good article re 2257

[basschick]

"Why the DOJ's 2257 Regulations Aren't "Just a Porn Problem"
June 24, 2005
On June 23, new regulations from the Department of Justice went into effect, dramatically expanding the reach of a statute, 18 U.S.C. § 2257, intended to regulate the adult entertainment industry. Now it includes every blogger, online journalist, and website owner who displays any image falling under the law's broad (and vague) definition of "sexually explicit" materials.

How? The new regulations expand the definition of a so-called "secondary producer" of materials to include anyone "who inserts on a computer site or service a digital image of" sexually explicit conduct. If you're a blogger or you host a website and write an online article or personal ad with a photo that falls under that definition, that means you.

It's easy to see how quickly this requirement could stop lots of legitimate speech and expression, covering material that's well outside the basic definitions of commercial porn. Consider the blogger who writes a post on the Abu Ghraib prisoner abuse scandal and wants to post some of the existing or soon to be released sexually explicit photos of prisoner abuse. (Even if the pictures were blurred, under 18 U.S.C. § 2256, the regulations would likely still apply, since the definition of "sexually explicit conduct" includes "sadistic or masochistic abuse.")

Under the new regulations, the blogger:


is a "secondary producer" and required to keep records of the ages of the participants and copies of their photo IDs; and

is required to list a street address where the government may inspect these records without notice (and keep it open 20 hours a week for at least the next five years).


For the Abu Ghraib photos, since records of the "participants" are not available (at least not outside the US military), the record-keeping requirements could not be met, and the blogger could face criminal liability for posting the images. This will unconstitutionally chill protected speech -- indeed, in this example, core political speech.


(Other examples of chilled speech include blogging about Jeff Gannon's explicit escort advertisements, or critical commentary about pornography using actual samples.)

Aside from record-keeping headaches, the privacy and anonymous speech implications for both the poster and any person depicted in such photos are severe. For someone depicted in such images, your photo ID must be made available to anyone who reposts your photos. For a regulation designed to protect people whose photos are taken, this is an absurd rule -- making a treasure trove of information easily available to stalkers and other sickies.

For online sites, a statement giving the location of these records must be displayed on a site's homepage, ending your right to blog anonymously. And it gets worse. The location where the records are kept must remain "available" to law enforcement for unannounced inspection for at least 20 hours per week. Blog out of your home, and you have effectively lost your Fourth Amendment rights.

EFF believes that this warrantless inspection requirement illegally forces bloggers and others to sacrifice a constitutional right -- freedom from unreasonable searches and seizures -- in order to exercise the fundamental rights of freedom of speech and the press. It's a tradeoff that the government should not force people to make.

The Free Speech Coalition, a trade association for the adult entertainment industry, has filed a lawsuit challenging the regulations, and reached a temporary deal protecting only its members from enforcement actions until the court rules on its motion for a preliminary injunction. EFF will be watching that case closely and helping where we can.

But the adult entertainment industry is not the only group that should be concerned. These regulations are a problem for everyone who wishes to keep the Internet a vibrant forum for debate. In our experience, regulations like these can be a potent weapon in discouraging individuals from using the Internet to share or discuss the opinions of others. Most people will steer clear of anything even close to what the government calls "sexually explicit" to avoid having to keep these records, open their homes to inspection, and reveal their home addresses to the world.

EFF is drafting a new section on adult material for our Legal Guide for Bloggers, so we can help you understand these regulations and defend your free speech rights."

http://www.eff.org/deeplinks/archives/003741.php

[Matt D]

I'm surprised this isn't getting more play in the mainstream press for the reasons mentioned in that article.

Maybe it's time for an e-mail campaign. We should send every news site we can think of a link to that article and ask them why they're not talking about it.

Curiously, even the conservative sites have been silent on this. The ball's in our court -- even though showing the balls is a federal crime.

[basschick]

let's start by sending it to other webmasters... they can link their missing pages to it.

