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Segregating Smut: How a Bill Isolating Adult Content Affects E-Marketing

Written on
Mar 28, 2006 
Author
Michael H. Sproule  |

Two U.S. Senators have just introduced a new bill, the Cyber Safety for Kids Act, intended to protect children from harmful material. As with prior laws regulating adult content online, the new bill from Sen. Max Baucus and Sen. Mark Pryor raises interesting questions about the regulation of speech on the Internet. In fact the new act may be unconstitutional, but there may be good reason for the Internet industry to go along with it anyway.

It is too early to predict whether this new law will ever be passed and go into effect, but it is clear that the public, at least as perceived by legislators from conservative states, is interested in laws like this. The Internet is perceived as a potentially dangerous place for kids and even adults. Effective or not, laws regulating the availability of adult content appear to many to make the Internet.

The new CSKA, if enacted, would require the creation of a new top-level domain, such as .XXX, for adult oriented web sites. Unlike prior voluntary efforts to create an adult domain, under CSKA all web sites covered by the law would be required to move to the new domain. By segregating the Internet, it is intended that the job of content filterers, such as CyberPatrol or NetNanny, would be made easier. Also, at least in theory, it would be less unlikely for unwilling Internet users to accidentally stumble on material they find objectionable.

CSKA immediately raises the constitutional free speech question. Any law that will have an effect on public access to content online must be written carefully to affect a worthwhile public purpose, while not putting unnecessary burdens on free speech. CSKA must, therefore, protect children while not unnecessarily burdening adult access to adult content.

Lawmakers’ records in passing laws that meet constitutional muster have been mixed. CSKA is intended to cover more than obscene content and child pornography, two areas where courts have generally upheld laws. Like CIPA (the Children’s Internet Protection Act, which attempted to require libraries to block access to material harmful to minors), and COPA (the Child Online Protection Act, which attempted to regulate web sites offering materials harmful to minors), CSKA would cover sites offering material that is “harmful to minors.”

COPA got into trouble and was found unconstitutional largely because the harmful to minors definition covered too much material given the statute’s perceived heavy burden on web site operators to obtain age-verification from all visitors. It failed to strike the right balance. CIPA revised the definition of harmful to minors, but it too has been struck down partially by one court. Again the definition of content covered by the law was too broad when weighed against the burden on adult access to adult content imposed by the law’s requirement that libraries block access to covered content.

Is CSKA also then doomed by its reliance on the “harmful to minors” standard? Possibly not. COPA and CIPA may not be the best laws to compare to CSKA. A better comparison may be made to the CAN-SPAM Act, which regulates sexually oriented email advertising. The standard in CAN-SPAM turns out to be even broader than CSKA, covering any material that is “sexually-oriented.” Nonetheless, while COPA, CIPA and earlier laws aimed at adult online content were the center of constitutional storms, there have been no serious challenges to the constitutionality of CAN-SPAM.

Two reasons make CAN-SPAM less controversial, and those same reasons may apply to CSKA. First, the burden on speech imposed by CAN-SPAM is arguably lower than with other laws. Advertisers are basically only required to label their emails “sexually explicit.” Access to the content in the emails is not blocked, but the labeling makes it easier for spam blockers and recipients to filter out adult materials. CSKA’s burden is similarly low. In a sense, it would require only that web sites be “labeled” by using the .XXX domain. No one’s access to the sites would actually be blocked or made more difficult by the law.

Second, and more importantly, the Internet industry may discover that, whatever its constitutionality, CSKA, like CAN-SPAM, may turn out to be useful regulation. CAN-SPAM benefits adult sites by clearly spelling out how they can legally advertise by email, removing the uncertainty that existed prior to its passage. The email advertising industry benefits as a whole by segregating out adult content advertising. Spam may still not be welcome, but the fact that recipients can more easily avoid one of its most objectionable categories, makes spam in general somewhat less objectionable. The Internet industry as a whole may find CSKA, or some other law like it, is just as welcome.





Michael H. Sproule, a partner with the New York law firm of Akabas & Sproule, focuses his practice on intellectual property (particularly licensing, trademark and copyright practice) and corporate law. His experience includes work with both traditional and new economy clients in fields such as technology, the Internet, media and entertainment. A software programmer himself, Mike is interested in all aspects of technology and its impact on law and our society.

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