US Attorney General Alberto Gonzales last month approved new
rules for implementing the Child Protection and Obscenity
Enforcement Act of 1988. Existing regulations have been around
since 1992, but the growth of the internet and the proliferation of
pornography on-line meant that an update was needed.
In general, the Act requires producers of sexually explicit
material – such as videos and magazines – to maintain records for
seven years, proving that the people shown in the pornographic
material are not minors.
Among the evidence to be held are names, dates of birth and
copies of documents containing the photo IDs of the performers.
However, the obligation has now been extended to the producers
of visual depictions of sexually explicit conduct published on the
internet – i.e. webmasters. Those who merely distribute the
material on-line, such as ISPs and web hosts, are not
caught by the rule.
The new rule also clarifies the means by which a producer must
verify the identity and age of each performer and the manner in
which records of these verifications must be kept. Additionally,
the rule establishes a detailed structure for conducting
administrative inspections of porn producers’ records to ensure
that children are not being used as performers in sexually explicit
depictions.
Violations of the rule are criminal offences punishable by
imprisonment for up to five years for a first offence and up to 10
years for subsequent offences.
The porn industry is furious about the new rules and in the
few days since it came into force some smaller web sites have
already closed. Leading the charge is lobby group the Free Speech
Coalition (FSC), which last week filed a legal challenge to the new
regulations.
Joining it in the case is the Colorado branch of the FSC, adult
video distributor Lenjo Inc and an FSC affiliate, David Connors,
who is better known to the adult video industry as Dave Cummings,
an ex-army colonel who became an adult performer in his early
sixties.
The suit alleges that protected sexual speech has been burdened
with a regulation that, in essence, requires it to prove itself
innocent of using minors in its creation, rather than requiring the
government to meet its constitutional burden of proving the speech
guilty, says the FSC.
There are also privacy considerations, says the FSC, which
points out that sensitive personal information relating to adult
porn performers will now need to be held by many thousands of web
site owners.
The case was due to go to a hearing on 23rd June but has now
been rescheduled, after a last minute agreement between the FSC and
the Justice Department that no prosecutions will be brought against
members of the FSC until 7th September – to allow the court to rule
on whether the group has a valid case.
