A new bill that spells potential disaster for the adult industry, which President Bush had pledged to sign before Congress adjourned for its Easter recess, took just three days to clear the House-Senate Conference Committee and be passed by both houses of Congress. Bush's signature was still pending at press time, but that it will be affixed is a certainty.
Originally titled the "Child Abduction Prevention Act," legislators apparently decided that that title wasn't sufficiently "bulletproof," and changed the bill's name to the "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003" or "PROTECT Act" - another in a long series of deceptively-named bills targeting constitutionally-protected speech. After all, what good citizen doesn't want to "protect" kids from being abducted - even if adult producers' rights are trampled in the process?
The first four "Titles" (main sections) of the bill seem fairly innocuous as regards the adult industry, though Sec. 201 - "Interceptions of communications in investigations of sex offenses" - is somewhat troubling in its expansion of approved federal wiretapping standards to include suspicion of activities "relating to transportation for illegal sexual activity and related crimes." Also troubling is Congress' attempt to seize the creation of guidelines for convicted persons' prison sentences from the Federal Sentencing Commission, and its across-the-board attempt to handcuff judges' ability to decrease particularly harsh sentences by considering mitigating factors; a problem much too complicated to discuss fully here. (for more info, see the story in the April 18 New York Times at http://www.nytimes.com/2003/04/18/politics/18SENT.html)
No, the adult community's problems begin in full force in Title V - "Obscenity and Pornography" - which in large part attempts to undo the Free Speech Coalition's (FSC) victory in its suit against the Child Pornography Prevention Act (CPPA) by tracking the Supreme Court dissents in that case and fashioning a new law which incorporates what Congress thinks are ways around the high court's holding in that case.
But hidden away at the end of Title V are a couple of bombshells that should send any adult producer or Webmaster scurrying to his/her lawyer, or at least data technician, to make sure the company is in compliance with every last detail of the Child Protection Restoration and Penalties Enforcement Act of 1990 (better known to the adult entertainment industry as the labeling and recordkeeping law), Sec. 2257 of Title 18 of the U.S. Code.
Sec. 511(b) of PROTECT Act reads "Not later than 1 year after enactment of this Act, the Attorney General shall submit to Congress a report detailing the number of times since January 1993 that the Department of Justice has inspected the records of any producer of materials regulated pursuant to section 2257 of title 18, United States Code, and section 75 of title 28 of the Code of Federal Regulations. The Attorney General shall indicate the number of violations prosecuted as a result of those inspections."
At present, the number of times the Department of Justice "has inspected the records of any producer of [adult] materials" is zero, and hence, no prosecutions have resulted from those non-existent inspections. However, it is a sure bet that "[n]ot later than 1 year after enactment of this Act," that number will no longer be zero, and whatever number it is will not make any adult producer or Webmaster happy.
The most common mistake currently made by adult video producers regarding the Child Protection Restoration and Penalties Enforcement Act is the failure to properly place what has become known as the "2257 Notice" within the content on their videotapes. In viewing tapes for its June, 2003 issue, one AVN reviewer has seen clear 2257 notice violations on videotapes from at least one major adult video manufacturer; in that case, the failure to include the 2257 notice before any sexually-explicit material - specifically, an advertisement - was presented, though the notice did appear directly after the ad.
As far back as December, 1995, attorney and AVN columnist Clyde DeWitt advised, "if you are a 'producer' as defined under the new law (18 USC ยง2257), you should contact a good First Amendment attorney to make sure you are following the law's requirements to the letter . The history of the Justice Department's relation to the adult industry is that they enforce all aspects of all applicable regulations" - enforcement that the PROTECT Act is apparently calculated to insure.
Another common 2257 violation is the failure to append the notice after the feature's credits, if there are credits shown, and again after any ads or trailers which may follow the credits. As DeWitt stated just last week, "you never can have too many notices but you can be in a situation where you don't have enough of them."
