On October 23, a court in Ohio struck down a federal porn law that turns millions of gay men into sex felons.
Take a picture in the bathroom mirror of your own hard-on and become a sex criminal? That's one effect of the current U.S. federal law requiring record-keeping for sexually-explicit
images. That law, enacted in 1988 and expanded last year, makes felons of individuals who take merely private, sexually explicit photos in their own homes. Makes them felons, that is, if they
don't also create an elaborate set of records and arrange to be at home during business hours at least 20 hours a week for unannounced FBI inspections.
.S. porn-makers have contended with these rules for some 19 years (spawning a small industry of consultants). But few outside the industry are aware of the law. Just having
records improperly cross-indexed can carry fines and penalties of up to five years in prison per image.
The Feds largely ignored the statute until 2004, when they geared up to start conducting raids -- some 65 so far says
Adult Video New -- on porn producers. Chuck Joyner, who
co-heads the FBI's inspection team, said in September that websites hosting sexually explicit content would be "the next wave."
As well as jeopardizing anyone getting frisky with a camera, the record-keeping law threatens online porn purveyors, anyone uploading vintage erotica to their homepage, and the giant
sex hookup sites that have become gaydom's global online cruising grounds.
With so much at stake, an October 23 decision striking down the record-keeping law is a big victory.
Bluenosed Ohio isn't a state known for its gifts to sexual freedom. But a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, sitting in Cleveland, didn't mince
words. "[T]his statute unquestionably attaches criminal penalties to protected speech," the judges said. "A person's right to speak anonymously and a person's right to take photographs of
adult actual sexually explicit conduct are protected."
The court had plenty of time to hone its thinking. Owners of a swingers' magazine,
Connections, filed the suit back in 1995. They were joined by two readers, who argued they should
be able to publish sex photos of themselves without being forced to hand calling cards and front-door keys to Uncle Sam.
"A terrific ruling," says Mark Kernes, senior editor of
Adult Video News. "They spotted the entire flaw: they understood that to require people to keep these records at all needlessly
chills free speech."
But while the Connections case was wending its way through the 6th Circuit, two other federal appeals courts -- the 10th Circuit and District of Columbia -- gave nods to the
record-keeping statute. Resolving the conflict may fall to a Supreme Court increasingly hostile to civil liberties. And even October's 6th-Circuit decision accepts a modified record-keeping regime
that's intrusive enough to threaten online sex.
Outside the porn industry, few have realized what's at stake. Last summer, the National Gay and Lesbian Task Force (NGLTF) launched a campaign to raise awareness of the threat
-- particularly to gay hookup sites -- of the record-keeping rules. However they (and every other major gay group) were silent on the 2006 federal sex-crimes legislation that expanded
the rules in ways calculated to imperil online cruising and porn.
With laws changing so quickly, maybe it's just hard for our gay watchdogs to keep up. In June, the British government said it would seek to ban possession of "extreme" SM
pornography, with violators facing prison and a spot on the sex-offender register. In August, the U.S. Department of Justice (DOJ) announced an expansion of its new lifetime civil-commitment
regime (established by the same law that enlarged porn record-keeping) in order to target federal prisoners with HIV who've had sex -- even fully protected sex -- without revealing their status.
The record-keeping rules are one of a wide range of new high-tech weapons -- in the name of "protecting children" -- that have been built and strewn around the legal landscape.
Boosted with a software upgrade and some extra memory, these weapons can suddenly be deployed for shocking new ends. Right-wingers who don't take the sexual revolution as a done deal
are keen to tinker with all the possibilities. Has America's GLBT movement misread the dangers?
Last summer, hundreds of thousands of guys who cruise online discovered that communities they took for granted risked a fatal deluge. These aren't communities you'll find on any
map, but they're no less real for being virtual. With total participation probably in the low millions, gay hookup sites -- the likes of Manhunt.net, Gay.com, Recon.com, and Squirt.org (owned
by The Guide's parent Pink Triangle Press) -- are the largest (semi-organized) assemblies of gay men in history.
The currency of these online "meet" markets are members' profile pics -- which is just where the new record-keeping rules threaten to strike, the way birds of prey first peck out
their victims' eyes.
