AVNONLINE FEATURE 200508 - Tom Hymes is Mad as Hell and He's Not Going to Take It Anymore

Editor's note: For this special edition of AVN Online, we asked former editor Tom Hymes to give us his opinion about the state of the industry. Never one to mince words, Tom didn't let us down.

The title, for the record, is our idea.


I've been asked by AVN Online, my old employer (yes, they're very, very old over there) to write a feature article about the state of the adult Internet industry, not as objective journalism, which is de rigueur most of the time, but as subjective journalism, complete with point of view, attitude, opinion, and all the other messy vagaries that come with it. My understanding is that the observations in this piece will commingle with many others in this issue, to create a comprehensive overview of the adult Internet industry as it is, and not necessarily as we would like it to be. So let me just clarify for the record that the opinions expressed here are mine, not AVN's and not the Free Speech Coalition's, where I now work as the communications director. I shouldn't have to say that, but sadly I do.)

It's the middle of June, at least two months before this issue comes out, and for the first time since I began writing about the industry, I can't say with any certainty what it will look like by year's end, but neither can anyone else. Carnac the Magnificent himself couldn't know whether the industry will take its future into its own hands or let outside forces, some of which are unsympathetic to its very existence, dictate the very policies by which it operates. Because the industry itself apparently has yet to decide.

But even my 18-month-old son is savvy enough to know what will happen if the industry does nothing but sit back on its ass and act as if nothing is going on. In short order, it will be regulated into irrelevance and emasculated beyond recognition. It will become a plaything of the intolerant, used when it suits them – at a donor's dinner, say – and abused when it suits the base – say, during an election. It will cease to be a vibrant petri dish of innovation and instead will become a stale, boring, and listless self-parody of soulless sex.

Porn will still generate a lot of money, but it will be a controlled flow, used to preserve the status quo and suppress creative originality, and over time, what used to be vigorous business models will eventually atrophy into bankrupt examples of dying businesses. It will be the Dorian Gray of the entertainment industry, corrupted from within, exacting a far greater cost than even Wilde could imagine. For not only will the industry have walked voluntarily into a concentration camp of its own making, enslaving itself to its enemies and murdering its affiliate young in their cribs, but in doing so it will have created a living precedent for similar limits on speech, and spawn a geopolitical condition that I will go so far to say will lead to people around the world being imprisoned, tortured, and killed as a direct result of what is taking place today.

Obviously, I'm referring to the new federal labeling and record-keeping requirements (18 U.S.C. §2257) and the conditional approval of an .xxx top-level domain (tld), each of which represent a direct, if unequal, threat to the survival of this industry. But while 2257 is bad news and nefarious as sin, .xxx is pure evil in its potential for causing lasting harm while serving no need whatsoever.

And nor do I believe the timing of these events to be coincidental. I'm one of those people who, as one well-known industry attorney put it recently, "tends to see conspiracies during a time of sea change in the industry." It's true, I do. I am actually more than a tad "concerned" that the timing of the release of the regulations coincided with the approval of .xxx, the formations of a new federal anti-obscenity task force, and the recent anti-porn congressional hearings. And I have precious little patience for those who would dismiss these contemporaneous actions as nothing more than coincidence, a sea change, or a done deal that pragmatic businessmen should turn to their advantage. These are opportunities all right, but not created out of necessity!


June gloom

Many people with meaningful economic or personal stakes in the industry are in desperate straits as 2257 is about to go into effect. More than a few servers are being shipped abroad, with the personnel to serve them, as companies protect their investments, brands, libraries, and databases by making the most ironic and heartbreaking move of all—to a different country. More than a few lawyers I know have used the word "panic" to describe their clients' emotions and the confusion they feel about how, whether, and when to comply with 2257. Some sponsors provide performer IDs to affiliates while some do not, and at least three companies have rolled out 2257 compliance programs or software, even though almost every attorney agrees that it''s virtually impossible for anyone to stay 100 percent compliant.

In such an atmosphere, one would hope that the professionals would adhere to a very high standard, but that has not always been the case. I was told about one lawyer who painted a graphic scenario for a prospective client in which jack-booted police raid his workplace and become physically abusive, and then hit him up to the tune of about 10 grand for compliance inspections. I didn't find out if the client took the bait or called someone less theatrical, or even if the story happened as told, but if it did, it is a small example of the temptations and shenanigans in play during the month of June 2005.

