Amended Section 2257 recordkeeping regulations go into effect at midnight tonight. The federal law requires website owners to keep records documenting, among other things, that "every performer portrayed in a visual depiction of actual sexually explicit conduct" is over the age of 18.
In anticipation, porn sites and others that offer adult content are preparing to make their sites compliant — or taking them offline. Today, several sites in the Rotten.com family are going dark for that reason, including ratemyboner.com (like amihotornot for amateur snapshots of a particular male anatomical part in a particular state) and gapingmaw.com (which you could call an industrial-strength grossout blog).
Section 2257 is ostensibly aimed at preventing the exploitation of minors in pornography. However, some free speech advocates argue it provides the conservative Bush administration with the power to silence other websites deemed offensive. Here's the full text of the law: Link to U.S. Code : Title 18 : Section 2257.
And here is the full text of the enabling regulations which are more widely contested than the US code itself: Link. The amendment was signed into law last month by US Attorney General Alberto Gonzales.
A message on gapingmaw.com — which wasn't a porn site, per se, but did include some sexually explicit images — says:
CENSORED BY US GOVERNMENT 18 USC 2257
Yes, that is correct. The things that used to be here, the very funny things that you want to read, have been made retroactively illegal by the US government, in a side-handed attack on the pornography industry.
We might mention that the material here isn't even pornography as you normally think of it — this site is just adult humor, in essay format, with some illustrations. The government is mandating that we meet certain bookkeeping requirements, ones impossible to meet for this site. Never mind that those requirements do not actually gain the public anything. This is the strongest attack on free speech since the passage of the CDA, and oddly, the media seems to have hardly noticed. The penalty for not abiding by these bookkeeping requirements is five years prison.
The regulations were promulgated by Alberto Gonzales, US Attorney General appointed by George Bush. If you voted for Bush, this is your fault. If you think this country is free, you are sadly mistaken. No nation has freedom when it is run by religious zealots.
Link to gapingmaw.com article (note: statement is actually dated tomorrow, June 23).
The adult biz advocacy group Free Speech Coalition (FSC) filed a lawsuit last week challenging 2257, and AVN has more on that: Link. Here's an article on adult news site XBiz about last-minute compliance preparations in the porn world: Link
Previously on Boing Boing: Porn Law Draws Adult Sites' Ire
Reader comment: Race says,
In terms of the bookkeeping requirements for Adult film distributors — each distributor has to keep records on site. That includes social security numbers, driver license scans and other personal information. So lets say you're Paris Hilton (in red light's "one night in Paris"), your personal information is then has to be carried by every distributor that carries that film ( which could be hundreds if not thousands of locations, increasing the likelihood of identity theft, etc — and not to mention privacy issues). It used to be that the studio producing an adult film would carry that information at their studio. (…) This law is a way for the goverment to control porn.
Mark Haas says,
I'm just coming up to speed on this whole 2257 issue, but I just read the full text of the enabling regulations, and concerning who must keep these records, the text clearly states: "The record-keeping requirements apply to "[w]hoever produces" the material in question … but ["produces"] 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 so it seems to me that if you are not directly involved in the actual "creation" of the work — i.e. a web site that displays images someone else created, or a film distributor — then the record keeping requirements do not apply to you. Am I missing something?
Bad Penny says:
Mark is right that the only ones responsible for keeping the records are those who produce the material, but this amendment makes it unlawful for anyone to "knowingly sell or otherwise transfer" any pornographic material made after the effective date in 1990 without being able to show where the records are held. So while websites with such material are not required to have the records, they are required to know where they are.
Section 4 of the amendment contains the relevant text on this issue:
(4) for any person knowingly to sell or otherwise transfer, or
offer for sale or transfer, any book, magazine, periodical, film,
video, or other matter, produce in whole or in part with
materials which have been mailed or shipped in interstate or
foreign commerce or which is intended for shipment in interstate
or foreign commerce, which –
(A) contains one or more visual depictions made after the
effective date of this subsection of actual sexually explicit
(B) is produced in whole or in part with materials which have
been mailed or shipped in interstate or foreign commerce, or is
shipped or transported or is intended for shipment or
transportation in interstate or foreign commerce;
which does not have affixed thereto, in a manner prescribed as
set forth in subsection (e)(1), a statement describing where the
records required by this section may be located, but such person
shall have no duty to determine the accuracy of the contents of
the statement or the records required to be kept.
Tom Adams says,
There's an aspect to this I haven't seen discussed. Immediately after the Patriot act was in force, there were uses of its provisions against criminals other than terrorists. John Ashcroft defended this, saying that "prosecutors should use all the tools available to them." It seems a small stretch to argue that these new regulations could apply to p2p transfers of adult material. This would open the door to morality based prosecutions of individuals. The Government's Bible Belt equivalent of RIAA suits.
A Rotten.com spokesperson responds:
You are missing the part where "distributor" is redefined to include posting on an internet web site. Re-read the enabling regulations more closely. Yes, it really does that. Specifically the term "secondary producer" is defined to include anyone who posts a digital image on an internet site, under 75.1 (c)(2). Secondary producers are the ones who are now being required to maintain this information. It is no over-reaction.
In addition to ratemyboner.com, another rotten site, ratemyboobies.com has also been censored. Of interest, a site generally considered to be in far worse taste, ratemypoo.com is excepted from the new porn regulations.
(Ed note: I'm told by a Rotten source that this is because "stray cunts" tend to show up on ratemyboobies from time to time. This creates problems with 2257 compliance. But ratemypoo tends to be — well, pure poo.)
Joe says, "Annalee Newitz has a neat article on 2257… in her classic style."
But wait – there's more. Any site affected by 2257 must also publish a physical address that serves as its "place of business." Someone must be available at that address 20 hours a week just in case a law enforcement officer wants to gain access to those 2257 records. This doesn't seem too onerous if you imagine a Penthouse.com or Vivid Video type of operation. But consider all the mom-and-pop adult Web sites run out of private residences, or Webcam girls who don't turn the cam off when they take someone to bed. These rules mean that your local Webcam girl and our friends over at sex blog Fleshbot.com must publish their physical addresses online, thus leaving performers and writers vulnerable to stalking and harassment. But hey, it's a great full-access wank pass for cops who can't afford to pay for really primo porn sites every month.
Link to Annalee's article.