US Attorney General Alberto Gonzales last month approved new rules for implementing the Child Protection and Obscenity Enforcement Act of 1988. Existing regulations have been around since 1992, but the growth of the internet and the proliferation of pornography on-line meant that an update was needed.
In general, the Act requires producers of sexually explicit material – such as videos and magazines – to maintain records for seven years, proving that the people shown in the pornographic material are not minors.
Among the evidence to be held are names, dates of birth and copies of documents containing the photo IDs of the performers.
However, the obligation has now been extended to the producers of visual depictions of sexually explicit conduct published on the internet – i.e. webmasters. Those who merely distribute the material on-line, such as ISPs and web hosts, are not caught by the rule.
The new rule also clarifies the means by which a producer must verify the identity and age of each performer and the manner in which records of these verifications must be kept. Additionally, the rule establishes a detailed structure for conducting administrative inspections of porn producers’ records to ensure that children are not being used as performers in sexually explicit depictions.
Violations of the rule are criminal offences punishable by imprisonment for up to five years for a first offence and up to 10 years for subsequent offences.
The porn industry is furious about the new rules and in the few days since it came into force some smaller web sites have already closed. Leading the charge is lobby group the Free Speech Coalition (FSC), which last week filed a legal challenge to the new regulations.
Joining it in the case is the Colorado branch of the FSC, adult video distributor Lenjo Inc and an FSC affiliate, David Connors, who is better known to the adult video industry as Dave Cummings, an ex-army colonel who became an adult performer in his early sixties.
The suit alleges that protected sexual speech has been burdened with a regulation that, in essence, requires it to prove itself innocent of using minors in its creation, rather than requiring the government to meet its constitutional burden of proving the speech guilty, says the FSC.
There are also privacy considerations, says the FSC, which points out that sensitive personal information relating to adult porn performers will now need to be held by many thousands of web site owners.
The case was due to go to a hearing on 23rd June but has now been rescheduled, after a last minute agreement between the FSC and the Justice Department that no prosecutions will be brought against members of the FSC until 7th September – to allow the court to rule on whether the group has a valid case.