PORN VALLEY – Today is the last day on which to file statements with the Department of Justice to comment on the current proposed 2257 regulations.
AVN.com has been given the statements of two veteran sex-positive activists: Former actor/writer Taliesin and netcaster/writer Darklady. Both have agreed to let AVN.com reprint their letters to the Justice Department, in part in hopes of inspiring readers to send in comments as well. (As is AVN.com policy, their actual names have been redacted.)
From Taliesin:
The cover of an old Millie the Model comic book shows Millie and a police officer standing next to Millie's illegally parked car. On buildings around them are billboards and posters of Millie hawking various products. Two people walking nearby carry copies of Millie comics. Despite all this, the police officer is asking Millie, "Do you have any identification?"
Recently, a sixty-five year old woman in Maine was not allowed to purchase a bottle of wine from a supermarket because she had no identification on her.
In the above examples (one fictional, one from a real-world incident) it seems we're taking the need for "legal" ID a bit too far. A little common sense is all that's needed in these examples, and with regard to record keeping in the adult entertainment industry.
We've all been told, "Ignorance of the law is no excuse." (or, more properly, for those who know their Latin: "Ignorance of the law does not excuse." -- "Ignorantia juris non excusat.") yet with 18 USC 2257 we have an incredulous situation in which a bookkeeping error could be construed as a felony violation. Keeping records is one thing; mandating the manner in which the records must be kept and the hours in which they must be made available for government inspection is quite another.
Many people who produce erotic internet shows and porn DVDs do so more as a hobby than as a business. Yet 2257 makes the incorrect assumption that all porn production is the same. There is a difference between someone who sells items on eBay as a full-time business and someone who occasionally uses eBay to get rid of some old junk they've found in a closet or attic. For the part-timers of porn, the amateurs and swingers and others who engage in open sexual activity more for fun than profit, the idea of keeping records of such activity is as preposterous as having to keep records of any other leisure activity such as bowling, skydiving or playing ping-pong.
Taking the "hobby" of amateur eroticists and forcing them to act as if they were running a business, and placing overly burdensome regulations on that business, makes criminals of far too many ordinary people who, in this case, should be excused for not knowing the law.
About a year ago, I wrote a newspaper article on 18 USC 2257. Among those I interviewed for that article was a woman who did live webcam shows from her home. 2257 required her to display her legal name and home address on her website. Her 2257 page was accessed on average about fifteen hundred times each month. This is either the work of one very dedicated FBI agent who visited that page dozens of times a day, day after day, week after week, month after month, or it's an indication that thousands of individuals who have no right to know this woman's legal name and address now have access to such information.
These erotic webcam shows, while unsettling to some, are legal, and I don't think lawmakers are allowed to legislate against a form of speech just because they don't like that form of speech. In doing what the law required of her, this woman put herself in potential jeopardy. Most of those thousands of individuals who looked at her private information are harmless. But for the few who might not quite be able to always separate reality from fantasy, this woman is a potential target for assault, rape or worse. 2257 info has been used in cases of identity theft and stalking. How is making any citizen more vulnerable to predatory behavior a good thing? Should not the law protect individual rights?
What purpose is served by such public disclosure of private information? Like Millie the Model in the example above, the performers in adult movies are well known, under their professional names, to fans and even the general public. Their likenesses appear on billboards and posters and in magazines. They appear on radio and TV talks shows and make personal appearances, not unlike their counterparts from mainstream Hollywood movies. But unlike Hollywood movie stars who can afford bodyguards and sophisticated home security systems for their protection, porn performers rely on anonymity as protection from overly aggressive fans.
I would ask, what purpose is served by a law requiring this kind of personal information be displayed on a website or on a DVD? If I'm one who considers bowling a somewhat plebian activity (I don't, but for this example let's say I do) I might not want my identity known publicly if I happen to enjoy that activity. So perhaps I become the Masked Bowler and disguise my identity whenever I hit the lanes. Suppose, then, someone happens to record, with my permission, my image while I'm bowling and puts a video of me on the internet? How is this different from some swingers wearing masks in an amateur porn video? They are simply engaging in a hobby they enjoy and allowing others to videotape their enjoyment. Why does their private information have to be displayed on a website? And what happened to their right to anonymous speech?
