Note: The article below, published in 2005, analyzed the basic flaw in the government's 2257 scheme, and as AVN continues to analyze Judge Baylson's ruling dismissing Free Speech Coalition's lawsuit, the following will serve as background for that discussion.
CHATSWORTH, Calif. – What is the purpose of 18 U.S.C. 2257, the federal record-keeping and labeling law?
Just look at the regulations recently promulgated by the U.S. Department of Justice (DOJ); they tell you. Under the section titled "Executive Order 12866," it says, "The benefit of the regulation is that children will be better protected from exploitation in the production of sexually explicit depictions by ensuring that only those who are at least 18 years of age perform in such sexually explicit depictions."
Similarly, under the section "Regulatory Flexibility Act," it says, "This rule merely provides greater details for the record-keeping and inspection process in order to ensure that minors are not used as performers in sexually explicit depictions." Then again, in response to several commenters' claims that the regulations will "hurt U.S. businesses and remove money from the U.S. economy by driving the pornography industry to other countries," and that the changes incorporated in the new regulations "will be ineffective in addressing the problem of child pornography because most, if not all, of child pornography web sites are located outside the United States," the DOJ "disagrees with these comments."
"First," the response continues, "the purpose of the statute, and the rule to implement it, is not to drive the pornography industry out of the United States. Rather, the purpose is to protect children from sexual exploitation ... The final rule is ... aimed at preventing any child pornography from being produced under the guise of constitutionally protected sexually explicit depictions."
But has anyone noticed that there's no way these regulations can possibly do that?
First, experience has shown that—surprise, surprise!—people who make actual child pornography don't keep records, they don't get model releases, they don't give a shit about age verification (except perhaps to make sure that their performers look prepubescent), and they rarely if ever label their product to show who the custodian of those (non-existent) records is and where that person and those (non-existent) records can be located. So as far as actual child pornography is concerned, 2257 isn't going to go a long way toward "ensuring that only those who are at least 18 years of age perform in such sexually explicit depictions." In fact, it isn't going to go any way at all toward ensuring that. Further, with or without 2257 records, and with or without 18 U.S.C. 2257 itself, making child pornography—hell, even just possessing it—is a crime punishable by many years in federal prison and massive fines.
The adult industry, on the other hand, does not, as a rule, make child pornography. It has long made an effort, even well before the first recordkeeping law was passed in 1988, to avoid using minors in its productions, whether or not it kept records of that fact. Moreover, in the 20 years since the first underage performer scandal hit the industry—the one involving Traci Lords—there have been, including Traci, exactly four (4) underage performers who have managed to sneak into the business. The others were Alexandria Quinn, Jeff Browning and Precious, and each was discovered, not by police officers or federal inspectors, but by adult industry producers themselves—who promptly announced to the adult world that the minors had been uncovered, and had all product in which those performers appeared pulled from store and warehouse shelves.
Now, let's be clear: No one in the adult industry went out and found these underage performers, arranged for them to obtain fake IDs and dragged them naked in front of a video camera to perform sex. No one, not even the pro-censorship groups, has ever made that claim. On the contrary, each of these individuals sought out the industry on his or her own, obtained their own fraudulent IDs and passed them—and themselves—off as legitimate adult performers of legal age.
And according to reports, those fake IDs looked completely authentic.
"I've got a copy of Traci's ID," veteran industry photographer Dr. X told AVN.com, "and I've seen Alexandria Quinn's, and they look absolutely 100% genuine. Anybody would have been fooled by them."
Therefore, the question begs to be asked, in what possible way would the incredibly expensive and time-consuming 2257 law "[ensure] that only those who are at least 18 years of age perform in such sexually explicit depictions"?
On a typical adult feature set, performers such as, for example, Traci Lords, arrive, present their photo IDs to the production manager for photocopying, hold one or two pieces of identification under their chin so the set photographer can take a picture of the performer with his/her ID, and those photocopies and photos are then placed in a file for the feature that's being shot. With an authentic-looking ID, neither the producer, the director nor any of their staff have any way of ascertaining whether the IDs that are being presented to them are legitimate or fraudulent. Any law enforcement official can testify that driver's licenses can be faked, green cards can be faked, even passports can be faked—and the adult video producer has no access to the federal or state databases associated with those forms of identification in order to ascertain whether the official files match up to the document that's been presented by the performer.
The result of that, of course, is that the underage person who presented the fraudulent ID proceeds to do exactly what the DOJ claims that the existence of 2257 prevents: He or she performs, underage, in a sexually explicit depiction.
Now, sometime later, after the adult feature has been shot, edited, duplicated and sold for weeks, months or possibly even years, some DOJ inspector may look at that feature's files, cross-check that performer's ID with the state and federal databases to which that inspector does have access, and find that the performer was underage when he/she performed sex on camera – and then promptly arrest the feature's producer and possibly several other staffers for a crime they could not possibly have prevented (except for not having made the feature in the first place)!
Does that sound fair? Does it even sound logical? Does it sound as if the 2257 statute can possibly accomplish the purpose for which it is allegedly intended?
Of course not.
But there may be at least a partial solution—and it's one that, for years, the Free Speech Coalition has been trying to get adopted by the state legislature. It's called, not surprisingly, the "Traci Lords Act." Put simply, the statute would make it a crime, punishable by both a fine and jail time, for a minor to attempt to pass him- or herself off as an adult for the purpose of appearing in a sexually-explicit production.
Because if there's one thing the adult industry has noticed, though it seems to have escaped the attention of both law makers and law enforcement, it's that when a minor does manage to slip into an adult feature, millions of dollars worth of product have to be recalled and destroyed, adult producers and their staffs are threatened with arrest, fines and prison – but absolutely nothing happens to the 16- or 17-year-old "child" who perpetrated the fraud in the first place!
On the contrary, Traci Lords went on to have a highly successful Hollywood career, and Alexandria Quinn, after selling her story to a TV gossip program, eventually returned to the industry when she was of legal age, and in a fit of industry-wide schizophrenia, producers welcomed her back with open arms. (We might note that Adam & Eve alone refused to distribute any tape containing Quinn footage; a fact that may have been partly responsible for Quinn leaving the industry several months later.)
Doesn't it seem reasonable that if a 16- or 17-year-old faced the possibility of up to five years in prison and a fine in excess of, say, $100,000 for being responsible for the creation of child pornography, that that person might think twice about trying to pass him- or herself off as an 18-year-old?
The Free Speech Coalition thinks so. Every adult producer to whom AVN has spoken thinks so. Maybe it's time that the legislators in Sacramento thought so as well.