Censorship, body modification and the adult-entertainment industry.

[boofuu]

There is not a direct link to the editorial that will discussed because the site contains images that can be considered offensive and are not work-friendly. The page itself has no offensive images. www. bmezine.com/news/pubring/20050703.html

@Shannon Larratt

The specific laws in question are the “18 USC 2257 ” regulations, a set of record-keeping rules which the US government claims have been put in place to combat child porn. They stipulate that for all photos published, copies of ID and other information must be kept and that these must be made available to the US Department of Justice for at least twenty hours a week, without warning or warrant required for inspection of the records or our place of business (ie. our home).

What do you think of this? The legislation ostensibly is designed to protect minors from being sexually depicted in “adult” industries. Will this code and its application actually do that? If that is not its aim, just what is? Is this a form of censorship or revocation of civil liberties? Is it justifiable? What are your opinions dealing specifically with the site I linked?

My thoughts: I think this little bit of legislation is sneaky. The burden placed on the producers is ludicrous. Under the thin guise of protecting minors in the creation of sexually-explicit material they are violating the First, Fourth and Fifth Amendments. And if it is not violating it is scooching damn near it.

Violates the First: This code supresses and interfers with free speech by making it so burdensome to record keep upon pain of fine and imprisonment; last I heard adult material is constitutionally protected, unless declared “obscene” by a jury. The producers are now required to document retroactively for the past 10 years. The industry is already required to confrim the age of the actors. This legislation adds nothing more than nitpicking to make it that much harder to perform business, making the adult-entertainment industry tacitly illegal.

Violates the Fourth: Paragraph © states that:

“Any person to whom subsection (a) applies shall maintain the records required by this section at his business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times.”

At “all reasonable times”? What is “reasonable”? It seems to me that the producers are not guaranteed against unreasonable and warrantless search and seizure when their potential prosecutors are allowed access anytime.

Violates the Fifth: The records (that the producers are being forced to maintain can be used against them if they are accused of violating the law [paragraph (d), sec (2)]. What happened to not being compelled to bear witness against yourself?

The slant on how the legislation affects international producers and actors is interesting. I am not sure how valid Mr. Larrat’s claim is.

I am not sexactly sure how this actually affects bmezine.com itself. The code states that it “does not include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted” and never actually states if it includes electronic media, although it does include the vague phrase “or other similar matter,” in reference to the publications it is enforcing [paragraph (h), sec (3)]. It seems a bit stretched to include this site in its enforcement, IMO, but I suppose people will see it as pandering to salacious and prurient interests and I know a slew of people will believe that material is “obscene.”

I will acknowledge that my understanding and knowledge of law is limited. I am willing and happy to be schooled on that. What do you have to say?

[Lissa]

I can’t imagine that it’s all that burdensome. After all, if you’re producing porn comercially-- that is, hiring models-- you’d probably have some kind of paperwork on them already: application, tax info, etc. Keeping a copy of a driver’s license with it would be no big deal.

For those who are just, ahem, screwing around with a camera, how difficult would it be just to also take a picture of the license and keep it in a hidden file on the site, accessible if needed?

[Evil_Captor]

To my mind, the law is clearly an attempt at a regulatory end-run around the First Amendment, suppressing speech through burdensome regulation, rather than simple legislative fiat. Two provisions are especially troublesome, in addition to the ones you cite:

In a thread discussing this on IMHO, it was mentioned that the law is retroactive to 1995. Now how the hell does that work? You can prosecute someone for breaking a law that didn’t exist when they broke it? I imagine a court will find this … problematical.

Secondly, the business of defining all webmasters who host adult images as “secondary producers” and requiring them to maintain the same records as those who take the initial photos/videos. I can see requiring the people who create the photos/videos to keep records of the adultness of their stars. But every last webmaster who purchases such photos has to do the same? Sounds overly burdensome to me. And unnecessarily burdensome. Why not just compel a webmaster hosting suspect images to reveal his or her source?

Thirdly, the law requires that the address given for the record keeping must be the actual place of business. This means every webcam girl has to give her address on the web, since it’s her home where the biz takes place. Can we call this one “Stalker-Friendly”?

All in all, a more stupid, burdensome, crapheaded law would be hard to imagine, but typical of what happens when you elect Republicans to office. And even though it is all those things, I know enough about the law to think it might still be legal … though I also know enough to have serious doubts.

[Evil_Captor]

@Lissa

I can’t imagine that it’s all that burdensome. After all, if you’re producing porn comercially-- that is, hiring models-- you’d probably have some kind of paperwork on them already: application, tax info, etc. Keeping a copy of a driver’s license with it would be no big deal.