Speech and expression are protected by the Bill of Rights. Yet, to engage in speech of a sexual nature, one must, under 2257, relinquish one's anonymity. That doesn't seem right to me. If, for example, the videotape of the masked copulators took place at a swingers convention, an Adults Only event, in which everyone attending would already have had to show proof of legal age to the organizers of the event, is additional identification necessary? Such behavior may not be the common practice of, nor approved by, mainstream society, but it is not illegal. And, thus, needs no further legislation.
What of other kinds of sexual speech or expression? Is not a bride wearing her wedding gown engaging in sexual speech? Is she not declaring to all who see her, or see pictures or videotape of her, that she intends to copulate (and perhaps procreate) with a specific individual (the groom)? Is this not sexual speech? Should we have regulations requiring her to post her personal information on the internet?
2257 requires everyone in a sexually explicit webcam show to be recorded for identification. What happens when individuals make a good faith effort to obey the law but fall short through no fault of their own? Suppose the recording equipment fails and, after the performance is over, it is discovered that no images were saved. Does 2257 address this?
The only way I can see to make good laws about adult entertainment is for lawmakers to engage the porn producers. Meet with them, talk with them. Ask them how they (the lawmakers) can write good laws that help the producers keep minors away from porn. That is the intent of 2257, isn't it? To keep minors out of porn? It's too bad that 2257 doesn't accomplish its stated goal. Failure of lawmakers to engage representatives of the adult entertainment industry in meaningful dialogue regarding legislation keeps the lawmakers on the outside looking in, and if you're on the outside looking in you might not fully understand what it is you're looking at.
The Canela Indians of Brazil have a custom in which five or six men and one woman go into the woods outside their village and each man, in turn, copulates with the woman. All then return to their daily village activities. When Christian Portuguese first encountered the Canela while colonizing areas of Brazil they were appalled at this behavior, viewing the Canela as Godless savages who gang rape their own women.
Anthropologists began studying the Canela in the twentieth century, and they were able to make a more objective assessment of this peculiar sexual behavior. Canela are not big on foreplay; thus, more time is needed for the woman to be able to experience pleasure. Time that a single Canela male doesn't usually provide. By each male of the group of five or six taking a turn, one after the other, with the female, she has a better opportunity of attaining sexual gratification.
More importantly, however, should the woman become pregnant from such an encounter, all the males who participated in that encounter have responsibility for her child. While only one is the biological father, the other four or five males become "uncles" to the child, and have certain legal and social responsibilities, such as providing for the child's education, protecting the child and so forth. Looked at objectively, as reproductive strategies go this is a damn good one.
2257 is a well-intentioned law, made, unfortunately, from an uninformed perspective; it's from the outside of the porn business looking in. It's like the Portuguese looking at the Canela and passing judgment on something they did not understand. It's not objective and it doesn't address the reality of porn movie production.
My affiliation with porn began more than twenty years ago when, working as a newspaper reporter, I interviewed a porn movie actress. Since that time I've met hundreds of individuals from the adult entertainment industry, written about them for magazines and books, worked with them on various projects including some political lobbying; this latter activity has been most rewarding as I have, in a small way, been able to help legislators write good laws about porn and, equally importantly, help prevent the enactment of bad laws that accomplish nothing.
Many of the people from the porn business have been wonderful, some have been less than wonderful; some are like family who I look forward to seeing as often as possible; some are like family I'm glad I only see on holidays and special occasions. Some I don't like much at all. The thing is, they're people, ordinary people for the most part who just happen to have an unusual occupation.
