As the adult industry holds its collective breath in anticipation of Thursday’s promised action on a Free Speech Coalition lawsuit against the U.S. Justice Department, webmasters, attorneys, and FSC staffers alike are hastening to ensure the industry is protected from prosecution under recently revised regulations relating to the enforcement of 18 U.S.C. §2257.
Late Wednesday, FSC Communications Director Tom Hymes told AVN Online he would make an announcement about a possible deal between attorneys for the FSC and the Department of Justice that would allow members of the adult industry to breathe easier, at least for awhile. Although no one could confirm whether a deal had been finalized on Wednesday, the announcement is scheduled for 12:30 p.m. Thursday, at the same time the FSC’s complaint and motion for a temporary restraining order were scheduled to be heard. The announcement will comprise “real news,” Hymes said.
As adult webmasters braced themselves for a deal or a ruling – whichever actually happens – several also squirmed as they prepared for what might come next.
“There’s sort of that almost festive, ‘Fuck me; I can’t do everything/I’ve done everything I can’ spirit out there,” said adult entertainment attorney Joe Obenberger. “And then you’ve got your last-minute Christmas shoppers out there calling me up and going, ‘I just have a few questions for you.’ It’s been a very funny day.”
“Funny,” however, might not be the word many in the industry use to describe their state of mind as they scramble to comply with the new regulations, set to take effect on Friday unless a deal is reached or the court takes action. “It’s crazy around here today,” said Ray Simon, webmaster for popular gay site RandyBlue.com. “Since we shoot mainly our own content and we’re a content provider, we have a lot to get in order. Luckily, we have all our documents. It’s just been the past month of scanning them in and getting them all in the database [before tomorrow’s deadline].”
The folks at TopBucks.com also prepared in case Thursday’s activity isn’t beneficial for the industry, making sure that all sites available for viewing on their network are up to speed. “We’ve made at least 100 of our sites totally compliant,” said TopBucks’ director of marketing Lea Buscyk. “However, we will be redirecting approximately 14 of our smallest sites until they are fully compliant. Those sites will be back up and running in July.”
Gay porn star Jacob Slader said he spent the past several weeks removing all objectionable material from his site and has been “working with affiliates to figure out what to do with their galleries. I have begun to tape my Web cam shows, which I find a bit ridiculous because I am taping myself and I don't think anyone will argue that I, myself, am underage, but in this matter, I have no choice.”
For those living under a rock, the revised 2257 regulations lay down new rules for those working in the adult entertainment industry. Both film companies and webmasters stand to be profoundly impacted by the changes to the regulations for enforcing Title 18 of the United States Code, which now state that adult producers and webmasters must obtain clear records that prove that all models used in adult entertainment (whether hardcore or softcore) are over the age of 18. Allegedly designed to deter child pornographers, the new regulations have sent a shockwave through the adult industry, leaving many to gasp in the wake of rules that have been called unconstitutional.
Indeed, because the regulations now stipulate the real names and addresses of adult performers and webmasters must be made public knowledge (making it not only possible for potential stalkers to show up at the homes of adult models, but for webmasters to possibly implicate themselves in crimes), many websites and production companies already have closed down. Others have flat out refused to hand over such intimate information.
“We’ve got everything ready, and we’re ready to disseminate the information if need be, but we are going to wait until the hearing and make a decision on who gets the information accordingly,” said JennaCash.com’s affiliate manager Chandie Foster. “Obviously, with Jenna [Jameson] being such a big name, we’re even more concerned [than others] about some of these things.”
“It’s been difficult, because the reactions of the studios have varied,” said Tim Valenti, president of NakedSword.com, the popular gay site that streams titles from some of the industry’s biggest hitters. “Some have said, ‘Oh, the regulations won’t go through’ or ‘I’m not giving you that because it’s a privacy issue.’
“You really find out how disorganized some of these people are,” Valenti continued. “We’ve received documents in all kinds of forms and variations, and we’ve had to make them [compliant] ourselves – to the point where we’ve had to send out to studios examples of exactly how a file should look. But in most cases, we’re just happy that they’re giving us the stuff. Some of them have been adamant and refused to [hand over the information], but their movies just won’t be on NakedSword.”
BadPuppy.com President Bill Rivers had similar things to say. “There are some companies that, if there is no injunction, we may not be able to do business with tomorrow,” he said. “They believe the new 2257 violates the models’ rights to privacy, and we have been told that we will not be receiving any identification for the content we have purchased. If a company has not provided us with the proper documentation, the content has already been or will be pulled from the websites.”
Tony Rios, chief technical officer for Chi Chi LaRue’s affiliate site ChiChiClicks.com, said, “We will be compliant in all regards, except for the secondary producer rule. Our attorney has advised us against sending out our models’ IDs to ‘secondary producers.’ And frankly, we agree. It’s a violation of privacy.”
