House bans misleading domains

[pam]

Right, and I didn't meant you personally

It just irks me -- as a responsible adult webmaster -- how the bad sites make us all look bad and made it necessary for this law to be enacted.

 

[DaddyHalbucks]

The bottom line is that the net is NOT safe for kids without adult supervision. Parents ARE responsible, and if it is not convenient for them to supervise, it is THEIR fault.

This legislation is probably unconstitutional.

 

[pam]

When you know there are 'blue' movies on your cable system, as a parent you can 'lock' your children out of watching it, if you consider it inappropriate.

If you go out for the night and leave the kids home, you make sure they have no access to those materials.

But when it comes to computers ...

I can't tell you how many 13 and 14- year old girls are in chat rooms, masturbating on camera for other so-called teen boys and probably old men.

When I was 13 or 14, I could not be alone in my room for 10 minutes without my mother asking, "are you ok? What are you doing in there?"

Then again, at that age back then, I didn't know what masturbating was

 

[DaddyHalbucks]

Then again, at that age back then, I didn't know what masturbating was
++++++++++++++

Well, if you were growing up now, the internet could provide such educational opportunities for you.

J/K

 

[pam]

LOL touche`

 

[DomeBase]

I just clicked on House.gov looking for real estate.

Turns out to be some kind of a bait and switch. Instead of content dealing with real estate, there was nothing about houses at all. Man alive... :upset:

There ought to be a law about such deception!

 

[MillerTyme]

Originally posted by DotComCowboy
The bottom line is that the net is NOT safe for kids without adult supervision. Parents ARE responsible, and if it is not convenient for them to supervise, it is THEIR fault.

This legislation is probably unconstitutional.

You probably dont have kids according to that statement


And obscene acts and language aren't protected by the Constitution.

>Obscenity Convictions Constitutional In 1957, in Roth vs. United States, the Court determined that prosecution for possession or distribution of obscene material is lawful, and that obscene speech is not protected under the Constitution. Sam Roth, a publisher and distributor of magazines and books, had been indicted in 1954 for using the mail to advertise and distribute material with sexual content, notably Aubrey Beardsley's Venus and Tannhäuser. His conviction was upheld.

The "Three-Pronged Test" for Obscenity Established In 1973, in the most important case on freedom of expression, Miller vs. California, the Court established the "three-pronged test" for obscenity, which still applies today. The case concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.

In Miller, the Court's decision stated that obscene material is not protected by the First Amendment (a reaffirmation of Roth) and that such speech may be regulated by the state under certain circumstances. In order to meet the definition of obscene material articulated in this case, three conditions must be met:

whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

 

[pam]

I saw a post on another board where an ISP told a customer that they had to remove all nudity on a site -- that did not have sex or porn in the name ...

Guess having a few warning pages won't help .... though how do you prove they set out to 'intentionally mislead someone'?

 

[Ari Goldberger]

I have copied at the bottom of this message what appears to be the version of the law as passed. The law has several elements but the key is "misleading" domain name and "intent to deceive."

I believe that any name that does not clearly indicate the sexual nature of a site (the law say having "porn" or "sex" in the name is ok) runs a risk of violating the law. Therefore, any name without "sex" or "porn" in it better first go to an intermediary page. Let's say you have "breast.com." I would probably have a page that has two links: Link 1: Search for "breast" on the Internet; Link 2: For Adult Material, visit "porn.breast.com." It should have a warning for those under 18 to go elsewhere and instructions on how parents can filter, etc. I believe with such an intermediary page, it cannot be possibly held that you are intending to "mislead" anyone. Furthermore, making the domain that ultimately points to the porn site a third-level that includes "sex" arguable falls within the safe-harbor provision of the law.

DISCLAIMER: THESE ARE JUST MY THOUGHTS and NOT legal advice. It is not clear how this will be enforced. I believe a problem with the law is that it is vague and, potentially, violative of the First Amendment. However, certainly those engaged in the online porn business should proceed conservatively with caution. The only real safe way is to wait and see how the law will be enforced.

