A recent vote in the U.S. House of Representatives seemed straightforward enough: government computers must block viewing or downloading porn.
After all, a series of news reports have highlighted, in scandalous detail, how some financial regulators earning six-figure salaries were watching porn at work as Wall Street imploded. So, as it turns out, did employees of the National Science Foundation and the Interior Department--including ones who were supposed to be inspecting oil platforms in the Gulf of Mexico.
But the exact wording of the legislation (PDF) that the House approved last week by a 239-to-182 vote could, civil libertarians warn, go too far and unreasonably infringe on Americans' First Amendment rights.
The measure, which arrived in the form of an 111-page amendment sponsored by House Appropriations Chairman David Obey, a Wisconsin Democrat, says on the second-to-last page: "None of the funds made available in this act may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography."
"It really is breathtaking how broad the reach of this is, and will lead to constitutional problems and economic problems," Morris said. If a mom-and-pop business has a contract to deliver toilet paper to a military base that includes overhead, he suggested, they'd have to pay to filter their computer networks even though the owner is the only one who uses it.
If Rep. Obey's proposal were limited to federal networks, criticism would likely be muted--after all, some agencies already block "inappropriate" material. But the idea of extending the filtering requirement to military and civilian contractors makes it far more controversial.
The ACLU is no less critical. "The Supreme Court has made clear that government attempts to eliminate sexually explicit speech on the Internet raise serious free speech concerns," said Laura Murphy, director of the ACLU's Washington legislative office. "Congress should not pass such vague and potentially speech-restrictive provisions that are constitutionally suspect."
Ellis Brachman, a spokesman for Rep. Obey, did did not respond to requests for comment on Thursday. No hearings appear to have been held on how the porn-filtering requirement would be implemented.
Antiporn groups, however, say there are no constitutional concerns and have generally applauded the requirement, which has been glued onto a bill that is known on Capitol Hill as the "FY10 Disaster Supplemental." That means it's one of those almost-certain-to-pass spending measures allocating funds for what Obey's office calls "pressing" needs, including $37 billion for Iraq and Afghanistan, $3 billion for Haiti, $1 billion for summer jobs for youth, and $180 million for "innovative technology energy loans."
"I don't think the courts would have a problem with it," said Tom McClusky, vice president for government affairs at the Family Research Council. "I think they would view it as constitutional."
McClusky added: "Most Americans wouldn't even think about the constitutionality if they hear that government workers or government contract workers are surfing porn."
Patrick Trueman, the former chief of the Justice Department's Child Exploitation and Obscenity Section who now does legal work for the conservative Alliance Defense Fund, says the government can easily say that while working on a federal contract, there can be no porn surfing--or even card-playing--because taxpayers have a "right to get their money's worth from contractors."
Trueman said he has not had a chance to review the appropriations bill. He added, however, that the legislation would be more constitutionally problematic if the government says in order to get a contract, a business "must filter out all porn for all employees--even those not on a government contract."
One argument that antiporn groups have in their favor is the history of the Children's Internet Protection Act, which Congress enacted a decade ago also as part of a must-pass bill to fund the federal government. CIPA said that public schools and libraries that receive federal funds must adopt policies that protect "against access" to certain sexually explicit Web sites.
The ACLU and the American Library Association sued, claiming that CIPA was unconstitutional. But in a 6-3 decision, the Supreme Court upheld the law, saying that while buggy filtering software could block legitimate Web sites, library patrons have the option to ask that it be disabled. (That requirement, part of CIPA, is not part of Rep. Obey's legislation.)
On the other hand, the Obey bill uses the term "pornography," which is not as specific as the legal terms used in CIPA. Salon.com has proudly featured not-quite-safe-for-work photographs; should the government's filters deem them news, art, or porn?
"I wouldn't be surprised if (federal agencies) didn't have the necessary software in place to block employees' easy access to pornography," Logan said. "We set healthy parameters, guidelines and restrictions regarding appropriate use of taxpayer funds, and this is no excuse."
If you look at what's on the Internet today, Logan added, you'll find "close-ups of graphic sex acts, lewd exhibition of the genitals and deviant activities such as group sex, excretory functions, and the like...Pornography addiction in this country is skyrocketing, and it's having a direct impact on the productivity of those who use it."