That was the same tune sung by Sweet Productions Inc., the production company behind Sweet Entertainment Group, home of affiliate program SweetMoney.com. The company issued a statement saying that it would not be releasing model information. “Sweet Entertainment Group intends to honor its commitment to its adult entertainment models to respect and be vigilant in the protection of their right to privacy,” the statement read. The Canadian-based company noted that it falls under the jurisdiction of British Columbia’s Personal Information Protection Act, which, SEG stressed, maintains “there are certain rights that adult entertainment performers have under that Act and certain obligations that SEG has pursuant to that Act as well.”
Conversely, Montreal-based live video chat site 2much.com released a statement on Wednesday saying the company, “with great reluctance,” had adjusted its LiveCamNetwork 1.9 platform to comply with the 2257 regulation revisions. 2much President Mark Prince offered, “We say ‘with great reluctance’ because this version of the regulations is obviously meant to harass and annoy the adult industry rather than ferret out child pornography.”
The Canadian issue raises a bit of confusion, as Canadian privacy laws are extremely strict and prevent information such as home addresses from being given out. That stands in striking contrast to 2257, which could now make it a federal offense not to release the same information on American shores. “Certainly with us, it’s a big concern,” said Eric Johnson, president of Toronto-based Maleflixxx.net. “I still can’t believe that privacy laws in the United States aren’t somehow governing this sort of disclosure of information. Personally I’m concerned about having a responsibility for having and storing this information, because it’s people’s private information. In Canada, this kind of legislation wouldn’t stand because the privacy legislation would supercede it.” Still, Johnson concedes, just because his company is not based on American shores does not mean he is off the hook. “The bottom line is, 2557 applies to anyone doing business in the United States, so it’s our intention to comply with the legislation, and I think that any company in Canada should,” he said. “Regardless of the fact that our headquarters are in Toronto, the fact that we do business in the United States [means] that we’re obligated to follow the rules of 2257.”
Back in America, foreign matters were of concern in other ways for webmasters, as the revised 2257 regs also include vague language regarding the use of non-American models. The regulations now state that foreign passports will not be permitted to be used as acceptable forms of identification.
Michael Lucas has been hit especially hard by the revised regulations. The famed director, whose Lucas Entertainment includes several video lines and an immensely popular website,has long been renowned for using multicultural casts in his New York-based productions. At least for a while, that will not continue. “I lost half my cast” for upcoming film project Fire Island Cruising 7, Lucas told AVNOnline.com. “I had to cancel Wilfried Knight, my big exclusive [performer]. Can you imagine? This is a very bad story for me, this thing.” Lucas said that, for now, “We are casting Americans or people who have green cards or who are citizens of the United States. And I’m not really happy about that. I don’t like to use guys who live in one country. America is a great country to cast an international cast, but it just so happens that a lot of my guys live overseas and I won’t have them any longer.” However, Lucas said he will do what he has to do, maintaining that, “We’re just going to look around here [America] and see who we can find, but I hope things change soon.”
“I hate it,” said Chi Chi LaRue. “It gives me chills up and down my spine to even think about it. Anything to fuck us is what they’re doing. And they’re lumping it in with child pornography, which is really gross.” LaRue, who stands to lose three of her major exclusives (German boys Jan Fisher and Tommy Ritter, and Canadian Eddie Stone), says, “We’re not going to be filming foreign models until things get resolved, but I’m not happy about it. I’m hoping [the regulations get] overturned.”
“The new regulations and definitions are completely absurd when it comes to the foreign model issue,” said Keith Webb, vice president of powerhouse gay company Titan Media. “According to this new definition, we could not go shoot a film in Germany and use German models and legally distribute the film in the United States. According to the new definitions, these models would require U.S. green cards, which is ridiculous. I think this portion of the regulations will be overturned quickly.”
Webb is not alone in his beliefs (or, rather, hopes) that many of the measures set forth in the revised 2257 regs will be overturned at Thursday’s hearing or by the rumored deal. In fact, some kind of hope seemed to be the prevailing sentiment expressed by many webmasters contacted for this story. “I think the injunction will go through,” said RandyBlue’s Simon. “There are a lot of contradictions, way too many for any decent person – I don’t care how much of a right-winger [the judge] is – to let this go through.”
Tim Valenti agrees. “I feel OK [about Thursday],” he said. “The regulations are so poorly written, for one thing, and have so many things wrong with them that I think anyone with half a brain and half a heart that sits on a federal bench will say this needs to be worked on a little more.”
Said BadPuppy’s Rivers, “I hope the court sees the potential privacy issues and allows the original producer to maintain the records at one location instead of sending personal identifications to strangers.”
Elsewhere, some people remain neutral on the subject. “We support the Free Speech Coalition and hope for an injunction,” TopBucks’ Bucyk offered. “The Department of Justice really needs to re-examine these regulations based on the facts and the possible detrimental affect it could have on privacy and business expenses.”
