A group of lawmakers today introduced a bill that would require Web site operators to place tags on any Web page containing sexually explicit material, or face up to 15 years in prison for violating the statute. The bill is the latest in a long line of measures — ostensibly aimed at protecting kids from harmful material — that would have sweeping consequences for the free speech rights of law-abiding adult Internet users.

We’ll be putting out a more in-depth analysis of the measure soon, but even an initial review of the bill reveals that it would have implications that stretch far beyond the adult content industry. The legislation would create a classic “chilling effect,” leaving bloggers, artists and even health advocates to either censor themselves or run the risk of serving jail time.

The definition of “sexually explicit” is extremely broad and would sweep in sexually suggestive content that contains no nudity. The legislation would apply to a broad range of sites, including safe sex sites and artists web sites.

Equally troubling is that the bill willfully ignores — and potentially even undercuts — viable, market-driven rating, evaluation and filtering programs that are already helping parents tailor their children’s Internet experiences. In place of those tools, the bill proposes a mandatory labeling system that will do nothing to limit the exposure of young people to potentially harmful Internet material. Even if this measure were to protect children from all U.S.-based adult content, a virtual impossibility, it still would do nothing to restrict the vast amounts of adult content hosted outside of the country, beyond the reach of U.S. laws.

If passed the legislation would stifle legitimate important speech in the United States, while accomplishing nothing to make children safer. We’ll follow the measure closely and keep you updated.

I attended a meeting today sponsored by the National Telecommunications and Information Administration (NTIA) regarding the continuing management of the Internet’s worldwide Domain Name System (DNS).

Right now the nonprofit Internet Corporation for Assigned Names and Numbers (ICANN) manages the DNS under an agreement with NTIA. That agreement expires in September, and the NTIA is soliciting comments on ICANN’s progress and future.

Even for many DC policy wonks, this is dry stuff. Trying to get people in the broader Internet community to pay attention to it is even tougher. But boring or not, the future of ICANN is inexorably tied to the future of the Internet itself. Members of the Internet community have a duty to contribute substantively to this discussion. So drink a cup of coffee and take a look at the NTIA document. Comments are due July 7.

Last week, while China was busy blocking and then unblocking Google.com, in an apparent effort to tamp down on dissent during the anniversary of the Tiananmen square massacre, and Sergei Brin was publicly musing about China’s censorship laws, I found myself debating Daniel Goure of the Lexington Institute on the balance between liberty and democracy before a group of Chinese exchange students at the Elliott School of International Affairs at George Washington University. The debate was predicable, but the audience — graduate students from a variety of disciplines studying in universities all over the country — was not. They were unafraid to bluntly challenge the post 9-11 policies of their host country or to discuss the need for greater freedom and political reform in their own country. And unlike most U.S. policymakers, they understood the connection between the two.

It the “China century” is going to be about political reform and human rights as well as growing economic dominance, Daniel and I agreed on one thing: this was the generation poised to make it happen. What is less clear to me is whether US policymakers — at least with respect to the goal of an open and unfettered Internet in China — will help or hinder that effort. The signs are not encouraging.

On Friday, a federal court in Washington upheld a decision to allow the FBI and telecom regulators to dictate design mandates on the Internet in order to facilitate government wiretapping, threatening the privacy rights of Americans and the ability of innovators to technologists to innovate. (Jim Dempsey’s post from Friday discusses this in detail). Last month the Attorney General sent a bill up to Congress that would require government warning labels on commercial websites that contain sexually explicit material (a provision that reach much more than adult porn sites), and the DOJ is now actively considering legislation to require massive data retention by ISPs, creating large databases of information that track our personal contacts and relationships.

All of this coupled with the revelation that the NSA has acquired the phone calling records of Americans, apparently without legal process, cannot but help strengthen China’s hand or bolster to its oft stated view that it is not doing “anything different” with respect to the Internet than the United States.

