WASHINGTON, D.C.—Rep. Bart Stupak, (D-MI), fresh from his pyrrhic victory getting his abortion amendment added to the healthcare reform bill passed by the House of Representatives, has introduced another aggressive piece of legislation—the Online Age Verification and Child Safety Act—which free speech attorneys are already calling fatally flawed.
Were the bill to become law, it would direct the Federal Trade Commisssion to enforce mandatory online age verification for “any pornographic website accessible by any computer located within the United States to display any pornographic material, including free content that may be available prior to the purchase of a subscription or product.”
Without specifying how such verification is to be administered, the bill nevertheless requires “any website or online service” to “establish and maintain a system of internal policies, procedures and controls to ensure that no such material is displayed to any user attempting to access their site without first verifying that the user is 18 years or older.”
The penalty for knowingly and with intent selling or providing access to “any product or a service to a person under a legally specified age to whom such sale or access is prohibited under applicable law” is a fine and imprisonment for up to 10 years. The penalties are applicable if the offense impacts interstate or foreign commerce, and there also is a RICO provision in the bill.
Interestingly, the legislation attempts to hold financial entities that facilitate online transactions accountable as well. “Any internet payment service provider, or business that performs financial transactions for an operator relating to pornographic material, including any bank, credit card company, payments services provider or third-party merchant, shall only process age-verified transactions for internet sales involving pornography,” the bill reads.
Visa has long contended that its credit cards—which are obtainable by minors with their parent's consent—should not be used to determine age, but that has not stopped the majority of adult pay sites from using them to provide at least a modicum of assurance that members are adults. This law, if passed, would essentially remove that option from the table without making clear what method, if any, is supposed to take its place.
The proposed bill also enhances anti-money-laundering laws to cover online transactions, and attempts to head off the use of electronic, or universal, currencies, in the transaction of goods and services addressed by the bill.
According to industry attorney and AVN legal columnist Clyde DeWitt, the Stupak bill, which was introduced Nov. 6 and currently has no co-sponsors, is a whole lot of hoopla over nothing.
“The courts have unambiguously held that any credit card or identification requirement is unconstitutional,” he told AVN. “The bill fails the strict scrutiny requirement because filtering is a less restrictive and more effective means of protecting children. Because it is so blatantly unconstitutional, it will never see the light of day. Congressman Stupak will use it in his re-election campaign and put it on his website, and that’s the only reason it was introduced. Lawyers working in the Congress aren’t that stupid.”
Free Speech Coalition Board Chair and industry attorney Jeffrey Douglas concurred, citing a recent decision by the Third Circuit Court of Appeals that upheld a lower court ruling striking down COPA, the 1998 law that criminalized the act of “knowingly” placing materials online that are “harmful to minors.”
“My review of the bill, as well as that of other colleagues I trust,” Douglas said, “is that it is facially unconstitutional, virtually impossible to meet the standards that the Third Circuit [Court of Appeals] required in COPA, and is highly unlikely to have any life in the House of Representatives. Often, bills are introduced solely for the purpose of impact on constituency, by saying, ‘Look what I am doing,’ even though no one has any belief that it has any vitality whatsoever. This appears to me to be one of those. I am by no means an insider and have no particularized information on it, but my educated guess is that it is going nowhere. I wouldn’t be surprised if it never has a hearing.”
Oddly, while the bill is listed on Thomas (#39), there appears to be no mention on Rep. Stupak's website of either it or the issue of online safety, which is notably missing from his Current Issues section.