The Online Cooperative Publishing Act
(SafeSurf's Proposal for a Safe Internet Without Censorship)

Any law that seeks to regulate the Internet must first recognize the uniqueness of the medium.  The Internet is not the print media or the broadcast industry.  It is also not another form of phone conversation or a 900 number calling system.  Instead, the Internet is the manifestation of humankind's quest for limitless two-way interaction with thought.  The hyper-text layout allows us to change topics on a whim, travel to distant places, or gather world opinion on a subject in a matter of minutes. 

This distinctive nature of the Internet must be protected and even promoted by any legislation that claims to be fair to this medium.  The interaction between the one receiving data and the one publishing it is where the core of the law should focus.  Both sides have rights, the publisher has the First Amendment and the receiver has the right to be secure from harm in his home.  Proper Internet law should encourage a cooperative transfer of ideas in the form of data.  (It should be noted that it was the universal acceptance of basic rules of cooperation, rather than anarchy, that built the Internet. )

Any law that attempts to give one side or the other an unreasonable burden in conducting the transfer of data is doomed to failure.  The CDA was too burdensome on the publisher.  Its goal was to stop the flow of data, rather than to regulate the transfer for the benefit of all parties.

On the other hand, without a proper law, parents can purchase and activate measures to protect their children from adult material and still not feel secure in their homes from unwanted material.  This is because negligent publishing of data eventually allows material that can harm the child to enter the home.  Once this material is experienced by the child, the damage is done.  There is no "oops" factor, no way to undo the unwanted intrusion into a child's innocence. 

Most importantly, any Internet law must not censor thought.  It may regulate the labeling on the packaging but never the content.

With the goal of achieving a greater spirit of cooperation between the publisher and the receiver of online data, we propose the Online Cooperative Publishing Act. 

It shall contain the following provisions:

1.      The right to be able to identify the adult rating of online content before it enters one's home shall be established.  This shall be a civil right giving the violated person or family the presumption in a suit against negligent publishers.

2.      Negligent publishing of data shall be defined as placing adult oriented material on the Internet in such a way or in such a location that it prevents its rating from being known.

3.      A rating shall be defined as a PICS compatible label that identifies degrees of adult content in a way that can be understood by computer filtering systems and is issued by a ratings service that has a minimum of 5,000 documented individuals using its system to mark their data.

4.      A publisher is defined as anyone who places computer data where it can be accessed by the general public without the use of a credit card or other secure verified ID or password given out only to adults.  Content that can only be accessed by the use credit cards or other secure verified IDs is not subject to this law. (Note: Web pages containing "free samples" of pornographic material presented by secure adult sites must be rated.)

5.      The code used to surround content published on the Internet shall be defined as packaging.  All government identification requirements shall be limited to the code of the packaging.  Nothing in this law shall be construed to require any altering or censorship of the content.

6.      Three types of online publishing shall be defined:

a) Publishers who accurately identify their data with a recognized labeling system. 

These publishers shall be considered to have satisfied the labeling requirement of the law.  The right to publish shall be completely protected for those who accurately label their material.  They shall be protected from all civil suits that argue negligent posting of data.  Only grossly mislabeled material can be prosecuted.  (Note: This is not a protection for obscene material.  This law will offer no protection for obscene material. Anything illegal off the Internet shall be illegal on the Internet.)

b) Publishers who mislabel their data to the degree that it enables a minor using a label filtering system to gain access to harmful material.

Publishers who recklessly mislabel may be criminally prosecuted for subverting a rating system to entice children to harmful material.  The mislabeling must be to the extent that it is completely unreasonable to accept it as accurate.  Only ratings that are too lenient can be prosecuted.

Data shall be considered to be mislabeled if it is posted in a newsgroup, directory or other joint area that has been labeled as free from material harmful to minors.  Posting unlabeled adult material to an area that has declared itself safe for children shall be considered a criminal assault on the rights of the receiver.

Tampering with another's label shall be criminal offense.  This type of vandalism violates the rights of both the publisher and the receiver.

Sending unsolicited email that contains pornographic material or an invitation to a pornographic Web Site to a minor, shall be considered negligent enticement and may be fined.  A bulk email service sending pornographic email must show that it took reasonable measures to insure that every recipient was an adult.  (Example: The addresses used were from the membership list of Adult Check or other such adult verification services.)

c) Publishers who do not label their data at all.

Negligence in the absence of damages may be a civil violation of the rights of the receivers of that data, but it shall not be a criminal offense unless the data is deemed to be harmful to minors.  Then the publisher may be prosecuted for negligence.

Publishers may be sued in civil court by any parent who feels their children were harmed by the data negligently published.  The parents/plantiffs shall be given presumption, if the case involves graphic images, and do not have to prove that the content actually produced harm to their child, only that the material was severe enough to reasonably be considered to have needed a rating label to protect children.

When content consists of words alone, the presumption would rest with the publisher. Additionally, in a suit consisting only of "offending language", the publisher would be entitled to seek damages, if the plaintiffs fail to prove their case.

However, before any legal action can be taken. The offending publisher must be notified by the plaintiff that it is publishing content that needs to be rated and where to obtain a label. The publisher must be given a reasonable time to comply.

The plantiffs have the burden to prove that the purpose of the content was not medical, encyclopedic, nor news.

7.      Internet Service Providers are considered publishers of only that material of which they directly control or gain revenue via a percentage of sales.  Web Site designers may be held liable if they fail to attach ratings to Web sites they produce that contain material harmful to minors. They may, by written agreement, assign the task of rating to another legally responsible party.

8.      Not every document is required to be labeled, only the default or index document of each directory.  In the case of an entire web domain being of one rating, only its default top level document needs to be labeled with instructions to apply it to the entire site. 

9.      The penalty for a first offense of failing to label or mislabeling material harmful to minors shall be limited to a fine of under five thousand dollars.  Larger fines and incarceration shall be applicable to only those who are chronic violators.  The act of hacking into a rated site and altering its label to enable harmful material to be viewed by minors shall be a felony on the first offense.

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