`Sec. 2252B. Misleading domain names on the Internet

`(a) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both.

`(b) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both.

`(c) For the purposes of this section, a domain name that includes a word or words to indicate the sexual content of the site, such as `sex' or `porn', is not misleading.

`(d) For the purposes of this section, the term `material that is harmful to minors' means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context--

`(1) predominantly appeals to a prurient interest of minors;

`(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

`(3) lacks serious literary, artistic, political, or scientific value for minors.

`(e) For the purposes of subsection (d), the term `sex' means acts of masturbation, sexual intercourse, or physcial contact with a person's genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal.'.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 110 of title 18, United States Code, is amended by inserting after the item relating to section 2252A the following new item:

`2252B. Misleading domain names on the Internet.'.

 

[DaddyHalbucks]

I believe that any name that does not clearly indicate the sexual nature of a site (the law say having "porn" or "sex" in the name is ok) runs a risk of violating the law.
+++++++++++++++++

How can this be viewed as anything but an attempt to regulate speech?

 

[Ari Goldberger]

>How can this be viewed as anything but an attempt to regulate speech?

I'm no First Amendment expert as I need to brush up on the cases. However, the government is permitted to regulate speech under certain circumstances.

For example, the government prohibits TV advertising of cigarettes...

 

[charles]

Originally posted by DomeBase
I just clicked on House.gov looking for real estate.

Turns out to be some kind of a bait and switch. Instead of content dealing with real estate, there was nothing about houses at all. Man alive... :upset:

There ought to be a law about such deception!

LOL, I love that!

 

[charles]

This law is a content-based scheme of speech regulation that will inevitably be struck down as infringing the First Amendment. In fact, reading these posts here makes me more comfortable making this prediction. The comments all imply that someone would have to make the call as to what is a misleading name, and what isn't.

If I were a first-grader, "Pussy.com" might be misleading to me, leading to surprisingly discoveries when I decided to get curious about kittens. Isn't that the audience we're worried about, after all? Regardless where you set the standard, anyway, you need to have "domain name judges" to apply the law.

When you have to have a tribunal judging domain names for their misleading content, that law's a dead duck. And of course the law is vague and overbroad, as evidenced by the bewilderment of businesspeople like the posters, trying to figure out how to apply the law. Once could argue that the law is stupid, and will force the "filthification" of net language. To avoid prosecution, entrepreneurs could opt for extremely explicit names only.

I'm not saying there'll be no prosecutions. But there is a saying that "the best remedy for unwise legislation is vigorous enforcement."

The current Supreme Court has been surprisingly diligent in protecting rights of free speech. Must be the media lobby controlling the agenda.

Cheers,
Charles Carreon
Offered as comment in public discussion only, not as legal advice.www.onlinemedialaw.com

 

[Ari Goldberger]

>I'm not saying there'll be no prosecutions. But there is a saying >that "the best remedy for unwise legislation is vigorous >enforcement."


I agree that the law will be struck down. However, if I were a domain owner pointing to porn, I would not want to be the test case. I imagine being arrested and prosecuted would take some of the fun at of the domain game. Best to play it safe.

 

[HOWARD]

My guess is that WHITEHOUSE.COM could be a test case. But I agree with Charles that the law will be declared unconstitutional in its application.

 

[Ari Goldberger]

Here's what the ACLU said about this in a letter to the Senate concerning the then pending bill:

The Misleading Domain Names Section (Section 108) chills protected speech and is counter-productive: The term "misleading" is inherently vague, which tends to chill protected speech on the Internet.[1] The provision attempts to circumvent this problem by stating that the term "porn" or "sex" contained in the domain name will not be considered "misleading." The result is that in order to avoid liability for a misleading domain name for a domain containing sexually explicit material, the domain owner will be forced to incorporate either "porn" or "sex" in the domain name. While this is a form of "compelled speech" upon which the First Amendment generally frowns, the additional problem is that it now becomes even easier for both children and adults to find sexually explicit material on the Internet. All they need do is search for domain names with "porn" or "sex" in the title.