For those who are just, ahem, screwing around with a camera, how difficult would it be just to also take a picture of the license and keep it in a hidden file on the site, accessible if needed?

The burdensome part is that it defines all webmasters who host adult images as “secondary producers” who must keep the same records as the original producers. Many webmasters buy their content from the people who make the videos and the photos, they don’t create it themselves. I myself am the proud owner of a couple of CDs of web imagery of this sort. All I got with them (at the time) for legal purposes was the old US blah blah blah verbiage. Now if I want to post such stuff, do I have to keep records?

What if I’m reviewing a movie and I want to run a vidcap of a performer doing something adullt? Does everybody who has a vidcap of Meg Ryan’s scene in “In the Cut” have to have a record of her age?

Can o’ worms here.

[boofuu]

Of course, I wish I had checked to see if this had been previously discussed but my ire, and the early hour, made me forget.

Lissa, what about the specific case of bmezine.com. It is not an adult site in the sense that most people mean it. It has over a million images and the people that donate their photos often do so anonymously. This site falls under the net of the code. Isn’t it burdensome for the publisher. I mean, this is not Hustler we are talking about.

[Evil_Captor]

@Evil Captor

The burdensome part is that it defines all webmasters who host adult images as “secondary producers” who must keep the same records as the original producers. Many webmasters buy their content from the people who make the videos and the photos, they don’t create it themselves. I myself am the proud owner of a couple of CDs of web imagery of this sort. All I got with them (at the time) for legal purposes was the old US blah blah blah verbiage. Now if I want to post such stuff, do I have to keep records?

Let me expand on that a bit. It’s not just “do I have to keep the records?” It’s “Do I have to go track down the model releases for all the women who are on those CDs? What if the people who created them have gone out of business? What if they were in Europe and didn’t keep such records and don’t now? What the heck is going on?”

Also, none of these women looked the least bit “young” if you know what i mean. That was not the appeal of these CDs.

[Bricker]

@boofuu

Violates the Fourth: Paragraph (c) states that:
At “all reasonable times”? What is “reasonable”? It seems to me that the producers are not guaranteed against unreasonable and warrantless search and seizure when their potential prosecutors are allowed access anytime.

I don’t follow your argument.

The Fourth Amendment protects against unreasonable search and seizure. The law in question mandates reasonable inspection times. You quote this and then ask what reasonable is, with the clear implication that it may not be defined to your liking. But “reasonable” is a question of fact. If it’s “reasonable” for the purposes of the law, how is it “unreasonable” for purposes of the Constitution?

Also note: administrative inspections are permitted without violating the Fourth Amendment. See New York v. Burger, 482 U.S. 691 (1987):

A business owner’s expectation of privacy in commercial property is attenuated with respect to commercial property employed in a “closely regulated” industry. Where the owner’s privacy interests are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises, if it meets certain criteria, is reasonable within the meaning of the Fourth Amendment.

[Hamlet]

@boofuu

I will acknowledge that my understanding and knowledge of law is limited. I am willing and happy to be schooled on that. What do you have to say?

I too will acknowledge my understanding of this area of the law is limited. However, that never stopped me before. Here’s two versions of my view:

Long Version (feel free to skip)

The amendments do not violate the First, Fifth, or Fourth Amendments:

First:

As background, the original record-keeping requirements of 2257 have been around since, I believe, 1986. In American Library Association v. Reno, the federal appellate court upheld most (and restricted other) of the legislation and found that requiring porn producers to keep a record of the ages of their “models” was constitutional. The court found that the regulation was content neutral (it was meant not to legislate porn but to protect children), and that content-neutral regulations are constitutional if narrowly tailored, serve a significant governmental interest and leave ample alternative channels of communication. The court found that the record keeping regulations are narrowly tailored, do serve a significant governmental interest, and do not unduly burden those poor porn producers.

Now, in response to the Supreme Court’s Ruling in Free Speech v. Ashcroft (which basically held that virtual child porn is protected under the First Amendment), Congress amended the record keeping provisions of 2257. They added language to include virtual child porn into the statute, and requires that they validate that minors were not used. Putting aside a “vagueness” claim that could be raised because of a confusion of terms (actual v. simulated sexual conduct), it appears the amendments will be consitutional just as the original regulations were constitutional under the First Amendment.

Fifth:

The new amendments also allowed the records to be used in prosecutions outside of violations of the record keeping sections. The original regulation only allowed them to be used only in court cases involving violations of the record keeping statutes. This was done mainly to avoid a 5th Amendment Self-Incrimination problem. The amendments did away with that and expanded their use to other prosecutions.