The United States is not China. We still have rule of law and a modicum of due process on the Internet and most importantly, we have political freedom and free speech. But if we are going to demand that American Internet and technology companies develop a code of conduct to guide their behavior abroad to aid China’s next generation of leaders in actively embracing political freedom, we need to stop pretending there is a “Chinese wall” between our actions at home and the impact abroad.

Distressing news today — both for technologists and civil libertarians — as a federal appeals court ruled that the FBI and telecom regulators could demand that Internet services be designed to facilitate government wiretapping.

In 2005, CDT joined a coalition of public interest advocates, universities and Internet companies in asking the court to overturn an August 2005 decision by the Federal Communications Commission (FCC) to extend the 1994 Communications Assistance to Law Enforcement Act (CALEA) to the Internet. The FCC made its decision to extend the reach of CALEA despite the fact that law expressly exempts “information services. ”

CDT has repeatedly argued that Congress intended to exclude the Internet from the wiretap design mandates, because the Internet is fundamentally different from the telephone network. The FCC wanted a certain result from the get-go, and they twisted or ignored the words of the statute to get it. This decision threatens the privacy rights of innocent Americans as well as the ability of technology companies to innovate freely.

A nice timeline of the CALEA fight is available here.

The Senate Judiciary Committee met today to consider several bills on the NSA surveillance program. Despite a lot of tough rhetoric about how the warrantless NSA program was constitutionally suspect and how the Administration must stop stonewalling Congress on the NSA issue, Senator Specter offered a bill — made worse by his Republican colleagues — that eliminates checks and balances on electronic surveillance in the United States and seriously erodes the civil liberties of U.S. citizens. The committee approved this bill and will mark it up as early as next week.

This is a bad bill for several reasons. For starters, the bill is so broad that it would authorize domestic electronic surveillance programs — absent any judicial review — of Americans who are not even terrorist suspects as long as they are “reasonably believed to have communication with” someone who is a suspected terrorist. This means that a journalist who interviews a suspected terrorist, and doesn’t even know that the person is considered a terrorist, could be subject to surveillance under this bill. The bill jettisons both of the core elements of the Fourth Amendment: identification of a particular target and probable cause.

It also guts the Foreign Intelligence Surveillance Act (FISA) by amending FISA’s “exclusivity” provision to allow surveillance outside of the procedural framework that FISA established. What this means is that FISA (and the wiretap statute in the criminal code) would no longer be the exclusive procedural structure for conducting electronic surveillance. Currently, the President is required to follow FISA when the government conducts electronic surveillance for foreign intelligence purposes inside the United States. This bill would allow the President to choose whether to conduct surveillance under FISA (i.e., apply for a warrant from the FISA court or to ignore the court altogether and proceed without a warrant. In other words, rather than restoring the constitutional balance of power that the President’s warrantless surveillance program has thrown out of whack, this bill amounts to an endorsement of this Administration’s executive power grab.

What’s more, the bill makes this amendment of the “exclusivity” provision retroactive to 1978 — the date on which FISA was enacted. This would remove the President from liability for the conduct of the warrantless surveillance program in violation of FISA.

UPDATE (June 8, 2006)

The plot thickens. According to a follow-up story published today, Chairman Specter was not party to the deal to prevent the Judiciary Committee from questioning phone companies about their involvement in NSA spying. Indeed Specter sent a strongly worded letter criticizing Vice President Cheney for undercutting a possible public inquiry into the phone companies’ involvement.

Original post follows.

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A last-minute deal between the Senate Judiciary Committee and the White House Tuesday may have robbed Americans of their last real chance to learn if and why their phone companies handed their records over to the National Security Agency.

USA Today reported Wednesday that Judiciary Committee Chairman Arlen Specter (R-Pa.) had reached a deal with Vice President Dick Cheney, under which Specter would drop his efforts to publicly question phone company officials about their involvement in the NSA surveillance programs. In return, the White House agreed to consider Specter’s NSA bill, which would retroactively validate the surveillance programs, would not require judicial review of the President’s warrantless surveillance program, and would not promote congressional oversight.

