web sites goes too far, librarians and civil libertarians are saying.

School library advocacy groups already nervous at the U.S. House of Representatives’ July passage of the Deleting Online Predators Act (DOPA) describe the proposed Web labeling as an even more imminent threat to free speech.

Specifically, that threat consists of “warning labels” for Web sites, required by a proposed amendment aimed at child pornographers and tacked onto the Senate’s Commerce State Justice Appropriations bill. Under the amendment, “sexually explicit” material would be targeted; and each site page would carry a warning for purposes of customer identification and filtering.

Web operators ignoring the rule would do so at their peril: criminal penalties include a fine, imprisonment up to five years, or both.

At first blush, this all seems reasonable. Certainly the provision itself is reminiscent of the Motion Picture Association of America’s helpful “R” and “PG-13” ratings. But beware, warns the Center for Democracy and Technology (CDT), an Internet civil liberties organization that works closely with the American Library Association (ALA). Mandatory labeling, CDT’s Executive Director Leslie Harris stated in an August 2 letter to the Senate Appropriations leadership, “will cast a damaging chill over a broad range of legitimate and valuable content on the Internet, undermine voluntary labeling, tagging, and rating programs, and invite constitutional challenge.”

“It’s going to be hard to get out,” Harris adds in an interview, talking about the labeling provision. “And it was put in, in a very stealth manner, as part of a package aimed at increasing penalties for child predation. It’s another very sweeping labeling bill—and, of course, librarians have been opposed to government labeling forever.”

Harris—with the apparent blessing of ALA, which at press time expressed “concern” about labeling—proceeded to tick off her group’s objections to labeling, one big one being the provision’s inclusion in an appropriations bill. The bill must pass this term to fund the government; so this is one bill that won’t die in committee. (And, just in case, it’s also included in a telecom bill.)

The provision itself is useless, Harris says. More than half of adult Web sites are based outside the U.S., so they will be unaffected. And considering that most adult sites are easily identified and filtered because of obvious key words (such as “sex”) and voluntary labeling, the provision is unnecessary.

Should labeling pass, Harris continued in her letter, the “digital scarlet letter” required, plus the criminal penalties, will intimidate operators of sites that actually promote safe sex or other valuable information. Further, fierce First Amendment legal challenges will dog any labeling move, due to concerns about “forced speech,” Harris predicts. Labeling also would interfere with existing filtering efforts and with voluntary labeling by the motion picture, recording, and entertainment software industries, she says.

A spokesman for Senator Conrad Burns (R-MT), the labeling amendment’s sponsor, responded to Harris’s concerns. “Senator Burns is confident that the amendment does not run afoul of the First Amendment,” the spokesman wrote in an e-mail message. “Senator Burns’ first and foremost concern is protecting our children, and this amendment essentially requires 'truth in advertising.’”

However, Tim Lordan, executive director of the Internet Education Foundation, a Washington, DC–based nonprofit that promotes education about the Internet as a medium for democracy and commerce, says that legal scholars he’d consulted had told him that “sexually explicit,” as described in Burns’ amendment and defined by the U.S. Code, could be interpreted widely.

So widely, in fact, that virtually any lascivious “exhibition” could be covered by labeling—even a fully clothed exhibition. “You begin to wonder,” Lordan says, “is 'gyrating hips' [in a Web site about Elvis Presley] enough to incur criminal liability?”