Right Voices

Unfortunately, most people in the United States don’t realize that today the First and Fourth Amendments in the Bill of Rights crumbled a little further under the watchful eye of Pres. George Bush. On June 23, 2005, the new rule regarding the record keeping and inspection requirements of 28 CFR part 75 takes effect. For normal people who don’t have the entire American legal system memorized, this is the record keeping part of the adult industry. From everything I’ve read, the DOJ’s interpretation of the rules seem to be trying to expand the efforts of a president who said “If I am fortunate enough to be elected President, I will insist on vigorously enforcing federal anti-pornography laws”. How bad is it? Well, if you decide to sell that “naughty movie” that somebody snuck in with your wedding gifts on Ebay and put a picture of the cover up there, to be compliant with the new rules there’s a very good chance that both you and Ebay need to have full documentation for all the performers in the movie. You also have to be willing to open your “office” to let them inspect the records during normal business hours. Supposedly this falls under “protecting the children” even though one has to certify that they’re eighteen to view the images. Today the Free Speech Coaltion took the Department of Justice to court in the 10th Circuit Court of Appeals.

First, I suppose, should be a little background on the adult industry, which is protected under the First Amendment so long as it contains consenting adults.

Most people might not realize this, but you can’t just walk in off the street and be an adult performer. There are many rules, not the least of which is picture ids to show that you’re an adult and a test within 30 days to show that you are not HIV+ or carrying other STDs. I know I’m speaking of a generality here, but most studios don’t want anything to do with underage performers. If you’re knowingly using underage performers, you don’t care about recordkeeping or any other laws because you’re not a legitimate business. One has to be an adult to give consent, and everybody realizes that the loopholes to use an underage performer are much too small and the penalties much too harsh to try sneaking somebody through. Yes, there are instances where an underage performer has snuck in (Tracy Lords being the most famous example), but in all cases the performer lied to get into the industry (including falsifying documents). As soon as they were discovered, they were immediately given the boot and their scenes were destroyed. The legitimate adult industry, the ones where the rules apply as opposed to the very small underground which one can’t regulate, is more than willing to limit itself to adults. As for the internet side of things, if one looks across the internet, all respectable websites have an entrance page to let you know that you’re about to enter an adult area and that you have to be at least eighteen (and for some websites 21) to continue, as well as offering other places to go if you’re underage. They also provide information to all internet filtering programs, such as Net Nanny, so that people can avoid them if they choose to do so. If you produce adult entertainment, be it for video or the internet, you’re required to keep documentation proving the performers are of legal age. Unfortunately, the new 2257 rules don’t care about adults or protecting the children. I can’t help but look at the DOJ’s rules here on a few different levels, and none of them are good.

According to the new rules, if a “reasonable person” would not think a person is underage in an image, the following rules apply to define “sexually explicit conduct”:

actual or simulated–
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

and if at least one person looks like they could be a minor, the following applies:

(i) graphic sexual intercourse, including genital-genital, oral- genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;
(I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

Yes, under these rules it’s about looking like a crime not actually being a crime. One can’t help but wonder if it should then also be a crime to simulate a crime in a movie. Should Sylvester Stallone and Arnold Schwartzenegger be brought up on trial as mass murderers? Also, yes, it says bestiality. After writing over seventeen hundred adult movie reviews over the last five years I have yet to see or even hear of a bestiality scene in legitimate (or underground) adult entertainment. Simply put, it’s not consensual sex because animals are not capable to give consent. As for legitimate arguments, how many “reasonable people” can say if an eighteen year old girl is a minor or an adult done up to satisfy the cheerleader fantasy that it seems like most men have had at one time in their life? Also, why should the adult industry be singled out? Why aren’t the same records needed for movies such as There’s Something About Mary and American Pie (just to single out two fairly recent popular movies)? Both of these movies contain scenes simulating acts that meet the above criteria, and the latter of the two movies was heavily advertised around the point of a high school student masturbating with a pastry. At its best, the new rules are more than a little discriminatory, and sadly that’s just the tip of the iceberg.