This is a troubling development on many levels. Prior to this deal, Specter had taken a tough stance on NSA spying. For us in the privacy community, a serious inquiry by Specter’s Judiciary Committee seemed our best hope for learning more about the phone companies’ involvement in the NSA program. Now that opportunity is slipping away and Specter’s NSA bill, which is deeply problematic in its own right has garnered White House interest.

Since the disclosure last December of the NSA program, CDT has maintained that Congress must learn all of the facts about the surveillance program before it even attempts to pass legislation to address this issue. This deal undermines that effort, and further weakens the ability of Congress and the courts to exercise appropriate checks on the Executive Branch’s investigative powers.

In the 17 years since the Toxic Release Inventory (TRI) first went online, it has been widely regarded as a successful program. It has been a model of how transparency alone can bring about positive changes in regulatory policy. The model is simple:

Companies that release a certain amount of toxins into the environment must report this information to the US Environmental Protection Agency (EPA). The EPA makes this information public. Individuals can decide whether or not to live in an area based on the information. Communities can plan using the information and can pressure companies with particularly high levels, or that do not improve their releases, or that are not using new alternatives that are less harmful, etc. Companies produce less toxins because of the pressure that they feel from individuals and the community.

TRI would be a successful program even if the information were only available in reading rooms, however, the Internet has made it so that really anyone can get direct access to this important data themselves, rather than through filters. (I’m giving a lot of credit to the Internet here, but there is always a face behind the technology. Without the hard work of OMB Watch to get this information online through its RTKnet; to pressure the EPA to make it broadly available on official sites; and to keep it there, this information would very likely not be available on the Internet at all).

So, if it is such a success, why has the EPA been moving to weaken the reporting requirements by:

1. Switching from annual to biennial reporting, leaving a gap every other year during which companies could pollute as much as they want without reporting.

2. Allowing companies to release ten times the amount of toxics before detailed reporting would be required.

3. Creating a first-ever exemption on reporting the most dangerous class of chemicals-Persistent Bioaccumulative Toxins (PBTs), like lead and mercury?

Good question… and one that 198 organizations led by OMB Watch (and including CDT) have been asking too!

Fortunately, Congress seems to be united against these changes.

In a little reported, but important, victory for maintaining TRI, an amendment to the Interior Appropriations Bill overwhelmingly passed the House just before the Memorial Day recess. This amendment was introduced by Reps. Frank Pallone (D-NJ) and Hilda Solis (D-CA) who deserve praise for their leadership in protecting our right-to-know.

Welcome to the Center for Democracy and Technology’s first-ever blog. For those not familiar with us, CDT has advocated for democratic values on the Internet for more than a decade. Based in Washington, D.C., the organization rose to national prominence in the 1990s, while playing an integral role in the Supreme Court case that affirmed First Amendment free speech rights on the Internet. In the more than 10 years since that decision, CDT has worked with lawmakers, public interest advocates and technology companies to promote policies that protect privacy, security and free expression online.

We felt a blog would give our experts an opportunity to update you regarding key developments on their issues. In the coming weeks, if you visit regularly, you’ll get to know our experts well, but if you’d like to get a sneak peak of who’ll be posting here, you can visit our Expert Contacts page.

In the next couple of weeks, we’ll be experimenting with topics, tweaking our design and giving the blog its permanent name. We’re going to update the information here regularly and we hope you’ll check back often for the latest posts and updates. We also urge you to visit our home page for up to date information on all of CDT’s activities. Please also feel free to e-mail us with suggestions for the site, questions about tech policy issues and anything else you may have on your mind. You can e-mail any of our experts directly, or send messages directly to me, David McGuire, communications director for CDT and editor of the blog.