A bill introduced on March 16 in the U.S. Senate seeks to require all commercial websites that provide “material that is harmful to minors” to register and operate within a Top Level Domain set aside specifically for that purpose.
Sponsored by Sens. Max Baucus (D-Mont.) and Mark Pryor (D-Ark.), the “Cyber Safety for Kids Act of 2006” mandates that the International Corporation for Assigned Names and Numbers establish the new international TLD and have it operational within 90 days of the enactment of the bill. The Secretary of Commerce will be empowered to devise and enforce regulations for the operation of the TLD, and will be responsible for imposing civil penalties on any Web publishers who do not abide by the regulations. Under the legislation, companies that fail to register in the new domain within six months of the establishment of the new TLD would be subject to civil penalties.
According to the bill, which is not expected to be addressed by the Senate until after it returns from a weeklong recess that begins March 20, “The term ‘material that is harmful to minors’ means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that a reasonable person would find…with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; depicts, describes, or represents, in a patently offensive manner with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and taking the material as a whole, lacks serious literary, artistic, political, or scientific value for minors.”
Although the bill does not specifically use the term “pornography,” it’s clear from the language that online adult entertainment is exactly what the bill seeks to control. It’s also clear from the language that it is an attempt to approach certain now-enjoined requirements of the Child Online Protection Act from a different angle, according to First Amendment attorney J.D. Obenberger.
“He has COPA on his mind,” Obenberger said of the author of the bill. “This is a very peculiar piece of legislation. If you read this bill, there’s a tremendous overlap with COPA on what is considered ‘material harmful to minors,’ but it’s worse.” At least COPA indicates that explicit adult entertainment websites can be considered to operate within the law if they allow access only to those people who pay for subscriptions with a credit card, but the Baucus-Pryor bill “puts the obligation for protecting minors on all websites, even those you can’t get into without a credit card,” Obenberger noted.
The bill states “The new domain shall have [a] domain name that ends in a manner that allows a user of the Internet to understand that by accessing such domain, a user is likely to view material that is harmful to minors, such as [a] domain name ending in .xxx.” While the bill doesn’t specify that dot-xxx must be the extension for the TLD eventually established, it might as well, Obenberger said. He explained that “under at least one canon of statutory interpretation,” when something is mentioned as an example in legislation, that something generally is understood to be exactly what the law prescribes.
In fact, much of the bill that defines the terms under which the proposed TLD would operate reads very similarly to the proposed agreement between ICANN and ICM Registry for the operation of a dot-xxx sponsored Top Level Domain. The dot-xxx issue has been before ICANN for at least a year, and has proved to be a hot-button topic both in international political circles and within the adult entertainment industry. ICANN has postponed approval of the proposed agreement indefinitely.
“[The Baucus-Pryor bill] doesn’t do a damned thing to protect kids,” Obenberger said, reading between the lines. “This is about enriching private pockets—and we all know [whose pockets] they are.”
ICM Registry representatives did not return phone calls seeking comment.
Obenberger also said a bill such as this “outsources the American porn industry” because it would do nothing to curtail the amount of adult content produced in other countries and made available in the dot-com and dot-net spaces.
For his part, Pryor believes the bill will give parents a workable tool in their efforts to keep their children from being exposed to porn.
“While the Internet is an exceptional learning tool, it allows children the same easy access to websites about space shuttles as it does for pornography,” the senator said in a prepared statement. “Turning a blind eye to this problem has allowed the online pornography industry to expand and enabled kids to view adult content at very young ages. By corralling pornography in its own domain, our bill provides parents with the ability to create a ‘do not enter zone’ for their kids.”