However, the 5th Amendment is not without boundries. Legislation that requires records be kept and that they can be used in prosecution can be constitutional in a variety of cases. The first point is that the Supreme Court has found that where the activity for which records were sought was essentially criminal, there is a valid 5th Amendment challenge. That’s not the case here, because the record keeping requirements have been found consistently to be non-criminal. As another court said: “records required as part of a valid regulatory scheme (as opposed to a ploy to entrap gamblers, drug dealers, etc.) are not barred on fifth amendment grounds even though they may contain incriminating information.” I think the amendments will be found not to violate the 5th Amendment either.

Fourth:

And your 4th Amendment argument will likely not fly either. The regulations dealing with the time and place the government can view the records are eminently reasonable.

Short Version

Get over yourself. The legislation requiring record-keeping to ensure minors aren’t used in creating your porn is minimally intrusive and is not an undue burden on your right to create and distribute porn. You assert that these regulations are some huge burden on the porn industry without showing how. How hard is it to make sure your “models” are not minors? Not that hard. The industry has thrived for almost 2 decades while having to do it, so your belief that it somehow makes porn illegal is silly. And the object of the regulations is not to make it harder to create porn, it’s to protect children. The positive impact of less minors being used in porn greatly outweighs the minimal intrusiveness.

Your fourth amended argument is likewise silly. The records need only be available to the government when they request it. The regulations do not grant the government the right to break into your building with guns blazing and seize your records.

And your Fifth Amendment argument likewise fails. These regulations are not an attempt to further legislate already illegal activity, like requiring keeping of gambling records, or of reporting drug transactions. They’re meant to protect children.

Finally, I think the regulations will help the porn business by creating an easily followed routine that will help insulate the industry from over-zealous prosecutors.

[boofuu]

@Bricker

I don’t follow your argument.

The Fourth Amendment protects against unreasonable search and seizure. The law in question mandates reasonable inspection times. You quote this and then ask what reasonable is, with the clear implication that it may not be defined to your liking. But “reasonable” is a question of fact. If it’s “reasonable” for the purposes of the law, how is it “unreasonable” for purposes of the Constitution?

Also note: administrative inspections are permitted without violating the Fourth Amendment. See New York v. Burger, 482 U.S. 691 (1987):

I will concede to precedent and law. I just don’t like the law. I don’t think it should be reasonable for purposes of the law. The business does not have a reasonable expectation to privacy. The code does not say under what circumstances the business’ records can be collected. I presume this means anytime. No mention of probable cause, no warrants. Hell, there is no search or seizure involved since the producer is compelled by law to hand over the documents (virtually) anytime the Attorney General requires it.

[boofuu]

@Hamlet

Get over yourself. The legislation requiring record-keeping to ensure minors aren’t used in creating your porn is minimally intrusive and is not an undue burden on your right to create and distribute porn. You assert that these regulations are some huge burden on the porn industry without showing how. How hard is it to make sure your “models” are not minors? Not that hard. The industry has thrived for almost 2 decades while having to do it, so your belief that it somehow makes porn illegal is silly. And the object of the regulations is not to make it harder to create porn, it’s to protect children. The positive impact of less minors being used in porn greatly outweighs the minimal intrusiveness.

Evil Captor is probably the best one to ask how burdensome since he seems to know the in-and-outs of the situation. This law is not only asking for additional record-keeping, it is asking for documentation for the past 10 years. This includes secondary producers of the images.

If legislation already exists that requires the documentation of particpants’ ages, what is this law adding? I honestly do not see how it protects children any more than they are already protected. I am willing to bet that since Traci Lords, the adult entertainment industry has not let too many under age actors through. Anyone that uses children in the production of their materials was already participating in an illegal act that was covered under legislation.

If you do not believe it is in violation of these rights then what about the example of the site I linked to? Again I state it is not a “porn” site. So how does it get treated?

If not the letter of the law, but in the spirit, I believe that the industry is being forced to prove itself innocent before it is even charged.

I will not meander to the other threads and see what has been said there.

[boofuu]

@me

I will not meander to the other threads and see what has been said there.

sigh. Of course, I meant “now,” not “not.”

[Lissa]

@boofuu

Lissa, what about the specific case of bmezine.com. It is not an adult site in the sense that most people mean it. It has over a million images and the people that donate their photos often do so anonymously. This site falls under the net of the code. Isn’t it burdensome for the publisher. I mean, this is not Hustler we are talking about.