They can be trusted to do the right thing with regards to minors and porn. There was a news story recently about shoppers who accidentally went into a closed Dollar Tree store in Colorado mistakenly thinking the store was open. When they realized there were no employees, the people phoned the police. Nothing was stolen, though this was an excellent opportunity for a thief to take advantage of. But no one did. On their own, these people did the right thing. And I think you will find that the people in the adult entertainment industry will, on their own, without pressure of law, do the right thing when it comes to minors.
I love being a writer. And after many years of working hard at that craft, I'm able to make a living at it; a modest living, but at least I get to do work that I'm passionate about. Some people are passionate about their sexual activities and about sharing those activities with others. This does not make them criminals nor does it require that they face legislation that applies only to them.
My two cents? If I may, let me respectfully offer this suggestion: Throw out 2257 and start again, and this time take input from the porn makers. I'm sure you'll find many parents among those who produce porn and will also find that they are just as concerned with protecting children as any other parents.
Thank you.
**
From Darklady:
Dear Mr. Oosterbaan:
I am a professional writer and editor specializing in the adult entertainment industry, free speech, internet technology, and alternative sexuality beats.
On occasion, in order to enhance the value of my written work, I take photographs which sometimes are of an erotic nature. Although I have sold some of these photos to magazines, the majority of my pictures are meant to share with the adult online community via my website, which includes feature articles, industry profiles, columns, and reviews.
In other words, although my main career is as a writer/editor, I am occasionally a Primary Content Producer. Because I will use cover scans of videos that I review, I will also soon become a Secondary Content Producer as current and proposed 2257 regulations define the terms.
I work from the dining room of my one-bedroom apartment and have managed to survive as a self-employed writer/editor for nearly a decade. This is quite an accomplishment, regardless of the subject matter, and I have achieved it by working nearly endless hours, living simply, and being largely content with my own company except when I travel to, or participate in, work related events.
Because I make a humble income at a job that requires me to attend conventions, award shows, workshops, contests, etc. it is not possible for me to easily fulfill the requirements that the current and proposed 2257 regulations appear to demand. For instance, although I typically work from 9:00am until 9:00pm (or later), I also run errands, have doctor's appointments, attend meetings, and sometimes travel out of the city or state for extended periods of time. There is no way that I can afford to hire a person to sit in my home while I am gone, either.
Because I am an unmarried woman who lives and works from home, the idea of posting my office hours on my front door – including times and dates when I plan to be away – is very unappealing. In some areas, that reads like an invitation to the local crack heads – something I know about from experience, since they broke into my previous home twice while I was gone, robbing me each time.
Although I have only begun the process of dealing with 2257 paperwork, I have already felt its crushing burden. Working with a fine art photographer who was totally unaware of 2257 regulations, and attempting to sell his live event photos to accompany a proposed article, has stalled the entire negotiation process by months because no progress can be made on the actual article until all of the various forms of ID are inspected, procured, sent, evaluated by the publication, and hopefully accepted. Only THEN will the actual photographs themselves be looked at and evaluated to determine if they are worthy of publication. The confusion surrounding this task has been enormous, requiring me to put aside other priorities in an attempt to make sure everything is perfect and in line with not only the government's, but the nervous magazine's requirements, the latter of which reflects a fear of prosecution that makes it nearly impossible for a part-time photographer such as myself to gain publication without spending literally hours merely dealing with paperwork proving that my decidedly and obviously adult, but non-professional, models are precisely what they claim to be: adults.
Please understand that I, like every person I have ever met within the adult entertainment industry or erotic community, want to shield children from actions and exposure to materials that are not age appropriate. I do not, however, believe for even a moment that the 2257 regulations do any such thing. Instead, they merely divert essential government resources away from true crime in what feels like a moralistic witch hunt intended to crush the entrepreneurial spirit of those who dare to create or reproduce sexually or sensually explicit materials.
