Who's More Ethical: TorrentSpy Or The MPAA?

Court Throws Out Rule Requiring Adult Sites To Keep Records And Proof Of Age For All Performers

from the that-first-amendment-thing dept

Wed, Oct 24th 2007 12:40am — Mike Masnick

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.

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Filed Under: adult sites, first amendment, record keeping

38 Comments

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Mike F.M, 24 Oct 2007 @ 1:36am

A pass and a fail, all at once.
This is a very good result at the same time of being a negative result. It's good that they are respecting people's rights, while being bad that now nothing is being done about the issue this was raised to cover.

Maybe a better outcome would be some middle-ground - or at least suggestion on what that middle ground might be.
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Anonymous Coward, 24 Oct 2007 @ 2:29am

Re: A pass and a fail, all at once.
Nothing being done about the issue it was raised is completely logic if you think about it. They should really focus and target actual child pornography instead of concentrating on legal/legitimate content. It's a known fact that such sites are hidden deep in the anals of the internet, and usually keep a low profile... so of course the target becomes the public ones...

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...
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Obsidian, 24 Oct 2007 @ 2:38am

Re: Re: A pass and a fail, all at once.
These are politicians we are talking about. They are all about making it look like they are actually doing something, while not really doing anything at all.
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Jesse McNelis, 24 Oct 2007 @ 4:05am

protecting your company
My question is: how do they identify child porn now?
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?
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Wolfger, 24 Oct 2007 @ 4:29am

Re: protecting your company
Jesse, the ideal here in America is that you don't have to prove otherwise. "Innocent until proven guilty" means that you can't go to jail because you have a picture of a girl who "looks underage", the prosecution has to *prove* she's underage, which would be very difficult to do, which is why they wanted a law requiring sites to keep such records. Can't nail 'em for the age of the models, but it's easy to nail 'em for not keeping the records.
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phoenix, 24 Oct 2007 @ 5:17am

Re: Re: protecting your company
Wolfger. Its incredibly easy to find the age of someone out. You have the date that the material was made and then you get the names of the performers in the material, you then go to that person and get their ID and look at when they were born. On something like that, its not hard to prove someone's age.

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.
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Killer_Tofu (profile), 24 Oct 2007 @ 5:28am

1st Amendment.
The right to remain anonymous is an important part of the First Amendment you say. Now, granted I am not going to take the time right now to read that whole ruling, I wonder if that argument could be taken as precedent to help strike down more parts of the (Un)Patriot Act.
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Danny, 24 Oct 2007 @ 5:39am

I'm sure the next time elections come around the "Think of the children" crowd will try to resurrect this to look like they are doing something.

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.
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David, 24 Oct 2007 @ 5:39am

Re: Re: Re: protecting your company
Phoenix, is it really that easy to find out a person's age? What if a post a video of a 14 year old girl from Russia on my US web site? It wouldn't be very easy to track her down. Also, how do you find the date it was made unless it is explicitly stated?

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.
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RandomThoughts, 24 Oct 2007 @ 5:50am

As an employer, why should I have to verify that my employees have a legal right to work in the US?
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Aaron, 24 Oct 2007 @ 5:59am

what about other business
In the state of Nebraska, dental records are required to be kept in paper form until 25yrs after the patients death.

I think the porn industry can sacrifice their money to keep records for a long duration if not indefinite.
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Chronno S. Trigger, 24 Oct 2007 @ 6:06am

Re: what about other business
As far as I know, dead people don't have the ability to request anonymity. Performers do.

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.
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Lolita, 24 Oct 2007 @ 6:54am

What if the person in the picture, who is now of legal age, gives pictures of themselves to use when they weren't of legal age. Would that be illegal or not???

If somebody has a picture of their kid in the bathtub when they were little ... is that considered illegal????
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A. L. Flanagan, 24 Oct 2007 @ 6:59am

Wrong approach
We need to be protecting kids at home, long before their pictures end up on a site. But that would cost a lot of money, and be intrusive, so don't hold your breath. We talk a lot about how important children are, but if you look at our actions, we don't mean it.

Most child sexual abuse involves members of the immediate or extended family. All these laws won't do a thing about that.
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RandomThoughts, 24 Oct 2007 @ 7:01am

User generated porn. Thats pretty good. I think the actual ruling talked about folks that are putting up information in swinger sites. They didn't want to have to identify themselves. I can see how this ruling works.
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A. L. Flanagan, 24 Oct 2007 @ 7:01am

Re: Lolita
"What if the person in the picture, who is now of legal age, gives pictures of themselves to use when they weren't of legal age. Would that be illegal or not???"

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.
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RandomThoughts, 24 Oct 2007 @ 7:02am

AL, those are different laws, and while this ruling found it unconstitutional, the ruling says that it would be very easy to make the law less broad and have it remain constitutional.
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BTR1701, 24 Oct 2007 @ 7:10am

Re: Re: Lolita
The Supreme Court has ruled that simple nudity of a minor, absent any kind of sexually explicit conduct, posing, tone or innuendo, is not child pornography and is protected under the 1st Amendment.