 

[pam]

Thanks for your insight, Ari --

I have a *lot* of adult websites, and very very few have the word 'sex' or 'porn' in them. However, each has at least one page which clearly states it's for adults only, there is a full disclaimer they are supposed to read -- and acknowledge -- before clicking 'enter'. If they don't want to view the site, they should hit 'exit'.

I have links for child filtering services, have links for Safe Surf, ICRC, etc -- making it quite obvious I do NOT want anyone under 21 in my sites (yes, 21, not 18 -- 4 states have a legal age of 21 and all I need is someone in Wyoming prosecuting me for allowing a 19-year old to look at sex toys online!).

From what I've read on all the adult webmaster boards, this law was meant to stop people who would register very non-porn-sounding domain names that dropped -- yet had very high search engine rankings -- from just making them porn sites without any warnings at all.

I've always followed an attorney for the adult law site and have never put actual 'sex' on my tours, nor do I even morph over the sex parts -- it's STILL there!

This law is very very vague, yet it's like 18 USC 2257 which was changed and snuck in as part of the Amber Alert Law -- no one knows what will happen until it's challenged in court and successfully prosecuted -- or not.

I'd love to change each domain of mine and add 'sex' or 'porn' -- but after having sites for 7 years, I'd lose a lot of search engine ranking. Then again, search engine ranking won't do me much good if I end up in the Federal pen

 

[Ari Goldberger]

Pam-

I think a good warning page that contains nothing obscene on the page lives up to abiding by the spirit of the law. If it were my site, I would make the link that directs to the site a third-level name with the word "sex" in it.

So, if you have babes.com, a warning should appear at babes.com, and the entrance link should lead to sex.babes.com.

This is just a hypothetical, and I am not providing any specific advice, mainly because it is unclear how the law will be applied. But, when you're talking criminal prosecution, I'd be very conservative and cautious.

 

[pam]

I always have been, Ari, to the point people thought I was crazy

I won't sell adult videos to about 15 states (mostly Southern) and the entire state of Florida, despite the fact just this past week an attorney (in Florida) said I was missing a huge market. I know I am -- but I'd rather err on the side of caution. Same with my adult sites, I've always kept the sex off the tour.

There are SO many sites that are adult in nature but the name can be taken as 'misleading' -- badpuppy.com, whitehouse.com -- what guidelines will the government use for 'intentionally misleading' ... that's the $64,000 question.

(the new law does address the front page/tour of a site, not sure if you saw that, but it's SO vague ...)

I'd love to pick your brain, so to speak, on 18 USC 2257 -- every webmaster board has people giving legal advice about it, quoting lawyers, yet I haven't seen anything concrete. The law was written for publishers and movie producers (I was a publisher when it came out) but the new section seemingly deals with websites --- or does it?

 

[Ari Goldberger]

Let's dissect the key language from the law:

"Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity"


1) "Knowingly uses" This sounds like you have to know your using using the domain, or know that your using a domain that is misleading. This means that if you accidentally point a non-sex-sounding name to a porn site, you're not violating the law.

2) "Misleading Domain" This is the worst part of the law as it is extremely vague. If the name has "sex" or "porn" in it, its not misleading. Arguably, if you're using a common "dirty" word (I won't say it as I don't want to violate Forum rules ) it's not a misleading name. Body part domains could go either way. Any way, this is the part of the law that is "vague" and can have the 1st amendment problems.

3) "Intent to Deceive" This is the most important part of the law, and the one I believe you can control. You can either, truly, not be intending to deceive anyone and try and prove that to Judge and Jury. Alternatively, you can simply put up a warning page. I believe with a warning page which has nothing arguably obscene on it at all, you should be able to use any domain name. I don't see how anyone could accuse you of intending to deceive, if the page says: Warning, if you go further you will be seeing material of a sexual nature." Of course, I have no idea of how the law will be prosecuted but this just seems like a common sense approach.