In 2006, the record-keeping law was expanded as part of the "Adam Walsh Child Protection and Safety Act" -- a hydra-headed monster of a sex-crimes law. One of its 707 sections
puts people as young as 14 caught in sex with other kids on a new web-based federal sex-offender registry, complete with photos and home address (sort of like an anti-hookup site).
Another provision establishes 10-year-sentences for offenders who -- paperwork errors? stolen mail? -- fail to register with police every 90 days.
The cynicism driving the legislation was epitomized in the person of Rep. Mark Foley. The Adam Walsh Act was a last feather in the cap for the Florida Republican, who had been chair of
the House Caucus on Missing and Exploited Children. In September 2006 he resigned after being caught instant-messaging with teenage Congressional pages about their dick sizes and his
yen to drink their cum and rim their assholes.
When it comes to record-keeping, Foley's legislative legacy helped codify the DOJ's wish-list of new powers, some particularly relevant to hook-up sites, and with broad implications
for erotica generally:
· The Adam Walsh Act extended record-keeping rules to "secondary producers" -- that is, people who have had no contact with models, but who are republishing (including on the
web) explicit images made by others. The law obliged secondary producers of erotic images to obtain -- presumably from "primary producers" -- identity records on all models.
· The law lowered the threshold at which records were required to "simulated sex" (what goes on in most Hollywood films), and, in some cases, "lascivious exhibition of the genitals or
pubic area." That latter standard would include the sort of dick-shot that many shy (if not necessarily modest) online cruisers prefer for their profiles. But greater modesty might not mean
greater legal protection: courts have extended the term "lascivious exhibition..." even to shots of people whose genitals are completely covered.
· The law stipulated that "digitizing" sexually explicit images, "duplicating" them, "inserting" them on a server, or "managing" a "computer site" or "service" -- all count as "producing"
those images -- as if taking the photo for the first time. So any of those activities requires collecting and keeping elaborate records proving the identities of models depicted.
Webmasterzzz, wake up!
So when the Adam Walsh Act went into effect on July 27, 2006, and porn record-keeping rules got rocketed into the absurdosphere, was there a collective shudder from the
myriad individuals, groups, and businesses dealing in sex online?
Not at all, AVN's Kernes told The
Guide. In the porn world, he says, pretty much only production companies had been paying attention. "Webmasters of adult sites were oblivious," he
said. "A lot of sites that don't think of themselves as adult are in for a real mind-changing experience."
Wider awareness dawned only last summer, fully a year after the law's passage.
"The government wants to kill adult social-networking sites and invade your privacy," was the tagline, rendered in somber white-on-black, like a warning on cigarette boxes. Suddenly the
logo appeared all over the gay web.
The campaign was a brainstorm of NGLTF. The provocation was proposed rules issued by the Department of Justice on July 12 relating to porn record-keeping. It had taken the
agency almost a year to get around to it, but the new rules reflected the DOJ's new powers accorded by the Adam Walsh Act. There would be 60 days of public comment on the proposed
changes -- a perfect time, the NGLTF urged, for gay folks to tell the agency what they thought.
"These regulations are complicated and burdensome on legitimate businesses, and have very little to do with protecting children and minors from pornography," the NGLTF argued.
"Their reach -- particularly into adult social-networking internet services -- is overbroad, unnecessary, and would allow the federal government to search and seize personal records of
adult consumers without a warrant; a clear violation of privacy and constitutional rights."
In fact, there was nothing remarkable about the proposed regulations, which hewed to the terms of the (albeit awful) new law. "There wasn't anything surprising," says Kernes. He notes
that the regs did require that websites list the address of the records' custodian on the page with the image, rather than allowing a link. All that data would threaten to turn, say, an online
porn catalog formerly characterized by its comely display of hundreds of box covers into something resembling the White Pages. But fundamentally the problem wasn't the regs but
the underlying statute.
And curiously, the NGLTF hadn't taken a position on the Adam Walsh Act, despite its devastating implications for civil liberties and sexual freedom.