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.
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Mrrar, 24 Oct 2007 @ 7:30am

I can't believe you said "Slippery slope."
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LesterRay, 24 Oct 2007 @ 7:41am

User generated porn?/!*
What the hell is "User generated porn", I mean, I am just a big old dummy. Porn is porn...and it was all gernerated by a, duh, user. I am also an ex-felon, convicted of a sex offense involving a 15 yr. old boy, who by the way looked older than 15...got any questions for someone who has some answers to these questions from a unique standpoint and who has a different outlook on pedophilia after having served 12 years in prison, then feel free to e-mail me at groingweery@yahoo.com and lash out or get the scoop. I am open and honest with my answers and you might be surprised at what I have to say.
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Ajax 4Hire, 24 Oct 2007 @ 8:23am

Re: 1st Amendment, sorry to correct you but
United States Constitution; 1st Amendment

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.
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Kevin, 24 Oct 2007 @ 8:25am

Seems like it was a bad law
Requiring the porn industry to keep records of ages of performers doesn't do anything to fight child porn, because child porn isn't going to be run out of the sort of business that will comply with these laws anyway. They don't keep records, they don't register as businesses, they don't do any of the things that legitimate porn companies do. So while these laws would technically apply to them, you'd never be able to enforce it against them.

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.
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Ernie, 24 Oct 2007 @ 9:11am

Re: protecting your company
Jesse: The issue before the Court, and your message indicates that a user would send you proof of age. Sending information to a web site with no Corporate structure is like sending you my wallet .... no protection.... Take care, Ernie
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lar3ry, 24 Oct 2007 @ 11:05am

Re: Re: Re: protecting your company
Phoenix said, "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."
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...
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Anonymous Coward, 24 Oct 2007 @ 4:09pm

With amateur porn its hit and miss. The question is more along the lines of - if you can't tell whether shes 17 or 18, who cares? Not me.
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Anonymous Coward, 24 Oct 2007 @ 5:36pm

Re: Seems like it was a bad law
Kevin has it right on all points.

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."
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Anonymous Coward, 25 Oct 2007 @ 5:57pm

Re: Re: 1st Amendment, sorry to correct you but
http://www.ajax4hire.com/constitution.htm

Nothing about Anonymity except maybe to peaceably assemble.
I think the court's interpretation carries rather more weight than yours.
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Anonymous Coward, 25 Oct 2007 @ 5:58pm

Re:
As an employer, why should I have to verify that my employees have a legal right to work in the US?
Why should you have to obey any law?
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Anonymous Coward, 25 Oct 2007 @ 6:07pm

Re: what about other business
In the state of Nebraska, dental records are required to be kept in paper form until 25yrs after the patients death.
That sounds suspicious. How about quoting the relevant law or regulation? Other states that I am aware of only require dental records to be kept for a period of time after the patients last their visit as it would be impossible for dentists to track all their former patients and know when they die.
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Anonymous Coward, 25 Oct 2007 @ 6:15pm

Re:
What if the person in the picture, who is now of legal age, gives pictures of themselves to use when they weren't of legal age. Would that be illegal or not???
Illegal.

If somebody has a picture of their kid in the bathtub when they were little ... is that considered illegal????
More than one parent has found themselves the subject of criminal prosecution over such photos.
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Anonymous Coward, 25 Oct 2007 @ 6:19pm

Re:
User generated porn. Thats pretty good. I think the actual ruling talked about folks that are putting up information in swinger sites.

Information. That's pretty good. I think the actual ruling was about folks that are putting up porn about themselves, not just information.
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Anonymous Coward, 25 Oct 2007 @ 6:25pm

Re: Re: Re: Lolita
The Supreme Court has ruled that simple nudity of a minor, absent any kind of sexually explicit conduct, posing, tone or innuendo, is not child pornography and is protected under the 1st Amendment.
Huh? So "action shots" are OK but posing is not? And "tone or innuendo" is sufficiently vague and subjective as to be potentially applied to practically any case.

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.
Is that why so many of them have been convicted?
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Anonymous Coward, 25 Oct 2007 @ 6:32pm

Re: User generated porn?/!*
What the hell is "User generated porn", I mean, I am just a big old dummy. Porn is porn...and it was all gernerated by a, duh, user.
"User generated porn" is porn produced by the actual users of a website and usually without expectation of payment. Contrast that with commercially produced website porn where the actors and producers usually expect payment and are not usually users of the website itself.
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Justin, 29 Oct 2007 @ 12:09am

Re: Re: Re: Re: Lolita
Huh? So "action shots" are OK but posing is not? "action shots" as you put it are covered by the "sexually explicit conduct" part.
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Anonymous Coward, 29 Oct 2007 @ 7:53pm

Re: Re: Re: Re: Re: Lolita
"action shots" as you put it are covered by the "sexually explicit conduct" part.
Huh? (again) So any "action" is "sexually explicit"? I get the impression that the only thing that wouldn't fall under your definition is a corpse. Man, that's sick.
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Jazz, 10 Feb 2008 @ 7:55pm

Re: User generated porn?/!*
Is user generated porn that posted by regular folks not really in the porn business on adult personals sites, or like in adult groups like Yahoo has etc..any place visitors to a site that has a photo upload program, etc?
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Mike, 12 Jan 2009 @ 12:30pm

Is it ok to view porn w/out the knowledge of age? What I mean is, I would never want to look at child porn....but these days it's hard to distinguish. Do sites have to have a clause where none of the names are underage???
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Lu, 9 May 2009 @ 7:28pm

protection always
Legal sites need to work hard with child protection agencies to ensure that children are protected at all costs. Sites like xtube have joined up with ASACP and that is a first step. Also ISP's having filters which is also helping. Whereas we need to distinguish between legal porn and illegal we need to continue to work OUR HARDEST to ensure children are protected and I believe porn sites need to continue to do what they can to ensure this.
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