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Federal prosecutors agreed Thursday to temporarily protect members of an adult
industry trade group from strict new enforcement regulations. But thousands of
porn sites are still fair game, and their webmasters now face hefty prison terms
if they don't keep records proving that models and performers are over 18.
"It would be a mistake to view this as anything other than a big victory"
for porn webmasters, said J.D. Odenberger, an adult industry attorney based
in Chicago. He predicts that the Department of Justice won't actually prosecute
anyone, pending court hearings this summer.
It wasn't immediately clear how the agreement will affect the many websites
that removed adult content or shut down entirely in anticipation of the new
enforcement effort. Affiliates of Rotten.com, including RateMyBoobies.com, and
Fleshbot.com took down photos, as did some featuring celebrity nudity.
Even non-porn online publishers like PlanetOut.com, a gay website, temporarily
removed all photos from its personal ads, even though it bans pictures with
adult content. Sister site Gay.com, which had allowed more explicit content,
dropped personal ad photos too.
A hearing had been scheduled Thursday afternoon in federal court in Denver
for the online porn industry's arguments against broader enforcement of the
federal law known as 18 U.S.C. 2257. But it was cancelled after a last-minute
agreement between the Free Speech Coalition industry trade group and federal
prosecutors.
The agreement forbids prosecutors from targeting members of the coalition until
Sept. 7; a hearing is scheduled for Aug. 8 to determine if the Free Speech Coalition
actually has a valid case against the government.
Why weren't non-members of the coalition included? According to Odenberger,
the judge didn't have the right to approve an agreement forbidding U.S. attorneys
from prosecuting sites not involved in the case.
As of press time, Free Speech Coalition officials couldn't be reached to confirm
how many porn sites are members of the group.
At issue is the government's right to make sure that anyone seen in an explicit
pose on a U.S.-based website is legally an adult. Under the law, photos and
videos of everything from intercourse to masturbation are fair game.
Previously, the government only targeted people who actually produce sexually
explicit content. That's why the boxes containing porn videos feature notes
in fine print confirming that performers are of legal age.
But the new interpretation allows investigators to go after so-called "secondary
producers," including webmasters who buy or steal content from someone
else. Critics claim that the government could even target online museum exhibits
or news coverage of the pictures from the Abu Ghraib scandal. (Images created
before July 3, 1995 are exempt.)
The Justice Department's new interpretation raises a slew of issues. Adult
performers fear their real names, addresses and ages will end up in the hands
of countless webmasters who must now keep these records. "We deal with
stalkers now," said Bill Rust, webmaster of Arikaames.com, a soft-core
site featuring his wife. "We've had people who join the site and try to
track her down, send cakes and candies to her parents' house."
Rust said he stopped providing the site's content to hundreds of affiliates
because he wasn't willing to give out his wife's personal information to comply
with the new rules.
There's another potential problem with the regulations. According to Odenberger,
the law would require websites to store every explicit image they ever post.
The government, he said, doesn't realize "there are such things as 19-year-old
(live web) cam girls sitting in a trailer with $200 in their bank accounts,
going online solely to support their child. To require them to buy terabytes
worth of storage puts down an impossible barrier between them and internet access."
In court papers (.pdf) filed Tuesday, the U.S. Attorney General's office argued
that the new enforcement powers are necessary to combat child pornography. The
prosecutors dismissed the arguments of the Free Speech Coalition about privacy
violations, free-speech restrictions and the heavy burdens of record-keeping.
"One plaintiff is an internet pornography publisher who is capable of
publishing tens of thousands of pornographic photographs on more than 600 websites,
but who somehow lacks the 'computer programming ability' to store age-verification
records electronically," the prosecutors wrote.
They were apparently referring to plaintiff Dave Cummings, a 65-year-old adult
industry entrepreneur in San Diego who touts himself as the world's oldest male
porn performer.
Under the new regulations, sites that post his weekly sexual exploits would
need to prove he's over 18.