Court Throws Out Rule Requiring Adult Sites To Keep Records And Proof Of Age For All Performers
from the that-first-amendment-thing dept
Just last week, Wired had an article looking at how a particular section of law regulating adult content could potentially hurt the growth of "user generated" porn sites. The law in question required any "publisher" of adult content to obtain and permanently keep records proving that the "performers" in question were of legal age. Obviously, the goal here is to prevent child porn -- but many felt that such a rule was incredibly burdensome on those who were producing legitimate adult content, and it was even worse for "user generated" sites that would now require such information from every participant. Now, Slashdot points out that the Sixth Circuit Court of Appeals has found the law to be unconstitutional, as it violates the First Amendment. The Slashdot post is a little misleading, implying that the case was about age verification for viewers. It's actually about the performers. The full ruling (pdf) is an interesting read, but the crux of the argument is that while preventing child porn is a noble goal, if it ends up putting a burden on plenty of legitimate expression, then it's a clear First Amendment violation. Many people may not think this is a big deal, as they don't care for adult content or don't have any problem with having it heavily regulated -- but as the court notes, the right for people to remain anonymous is an important part of the First Amendment. Weakening that right -- even if for a reasonable end goal -- starts you down a slippery slope.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: adult sites, first amendment, record keeping
Reader Comments
Subscribe: RSS
View by: Time | Thread
A pass and a fail, all at once.
Maybe a better outcome would be some middle-ground - or at least suggestion on what that middle ground might be.
[ link to this | view in chronology ]
Re: A pass and a fail, all at once.
And then, publishers are rarely 100% aware of what they're actually publishing; think of it as link-hosting sites which are growing ever more popular. Doesn't that remind you of the endless MPAA/RIAA/etc debate over illegal contents?
Focus on the culprits and not the generality, but that's something the great U.S. of A. seem to have lots of problems with...
[ link to this | view in chronology ]
Re: Re: A pass and a fail, all at once.
[ link to this | view in chronology ]
protecting your company
If I ran a pornography company I would be keeping these records myself to protect my self. Some people look younger than they are, some look older, if you don't have these records and someone make the accusation that a performer in under the legal age then how do you prove otherwise?
[ link to this | view in chronology ]
Re: protecting your company
[ link to this | view in chronology ]
Re: Re: protecting your company
A fake ID got Traci Lords into adult entertainment in the 80's and she got busted then. With today's technology it's a lot easier to bust somebody because of their age. I'd agree with Jesse.
[ link to this | view in chronology ]
Re: Re: Re: protecting your company
We're talking about pornography on the internet here. It's not easy to track.
I think a good middle-ground would be to require age verification if the "performer" receives money. This would protect the anonymous folks on sites like XTube, but also help stop underage folks from popping up.
Of course, the age verification doesn't exactly protect the right people. Like someone mentioned, real child porn is underground and folks cover their tracks. There really is no victim when a 17 year old lies about his/her age to do porn, so it's not a good place to start "fighting" child porn.
[ link to this | view in chronology ]
Re: Re: Re: protecting your company
Um, no. The film studios that hired her and distributed her works got busted. Read Wikipedia: "Eventually, the Justice Department was forced to drop all charges when it was revealed that the fake ID which Lords had used to dupe the pornographic film industry was a U.S. passport in the name of Traci Lords."
What remains today is the fact that it is still difficult to decide the age of a person solely from a video/film/snapshot or even a passport. There is no definitive evidence that the person in the film is the same person you are thinking of (no DNA trail, for your CSI geeks). There are six billion people in the world: even if it is a million to one shot that it's somebody else, that means that there are six thousand people it COULD be!
In addition, it is ridiculously easy to fake the date that a particular film/video was made, although you might be able to make a case that a film was made on or before a certain date (when it appeared on the Internet).
Even worse is digital enhancement. What if I take a 25 year old actress, and through the magic of the video equivalent of PhotoShop, turn the video into something that looks like it instead stars a twelve year old girl? That is getting more and more possible. If "no minors were injured in the making of this film," how does one prove it? Wouldn't such a "unharming depiction" be something that might keep a possible pedophile satisfied enough so that he/she doesn't have to prey on innocent kids?