[twintone]

Good article. I live in a very liberal city. Madison, WI which is also the capitol. I just took the time to email this article, and info about 2257 to all our local TV stations, and their websites, and also 3 major radio stations. Hope it gets the ball rolling.

Someone should hit the real big liberal cities. San Fran, Chicago, New York.. never know, it could take off.

[basschick]

the problem i see is that so far, the news media that HAS reported has made us sound bad. any interview or quotes from another article will be made to fit the way each site or station wants to present us.

this is the reason i wanted to get some webmasters together to work together to pay for a good publicist. a publicist will actually be acquainted with some of the reporters who write for the AP, and they will know the correct way to approach the media.

i still believe that the best thing we can do for our industry is to change the way it is perceived.

[BDBionic]

I'm glad the EFF is aware of and has taken a position on this. I've been a supporter of the Electronic Frontier Foundation for awhile now and really think they're a valuable organization, especially given governmental attempts to try and "catch up" to the internet by excessively regulating and squelching it.

[Matt D]

the problem i see is that so far, the news media that HAS reported has made us sound bad.

That's because the wrong people are reporting it. We have to get the right people to cover it. And I'm sure we could do that with a semi-organized e-mail campaign.

Keith Olberman had Mary Cary on his show two times in less than a week. I think he might have a crush on her. He would probably have an easy-going attitude about porn, and he's skeptical enough of the current administration to recognize the problems.

And check this out. It's a copy of an e-mail I sent to AVN.

Thought this was interesting. Jay Severin, a libertarian-conservative who works as a panelist on "The Situation with Tucker Carlson" on MSNBC is an unapologetic porn fan. Carlson, another libertarian-conservative, also admitted he reads Playboy -- for the articles.

Porn has been a topic on a couple of different shows and in each instance the panelists, including openly gay Air America talker Rachel Maddow, have had a refreshingly tolerant attitude about porn.

Some choice quotes from a June 23(!!!) transcript:

http://msnbc.msn.com/id/8344627/

-------------------------------
CARLSON: Coming up on THE SITUATION, obviously I read “Playboy” for the articles. But would you be offended if your child was caught flipping through some nudie pictures in a local library? A titillating debate, next.

* * *

CARLSON: Well, there's a steamy situation in, of all places, the Oak Lawn, Illinois, public library. You wouldn't have guessed it. A resident there asked the library to ban “Playboy,” saying the magazine could incite child molesters. “Playboy” is kept in a secure area in the library's second floor, far from the children's section of the library. Officials said they won't remove the magazine based on one man's objection.
This is touching. This is like from another age. This is a guy who has heard of the Internet, right?

(LAUGHTER)

CARLSON: Within, you know, five key strokes, you can find something so much more offensive than “Playboy” for free and he doesn't even know it yet.

MADDOW: Right. I don't want a country where adults are protected 100 percent from things that might be harmful to children. I mean, there's an age restriction. You can't, as a kid, go get “Playboy” in this place. But adults can get it. I don't want a country that regulates satellite radio. I don't want a country that regulates the Internet. I don't want a country that keeps “Playboy” out of the library.

SEVERIN: Is “Debbie Does Dallas” in the video section? I mean, the library, the public library, is no place for—I'm a big fan of “Playboy's” products. Don't get me wrong.

CARLSON: I believe you.

----------------------------------

There was more porn talk on the June 17 show:

http://www.msnbc.msn.com/id/8288370/

------------------------------------

CARLSON: Next situation, speaking of moral blackmail, it involves pornography on your portable PlayStation. Sony‘s worried. It says it cannot legally stop porn producers from selling sexually explicit discs to be played on its handheld PSP. It‘s a hot item this season with the under-18 set. Some fear the PSP will allow kids to watch porn while pretending to play games, say, in class.

I mean, you know, I don‘t think Sony ought to worry about this. The fact is, kids can watch porn much more easily for free on the Internet. Porn is everywhere. If we‘re interested in keeping sexually explicit images away from our kids, we‘re doing a really bad job.

