On June 23rd, revised federal regulations went into effect that caused much of the available adult entertainment content to become illegal. This hits the Internet the hardest, but also has some impact on adult videos. The new interpretations relate to USC 2257, a federal law that has existed for years requiring extensive record keeping to insure that underage performers are not used in adult productions. 

Of course, since child pornography is against the law, no adult producers willingly use underage performers anyway. The only four cases in the last twenty years were discovered by the producers, who destroyed all of the videos at significant cost to themselves. In actuality, they were the victims, taken in by phony IDs that this law does nothing about. In each of the four cases, the underage performers had driver's licenses issued by the State of California. They were obtained fraudulently, but they were legal forms of ID. In fact, this law has not the slightest impact on whether underage performers are used in adult videos and photos. It provides no way for producers to verify the legitimacy of a state issued ID.

This is not to say that adult producers do not endorse the idea of requiring documentation that a performer is of legal age. That is simply good protection for themselves. These rules go far beyond that, though. The revised interpretations by the Justice Department of these regulations are confusing and vague, but extremely strict. The slightest violation, even if you make a good faith effort to comply, could result in years in prison (perhaps more time than you would get for actual child molestation, even if all you did was make a mistake on the paperwork and all of the performers involved were over 40).

The major and most difficult change is the introduction of the concept of a secondary producer. Primary producers, the company that actually shoots the video or takes the photos, has long been responsible for keeping these records. Now anyone who disseminates any adult material is required to keep very extensive records on every performer, and make them available to law enforcement. These record keeping requirements are very exacting and very expensive to comply with. This specifically includes adult Web sites.

So, what is not legal anymore? Unfortunately, the official publication by the Justice Department outlining the rules is so vague that adult industry lawyers disagree on many aspects. Here are just a few of the things effected.

1. Boxcovers. Go to a website that sells adult videos and you'll see thousands of thumbnails of boxcovers. Even though they may be small and you can't actually make out the performers, the Website owner will be required to have records of every performer involved. Since this would be a record keeping nightmare and the production companies are unlikely to provide the records (since they include detailed personal information such as the home address, phone number, social security number, etc.), many sites are now pulling down all of their boxcover images. We have removed all boxcovers from our review section, along with all photos. Even if non-explicit, they may still be considered part of an explicit production.

2. Behind the scenes photo shoots.  Many sites covering the industry do behind the scenes photoshoots on the sets of adult movies, including Sex in Review. It was never considered a problem before because they were for major companies that were all diligent in keeping records. You simply had to cite the name of the company and the specific name of their full time custodian of records. Now these sites, including ours, will have to have all of the records of every performer shown and their own dedicated custodian of records who must be listed by name. Since the production companies are unlikely to provide the records, and the record keeping requirements are expensive, expect these to go. Even worse, many attorneys believe that any behind the scenes photos, even tame images with simple nudity, require 2257 documentation since they were shot at the same production where explicit sexual activity took place. All of the behind the scenes images on Sex in Review are being removed.

3. Licensed pictures. Many sites rely on licensed pictures. In the past, it was the responsibility of the person making the pictures to maintain the records. Now, all site owners have to have them as well. That means that most licensed photos are not compliant, as even when they do include 2257 documentation, any error, such as having the improper form of identification (even though that form was acceptable when the content was created), is also considered a violation. Each violation is good for up to five years in prison. Virtually none of our licensed images included 2257 documentation that stands up to the new requirements. That means the hundreds of dollars invested in these images is out the window. For many sites, the investment lost is in the thousands of dollars.

4.  Picture post and TGP sites. All now illegal if they have sexually explicit content. Not only can the Web site owner be arrested, but so can the person who posted the image.

5. Banner ads. If they have sexually explicit images of any kind, even if the face of the model is not identifiable and the Web site owner of the site the banner ad is on does not have the proper documentation, that is a violation. Banner ads are being pulled from most sites now, until R-rated replacements are available.

6. Streaming Video Sites. These sites are hard pressed to figure out how to comply, since it would require complex cross-referenced records of thousands of performers. Live streaming sites are required to keep copies of everything on file for seven years, requiring massive storage for video that in the past was not even recorded.

There is much more, as this also affects adult videos. Those from foreign countries are now illegal, since the Justice Department will not accept foreign IDs. Performers from other countries coming here may also have problems. No one really knows how extensive things will be until the Justice Department starts arresting and prosecuting. They have been slowed down by a lawsuit by the Free Speech Coalition which will be heard in August, and their members are now protected from prosecution until then. The Justice Department still reserves the right to go back and prosecute people for record keeping violations taking place now.

When the Feds wanted to get Al Capone, they could not get him for racketeering so they got him on tax charges. The current Justice Department has found a way to go that one better, and arrest people in an industry they want to control but in which no actual crimes have been committed. They have not had a lot of success getting juries to find adult videos obscene, but now they can go after the adult industry and arrest people who will face years in prison who have done nothing wrong other than not have their paperwork in order. Being able to prove after the fact that the performers are over 18 is not considered a defense.

Better still, they have found a way to make illegal huge amounts of constitutionally protected content since it is impossible to go back in time and comply with record keeping requirements that are retroactive.

Of course, what judge is going to throw someone in prison for years on a paperwork violation? Here's the beauty of this plan. It is a federal law. It will be tried in federal court, which is very expensive to defend yourself in. Found guilty or innocent, your defense costs will probably leave you bankrupt. You can plead out, but the typical tactic of the Justice Department in cases like this is to make you sign an agreement to never be involved in the adult industry or associate with others involved in it. Also, don't forget that the Bush administration has spent the last few years packing the federal courts with extremely conservative judges. All the prosecution has to prove is that the defendant violated the law, and since it is difficult to know exactly what the law requires, putting people in jail for violating it should be fairly easy. 

And all of this even before Bush appoints at least two justices to the Supreme Court. The rights of adults are under serious assault, and this is only the beginning.

Previous Commentaries
 

Return to main menu