Adult Webmasters are in an even worse predicament because so far, the Justice Department has refused to give any guidance as to where 2257 notices should be place on Websites: Just on the home page? On every page containing sexually-explicit content? Somehow incorporated within every banner? Is the Webmaster of any particular site responsible if a page which is linked from the Webmaster's site doesn't have a notice? No one has authoritative answers to these and several other crucial questions, but that's not going to stop the Justice Department from trying to enforce the law against them anyhow.
And Webmasters have even more to worry about. Subtitle B of the PROTECT Act is headed "Truth In Domain Names," and makes it a crime to "knowingly use[] a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity," and also to "knowingly use[] a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors." That first crime is punishable by up to two years in federal prison, while the latter will net a violator four years - and as all savvy adult producers, tape or Web, should know by now, "obscenity" and "harmful to minors" have no real legal definitions; it's only when a jury says "guilty" that anyone knows whether a crime has been committed.
Aside from all the other reasons why this new law would be important to adult producers, the PROTECT Act gives at least two more. For one, penalties for violations of the obscenity law have increased across the board, with maximum sentences for violations now at 10 years in federal prison per violation.
For another, Sec. 513(a)(1) of the Act reads, "Not later than 6 months after the date of enactment of this Act, the Attorney General shall appoint 25 additional trial attorneys to the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice or to appropriate U.S. Attorney's Offices, and those trial attorneys shall have as their primary focus, the investigation and prosecution of Federal child pornography and obscenity laws." That's "shall appoint," not "may appoint."
Savvy adult producers know not to be lulled by the fact that "child pornography" is mentioned first, nor by the fact that later, the law declares [Sec. 602(a)], "It is the sense of Congress that the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice should focus its investigative and prosecutorial efforts on major producers, distributors, and sellers of obscene material and child pornography that use misleading methods to market their material to children." It's adult material produced by adults for adults which are the real targets of the feds - and 25 new federal prosecutors will need something to do to justify their salaries. Reliable sources have reported that among the new prosecutors are some old familiar faces: Bruce Taylor and Robert Flores, the president and chief counsel of the National Center for the Protection of Children and Families, one of the nation's major pro-censorship groups, both of whom are also alumni of the National Obscenity Enforcement Unit, the predecessor to the current Child Exploitation and Obscenity Section. The names change, but the target doesn't.
Finally, adult Webmasters should also note Sec. 602(b), which reads, "It is the sense of Congress that the online commercial adult entertainment industry should voluntarily refrain from placing obscenity, child pornography, or material that is harmful to minors on the front pages of their websites to protect juveniles from material that may negatively impact their social, moral, and psychological development."
Certainly, that's a good admonition under any circumstances, but the earlier parts of the PROTECT Act make it important to know just what material is being referred to as "child pornography." Under the Act, "child porn" now includes computer-generated depictions of children that are "indistinguishable" from depictions of real children; the use of parts of images of real children to create a composite image that is allegedly unidentifiable as a particular child even to the extent of preventing an expert from concluding that parts of images of real children were used; and pictures of real children "disguised" to make the image look computer-generated, all of which, the bill says, were methods that were unknown at the time the Supreme Court ruled on the seminal child porn case, New York v. Ferber , in 1982.
Technically, in Ashcroft v. Free Speech Coalition , the CPPA case, at least two of the above "definitions" of child porn were ruled unconstitutional - but to get to that point took nearly a quarter of a million dollars, and hundreds of hours of legal research and writing on the parts of attorneys H. Louis Sirkin, Laura Abrams and John Feldmeier - and since the new regs don't apparently directly target adult videos, the FSC will undoubtedly have to make a cost/benefit analysis as to whether it wants to fund yet another costly legal battle to ask the Supreme Court to affirm something it has already decided.
But the point is, dark days for the adult entertainment industry in all its forms are approaching, and the time to "batten down the hatches" is NOW.
