If the internet is really just a "series of tubes," the Georgia state legislature is poised to install some new valves to crank down the flow on what they consider risky content.
According to a bill introduced last year by Republican state Senator Cecil Staton, it would become illegal for online social networks to allow minors to maintain profiles without their parents' permission. The meat of the legislation reads,
It shall be illegal for the owner or operator of a social networking website to allow a minor using a protected computer to create or maintain a profile web page on a social networking website without the permission of the minor's parent or guardian and without providing such parent or guardian access to such profile web page at all times.
The bill, SB59, was introduced last January, but was referred to committee and did not reach the main floor of the Senate before close of the session. This year, the second session of the legislative and electoral cycle, it is on its way to full consideration.
The measure immediately presents challenges of interpretation. While there are definitions provided in the legislation to specify the meaning of "internet," "person," "protected computer," and "social networking website," there is no such clarity for "owner or operator." Exactly whom is included under these terms has ramifications for even the casual, non-commercial user of the internet who might want to gather like-minded individuals together around a cause. This is not just a problem for billionaire Rupert Murdoch and his News Corporation, which owns MySpace; this could send you to jail, in theory.
Depending on the scope of who is an "operator" of a "social networking website," you could be just a few mouse-clicks away from becoming a felon in Georgia if SB59 were to become law. Using a website such as Ning, which allows you to build your own social network around any subject of your choosing, you could potentially be the legal "operator" of a network of, say, Wii gamers, Turkish Lost addicts, or coin collectors. If you haven't got a handle on the true age of every single person that joins your network -- an identity check not performed by Ning when users create an account -- you put yourself at risk of running afoul of (potential) Georgia law.
Ning went from 30,000 to 100,000 networks in about seven months last year; that's a lot of potentially felonious "operators." While the first offense of allowing a minor to cavort on your social network is only a "high and aggravated" misdemeanor, the second offense -- which in the world of social network growth could be mere hours, minutes or seconds behind the first -- is a felony punishable by one to five years imprisonment, up to a $50,000 fine, or both.
The ease with which anyone in America or around the world can create a social network, and the number of interwoven connections through which a potentially "protected computer" may be used by a minor to join it, naturally suggests that enforcement of this law would be practically problematic. Just how many new officers will the Georgia Bureau of Investigation need to hire and dispatch to points beyond their jurisdiction to discover and prosecute these offenses?
The ultimate legality of such a restriction would likely need to be determined by the federal courts. Since a potentially illegal act could involve a minor social network member, a network operator, a network system owner and two internet service providers, all potentially in different states -- not to mention the vast communications network that traverses state borders at near light-speed -- the regulation would fall under the consideration of the Interstate Commerce Clause of the United States Constitution.
The libertarian Cato institute, in the early years of internet commerce regulation, argued in its journal that any state attempting to regulate internet uses (i.e., provision of services) outside its own borders was violating the Commerce Clause. However, in his own analysis the author explains,
States may have legitimate non-protectionist regulation interests, such as protecting local health and safety, that will burden interstate commerce. If the statute treats domestic and out-of-state commerce equally in order to achieve some legitimate local purpose, incidental effects on interstate commerce will be tolerated unless those effects exceed the putative local benefits.
The proposed Georgia statute does not differentiate between in-state and out-of-state providers of social networking services, so the constitutionality of the law would rest on a court's interpretation of whether such a law has interstate effects that "exceed the putative local benefits." While federal courts have largely struck down state laws regulating the online dissemination of materials (pornography), this law may fall within another class of regulations on "luring," designed to protect minors from predators online. However, an article in the Duke Law and Technology Review points out that the luring statutes which have been consistently upheld by state courts have not faced the same scrutiny the dissemination statutes did in federal court -- and that the legal defense of the luring statutes has so far been inadequate to differentiate them from their unconstitutional brethren.
What does all this mean in plain English? It means that while the bill under consideration in Georgia may appear absurd and improper on its face, there remains some legal gray area in which it might be successfully defended. Whether or not such a measure would be enforceable, even if legal, remains dubious. But the daunting task of enforcing copyright protections against millions of illegal downloaders has not stopped the RIAA from pursuing large damages against a few prolific pirates, and who wants to be that example?
Ironically, this piece of Republican legislation seems to follow the "nanny state" meme that conservatives often use to deride Democratic agendas. While its goal of protecting children from online predators is noble, it inserts the state into the process where many true conservatives would say the responsibility lies ultimately with the parents. If a parent wants to know what a child is doing online, there are already firewall and access-control software packages available, such as IMSafer, that allow monitoring of certain aspects of social networking and instant messaging.
Not to leave any base uncovered, the sponsor of SB59 has also offered up legislation requiring internet service providers to notify their customers of the availability of such software, if they do not offer it themselves. This would relieve a concerned parent of even the minor (pun intended) responsibility of using "the Google" to look for a solution to their parenting problem.
For the record, Sen. Staton does not appear to maintain a profile on the Facebook or MySpace social networks. His online bio indicates Sen. Staton has two sons, and at least one of them -- 16 year-old Trey -- appears to have profiles on both.
And while only tangentially related to this story, I feel it should be noted that the Chairman of the Georgia Senate Science and Technology Committee majored in Religion at Furman University before receiving Master's degrees in Divinity and Theology. He went on to receive a Ph.D. from Oxford with a dissertation entitled, "'And Yahweh appeared ... ' : a study of the motifs of 'seeing God' and of 'God's appearing' in Old Testament narratives."
SB59 has been read in the Senate a second time, teeing it up for final consideration, debate, and a vote if the Rules Committee sees fit to put it on the calendar. Rest assured, I will be watching.