SEVERIN: Corn? I don‘t understand what all this is—corn on the Internet? What‘s all the fuss about?

MADDOW: Jay, you ignorant slut.

SEVERIN: Oh, porn. Porn, never mind. And why do we have to wait so long? July 1st? We have the technology? Let‘s get it today.

MADDOW: The porn industry is the most resilient entrepreneurial industry in the country.

SEVERIN: Talk about supply.

MADDOW: The headline is going to be, “Maddow of Air America comes out in favor of porn.” But that‘s not what I‘m saying. All I have to say is that they can make porn show up everywhere. I mean, it‘s going to be on tissues and cereal at some point, and your watches and your cell phones. At this point, nobody can stop the porn industry. They‘re the most powerful industry in terms of entrepreneurship in the country.

CARLSON: They‘re efficient. They ought to be running the DMV.

SEVERIN: There‘s certainly demand.

CARLSON: If government ran porn, it would be very unappealing.

* * *

SEVERIN: I don‘t like going to movies anymore because it‘s participatory. I don‘t want anyone talking, yelling, screaming in various languages and poking me with things, which is OK, though, frankly. I should recuse myself, because most of the movies I like to watch you look at it in hotels. You don‘t have to actually go outside.

MADDOW: They should put a 1-800 number under you.

CARLSON: I want to thank you for sharing, Jay.

----------------------------------------

Sensenbrenner's proposed drug legislation also came up on June 17 episode. Jay had this to say:

-----------------------------------------
SEVERIN: If we ever enforce all the laws already on our books, we are all at any given moment criminals right now, more of us than others, including me. But the thing with this is it‘s James Sensenbrenner, it‘s the Republicans for whom I vote. And they do three things in a row that I say, “Yes, you go, boy.” And then they do the fourth thing and I recoil and say, “You‘re a fascist! That‘s nuts.” And this is one of those, “You‘re a fascist! That‘s nuts.”
------------------------------------------

I wonder what Jay thinks of 2257? I wish he'd weigh in on the subject. Seriously. You should get someone to call these guys. There seems to be a complete media blackout on this topic as far as the mainstream press is concerned.

So Jay Severin, Keith Olberman, maybe Rachel Maddow and Tucker Carlson. People to consider e-mailing.

Maddow is out and proud, BTW. Wonder if she's aware of what happened at Gay.com?

[Matt D]

According to The Fix at salon.com Eve is getting the Paris Hilton treatment. How can they mention this and NOT mention the 2257 issue?

One night in Eve? Looks like R&B singer Eve may be getting the Paris Hilton treatment. A five-year-old amateur video of the 26-year-old singer getting it on with her then-boyfriend, Bad Boy Entertainment producer Stevie J., and a sex toy is reportedly making its way around the Web. According to the New York Daily News, "The footage ... lasts only 30 seconds, but it's every bit as explicit as Paris Hilton's infamous tape." A spokeswoman for Eve calls the tape's release a "violation," adding that "legal action has been taken to have it removed immediately." (Rush & Molloy)

[MisterMark]

2257 is too complicated and arcane for almost anyone who's not directly involved with it.

I wanted to slap an erotic photographer I met the other day who hadn't even heard about 2257. When I described the problems with the new laws, he kept saying, "But magazines have had to keep records for years - why shouldn't everyone else?" Dimwit.

Most people are only going to digest the propaganda that says 2257 will help decrease the "rampant" child pornography that is being produced.

[Matt D]

2257 is too complicated and arcane for almost anyone who's not directly involved with it.

Disagree. Read some of the blogs on this page:

http://www.technorati.com/search/www...ur_gaping.html

These are non-porno bloggers, but they seem to get it.

[MisterMark]

Maybe we can count on the blogs to spread the word - just like they have about a lot of important news recently (Downing Street Memo, etc.).