-A possible two-to-four-year jail sentence and a fine for using benign-looking domain names to shanghai Web surfers into porn sites passed the U.S. House of Representatives March 27, as an amendment to the so-called Amber Alert child-abduction bill that was expected to pass the House easily.
Penalties for shanghaiing surfers seems like an idea whose time may have come, since it compares to a brick-and-mortar shopkeeper forcing a rival's approaching customer into his own shop. But First Amendment and adult entertainment attorney Lawrence G. Walters said there could be several problems with the jail for fake-to-porn idea, including that enforcement could mean "improperly" diverting resources from child porn prosecutions and even fighting terrorism. The policy also raises questions about who would enforce the law, how, and with what likely percentage of wrongful accusations, given so many surface similarities between so many domain names.
"There's a host of problems that I could envision with trying to enforce something like that," Walters said, a few hours after the bill passed. "Number one, who decides what is an appropriate description of an adult Website and what is a misleading description. Terms like that are susceptible to arbitrary and discriminatory interpretation. Number two is, the law is potentially applicable to all domain names, no matter where they're hosted, and I don't know how the United States will position itself as a worldwide enforcer of proper domain names."
Walters didn't question the intention of the fake-domain rerouting amendment. "There are cases where a law like this would be of value," Walters said, "but when you give the government the right to put people in jail for [such behavior], you've got just another silver bullet to aim at the adult industry."
The fake-to-porn domain amendment was the brainchild of Rep. Mike Pence (R.-Indiana), who had tried twice before to get the idea turned into law. "A domain name that includes a word or words to indicate the sexual content of the site ... is not misleading," the amendment's language says. The amendment would indeed include domains listed outside the United States.
Perhaps the main reason why we may not see the porn shanghaiers in jail any time soon is that the entire Amber Alert bill - despite its bipartisan backing - still faces a Senate fight. Last year, the Senate refused to consider a House version of the bill, and has authorized a version that only covers the national child kidnapping alert network. The House refused the Senate version, instead writing its own version that also includes a crackdown on sex offenders and mandatory searches for missing children in federal buildings.
The newly passed House bill also includes an amendment aiming to resurrect Congress's bid to outlaw "virtual" child porn, images resembling children performing sexually but not using actual children in the making. The Supreme Court shot down two portions of the Child Pornography Prevention Act that addressed virtual child porn, saying they were broad enough to violate the First Amendment.
"These images do not involve, let alone harm, any children in the production process, but Congress decided the materials threaten children in other, less direct, ways," wrote Justice Anthony M. Kennedy for the majority in that 2002 ruling. "The prospect of crime, however, by itself does not justify laws suppressing protected speech.... Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the hands of children."
The new virtual child porn amendment, written by Rep. Lamar Smith (R.-Texas), would "narrow definition of child pornography in response to Ashcroft v. Free Speech Coalition; to create new obscenity offenses to cover virtual and real child pornography that involves visual depictions of prepubescent children and minors; to create a new offense against pandering visual depictions as child pornography and strengthens penalties for repeat offenders; to include new findings that detail the effect of the Supreme Court decision on child pornography cases, as well as some technical changes; to require the Attorney General to report on the Department of Justice's efforts to enforce the record-keeping requirements for producers of adult material to demonstrate they are not using minors."