The bigger affront to the Bill of Rights comes in the enforcement and the record keeping. You’re required to keep records if you’re a producer of adult material. This should not be a big deal, and I don’t think any company has, or should have, a problem with keeping records of the performers to prove the performers are of legal age for a certain time period. Adult companies have been required to keep records on performers since 1988, with picture ID records being required since 1995. The government can inspect those records when they choose to do so, and as far as I know, it has yet to inspect even a single record. One can’t help but wonder why laws should be made even more strict when those in charge of enforcing the old rules have yet to do so. Moreso, under the new rules those people aren’t the only people considered producers any more. Under the new rules:

a secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, or who inserts on a computer site or service that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, including any persons who enters into a contract, agreement, or conspiracy to do any of the foregoing.

The records, which contain personal information on the performers such as any name the performer might have used, a copy of the depiction, and any location the depiction is published at, are to be open to inspection by government inspectors. Yes, that means that in today’s internet age if you are a producer you are responsible to know every website address that puts up a picture from your company. As a producer, you’re required (unless you wish to be charged with a felony) to post the name and address for the person responsible for keeping the records for the inspectors who are:

authorized without delay and at reasonable times any establishment of a producer where records… are maintained to inspect during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, for the purpose of determining compliance with the record keeping requirements of the Act and any other provisions of the Act“

As another example, let’s say a person were to start the website “www.dirtystufff.com” as an adult subscription website based around reviews of adult movies. It’s a pay site to restrict access to make sure that only adults are allowed in. If those reviews are done in the format of your typical movie review that you read in the paper, namely one that shows a picture or two from the movie, you just became a producer and are subject to all the record keeping and inspection requirements.

If that isn’t enough, the regulation also states that:

These regulations do not restrict the otherwise lawful investigative prerogatives of an investigator while conducting an inspection“

Simply put, according to the new rules put down by the Department of Justice and using the Ebay example I mentioned earlier, if the average person puts a fairly normal adult boxcover in the adult section of Ebay, they just opened themselves up to a full governmental inspection of their home. A law enforcement official may show up at their home without warning any time between 9 am and 5 pm, and if they see anything they deem illegal they may bring charges on it. If you start up the “dirtystufff” website, you not only opened up your home but also the offices of whoever hosts your website. If you have multiple people submitting reviews to “dirtystufff”, not only do the other authors have to keep records on what they submit, but you and your host have to keep the same records all of the other authors.

This nicely goes against both the first and fourth amendments. Pornography is protected by the first amendment, and the fourth amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.“. The Department of Justice’s new rules states that if you have pretty much anything to do with pornography, law enforcement can do a blanket search of your premises without a warrant and without probable cause.

Another layer of the new 2257 ruling is the privacy aspect. If you are an adult retailer, you’re required to have full documentation on every performer in every movie you sell. That documentation includes things like a copy of your driver’s license. To go back to the American Pie and There’s Something About Mary examples, should your local Best Buy or Wal-Mart would be required to have a copy documentation including things such as the performer’s driver’s license for Jason Biggs, Tara Reid, Ben Stiller, Matt Damon, and Carmen Diaz, along with every other performer in every other movie it sells. Stalkers seem to have an easy enough time finding where movie stars live as it is, let alone making sure there’s extremely personal information at every place that handles their product.

Although it doesn’t come right out and say so, the main aim here is wiping out pornography on the internet in America. There are not a lot of changes for the major producers of pornography as they have to have the documentation available for inspection as it is, yet there is a huge change in the scope of the law for everyone involved in the industry. Despite the Small Business Regulatory Enforcement Fairness Act of 1996 which says:

rule will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies.

How can one say that these record keeping requirements are not a major burden on smaller adult businesses, and especially the adult internet business, with the labor required to comply with the new rules? Furthermore, these rules apply only to Americans. If you have a website based out of Denmark, these rules have absolutely no effect on you. It would be like animal activists trying to stop people from eating meat by stopping the shipment of meat into the country through putting so much red tape around meat imports that people would forget about trying to import it. There’s still plenty of meat here, and anybody who wants it would still be able to get it. The main difference is that meat isn’t protected by the Constitution.

I guess all of this shouldn’t come as a surprise from a lame duck President whose choice for Attorney General for his first term found Lady Justice obscene and who’s second choice has stepped things up a notch. People have many conflicting thoughts on pornography, but it is something protected by the Constitution. Child pornography, however is a completely different animal. It’s something that very few people have a problem with trying to stamp out and something which has nothing to do with the new 2257 regulations. If the Department of Justice believes that the adult industry is involved with child pornography, why are there not plenty of companies reporting that the DOJ has inspected their records over the last seventeen years?