More than a week after news of its existence leaked, a bill seeking a 25 percent excise tax on adult entertainment purchased online and the imposition of mandatory, “certified” age verification of adult website visitors was introduced Wednesday by nine Democratic Senators. Concurrently, two members of the U.S. House of Representatives introduced companion legislation there.
“The Internet has become our new American Main Street, and it’s literally transforming the experience of growing up in America in a way much different from the way parents of today grew up,” Senator Blanche Lincoln (D-Ark.), author of The Internet Safety and Child Protection Act of 2005, told reporters during a press conference Wednesday morning. “Many Internet service providers have taken significant steps to provide parents with tools to protect their children from inappropriate material online, and they should be commended. But sadly, many adult-oriented websites in today’s online world are not only failing to keep products unsuitable for children from view, but are also pushing those products in children’s faces. And it’s time that we stand up and say enough is enough.”
Lincoln said her legislation would help relieve the anxieties experienced by parents due to the lack of control many feel they have over what their children view online. She said it’s time the costs of protecting children online shift from the American taxpayer to “the actual purveyors of online pornography.” The Senate bill is cosponsored by Senators Tom Carper (D-Del.), Debbie Stabenow (D-Mich.), Mark Pryor (D-Ark.), Mary Landrieu (D-La.), Joe Lieberman (D-Conn.), Ken Salazar (D-Colo.), Evan Bayh (D-Ind.), and Kent Conrad (D-N.D.). The House version was introduced by Reps Jim Matheson (D-Utah) and Robert Menendez (D-N.J.).
Both bills propose three primary objectives:
- Adult, for-profit websites would be required to use software to verify the age of users attempting to access them. Online merchants, banks, and credit card companies could not process payment transactions that are not age-verified. The FTC would be empowered to issue and enforce regulations pursuant to age verification.
- An “Internet Safety and Child Protection Fund (ISCP Trust Fund)” would be established to centralize and coordinate the allocation of federal resources in support of efforts on the part of law enforcement and others to combat Internet and pornography-related crimes against children. Trust Fund resources also would support initiatives that help parents exercise greater supervision over their kids’ online activities.
- The trust fund and enforcement of the regulations would be financed by a 25-percent tax on Internet pornography transactions.
Lincoln said she introduced the legislation “as a concerned parent, in an effort to stand up to those on the Internet who are profiting by exploiting children and promoting irresponsible and obscene behavior.”
Though they take nothing coming out of Washington lightly, adult industry insiders said they see little chance the bill will survive. “The bill is based on a flawed report that reaches conclusions based on seriously out-of-date material and faulty assumptions,” Free Speech Coalition Communications Director Tom Hymes said, referring to a report released concurrently by Third Way. Among other things, the report, “The Porn Standard: Children and Pornography on the Internet,” accuses adult webmasters of actively targeting children not only as customers, but also as participants in their products.
“It’s time for Congress to step in to help parents keep their children safe from predatory online pornographers, and it’s time to tax pornographers to pay for the steps that society must take when they pursue quick profits through the promotion of online obscenity,” Sean Barney, a Third Way senior policy advisor and principle author of the report asserted in a prepared statement. “Internet pornographers are being totally irresponsible. Today’s technology gives them the ability to keep children off their sites, and they just aren't doing it. While it is as difficult as ever for a teenager to walk into a store and buy a pornographic magazine, it is as easy as ‘point and click’ for an 11-year-old child to view streaming pornographic video online.”
Hymes bristled at the phrase “predatory online pornographers.” “It’s categorically untrue that Internet professionals consciously and knowingly market their wares to children,” he said. “That’s an economically unsound practice. Four or five years ago people used the pay-per-click business model.” PPC models pay affiliates for sending massive amounts of unqualified traffic to sponsors’ sites. It’s conceivable that children could have been among that traffic during the financial model’s heyday, Hymes conceded, “but nobody uses [the PPC model] anymore.
“We’re not going to allow Democrats or Republicans to define this debate or try to use this industry and the responsible people in it in their partisan strategies in the culture war,” he continued. “We’re not going to allow people to continue to make spurious accusations about this industry. We don’t market to children. We don’t engage in child pornography. We’re not organized criminals or superhighway bandits.”
Hymes also conceded, however, that “everything in Lincoln’s bill is not entirely off the mark.” He said some sort of reliable, non-intrusive age verification standard that would pass constitutional muster and protect both online adult professionals and children was worthy of consideration, but the adult industry should be included in the discussion because it could help the government craft better legislation that actually accomplished reasonable objectives. “We’ve already been successful in the California state capital in Sacramento, after all,” he noted.
First Amendment attorney Lawrence Walters agreed that age verification is a laudable goal, but it’s not as easy to achieve as simply telling the FTC to craft some nebulous regulations. “The problem here is that we’re dealing with a truly global audience,” Walters said of Internet porn consumers. “There is no [age verification] database that has data for all countries in the world.” Essentially, any regulations that required age-verification products currently on the mass market would exclude non-Americans from viewing porn on American websites because their ages couldn’t be verified. In addition, “the courts already have found that requiring personal information or payment for access to constitutionally protected speech violates First Amendment protections,” Walters said. Pornography is constitutionally protected speech.
The taxation portion of the bill is problematic, as well. “On its surface it sounds bad, but if we can pay [the government] 25 percent for online adult content and get them off our backs, I think it would be a fair trade,” opined First Amendment attorney J.D. Obenberger. “I don’t think it’ll work that way, though. Pornography is a class of expression that is going to have no friends and no supporters in legislative halls. However, if there’s a disability [such as a tax] attached to an expression because of its content, [the law] can’t stand.”
First Amendment attorney Reed Lee, who is part of the team currently representing the Free Speech Coalition in its challenge to the regulations for enforcing 18 U.S.C. §2257, noted that “the Supreme Court has twice struck down taxes that were restricted to media, and a tax on Internet content is even more problematic in terms of First Amendment protections.” Lee described the Internet as “the most massive of mass media outlets. Frankly, I don’t think [Lincoln’s] got a prayer” that her bill will pass.
Although Walters said he thinks the bill “may be able to get away with imposing a ‘sin tax” because the U.S. has a long and illustrious history of imposing taxes on other so-called vices like alcohol and tobacco, there is a more basic inadequacy in Lincoln’s bill. “If [the government’s] goal is to protect children, how does imposing a tax on U.S. webmasters only accomplish anything? Kids will still be able to access just as much porn just as easily on foreign websites, and adults will be able to access foreign pornography at 25 percent less. There would be zero real-world impact because of the global nature of the Net. All a bill like this would do is damage the [U.S.] economy, because all of a sudden [U.S.-based adult websites are] going to go overseas. A lot of people who lost their jobs in the dot-com bust found work in the adult industry instead of ending up in unemployment lines. Something like this would take billions of dollars a year out of the U.S., and that’s worth considering.”