Could hostile 2257 inspections take place? Sure, but who would be surprised? As written, the search warrants can be notable for the cruelty of the authors' intentions and the ineptitude of the result. Many of the provisions are impervious to interpretation, the obligations they place on secondary producers are absurd, the privacy violations they impose upon performers are obscene, and the outright expense required of someone attempting compliance is simply beyond the budget of most small webmasters. They confuse language, contradict requirements, obfuscate intent, and worst of all, they lay out an entire world of obligatory conformity that has little to do with the actual business practices they are supposed to regulate, but more closely resemble, as the Sundance opinion noted, something from Alice's Wonderland.


Injunctive relief

In seeking a temporary restraining order on behalf of the Free Speech Coalition from a circuit court before the June 23 deadline, First Amendment attorneys will focus on two dozen or so troubling issues created by the regulations, in addition to their fundamental unconstitutionality. An injunction may have been granted by now, and if the attorneys' supreme confidence has been borne out, a permanent injunction may also be in place, with Justice sent back to the drawing board to draft regulations that are constructive.

If so, it will be good news for the industry. Like many people, I have no problem with reasonably drafted record-keeping and labeling requirements, even considering the underlying argument against their need, and I doubt very much that a company of any worth would put its existence in jeopardy by knowingly using a minor and then creating a record of the crime. But we all know the sleaze merchants that slither through the shows and on the boards pushing borderline content and fast-buck opportunities. And we also know that criminal sexual abuse goes unchecked and unpunished in other countries.

So if there will always be 2257 regulations because neither the courts nor Congress will ever kill them outright, I believe that for content shot in the U.S., and maybe Canada, secondary producers should only have to provide the addresses of the custodians of record, not copies of the actual IDs; if the cops believe a minor was used in a shoot, go see the custodian.

But for foreign content, copies of IDs should be required of secondary producers, no matter the burden, at least as an attempt to protect minors, and to guard against women being used as sex slaves. Just as clothing manufacturers set policies that guarantee none of their products are made in sweat shops, the adult industry should set policies that keep other countries from becoming huge warehouses of unlawfully produced pornography. It would not be an infallible solution, but it would be better than nothing, and if one feels strongly about not giving out performers IDs, shouldn't they feel just as strongly about making sure that performers are not being coerced to make porn in parts of the world where they don't have the same legal protections we have?


A sexual Guantanamo Bay

Unfortunately, 2257 is child's play in comparison with .xxx, which is the far greater threat to the survival of anything remotely resembling the industry that exists today. Dot-xxx is a land grab, pure and simple, domain poaching on such a colossal scale that nothing's been seen like it since the colonization of the New World. Nothing of value can come of it other than that a few people will become very wealthy at the expense of thousands of other people's labor, money, and enterprise.

It's a massive fraud perpetrated by a gang of deceptive snake oil salesmen peddling the most heinous elixir of all, the bogus protection of children. It's an outside job with inside help, pulled off by usual sleazy suspects from the nether regions of adult. You know the names – we've all heard them bandied about – but few people realize the depths to which these bandits have descended as they evade the truth of their involvement in a global swindle that is worse than almost anything you can imagine one webmaster doing to another.

The only consolation one can scrape off the bottom of this shoe is the knowledge that the porn perpetrators in this global scheme are themselves the unwitting victims of even slicker scam artists. They think they're in control, when in reality they are being used, like Jews who turned in Jews in Nazi Germany, to work the deals as they furtively lied and enticed and in the end softened the industry up for the kill.

But it's voluntary, they say. Dot-xxx is about as voluntary as a stint in the army, however. You can voluntarily join up, but once you do, your ass belongs to them. That $250,000 they promise to fund a legal battle in case the government ever tries to make the .xxx tld mandatory won't protect you either, because no such move by the government is needed for it to become, for all intents and purposes, mandatory. Visa doesn't even have to get involved by mandating the use of .xxx for processing adult membership sites with its cards or by giving a "safe harbor" to .xxx sites. Nope, none of that ever has to happen.

In fact, not a single governmental or nongovernmental agency has to do a thing for dot-xxx to become de facto mandatory. All that has to happen is for IFFOR, the supporting agency that will set all policies for .xxx domains, to announce a policy which states that no .xxx website may point to a corresponding dot-com adult site, and that dot-com adult sites have to become dot-com.xxx if they want to keep their .xxx domains.

