We need a law against smutty spam directed at kids

BY LARRY MAGID
July 26, 2001

I'm a card-carrying member of the American Civil Liberties Union (ACLU) but when it comes to ``porno spam'' reaching children, I think, ``There ought to be a law.''

Congresswoman Zoe Lofgren, D-San Jose, agrees.

Lofgren recently introduced a bill intended to empower parents to stop unsolicited sexually explicit advertising from reaching kids.

Although her bill -- officially called the ``Protect Children From E-Mail Smut Act of 2001'' -- has some flaws, the idea strikes me as valid: Don't ban online porn and don't even make it a crime to send porno-spam. Just require people who send unsolicited sexual material to label their mail so that parents and others can block it if they so desire.

Some e-mail programs have a filtering tool that allows you to dispose of messages containing certain words in the subject line or body. Outlook and Eudora users, for example, can filter out any messages with the word ``Advertisement'' or ``Sex'' in the subject line or message. If a law such as Lofgren's were in place, it would be easy for e-mail software vendors to let users filter out messages that were labeled as sexually oriented.

There are several other bills before Congress seeking to regulate spam, but Lofgren's is the only one dealing exclusively with protecting children from sexually oriented e-mail. Of course, as with all bills in the early stage, there is a long and circuitous route ahead of the proposal before it becomes a law -- and no guarantee it won't die somewhere along the way.

What's more, there will be enforcement problems with any legislation that tries to regulate cyberspace. The long arms of the law aren't always long enough to reach spammers who practice their trade from outside our borders.

Unlike the Communications Decency Act (CDA) from 1996, which was successfully challenged by a coalition led by the ACLU, and the Children's Online Protection Act (COPA) from 1998, which the Supreme Court plans to hear this fall, Lofgren's bill would not ban or in any way restrict what people post on the Internet.

Want to create a site full of smut? Go ahead, just don't advertise it via e-mail without letting users know they're about to get a message promoting sexually explicit material.

The bill, says Lofgren, is modeled after existing law that regulates sexually explicit advertisements sent via U.S. mail. Postal patrons can fill out an ``Application for Listing and/or Prohibitory Order'' at their local post office which puts you or your kids off-limits to a mailer who sends out sexually explicit advertising.

The existing postal law also requires that the words ``Sexually Oriented Ad'' must be placed ``on the envelope or cover of any sexually oriented advertisement sent through the mail.''

Lofgren's bill wouldn't establish a registry similar to what the post office maintains, but would require anyone sending out sexually explicit electronic mail ``intending or knowing that such matter will be forwarded to a minor'' to add an ``electronic tag'' that could help parents block the message.

The details, according to the bill, would be established by the Commerce Department's National Institute of Standards and Technology (NIST). Anyone convicted for failing to comply could face up to $10,000 in fines and up to a year in jail. They would also be subject to civil damages. A parent of a minor could sue the mailer and ``recover up to $10,000 for each and every violation.''

While I applaud Lofgren's intentions, I have some problems with the bill's language. Ironically, I find the bill to be not restrictive enough in one area and too restrictive in others. Fortunately, it's in its early stages, so there are plenty of opportunities for revisions.

One problem is the use of the words ``intending or knowing.'' Spammers usually don't have a clue who gets their mail. I would hate to see anyone get off because he or she can prove that they had no intention of the mail reaching a minor and no way to know that it would reach a minor.

If this bill is to have any teeth at all, it needs to apply to all unsolicited sexually explicit advertisements regardless of whether the sender intends or knows that it's reaching a minor.

Although the ACLU hasn't taken a formal stand on Lofgren's legislation, Chris Hansen, an ACLU attorney in New York who helped lead the fight against the CDA and COPA is troubled by it. ``Any time a law proposes to take actions that will have the affect of labeling or restricting speech it has to be looked at very closely.''

One issue, says Hansen, ``is defining sexually oriented.'' What may be offensive to some is perfectly acceptable to others.

Hansen is especially concerned about civil remedies because ``everyone in the country can sue. They may not win, but advertisers might have to defend themselves thousands of times. Everyone who brings a lawsuit may have their own definition of what is sexually oriented.''

The issue of civil penalties is a tough one. Without them the bill would probably be largely unenforced. As Lofgren pointed out during an interview, ``this is not something that's likely to rise to the top of a U.S. attorney's enforcement list.''

The civil remedies give parents and opportunity to take their own legal course of action, even if they can't convince a prosecutor to file criminal charges. But, as the ACLU's Hansen points out, it could open up a flood gate of frivolous and abusive litigation against groups such as Planned Parenthood and others that distribute material that some would construe as sexually explicit, even though most professional prosecutors would agree that it doesn't appeal to prurient interests.

I certainly sympathize with Hansen's concerns and respect the ACLU's tough stand on free speech, even when it is a bit extreme.

But, at the risk of having my ACLU card revoked, I support the goals behind Lofgren's bill. The issue here isn't censorship. It's empowerment and parental control.

Congress is never going to find a way to keep kids -- especially teens -- from looking at porn, but it strikes me that Congress is well within its powers to keep adults from shoving it in their faces.