LOS ANGELES—During a mid-holiday Zoom meeting held last night by the Adult Performance Artists Guild (APAG), the newly rebranded performers union began the unenviable task of jump-starting an industrywide discussion about how best to develop a coordinated and effective strategy to fight back the government’s latest attempt to regulate legal sexual speech on digital platforms, this time via a Senate bill sponsored by Ben Sasse (R-NE) and Jeff Merkley (D-OR), the ironically named "Stop Internet Sexual Exploitation Act,” aka SISEA.
Several dozen supporters and interested parties, each vetted by the organizers, showed up from homes and offices two days before Christmas for what turned out to be a spirited if unscripted two-hour discussion that succeeded in addressing several of the threats contained within the Senate bill while beginning the far tougher task of exploring what steps the industry should take to mount a coordinated defense against this frontal attack on the ability of performers to work.
It became quickly apparent that, whatever legal maneuverings are available to the industry, the “public relations” aspect of this fight also will be paramount to any ongoing strategy, considering the entire conflagration was ignited by an opinion piece in the New York Times, followed directly by religious right entreaties to do something, dire action by Mastercard/Visa against main target Pornhub, and the rushed-into-existence SISEA, which sweeps up not just Pornhub-like platforms in its inclusive orbit, but any “online platform that hosts and makes available to the general public pornographic images.”
The meeting was adeptly moderated by APAG president Alana Evans, who, with help from vice president Ruby and Secretary Kelly Pierce, kept the discussion moving while keeping potential interruptions at bay through adroit use of Zoom’s mute button. APAG’s lawyer, James Felton, attended but did not join the discussion, as did Michelle L. LeBlanc, executive director of the Free Speech Coalition. The participants, many of whom elected to join without enabling video, appeared to be a healthy mix of experienced and newer performers working the various niche areas of the business currently available to performers, most if not all of which could be negatively impacted if SISEA becomes law as written.
Indeed, one area of expressed concern involved the sweeping (i.e., vague) nature of the bill’s language; specifically, the decision to define actionable “sexually explicit conduct” via 18 USC 2257, which, among other provisions, includes the “graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person.”
“I’m concerned that [the definition of] pornographic image is so vague that it could apply to anyone,” complained one participant. “If you are a model and you have your own website and you post nudes there, or if you're an escort or you're selling webcam shows or something, under this bill your site would have to meet all these requirements. And that is not possible for most models. Unless you're in the top one percent, you're not able to afford a 24- hour [hotline] or these other requirements, or even be able to write down and consent to every single webcam show you do. You will basically be booted. It almost feels like [this bill will] force us back onto these piracy sites, except it will be government run, kind of.”
The point was made that the bill appears to target sites that allow sexually explicit user-generated content, and that someone uploading content to their own site would arguably not be burdened by the bill’s provisions, but another participant noted that while it may be easier for a solo site to abide by the bill’s provisions, it would nonetheless be swept-up in its legislative language, which defines a “covered platform” as “an online platform that hosts and makes available to the general public pornographic images,” a vaguely all-encompassing definition of an adult website if there ever was one.
Another serious problem with SISEA articulated during the meeting was a highly questionable provision in the bill that requires a covered platform to verify not just the identity of a person uploading a pornographic image to the platform, but also that “the user is not less than the minimum age required to consent to sexual acts under the law of the State in which the user resides…”
It was pointed out that the age of consent in many states is less than 18. “In their zeal,” it was further noted, the authors of SISEA have “made a bill that makes child porn legal.”
Unless fixed, the language in the bill could potentially permit a state’s lower age of consent to supersede federal law outlawing the production of sexually explicit content by anyone under 18. It was a possibility no one thought should go unaddressed by the industry.
“This could be an arguable loophole that we need to address,” said APAG’s Ruby. “And in doing so as a union, we [would] prove to them that we are more capable of policing our own industry than they are.”
Other important areas of discussion involved the creation of a database of alleged revenge porn victims that sites will have to scrub against, and which will also be made available to non-profit organizations that have received grants from the federal government.
“Whether they say it out loud or not, we could be looking at organizations like Exodus Cry being the ones that are actually running this database,” warned Evans, who also pointed out the issue of consent forms, which the bill apparently requires for all content, even retroactively.
