Sen. McCain Aims to Expand Federal Obscenity Reporting Law

Michael Hayes
WASHINGTON — Speaking at the close of the 2006 legislative term, Sen. John McCain, R-Ariz., said he plans to introduce legislation that would extend federal obscenity reporting guidelines to all forms of Internet communication when the Senate reconvenes in 2007.

The proposed law could bring millions of adult and mainstream commercial websites under the same regulatory regime that governs Internet service providers.

Known as the Stop the Online Exploitation of Our Children Act, the bill requires webmasters who operate websites that employ message boards, chatrooms, social networking functions, email or instant messaging services to comply with federal obscenity reporting guidelines. Internet content hosting services, domain name registration services, search engines, electronic communications services and image and video-sharing services also would fall under the purview of the proposed legislation.

Under the proposed law, webmasters would be required to report illegal images — including child pornography and some form of obscenity — to authorities, or face fines of up to $300,000 and possible criminal prosecution.

Webmasters also would be required to preserve records for up to six months of any “information relating to the facts or circumstances” of an incident involving obscenity or child pornography.

“This legislation would reduce the sexual exploitation of our children, and punish those who cause them physical and emotional harm through sex crimes,” McCain said. “In recent years, technology has contributed to the greater distribution and availability, and, some believe, desire for child pornography.”

Electronic Frontier Foundation attorney Kevin Bankston expressed concern that laws such as the one McCain has proposed present a “slippery slope.”

“Once you start creating categories of industries that must report suspicious or criminal behavior, when does that stop?” Bankston said.

Bankston added that a vague definition of obscenity means that all websites, particularly those run by smaller operators, face a difficult task when it comes to identifying illegal content.

Free Speech Coalition Board Chairman Jeffrey Douglas told XBIZ the bill smacks of ignorance.

“It would be nice if people who introduced these things knew what they were talking about,” Douglas said. “It is impossible to identify what is or is not obscene. Identifying child pornography when it does not involve pre-pubescent minors is also nearly impossible.”

According to Douglas, McCain’s bill will encourage webmasters to over-report incidents, which would be ineffective for law enforcement and create a chilling effect on constitutionally protected speech.

“Under the law, it would be crazy not to report,” Douglas said.

For ISPs, which are already obligated to report incidents of obscenity and child pornography, the bill contains some good news, according to Kate Dean of the U.S. ISP Association. McCain’s legislation does much to clarify the reporting procedure under for ISPs, Dean said.

In the meantime, Attorney General Alberto Gonzales and the FBI are expected to continue their calls for mandatory data retention for ISPs in the coming year. Rep. Diana Degette’s office said the Democrat from Colorado plans to introduce legislation in the House early in 2007 that would require ISPs to retain records of users’ online activities.

While the 2008 presidential election is still a long way off, McCain, who has announced his candidacy, looks to be a strong challenger for the Oval Office in the general election, if he can clear a field of more conservative Republican nominees during the primary season.

Douglas said he believes legislation such as this, which he hopes will not gain traction given the change of power in Washington, could be an effort on McCain’s part to use the politics of fear in his Presidential bid.

“It is typical of modern politics to try to motivate voters through fear because a more thoughtful approach to solving the problem is not as immediate,” Douglas said.