On Friday, ultraconservative Sen. Orrin Hatch (R-Ut.) introduced his version of what was originally designated in the U.S. House as H.R. 3726, the Child Pornography Prevention Act of 2005.
The title of Hatch's bill, S. 2140, is not known and its text is not yet listed on government websites, but according to a press release from Hatch's office, the bill would "strengthen" the federal recordkeeping and labeling law, 18 U.S.C. §2257 in four ways.
The bill, co-sponsored by Sen. Sam Brownback (R-Kan.), would "Define[] actual sexually explicit material consistently with corresponding sections in the United States Code." (Hatch claims that "current law incorporates only four of the five definitions outlined in other sections.")
Also, the bill would "appl[y] the same record-keeping requirements to those who produce depictions of simulated conduct" – in other words, "Hollywood, look out!" If approved, the bill would appear to require any movie showing any form of sexual conduct to keep 2257 records and display the approved label, possibly even if all the participants in the sexual conduct are clothed! (Since the exact text of the bill is not yet available, it will be necessary to compare that text with Hatch's public statement to see which is more accurate.)
Hatch's bill also appears to attempt to deal with the "secondary producer" issue which is currently being litigated in Free Speech Coalition v. Gonzales, in the 10th U.S. Circuit Court of Appeals. According to Hatch's press release, his bill "[p]rovides a meaningful and targeted definition for what it means to produce sexually explicit material. The definition includes activities such as filming or photographing someone, duplicating or reissuing images for commercial distribution, and managing the sexually explicit content of a computer site. It specifically exempts those not involved in hiring, managing, or arranging the performers' participation, along with those involved in web-hosting services when the provider does not manage sexually explicit content." This would appear to exempt what are now referred to as "secondary producers" from compliance with the 2257 law.
Hatch's bill would also make it a crime to refuse to permit inspection of 2257 records.
"Current law only requires maintaining the records, but it provides no penalty for refusing to disclose them," the press release says.
Such a situation would be a surprise to adult producers and distributors, who have always assumed that they could be arrested and tried if they failed to produce their 2257 records when requested to do so by the appropriate government agents. In fact, the law states, "Whoever violates this section [18 U.S.C. §2257] shall be imprisoned for not more than two years, and fined in accordance with the provisions of this title, or both."
"Hatch's bill," the release says, "is the result of extensive discussions with the Department of Justice, representatives of the motion picture industry and Internet companies, which all helped to refine the bill before it was introduced."
Almost needless to say, the industries affected most by the bill – the adult video and Internet industries – were not consulted, and if the press release is to be believed, it's difficult to imagine that the motion picture industry had much input either.
"If we are serious in protecting children from being exploited by child pornographers, we need a workable, practical law that's enforceable," Hatch said.
Sadly, as noted on this site several months ago, the 2257 law does not serve that function.
When the full text of S. 2140 is available, look for a thorough analysis of its features and ramifications on AVN.com.
