Cyber Swing/Polyamory Resource Center
Promoting Intimacy and Other-Centered Sexuality
6/19/05 Bush Administration via DOJ
May Eliminate most Adult Porn Next Week
Rule 2257 going into affect June 23, 2005 may make it impractical to have any explicit sexual pictures on escort sites, yahoo groups, or any website, video or box of a video with any sexually explicit pictures. Violation of the new law can result in a 10 year Federal prison sentence. The Religious Right is again rejoicing over their Bush Admin morality squad - in the Dept of Justice.
The requirements of 2257 are enormous. Even if the picture is obviously of an elderly couple that is sexually explicit there is a huge amount of data you have to have on file and available for a Dept of Justice inspection all to prove the pictures are not of under aged children. This is a very creative attempt by the DOJ/Bush Administration to stop adult porn using the excuse of stopping child porn.
A few of the requirements include government issued ID photo, model release form, all aliases, nicknames and get this.. performers MAIDEN name, home address, copy of the photo or video on file. Would apply even if its you on your own website. Or, a husband and wife couple required to have this information on file in proper format on each other. Here is an example of the required 18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement. Sample at http://www.universalfilmworks.com/2257.html More details at www.avn.com/2257.
And it gets worse, much worse.
Under the secondary producer rules, even if you only LINK to a site with sexually explicit material, even if YOU have NO sexually explicit material YOU are REQUIRED to have all the same documentation as the linked to website! It makes no difference it the link is to a free or pay site. If it has sexually explicit pictures both you and the site you link to have to have the required records and compliance statement.
According to the DOJ, yahoo groups have to comply and gave this example: If you have 50 photo albums and in those are 50 people some with others comprising say 75 individuals, you would need to have all the proper documentation and databases for EVERY picture that is posted in those photo albums. Both the group owner and yahoo have the same responsibility. As someone said, "More then likely they said, these companies, to
stay out of it, will remove online public storage areas, and in that case only sending it through email will be the only choice of sharing those images."
Comments from a someone who has for 25 years shot and sold content and bought over 1 million pictures in the last 10 years from others:
"I have all the needed paper work on my own content but per the new rules everyone I have sold it to also needs to have copy of that paper work. The dead line is June 23rd and not a single person/company I have sold content to over the years has contacted me for copies of that paper work and they MUST have it on file. They also must list each and every picture/url that they are using the content on.
I also have bought over ONE MILLION PICTURES in the last ten years from others. They have not provided me with the needed paper work so I have had to remove all those pictures from the 1000's of web sites that we own. Anyone that knows content knows that cost me a great deal of money that I have now wasted because of the new laws."
I know for a fact that 90% of all webmasters will not be able to comply with these new laws and will not be running their business in a legal manner. Personally it is not worth the risk to us any longer. If we don't shoot it, we won't use it. I will also be very selective who I sell content to in the future since now I have to give up paperwork to who buys that content that contains the legal name, home address and other info on each and every model that I shoot. How do I know that I am not giving up that personal information to some stalker or worse? I am not willing to take that chance and put the ladies at risk.
The Government is getting their way. If they enforce this at all they will put 1000's of people out of business and your choices of porn will become very limited. I just received a 75 page report from our attorney on the new laws. She advises getting OUT OF THE BUSINESS unless this is over turned soon."
THE FIGHT AGAINST THE NEW LAW
An adult industry trade association plans to head to court this week to fight new federal enforcement efforts that could catch thousands of online porn sites with their pants down. Under penalty of federal prison terms, new interpretations of existing regulations would require sites that feature photographs or videos of sexual activity to keep records confirming that performers are of legal age. Sites may be forced to remove some or all of their racy content because the original records belong to someone else or never existed. Those who can't comply -- including many free sites -- will have to shut down or risk a visit from federal investigators.
"People are pretty freaked out," said porn webmaster Jim McAnally, who estimates that more than half of hard-core websites, including some of his, will have to dump significant numbers of photos and videos. "This will affect people from top to bottom."
The new regulations are scheduled to go into effect June 23. The Free Speech Coalition, which represents the adult industry, has filed a request for an injunction to prevent the regulation's enforcement.
Age records in the porn industry are nothing new: Since federal law 18 U.S.C. 2257 went into effect 15 years ago, everyone who produces porn has been required to prove that performers are over 18. (According to adult industry attorney J.D. Obenberger, the regulations were inspired by congressional outrage at a hard-core video performance by 15-year-old Traci Lords.)
Now, the law is getting stricter. The new enforcement regulations would require webmasters that don't produce material to keep age records for every image that shows or implies sexual activity on their sites. (Sites that simply feature straightforward nudity are exempt.)
"If the original content producer can't be found or went out of business or is unwilling to release information, that causes this content to become criminal overnight," said adult industry attorney Lawrence Walters. "These webmasters are facing felony charges if they continue distributing images they've been distributing for the last five to 10 years."
The maximum penalty is 10 years in prison per violation.
According to the Department of Justice, it's time to update the federal law with the internet in mind. The new regulations "merely" improve record-keeping rules, federal lawyers wrote in a defense (.pdf) of their proposal.
