Govt. Rethinks Tactics for Online Porn Battle

A DoJ extension of regulations under the 1988 Child Protection & Obscenity Enforcement Act subjects webmasters hosting adult sites in the U.S. to record-keeping requirements previously imposed on adult magazine and video companies. DoJ interpretation of Sec. 2257 of the law, announced in a May Federal Register notice, seeks to apply to online video including streams the law’s requirement that “every performer portrayed in a visual depiction of actual sexually explicit conduct” be over 18, with site managers required to keep records of all images depicted. Govt. authorities say the rule aims to protect minors. Critics deride it as a ploy to bury adult site owners in paperwork, effectively shutting every American- owned or -operated adult site that may include a still or video image. Failure to keep proper records as defined by the rule could lead to heavy fines and jail time. FSC and others seek a permanent injunction against enforcement of Sec. 2257.

Experts on both sides likely will focus on technical matters rather than over industry business models or constitutionality, FSC Communications Dir. Tom Hymes said. Govt. attorneys will “try to show that it’s no great shakes” for webmasters to keep track of the identities and ages of the performers appearing in videos on their sites. They are “going to try to make it seem as if there’s no onerous burden, but that it’s a reasonable request” and that the technology provides site owners and operators with methods for storing the data that are easy and inexpensive to devise.

“Nothing could be further from the truth,” Hymes told us: “They don’t quite understand or appreciate what it is that is required literally -- specifically, of secondary producers and especially ones who might have live streaming or full length movies -- when every piece is expected to be saved and stored all the way down the line.” Businesses affected by Sec. 2257 range from individuals operating limited home-based sites to multimillion-dollar operations airing multiple channels of online video, industry sources said. “They all have different requirements and the level of expense for them, whether it’s hiring extra people or making sure they go through every single videotape, is going to vary,” Hymes noted.

If a business is a content distributor, it must review and document every copy of every video it distributes. Companies streaming live video chat 24 hours daily will have to store and account for every second. “It adds up in the terabytes very quickly when you sit down and tally the numbers,” Hymes said. FSC attorneys are preparing statistics on the financial and resource burdens that record-keeping would impose on the industry - - but Hymes would not disclose any figures prior to the court date.

Buzz about Sec. 2257 has chilled the adult entertainment industry already, sources told us. FSC, which at last count had 750 members, couldn’t keep up with requests for applications in recent months. Meanwhile, a number of sites went offline out of fear and confusion over the pending rule. FSC said members have worked furiously to comply with the govt. request, regardless of whether the plaintiffs receive a preliminary injunction from the court next Mon. or Tues.

For example, live video chat site 2much.net adjusted its platform to comply with the revised Sec. 2257. The site did so with “great reluctance,” arguing that the regulation “is obviously meant to harass and annoy the adult industry rather than ferret out child pornography,” 2much.net Pres. Mark Price said. A company spokesman said its adjustments probably will have been a meaningless exercise because “within a year or a little longer, most of these regs will be removed or the whole 2257 section stricken by the Supreme Court, whose job it is to protect the Constitution of the United States. It’s a question of time.”

Sec. 2257 won’t be enforced against plaintiffs in Free Speech Coalition v. Alberto Gonzales until the regulation takes effect Sept. 7. The punishment for a single offense is $25,000 and in some cases, 5 years in jail. Having even 2 pictures of performers in intimate situations would double those fines, sources said. DoJ agreed this summer not to conduct inspections or pursue any claims against FSC members or affiliates until the deadline arrives (WID June 27 p1).

Meanwhile, DoJ wrote to lead attorneys in the case last week, clarifying provisions plaintiffs found irksome. The letter is “rather remarkable for a number of reasons,” adult entertainment attorney Clyde DeWitt told us. The govt. is “engaging in stonewalling, the likes of which may not have been seen since Watergate,” he said. The fact that DoJ wrote a letter outside court proceedings instead of stating its position under oath is particularly menacing, he added. While DeWitt frowned on the govt. delivery mechanism, he said the clarification is welcome. “This has been a long time coming far too little, far too late,” he said.