"We don't take a stand on every single thing that comes up in the public arena that relates to LGBT issues simply because we can't," says Roberta Sklar, NGLTF spokeswoman. She
added that the group was completely preoccupied with ENDA, federal employment anti-discrimination legislation -- a mostly symbolic measure that barely touches what is, in the U.S., a
nearly absolute right for employers to fire workers for any reason, or none at all.
However even if NGLTF's call for letters wasn't likely to shape the DOJ's regulations, there was no harm in letting the Feds know that people were pissed off and paying attention.
NGLTF's campaign struck a nerve. Sklar says the group's action page clocked 80,000 hits and probably generated thousands of letters to the Feds. When Manhunt.net linked to the Free
Speech Coalition's site on the record-keeping law, so many users clicked that they crashed the group's server.
DNA sample not yet required
But even before the 2006 expansion of the law, some legal experts believed that sex hookup sites were obliged to treat their clients like porn stars: not with fluffers or flattery, but
as objects of intense scrutiny. That's because even though the law at the time didn't demand that re-publishers of explicit images keep records, in 2005 the Department of Justice
required it anyway. (The 10th Circuit condemned the DOJ's presumption as a case of "twisting words to reach a result it prefers." But their injunction didn't necessarily apply beyond their
Mountain States jurisdiction.)
"It depends on who you talk to," the manager of a major U.S.-based hookup site told
The Guide. "There are some real different legal opinions about that, some of which say that we're
in violation today."
Nonetheless, no major hookup site demands photo IDs from members who post explicit shots.
Doubtless that keeps users happier. "Do you want Manhunt to have your driver's license?" queried gay blogger Joemygod last summer. "Nothing against the noble operators of that site,
but I don't."
However, even if Joemygod didn't mind, it's hard to see how hookup sites could follow the record-keeping rules. It would be like asking people searching the web to deliver queries to
Google in California by hand.
The porn-record rules require personally inspecting and photocopying a model's government-issue photo ID, and then making a list of all other names he or she has ever used --
including previous legal names, stage names, nicknames, and internet monikers. "If they called you 'Fatso' when you were in grade school," says Kernes, "you have to put that in there." Then
everyone must sign and swear, under penalties of perjury, that all information is true. Later, records have to be cross-indexed by every name and nickname, preserved for at least seven years,
and for five years after a business ceases. On every web page on which an explicit image appears, the location of the record must be published. And if the image were produced by the
hookup-site user himself, that could be his address.
Adam Segel, general manager of Manhunt in Cambridge, Massachusetts, says he can envision a time when services like his might somehow have to demand and catalog IDs from users.
"But if the government does that to social-networking sites," he
tells The Guide, "many millions of users would be devastated."
Such devastation is less likely now that the 6th Circuit has declared record-keeping laws, as they now exist, fundamentally unconstitutional. For now that decision is law only in
Ohio, Michigan, Kentucky, and Tennessee -- there won't be any records inspections carried out in those states for a while. The DOJ can ask the three judges to reconsider, and they can ask
for a hearing before the entire 6th Circuit. Neither request need be granted. As well, the DOJ can go to the Supreme Court, which only takes around four percent of the cases appealed to it
-- though the high court is more likely to accept a case where lower circuits have not agreed or a federal law has been struck down. Both apply here.
"Procedurally, the government is 'throwing itself on the mercy of the court' from this point forward," contends First Amendment attorney Clyde Dewitt.
It's a huge relief to sex hookup sites, which now feel more confident in staying the course, even though the finalized record-keeping regs the DOJ is likely to issue in the coming months
will cut them no slack. Those new Walsh Act-fortified rules will come into effect 90 days after they are issued -- and they will likely apply retroactively to images "produced" after July 27,
2006, when Walsh became law.
So it's an uneasy calm, in part because it shows the ability of a slumbering old statute to suddenly pose new and destructive consequences.
Meanwhile, the FBI has followed through on its threat to target web-porn businesses, with raids this fall on five Florida firms. As of September, the FBI said more than 60 percent
of businesses inspected are out of compliance with the record rules, and more than a quarter have been deemed in "willful violation of the law." To date, there are no indictments.
|Author Profile: Bill Andriette
|Bill Andriette is features editor of
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