ASB Magazine

By Jeff Booth,
yesportal.com

Read the details of this ground-breaking judgement in favor of the Adult Industry, handing a defeat to headline-grabbing "moral" crusader Attorney General Alberto Gonzalez.

In a big win for the adult industry, U.S. District Court judge Walker D. Miller ruled against the government and Attorney General Alberto Gonzalez on several issues relating to record keeping requirements for depictions of sexual acts. The Free Speech Coalition, besides charging that the record keeping requirements are themselves unconstitutional, also objected to what seemed to be the Attorney General’s reinterpretation of 18 U.S.C. §2257 (the federal record keeping law). On several counts, the judge agreed.

In a very complicated case, one of the key issues was the requirement that even those who were not directly involved with the performers had to keep extremely burdensome records with often ambiguous requirements. This requirement was made retroactive to 1995 even though most third parties did not have those records since they were not theoretically required at the time.

Failure to comply perfectly with the requirements could lead to serious prison time even if you committed no offense other than make even a minor record keeping error. This led to many Web sites being shut down by the owners. These records also revealed a great deal of personal information about the performers. Even third parties who were merely using stock photos were required to maintain this information, and under the law it would be widely available- which would make it easily accessible to stalkers.

This requirement that third parties keep records was already voided by the Tenth Circuit's decision in Sundance Associates v. Reno several years ago. Because of that, most third parties did not keep the required records. Attorney General Gonzalez argued that that was too bad for them; they should not have relied on the court’s decision.

In referring to that decision, Judge Miller disagreed, writing: "The [Tenth Circuit Appeals] court found that §2257's language was clear and unambiguous. It excluded from the regulation 'those who basically have had no contact with the performers (mere distributors and others not involved in the 'hiring, contacting for, managing, or otherwise arranging for the participation of the performers depicted'). The Court concluded that the Attorney General’s regulations improperly failed to 'exclude persons from the class that the statue requires.' The court rejected the Attorney General's argument that the regulations' comprehensive regulatory scheme was necessary to adequately enforce the record keeping requirements, noting that although the Attorney General may have identified a problem with the statute, 'neither the court nor the Attorney General has the authority to rewrite a poor piece of legislation. . . . That responsibility lies solely with Congress.' Consequently, the court ordered the clause 'other than those activities identified in paragraphs (c)(1) and (2) of this section' be stricken from the regulation.

"None of Defendant’s arguments change the reality that Sundance is binding upon me," Judge Miller's continued. "The Tenth Circuit specifically held that §2257(h) is unambiguous and that plain language of the statute excludes persons 'who basically have had no contact with the performers.' The amendment does not alter the relevant language, or somehow render the provision ambiguous. Accordingly, even were I to agree that the statute is ambiguous, I am bound by principles of stare decisis to hold that the statue is unambiguous. Only the Tenth Circuit or the Supreme Court can change established Tenth Circuit precedent."
This essentially bars the requirement that third parties keep these records, unless the government is able to successfully appeal this ruling. That would be difficult, since it would require overruling a judge who was also relying on precedent.
What is unclear is whether this ruling will apply to non-members of the Free Speech Coalition. What is clear is that any FSC member who is not involved in the hiring, contracting for, managing, or otherwise arranging for the participation of the performers engaged in depicted sex acts is not bound by the record keeping requirements.

Another disputed area was the requirement that those doing live Internet feeds (including those with Webcams in their homes) keep copies of everything and have them indexed. This would be a nightmare involving storing massive amounts of video and cataloging it all. Storage costs would be immense. Judge Miller reasonably ruled that this requirement creates an undue burden.

Miller wrote: "It is a reasonable reading of the new regulation, however, that it requires the producer of the 'digitally-or computer-manipulated image, digital image, picture or other matter that contains a depiction of actual human being engaged in actual sexually explicit conduct' maintain a 'copy of the depiction'. Plaintiffs assert that to do so would involve extraordinary computer capacity of terabytes (1 trillion bytes) and petabytes (1 quadrillion bytes) on an annual basis which could cost as much as $15 million dollars annually. Defendant does not present any contravening testimony concerning chat rooms. This evidence may present a substantial likelihood that the regulation is not narrowly tailored with regard to chat rooms since it may well burden substantially more speech than is necessary to further the government’s legitimate interest."

"It is not disputed that the performer is often engaged in conduct or actions which are not sexually explicit. Further, as the government has argued, it does not seek to ban any expression but rather combat child pornography. Particularly with regard to the circumstance of the chat room, a narrow tailoring may well require no more than the identification of the performer as otherwise prescribed without the necessity of maintaining a copy of the entire time of depiction. Without deciding precisely how such a regulation may be constitutionally tailored at this juncture of the litigation, I simply conclude that plaintiffs have established a substantial likelihood of success on this particular issue."

Another disputed area involved the requirement that content producers maintain a copy of the URL that every instance of that image appeared on. This would be a nearly impossible task for those who sell licensed content which often appears on pages that are dynamically created. In essence, there is no existing URL to keep track of.

Miller wrote: "Defendant’s expert witness testified that it would be impossible to comply with this requirement. Therefore, I consider Defendant's representation at the hearing that the regulation does not require producers to maintain copies of depictions on websites outside of their control a concession that such a requirement would be invalid and that he may be enjoined from enforcing such a requirement. Consequently, to the extent §75.2(a)(1)(ii) requires a producer to maintain records of URLs or other identifying information from websites outside of the producer’s control, Plaintiffs have demonstrated a substantial likelihood that this is overly burdensome."

While there are some very big wins in this decision, the judge failed to invalidate the record keeping requirements, which are intentionally designed to be burdensome and expensive for producers and have nothing to do with their stated intent- protecting children from appearing in adult films. The judge disagreed with this contention, despite the fact that in twenty years only 4 underage performers have been discovered and all of them used IDs that would be permissible under 2257. The truth is that these laws are designed to make it more expensive to produce adult content, and therefore restrict the number of people who can afford to create it.

Some of the judge’s decisions were baffling. He allowed the requirement that a home address for Web cam girls who work out of their home had to be published, even though this puts them in danger. Specific harm has to be shown, and by harm he apparently means being killed, since he ignored the existing testimony on stalking and identity theft.

The Free Speech Coalition will probably appeal the negative decisions (as will the government), and final resolution will probably only come in the Supreme Court.