As I understand it, the majority of so-called "child porn" is produced in countries such as Russia and regions of Eastern Europe and Asia. How my spending months to bring my decidedly adult models' paperwork into cross-indexed, etc. compliance stop the criminal activity of child molesters is beyond me. The last thing that professionals within the adult entertainment industry want is a minor in their camera's lens, which is one reason that so many of us are involved with the Association of Sites Advocating Child protection (ASACP.org.).
Why won't the administration stop harassing the adult entertainment industry and start truly doing something to protect minors? We are on the same page on this issue and the continued marginalization of the industry does not make it easier for us to work together, however much it may appeal to the moral sensibilities of some who wish to impose their religious beliefs upon others by controlling their actions.
Although the administration may not be aware of this, the majority of adult Americans at least periodically enjoy some manner of erotic entertainment, whether that be visiting an exotic dance club, purchasing a sex toy, logging onto a racy website, or viewing an explicit instructional or entertainment video. Alas, the hyperbole behind laws such as 2257 makes it more difficult for this truly silent majority to honestly express its needs and desires to its legislative representatives.
It is hard not to think that the administration's goals are less to protect children than to find an easy way to persecute those who produce or reproduce erotic materials. Given that there has been little success in prosecuting obscenity, it feels as though the government has chosen to create convoluted regulations that only a highly skilled professional with copious time could properly and consistently satisfy; all in the hopes of being able to turn to its conservative constituency with a few sacrificial scalps to its credit.
And what of those of us who do work hard to follow the rules? What happens if we misplace a form, suffer a hard drive failure, have our computer/file cabinet stolen, or, in a worst case scenario, are faced with a mature looking minor packing fake ID that even government officials find convincing?
Worst of all is the fact that the DoJ insists these arcane requirements are simple to understand and follow – yet even the FBI agents dealing directly with the adult industry can't explain what needs to be done in order to be compliant! Given how little sense many of these regulations make, it's not hard to understand why the government's own might find them baffling.
Honestly, sir – how many people filming the rape and sexual abuse of minor children bother to check their ID… unless it's to make sure they *are* minors? And of those, how many are going to bother to cross-index their documentation in digital and paper form?
Meanwhile, real perverts and criminals continue to swap photos internationally -- and my address is going to appear on my website, where any crackpot or nut job with a grudge against me or what I do can see it. A few years ago I received copious hate mail from a man in Texas who vowed to appear on my doorstep to punish me for what he felt to be my sinful ways. With 2257 in place, he'll have no problem finding me. Is that the intent of this law; to put innocent men and women in harm's way?
Why must all files be cross-indexed? Is it to increase the chance of us making a mistake? Why can't I have my records stored someplace secure and safe instead of keeping them in my office? Is it because a surprise visit is honestly expected to result in the breaking of an international child molesting ring? How does the DoJ expect the endless photocopying of primary documents to result in readable copy? How does knowing every nickname that a model has ever had during their life (let alone their career) provide any information about that person's age? How is a Secondary Producer supposed to "inspect" the ID of a person they never met? And why are the definitions of "sexually explicit" being continually expanded? Is it because the government wants people to stop showing one another their nude or partially clothed bodies?
Please, Mr. Oosterbaan – as a tax payer, the daughter and granddaughter of war veterans, and as a person genuinely concerned about the fate of my nation and the safety of its citizens, including its young and vulnerable, I beg you to use the funds that I and other hard working Americans have sent via our taxes for better purposes. The world is at war, sir, and I can't see how making sure paperwork proving that a 50-year-old man isn't a child contributes anything to the war effort – and this is from someone who was preparing to fly home from NYC on 9-11.
Please, Mr. Oosterbaan – work with the Free Speech Coalition to find a just and appropriate way to balance the safety of minors and the rights of adults. Ignoring the advice and feedback of industry professionals does not contribute to that goal and only engenders greater distrust of this nation's officials at a time when we should see one another as unified by a common love for liberty, justice, and the document which sets us apart from those who, ironically, would enthusiastically support anti-free speech regulations such as 2257 and beyond: the Constitution.
Most Sincerely,
Darklady