“The language [of the bill] says it will affect all past content, not just stuff that you're filming from here on out, but everything,” said Evans. “For those of us, including myself, that have spent hundreds of thousands of dollars shooting other performers, we would have to go backwards and get them all to sign current consent lists. What if they decide they don't want to? I've got women that aren't in the industry anymore. The fact that I've got a model release and 2257 [documentation] for them means I can't use their content anymore.”
Evans added that for the past three years the union has provided consent forms for any performer who wants to have one ready to go ahead of time so producers will know what specific activity they do and do not consent to. Though there will likely be industry push-back against any governmental attempt to require a consent form as a requirement to work, employing them at will throughout the industry was postulated as a good idea.
“We have implored people to use our consent list,” said Evans, “because if you had your consent list for all the stuff you've been shooting, your porn might be able to still be uploaded based on this.”
The situation is further complicated by the fact that a large platform like OnlyFans now requires consent lists, according to Evans, who works with the platform on perform complaint issues, she said.
“In the last week, I have had several performers come to us with their pages locked by OnlyFans,” she added. “They had a 2257 compliance [notices] flagged by the other performer in the scene. It is being used as retaliatory tactics by performers who maybe don't like the girl they filmed with anymore.
“Normally, you uploaded your IDs and 2257 paperwork and model release, and you're good. OnlyFans turned around and said, ‘No, we need a handwritten letter from the model that they can send to you uploading the content to that actual page is something that only fans is doing right now if you are flagged for compliance. I've except two separate cases, I've gone to only fans and said, ‘What is this? This is a new rule.’ They sent their users to our website to use our model releases, and our 2257 documents. But for them to not tell us that this was a new requirement until they started implementing, it was pretty shocking.”
The changes are coming fast and furious, even before they are legally required, which may be prudent for the platform, but unnerving for performers.
“It's a really big concern, because they're requiring things already that are not legally mandated, but I will say the two times I went to OnlyFans and said, ‘What is this?’ they move past it. They didn't require the paperwork and said it's fine. But we're watching performers use this as a retaliatory tactic, and it's infuriating, because now we're supposed to act within our own community.”
Adding to the confusion is the possibility, mentioned by a participant, that a consent form filled out after a production has taken place may not even be legally valid. That seems correct, since providing consent after the fact in any situation would seem to impugn the meaning of consent, making it an exercise of utter inanity.
Though the FSC’s LeBlanc declined to comment during the meeting, the trade group’s opinion on SISEA was clearly articulated in a press release issued a few days ago, in which the bill was slammed as being “wildly unconstitutional and, if implemented, would effectively silence sexual speech online. Most non-adult platforms would likely react by terminating even potentially suggestive content rather than manage massive databases of personal information, or expose themselves to the liability that comes with it.”
As far as bring some concrete organization to the upcoming effort, APAG made some headway by deciding on what platform it wants to center its organizational efforts, and endeavored to begin the process of bringing more people into the fold to add resources and build momentum. The point was made that the industry had allowed itself to become lax, something its enemies never seem to do. Rather, they regularly upend their tactics in the service of a consistent larger goal, the end of adult entertainment.
The discussion was not without the realization that the industry has allowed itself to become dependent upon a few very large players, and that dependence is now coming home to roost. But those very real issues are seen as secondary to fighting back against the existential danger presented by the SISEA legislation, which will take a collective effort.
As disturbing as the bill is, also in play are the extreme actions of religious right fanatics from groups like Exodus Cry. They apparently are on a mission to harass anyone opposing the bill, a dynamic that Evans said she has experienced in its full fury recently. It left her somewhat shaken and warned everyone to be careful.
“We're seeing that they are straight coming for anyone that is opposing this bill, because obviously the language in the bill gives them the ability to maintain the database,” she said. “This is their bill, this is more money for them, and they're going to come for us to ruin our credibility.
“From here on forward, I'm not interacting with any of these people, and I suggest everybody else just be careful,” she wisely advised.
As a plaintiff in FSC’s interminable 2257 case, I am inherently interested in the current situation and have opinions on the matter already, but I kept quiet during the meeting because I was there on assignment just to cover it for AVN. But I was impressed by the thoughtfulness of many of last night’s participants and I know it is critically important that performers are central to all industry endeavors. APAG is small and will need to work with all other groups in order to grow and gain leverage, but there is no substitute for the potential of the performer. No other force comes close in its power if it can be harnessed efficiently. I think most people in and out of the industry do not believe sex workers have it in them to coordinate for their greater good. But I have no doubt it can be done. It may take years, but out of small acorns like APAG grow mighty oaks.