With the pace of technology, the only way you will be able to get the kiddie porn people is to catch them in the act of making the porn in the first place—and you'll be getting the people that are actually putting children in harm's way.
Finally, I'd like to add that it is refreshing to see the appeals court take this kind of case on and apply common sense to it.
After all, the same people that are crying that we must "protect the children" seem to have no qualms about our military and civilian contractors from killing youngsters overseas without any real sort of accountability...
[ link to this | view in chronology ]
Re: protecting your company
[ link to this | view in chronology ]
1st Amendment.
[ link to this | view in chronology ]
Re: 1st Amendment, sorry to correct you but
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
http://www.ajax4hire.com/constitution.htm
Nothing about Anonymity except maybe to peaceably assemble.
[ link to this | view in chronology ]
Re: Re: 1st Amendment, sorry to correct you but
[ link to this | view in chronology ]
And Wolfger the days of "Innocent until proven guilty" are fading fast. These days the defendant of a trial has such an uphill battle that being wrongly accused of a crime almost guaruntees they will be wrongly convicted.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
what about other business
I think the porn industry can sacrifice their money to keep records for a long duration if not indefinite.
[ link to this | view in chronology ]
Re: what about other business
You're trying to be overly broad about something that isn't. This law was directed exclusively at the porn industry in an attempt to stop child porn. A noble effort but in the wrong direction. The court is just saying that. And I don't think we should encourage chipping away at the first amendment, even if it is for a good cause.
At RandomThoughts up there, We do have things called child labor laws and immigration laws. Also separate things.
[ link to this | view in chronology ]
Re: what about other business
[ link to this | view in chronology ]
If somebody has a picture of their kid in the bathtub when they were little ... is that considered illegal????
[ link to this | view in chronology ]
Re:
More than one parent has found themselves the subject of criminal prosecution over such photos.
[ link to this | view in chronology ]
Wrong approach
Most child sexual abuse involves members of the immediate or extended family. All these laws won't do a thing about that.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Information. That's pretty good. I think the actual ruling was about folks that are putting up porn about themselves, not just information.
[ link to this | view in chronology ]
Re: Lolita
Nope, it's illegal according to the law.
"If somebody has a picture of their kid in the bathtub when they were little ... is that considered illegal????"
Believe it or not, people have been tried and even convicted for similar things. You combine a broad and overly vague law with stupid people, and the results are always bad.
[ link to this | view in chronology ]
Re: Re: Lolita
That's why all those nudist/naturist web sites that have pictures of family playing naked volleyball and frolicking in the buff at the beach and whatnot are legal.
[ link to this | view in chronology ]
Re: Re: Re: Lolita
Is that why so many of them have been convicted?
[ link to this | view in chronology ]
Re: Re: Re: Re: Lolita
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Lolita
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
User generated porn?/!*
[ link to this | view in chronology ]
Re: User generated porn?/!*
[ link to this | view in chronology ]
Re: User generated porn?/!*
[ link to this | view in chronology ]
Seems like it was a bad law
But you would be able to enforce them against legitimate pornographers, and the burden of keeping the records and making them available for audit when required adds significant headache and expense to the business. This, like most laws aimed at adult-oriented businesses, are not an attempt to regulate the industry for sound purposes. They are attempts to legislate businesses out of existance by making it more and more difficult to operate within the scope of the law.
Take for example Ohio's recent legislation regarding strip clubs. Dancers are not allowed to touch patrons, and all adult businesses have to close by midnight. The rationale was that these businesses incite drug abuse, violence, and prostitution in their communities, and by closing them at midnight they'll be able to reduce those things, even though there are already laws on the books to deal with those crimes. The real purpose of the law was to make operating an adult business in Ohio unprofitable and run them out of business. A law outright banning adult businesses would be clearly unconstitutional, but death by a thousand papercuts works just as well.
[ link to this | view in chronology ]
Re: Seems like it was a bad law
The real purpose of these laws is to allow hypocritical politicians to pander to their uptight, puritanical constituents, regardless of the effects on our freedom.
A prominent member of the adult industry said, "There remain far too many people in America who are ashamed of their own sexuality - and they're outright terrified of their neighbor's sexuality."
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
protection always
[ link to this | view in chronology ]