The adult industry isn't so sanguine. The government "is passing these burdensome regulations to try to cause people to shut down or move out of the United States," Walters said.
Another adult industry attorney, Eric Bernstein, said he's advising his clients to get their records in order and prepare for the worst. "Everybody needs to assume that they're going to get a knock on the door," he said. "They can't say, 'Well, there are a million adult sites and only 20 investigators, what are the chances I'll get visited?' If they do that, they do so at a very significant risk."
In addition, he said, "vintage" porn -- produced before July 3, 1995 - - may become more popular because the new enforcement regulations don't require age records for older content.
The new regulations raise other issues, too. Some adult performers are afraid their personal information -- including their real names and addresses -- will land in the hands of countless webmasters who now need to keep age records for every image on their sites. On the other hand, performers should expect this sort of thing, said William Margold, an industry activist and former porn actor. "When your privates become public, you lose all your privacy," he said.
For now, porn site owners are hoping for a legal victory. That may seem to be a long shot considering the U.S. government's hard-right turn in recent years, but the industry is crossing its fingers.
In the end, said Margold, American citizens will be the ultimate arbiters of their rights to access porn: "Until the public admits it watches this and allows itself to be counted, it deserves to have the stuff taken away."
2257: The Battle Is Joined
By: Mark Kernes 6-17-2005
DENVER - With the filing on Thursday of the Free Speech Coalition's (FSC) massive lawsuit challenging the new regulations drawn from – and indeed, the very existence of – the recordkeeping and labeling law, 18 U.S.C. §2257, the adult industry prepares for a legal battle that may determine whether it can survive against the onslaughts of the Bush administration's anti-adult agenda. Certainly, it will determine the industry's profitability for decades to come.
The suit, Free Speech Coalition et al v. Gonzales, which was filed in the Tenth U.S. Circuit Court of Appeals... The lead attorneys in the suit are Paul Cambria and H. Louis Sirkin, who together have more than 40 years experience in dealing with adult entertainment issues. They and their associates have been working for nearly one month straight on preparing the suit for filing, and have consulted with more than a dozen prominent First Amendment attorneys from around the country.
The Tenth Circuit was selected based on the fact that in 1998, that circuit ruled that Sundance Associates, a publisher of swingers magazines, was correct in claiming that, in republishing the sometimes sexually-explicit photos of adults seeking other adults who might wish to engage in intimate contact with each other, the company was not subject to the jurisdiction of 18 U.S.C. §2257, and that the Department of Justice (DOJ), under the leadership of then- Attorney General Janet Reno, had overstepped its bounds in separating the definition of the word "producer" in the law into "primary" and "secondary" producers in the DOJ's regulations.
The Justice Department, under the stewardship of Attorney General Alberto Gonzales, specifically rejected the Sundance ruling in promulgating its updated regulations, which are due to take effect on June 23, stating that "the D.C. Circuit in American Library Ass'n v. Reno implicitly accepted that the distinction between primary and secondary producers was valid."
"We were somewhat surprised they didn't appeal the Sundance decision in 1998," noted attorney Michael Gross, who with partner Arthur Schwartz won the Sundance Associates v. Reno case, and is one of the attorneys working on the current lawsuit, "but I think the reason they didn't appeal was because they weren't going to win. But we're dealing with a whole different team in the Department of Justice right now."
However, Judge Walker Miller, a Clinton appointee who will preside over the FSC v. Gonzales lawsuit, is bound by the Tenth Circuit's decision in his consideration of FSC's application for a temporary restraining order (TRO) against the new regulations. Moreover, since one version of the regulations has been in existence since 1995, and many sections of the new regs are substantially similar to those, and since the Justice Department, in the 10 years of the regs' existence, has not sought to conduct even one investigation of an adult company under 2257, it seems likely that Judge Miller will enjoin enforcement of the entire statute, at least until the trial of the case, or until a higher court may vacate such order.
Plaintiffs have asked for a TRO on both the new regulations and the statute itself; an order that would apply to both the plaintiffs and all members of the Free Speech Coalition. A hearing on the TRO has not been scheduled at press time, but is likely to occur early next week.
But the main charge in the suit is to the entire concept of 2257: that protected sexual speech has been burdened with a regulation that, in essence, requires it to prove itself innocent of using minors in its creation, rather than requiring the government to meet its constitutional burden of proving the speech guilty.
"Indeed, requiring twenty-, thirty-, forty-, fifty-, and sixty-year- old performers to divulge personal information and identification documents to producers of regulated expressive works is not a narrowly tailored means of promoting a legitimate and compelling government interest in child protection," the suit continues, noting also that the requirement "is not a narrowly tailored means of promoting a legitimate and compelling government interest in child protection."
Given the enormous scope of the regulations, and the unlikelihood that they will prevent one single minor from appearing in a sexually- explicit depiction – the four minors who did manage to sneak into the adult video industry in the past 20 years reportedly all had identification documents that would have passed muster even under the new regulations – the lawsuit urges the court to find that, "The predominate intent of 18 U.S.C. § 2257, together with the definitions set forth in 18 U.S.C. § 2256, is interference with, and suppression of, expression protected by the First Amendment of the United States Constitution."
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