New adult Web site regulations put on hold
Agreement reached to suspend enforcement of record-keeping law until Sept. 7
Published Thursday, 30-Jun-2005 in issue 914
The new regulations regarding the enforcement of 18 U.S.C. 2257, a broad record-keeping law which affects most adult entertainment Web sites, will not go into full affect until at least Sept. 7, the Free Speech Coalition (FSC) said. FSC is a trade organization of the adult entertainment industry that represents adult Web sites and businesses.
In a stipulation agreement, the U.S. Department of Justice (DOJ) agreed not to enforce the new regulations, which were to go into effect on June 23, after the FSC filed a suit to temporarily block enforcement of the law’s new regulations last week. A preliminary injunction hearing will be heard at the U.S. District Court in Denver on Aug. 8, where a judge will determine whether to issue a further injunction. Those who are not plaintiffs in the case or a member of the FSC are subject to inspection and prosecution by the U.S. government.
In the stipulation agreement, a court-appointed Special Master from the DOJ will check names of any entity it intends to inspect against a confidential FSC membership list, which was submitted to the Special Master on June 29.
The new regulations will require that every Web site with explicit sexual content – which includes sites allowing explicit member-generated content such as Adam4Adam.com, PlanetOut.com, Gay.com and OutinSanDiego.com – must keep records proving that individuals appearing in photographs or videos are over the age of 18. The sites must also categorize those documents in a meticulous manner. Those who don’t comply with the regulations could face felony charges and prison time.
“It does no good. It’s just a series of land mines designed to trap the unwary,” Jeffrey Douglas, an attorney who chairs the FSC board, told the Gay & Lesbian Times. “You’re a business that is working strictly with models over the age of 35. There is not a remote chance that any of this material could be held or charged as obscene. Yet if you file it wrong, if you put it in [the] wrong alphabetical order … you’re facing federal prosecution on a first offense with a maximum of five years, [and] a secondary offense [with] a minimum of two years. It’s just insane.”
The 2257 law was originally set in place in 1988 when the government was attempting to eliminate child pornography. The legislation was also referred to as the “Traci Lords Act,” named after adult star Traci Lords who had appeared in several pornographic films before the legal age of 18. The law was designed to protect minors from exploitation and required adult filmmakers and producers to keep records with the government showing – with valid government-issued identification – that all performers were over the age of 18. Those IDs were to be made available at all times for inspection by the government.
Douglas said that the original intention of the 2257 law really had no impact on curbing child pornography, and performers were still able to sidestep the age limit with fake IDs.
“It’s also noteworthy that since the early ’80s there have only been four performers that have worked in the business underage – all of them had fraudulently obtained valid ID,” Douglas said. “If this law had been in effect and been enforced since 1984, it would have no affect whatsoever. It would be exactly the same.”
The 2257 law will affect All Worlds Video, a San Diego-based adult business. The company is taking actions to comply with the new regulations.
All Worlds Video Operations Manager Charles Ching said the company is complying with the new regulations, and that the main difference now is that it takes more time to gather the necessary records to comply.
“It’s primarily the sheer burden of time in providing the information,” Ching said. “The information was already there, at least for a reputable company like ours. We have always kept records … based on the original 2257 [requirements], so that part is not new. … It’s a more specific way of record keeping that is the essential difference.”
Ching said the new regulations impose the same stringent requirements on secondary producers, who are separate from primary producers of content.
“There’s a new category called secondary producers, so anyone who uses our material on any Web site, video streaming and stuff like that are now required to keep copies of records themselves,” he said.
The DOJ tried to make secondary producers responsible for record keeping in 1998, but according to the Sundance Associates Inc. v. Reno decision in the 10th Circuit Court of Appeals that same year, secondary producers satisfied the requirements of record-keeping laws by referring inspectors to the records kept by primary producers.
Douglas remains positive that the law will not go into effect in August, and that these adult Web sites and businesses will be able to operate under the current requirements.
“I’m very optimistic. We should be able to get the entire law struck down,” he said. “The privacy concerns, the shift of the burden of proof, the total pointlessness of it all leads me to be optimistic that we can just kill the whole thing.”
Douglas said that anyone with a sexually explicit picture on a site like Adam4Adam.com could be considered a secondary producer if the new regulations go into effect, and would be subject to the same type of requirements that the adult Web sites would be under.
“I would have to have a photocopy of my own ID and a list in my home ready for federal inspection, a paper with my legal name, or any name I have ever used under any circumstances … the form of ID I provided to myself, the serial number of that that ID and [would have to have it] signed under penalty of perjury,” Douglas said. “If I don’t have that document or a photo of my ID available 20 hours a week for federal inspection, I’ve committed a felony.”