I can see your point, but I see the burden as being on the person actualy taking the photograph. If you wish to submit it, you have to have also sent an attatched image of the person’s proof of age which could be kept on the site with the image as a hidden file, accessible if needed. They would have to take down the old photos which didn’t have the info, obviously. It’d be a pain, but not impossible.
Yes, the burden falls on the site publisher, but that is relatively simply fixed by requiring every submisson to have proper IDs attatched, and refusing submissions which do not have it.

Law enforcement does not have the manpower or inclination to go hunting through the entire internet to make sure every participant has proper ID. The purpose of this legislation is that if anything that appears “iffy” comes to their attention, they havbe the authority to shut it down if there isn’t proper IDs. They’re not going to harry every porn producer, just like they don’t go door to door making sure every dog owner has the proper tags.

I don’t understand how this infringes on our rights, since you can still publish whatever you like as long as you have proof of the participants ages.

[Evil_Captor]

@boofuu

Evil Captor is probably the best one to ask how burdensome since he seems to know the in-and-outs of the situation. This law is not only asking for additional record-keeping, it is asking for documentation for the past 10 years. This includes secondary producers of the images.

Actually, I’m not. Over the last year I’ve shut down my old site and started up a new one that’s intended to be erotica rather than porn. Since my forte is text erotica, it’s not really a problem for me to do this, and is probably what I SHOULDA done in the first place, but I just HADDA be a pornographer for a time … everyone should at some part of their life. I’ve greatly toned down the images on my site which are now mostly vidcaps created for my reviews and articles, and the occasional photo altered so that no naughty bits are seen. I honestly do not expect to run afoul of this law, but then, the law IS an ass. Most of what I know comes from concerns raised by other adult site owners.

[Evil_Captor]

@Hamlet

Short Version

Get over yourself. The legislation requiring record-keeping to ensure minors aren’t used in creating your porn is minimally intrusive and is not an undue burden on your right to create and distribute porn.

Actually, I don’t see how any of the provisions of this law will have ANY impact at all on the producers of child porn. It is already illegal to create, distribute or even OWN child porn. What conceivable need is there for this record-keeping? Do you imagine that there is a huge number of child pornographers out there who are happily creating their vile stuff, secure in the knowledge that no one will bust them because record keeping is so sloppy? In fact, do you imagine ANYONE in the U.S. is engaged in creating child porn for commercial reasons? Child porn is deep underground. No additional laws or regulations are going to affect them significantly – they’re already about as illegal as they can be.

Nope, this law is aimed squarely at adult porn. Now if you have a problem with that OK, you should say so. Don’t hide behind the “child porn” screen like Congress did. (Really, nowadays it feels like Congress could pass the, “It’s OK if we cut off everybody’s balls and stick them on top of your head like they were deely-boppers” law so long as it was labelled as being against child porn or for Homeland Security or both.)

You assert that these regulations are some huge burden on the porn industry without showing how. How hard is it to make sure your “models” are not minors? Not that hard.

Two requirements are very burdensome. The first is that “place where business is done” must be the address for the records, and that address must be posted on your website portion of the law. It means that since most webcam girls work at home, they have to post their home address on their website. Like I said, “Stalker Friendly.”

The second is more widespread. A couple of years ago I paid a couple of hundred bucks for some collections of “Web Ready” images. They came with a copy of the then-current regulation, and all I had to do was post it to my site, which I did. But there were no proofs of age with the disks, because none were required then. If I want to use the images, as I understand the law, I have to go to the people I bought them from and get the relevant info from them. Maybe they are still around, maybe they aren’t. It’s not that big a deal for me because I’ve dumped my adult imagery, but the owners of small sites are going to be very busy either rebuilding their sites or jumping through regulatory hurdles to protect … what, again?

The industry has thrived for almost 2 decades while having to do it, so your belief that it somehow makes porn illegal is silly. And the object of the regulations is not to make it harder to create porn, it’s to protect children. The positive impact of less minors being used in porn greatly outweighs the minimal intrusiveness.

Completely wrong. See above. Or conversely, show me this huge American child porn industry you speak of.

These regulations are not an attempt to further legislate already illegal activity, like requiring keeping of gambling records, or of reporting drug transactions. They’re meant to protect children.

You keep saying that like it means something. It does not.

Finally, I think the regulations will help the porn business by creating an easily followed routine that will help insulate the industry from over-zealous prosecutors.

There was already an easily followed routine in place. Frex, the people who made Tracy Lords videos were able to stay out of jail by showing that she had provided them with faked IDs. No one was ever prosecuted for them.