Others were not sure what to expect, and seemed braced for the worst. Said Rios, “We are hopeful that the injunction turns out in our favor. However, either way it goes, we are ready to comply with the new regulations.”
In fact, despite last-minute concerns from those mentioned above, most people reached on Wednesday maintained they were prepared for a negative ruling. “The new definitions do not affect our online site as we are already compliant,” Webb stated. “We were ready six months ago when the initial regulations were released by the DOJ for comments. We knew they would most likely be adopted as is and that no amount of comments from the adult industry would be taken into account.”
Valenti said NakedSword had as well been preparing when the initial regs were released. “When we knew this was going to become a reality, we sort of went into what we call lock-down mode where everybody put aside their normal responsibilities and we formed a task force,” he said. “We got our lawyers in, asked the studios for everything, and we’re doing out best to be compliant.” The company is set to launch Version 3.0 of NakedSword at midnight tonight, and will do so knowing that “every title on there we will have compliance for. We have everything we’re supposed to be doing.”
Even so, many can’t help but lament the fact they are in the predicament to begin with. “I foresee those of us working in this industry one day being forced to wear large Ps over our clothing as punishment for our sinful deeds!” cracked Slader, while Bucyk maintained, “I think it's a weak attempt to regulate based on fear and misinformation. I don't think it was well thought out at all by the DOJ and is indicative of the climate of the current administration. However, we are optimistic that the many legitimate companies will not be targeted and the true intentions of these regulations were to go after those using underage models.”
Webb also hopes the revised regulations have some bearing on the industry. “It's a double-edged sword for many of us,” he posited. “On one hand it will clean up a lot of the rogue and illegally operated adult sites that have given our industry a bad name and image, while on the other hand it is overly burdensome for our partners such as NakedSword. As with most of the DOJ regulations, there are good points and bad points. Unfortunately the bad outweighs the good in the new regulations.”
Others are not so diplomatic. “The new regulations, as they stand, are impossible to comply with fully,” exclaimed Rios. “It's obvious that is it just an attack on our business and our rights, disguised under another purpose. Now is the time for us all to stick together and fight for what is right. I am hopeful we can get much of it overturned.”
“The regulations are a little stringent,” RandyBlue’s Simon said with an understated chuckle. “I think there should be regulations and that people should have their documents and everything ready, but it just shouldn’t be so outlandishly strict and stringent. And there should not be so much of a gray area where you talk to 10 lawyers and every single one of them has a different interpretation of the [regulations]. It should be clear-cut: what is necessary, what is not necessary, where you’re going to get in trouble, where you’re not gonna get in trouble.”
For Simon, it’s simply a matter of common sense and fairness. “Every other industry’s got some kind of a regulation, i.e. as simple as a mechanic shop,” he explained. “You can’t dump oil in the sewer. You gotta have things a certain way. And if you don’t and you get spot-checked, you’re gonna get a citation and a hefty fine. You’re not going to get handcuffed and go to jail. You’re not going to go to court. If you get a lot of citations, then they’re going to close your shops down. If they’re going to look at it as an industry they want to regulate, then do it like any other industry. I think it’s big-time unconstitutional.”
Whichever direction Thursday’s activity goes, it’s best to be prepared for the worst, said Obenberger. “If this goes through, there are going to be some citations and arrests,” he predicted. “I think there’s no reason to delay. It looks like they rushed through the amended regulations at three times the speed of sound – so fast they fucked it up and caused serious inconstancies. Somebody was cracking the whip to get those out fast, and why would somebody want to crack the whip to get those out if the person didn’t have a similar motive to get someone out and enforce them?”
It’s a good point, and one that others in the industry seem to have taken to heart. As Maleflixxx’s Johnson said, even if Thursday’s action turns in favor of the adult industry, adult webmasters should not think they are out of the woods for good. “I believe there will be a restraining order [against enforcement],” Johnson predicted. “Having said that, at the end of the day something will survive this, and I think it’s important for the industry to comply with the legislation.”
No matter which way Thursday turns out, one thing is for certain: History is in the making. “I have this feeling it’s going to be a disappointment in that there aren’t going to be a lot of fireworks in the courthouse tomorrow,” said Obenberger, who, when reached, was en route to the airport to catch a flight to Denver for Thursday’s festivities, “but I’m going to be there because I think this may be a historic occasion. To see [attorneys] Paul Cambria and Louis Sirkin arguing in front of a United States District Judge for freedom of speech and against unconstitutional regulations that burden freedom of expression is something that all of us in this area of the law will love to see and will always remember.
“This may be a monumental, epochal, watershed day in the history of the adult Internet,” Obenberger continued. “On the other hand, maybe it’ll be no big deal and it’ll just be a waste of time and money. But something tells me I gotta be there. Just in case.”