It's as easy as that. Comply or leave. You don't want to play be their rules? Fine, just don't let the door hit you on the way out, and by the way, we're selling your dot-xxx domain and you'll forever be branded an "irresponsible" webmaster, one who wouldn't do "the right thing for our children" by purchasing a dot-xxx domain and complying with IFFOR's policies.

And no one will care that you will become a slave to IFFOR policies, which will be set by a board comprised mostly of people who don't know you and could give a living shit about your business or the morals your pornographic mind thinks it has.

The IFFOR board, of course, will have a very well-defined agenda, and a highly commendable one at that, primarily having to do with protecting children; something they and everyone else on the planet will know cannot be achieved with a voluntary dot-xxx. In fact, they know it already and are out there in the media laying the foundation of an argument for what will be put into play not long after the IFFOR board first convenes.


Regulation, not self-regulation

Here's how it'll work. At that first or second board meeting, someone like Parry Aftab, or likely Aftab herself, will raise her hand during a discussion of the formation of basic policies and will state the obvious: Dot-xxx can't protect a flea if the pornographers keep their dot-com domains and make them secret tunnels right into their dot-xxx websites, undermining the whole underlying rationale for the tld. Then someone else will raise his or her hand to propose The Final Solution of making dot-xxx the only sanctioned tld for pornography, and even though the single adult industry board member will object, she or he will be quickly outvoted and the deal will be done. And if anyone has a problem with it, well, it's a voluntary program. If you don't like the policies, we can always sell the domain you want to someone else.

It will be like that for most policies enacted by the IFFOR board, and no one – not Larry Flynt, or Paul Fishbein, or Steve Hirsch, or even the Fantasyman himself – will be able to overrule the will of the IFFOR board, unless of course one of them buys it, which one can never rule out. Short of that, they will be required to conform their dot-xxx websites to the board's policies just like everyone else, and that is not self-regulation, it's regulation.


Murder, mayhem and god-awful precedent

Why anyone would submit to voluntarily slavery is anyone's guess, even if a king's ransom were dangled, but it really doesn't matter. Two points negate any justification.

Point one: There simply has to be a boundary placed on self-serving impulses if those impulses endanger safety or lives, which dot-xxx does. Intolerant and repressive countries will certainly filter sexual content by outlawing dot-xxx websites, but they will also look back down the pipe and track down unsuspecting citizens who go looking for sex online. In such a climate, a knock on the door could lead to interrogation, incarceration, torture, and death.

This would be speculation if countries didn't already commit heinous crimes against their own citizens without the help of ICANN and ICM Registry. Indeed, perhaps torture-loving countries will one day bestow awards on ICANN and ICM for helping eradicate immoral criminal behavior. How an organization that professes to be a humane and consensus-building international body could rationalize creating such a potentially destructive situation, one cannot say, but someone over there had better wake up and smell the scandal brewing.

Point two: Dot-xxx sets about the most gratuitously despicable precedent for segregating content-based speech on the Internet that ever crawled out from under a rock. Besides being ultimately unworkable, it will simply sit there as a Las Vegas billboard beacon to others. It may begin with sex, but it won't end there. Other applications will be filed and will now have to be considered, and in time hate speech, religious speech, maybe even overtly political speech will be herded into porous online ghettos of their own, and the Internet will effectively cease to be a bastion of free speech, if that's what it ever was in the first place.



The new 2257 regulations will probably be successfully challenged, but dot-xxx will become a reality unless both the powerful and the meek work to convince ICANN and/or the Commerce Department of the United States that implementing this tld will not only create a malevolent precedent, will not only put thousands or millions of people around the planet at risk, but will also legally and technically make the United States government an adult industry affiliate.

As Karl Auerbach, an outspoken former ICANN board member, recently warned, "It takes a positive act of the U.S. Department of Commerce's National Telecommunications and Information Administration(NTIA) to allow .xxx to be added to the root zone. It's one thing for a private group to establish a red-light district on the Net, but for the U.S. Government to do so is rather questionable, especially in light of the fact that ICANN's tax exemption comes from its claim that its purpose is 'to reduce the burdens of government.

In other words, this approval indirectly makes the Department of Commerce a beneficiary of the establishment of this red-light district, and because of ICANN's tax exemption, all of us who pay U.S. taxes get to pay for this every April 15th."

I don't think anyone wants that.


Tom Hymes is the communications director for the Free Speech Coalition. He can be reached at [email protected]