Miscellaneous

    Five commenters commented that the proposed rule would hurt U.S. 
businesses and remove money from the U.S. economy by driving the 
pornography industry to other countries. In addition, these commenters 
claimed, most sexually explicit web sites are, in any event, already 
located in other countries and the rule would be ineffective in 
regulating them. Similarly, one commenter commented that the proposed 
changes will be ineffective in addressing the problem of child 
pornography because most, if not all, of child pornography web sites 
are located outside the United States.
    The Department disagrees with these comments. First, the purpose of 
the statute, and the rule to implement it, is not to drive the 
pornography industry out of the United States. Rather, the purpose is 
to protect children from sexual exploitation, and the rule is designed 
to do so while not burdening protected speech. The D.C. Circuit, in 
American Library Ass'n v. Reno, held that the current regulations are 
not unconstitutionally burdensome, and the final rule is merely a 
refinement and update of those regulations. Thus, the pornography 
industry should not in fact be driven overseas. Indeed, the commenters 
do not provide any evidence either for their proposition that most 
sexually explicit web sites are in fact based abroad or for their 
proposition that those web sites that are located in the United States 
will relocate. Second, the Department does not currently exercise 
jurisdiction over foreign web sites, but it must promulgate regulations 
within its legitimate jurisdiction in the United States in order to 
accomplish the purpose of the statute.
    Two commenters suggested that rather than regulating sexually 
explicit Web sites, the Department should invest more resources into 
fighting child pornography through education of parents and children 
and through enhanced criminal investigation. In response, the 
Department points out that it currently invests significant resources 
in criminal investigation and prosecution of child pornography and in 
other activities to promote the protection of children. The final rule 
is part of this effort and is aimed at preventing any child pornography 
from being produced under the guise of constitutionally protected 
sexually explicit depictions and must necessarily require legitimate 
businesses to maintain the records at issue. One commenter supported 
the Department's

[[Page 29616]]

position, as the commenter stated, because of concern about 
exploitation of children.
    One commenter commented that certain types of files--e.g., .jpeg 
and .gif photos--cannot have a statement appended when uploaded. The 
Department declines to adopt this comment. The rule makes clear that 
whenever Internet depictions are involved, the statement must appear on 
the website's home page, not on the image itself.
    One commenter commented that the term technologies is improperly 
used in Sec.  75.1(a), which states that the proposed rule's 
definitions of terms ``are not meant to exclude technologies or uses of 
these terms as otherwise employed in practice or defined in other 
regulations or federal statutes * * *.'' The Department declines to 
amend the proposed rule in response to this comment. The Department 
believes the commenter may have misunderstood the sentence. As Sec.  
75.1(a) explains, the definitions in the rule are not used in their 
technical senses and do not, therefore, exclude any particular type of 
technology, or technologies, currently existing or invented in the 
future on the basis of the language used in the Part.
    The same commenter objected to the proposed rule's use of the 
phrase ``myriad of'' in the definition of the term Internet in Sec.  
75.1(f). The Department declines to adopt this comment. According to 
Merriam-Webster's Collegiate Dictionary (11th ed., 2003), ``Recent 
criticism of the use of myriad as a noun, both in the plural form 
myriads and in the phrase myriad of, seems to reflect a mistaken belief 
that the word was originally and is still properly only an adjective * 
* *. The noun myriad has appeared in the works of such writers as 
Milton (plural myriads) and Thoreau (a myriad of), and it continues to 
occur frequently in reputable English. There is no reason to avoid 
it.'' Merriam-Webster's Collegiate Dictionary 821 (11th ed., 2003).