Both houses of Congress are currently at work trying to iron out differences in the Child Abduction Prevention Act (CAPA), part of a new set of bills aimed at establishing the "Amber Alert System," which has been utilized successfully to locate missing or kidnapped children in California for several months, nationwide.
But there's a kicker to the bills - in fact, several. As so often happens with anti-adult legislation, amendments have been made to the CAPA bills which target the adult entertainment industry, and perhaps the most onerous can be found as Section 512 of S. 151, the U.S. Senate's version of the Amber Alert legislation.
Titled "Recordkeeping To Demonstrate Minors Were Not Used In Production Of Pornography," that section 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."
Section 2257, of course, is the labeling and recordkeeping law that all adult video companies and many adult Internet companies are familiar with, that requires those who produce sexually-explicit material to keep records of the identities, aliases and ages of all who appear in the material. The law was originally passed in the early 1990s but due to a court challenge, did not take effect until the mid-'90s, when the adult Internet was still in its infancy - and therein lies at least part of the problem.
"[Section] 2257 obviously wasn't written for Internet compliance," remarked attorney and adult Internet expert Lawrence Walters. "It's easy to determine, for example, where to place a recordkeeping disclosure on a magazine or a videotape. You put it at the beginning or on the cover. When it comes to a Website, you've got all kinds of problems as to what is conspicuous enough; where do you put it, because there's no simple beginning or end to a Website."
But that, Walters said, was just one of the dilemmas facing Webmasters.
"You've also got the problem of various different content producers being incorporated into one website and the consequent problem of how to comply," Walters said. "Do you have to disclose recordkeeping information for links or affiliates or banners? There's plenty of explicit banners out there. I guess theoretically there's supposed to be recordkeeping information for any explicit banner. There are a whole host of problems created by the nature of the Internet itself, not necessarily due to the lack of interest or desire among the Webmasters to comply."
And, he noted, the feds have been less than helpful in solving the problems.
"My understanding is that several people in our industry have approached the Justice Department in an attempt to try to get some guidance and clarification of what's expected when it comes to online content and those requests have been brushed off or denied," Walters told AVN.com. "So they're leaving it vague."
"Then all of a sudden you have this thing pop up in the Child Abduction bill, almost as an afterthought, which requires that these reports be made," he continued. "Now, obviously, anybody can pick up the phone and call Attorney General John Ashcroft and ask how many times has it been implemented or prosecuted. We know the number is zero. Everybody knows the number is zero. That's not the intent of the bill. They don't really want the information. It's obvious they're trying to light a fire under the Justice Department to start inspecting these records and start prosecuting people."
Anyone knowledgeable in the law who has done a survey of the adult Internet already knows that there are several Webmasters who appear clueless as to the requirements of Section 2257 and who do not even try to shield minors from access to sexually explicit material.
What's more troubling, however, is that there are some adult video producers who believe that they're in compliance with the law when the actually are not.
"My biggest concern is that they [adult video producers] have advertising trailers at the beginning of the videotapes, sometimes for phone numbers and things like that, and the notice doesn't come until after those advertising trailers, which suggests to me that they don't have the records or whatever for the advertising trailers," said prominent First Amendment attorney and AVN columnist Clyde DeWitt. "That's the biggest problem. There are some of these videotapes floating around where it looks to me like the records that are being kept apply only to the movies and not to the advertising trailers which seem to be produced elsewhere."
But even if producers have records on the performers in the trailers, they may still not be following the law, because the "compliance notice" may be in the wrong place on the tape.
"It's supposed to be in the first minute, as I recall," DeWitt said. "I think it says in the first minute of the tape, and if there's end credits, with the end credits, and my advice is to put it both places because you never can have too many notices but you can be in a situation where you don't have enough of them."
But there's another major pitfall of which some video producers reportedly aren't even aware.
"The general rule of thumb," DeWitt warned, "is, the inspecting delegee of the Attorney General has to be able to look at indexes [created and maintained by the company] so that if the [inspector] says, 'I have a name of a performer' that is, let's say, a stage name, the indexing system can reveal all of the performer's other names and all of the movies that that company has the performer in under any of those names."
Where this could present a major problem is if the videotape contains a trailer that is composed of several seconds-long clips of other productions from the same releasing company; each and every performer in such a trailer would have to be indexed as DeWitt described above - and that could be an exceptionally long and difficult process.
But that's exactly the sort of non-compliance that the Justice Department would be looking for when it undertakes its inspections, and possible penalties for violations of Section 2257 include both fines and jail time.
"It's almost amazing to me at this point that 2257 hasn't been enforced on a widespread basis because of some pretty significant potential violations that could be found," Walters opined.
Section 512 of CAPA is not the sort of amendment that would trouble the House-Senate conference which is currently working to iron out differences between the two chambers' versions of the bill, and "Amber Alert," to which CAPA is attached, is just the sort of feel-good legislation that Congress likes to fast-track because of its good publicity value. Wednesday's edition of The New York Times announced that the conference committee was nearly in agreement on a version of the bill that would be acceptable to both houses, so that "Not later than 1 year after enactment of this Act" could commence any day now.
Adult companies therefore would be well advised to consult with their attorneys to make sure that they are in complete compliance with all the requirements of Section 2257.
