A ‘2257 Turnaround?

Stephen Yagielowicz

The U.S. Department of Justice (DOJ) is once again asking for public comments on the Federal Record-Keeping Requirements — something that has been done in the past — so why again now?

One reason may be the fact that the 3rd U.S. Circuit Court of Appeals is siding with the Free Speech Coalition over its lawsuit against the Justice Department regarding ‘2257 — and election year politicking aside, feedback from the inspectors has doubtlessly shed some light on the actual issues involved in policing content on the Internet today; leading DOJ to solicit comments that address one or more of the following four points.

As you might expect, I have a few brief comments from my perspective as both a primary and secondary producer under the law:

(1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

While I believe that information collection is a necessary component of the agency’s function, it is the scope and methodology that needs addressing; as the current system is based on technology from 1012 (physically inspecting printed records) rather than 2012.

As for the practical utility of information collection, it is essential for determining the age of a performer at the time of production.

The question should then be, “How can proof-of-age be reliably determined with the least amount of systemic friction and expense for both producers and regulators — while protecting the privacy of performers and publishers?”

While traditional adult video production companies utilize the ideal scenario where all performers present their ID at the door, similar to “carding” patrons at a bar before entrance is allowed, it does not address the realities of protecting at-risk youth today — where user-generated content (i.e., live webcams and self-shot digital imagery) prevail; requiring a more accurate and efficient process to achieve practical utility.

(2) The accuracy of the agency’s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

I do not believe that there is any validity to the methodology and assumptions used to guide this process, which could have been improved by consulting the affected producers within the adult entertainment industry — those burdened with compliance and best able to provide advice on the realities of modern content distribution and the best practices for compliance, labeling and record-keeping.

DOJ self-characterizes its own skepticism over the verity of its assumptions, with the brief disclaimer that “the Department does not certify the accuracy of these numbers,” — and as an affected party, I can’t certify them either.

The Department based its numbers on five-year-old census data (an epochal eternity in Internet years), that claim around 12,000 companies produce “motion pictures” in the U.S., which they then took 10 percent as a guess (~1,200 firms), as to how many of these companies are in the business of producing sexually explicit material…

While the Department’s honesty in revealing its methodology is commendable, they could have pulled any number out of a hat and it would be just as accurate. Real numbers are admittedly impossible to come by, but better metrics than grouping companies with the same tax code together as the pool by which to measure the impact on a multi-billion dollar industry that likely has few if any companies sharing the same tax code as players such as Sony and Warner Bros., is not the way to go.

Having said this, the Department’s estimates may be reflective of those “mainstream” companies producing simulated sexually explicit content as part of their wares; but does not take in the 100,000 or so adult-focused companies, independent webcam performers, “amateurs” and secondary producers such as affiliates, and countless “casual” publishers, such as a person posting a sexually explicit photo to their Facebook account.

(3) How to enhance the quality, utility, and clarity of the information to be collected;

A more practical approach to any problem provides more tangible results, but these results must be based upon the program’s goals: is the Department only seeking to ensure compliance with the current record-keeping laws, or is it actually trying to prevent minors from appearing in adult content?

These are two very different things, despite one being the goal of another.

As I’ve previously proposed, performer licensing and registration solves this problem, at least on the professional front. There are many precedents, such as hairdressers, which are required to obtain a state-issued permit. Having a simple age verification statement with a resulting permit number (perhaps administered by the DMV or postal authorities, which already handle driver’s licensing and passport issuance that requires age / identity checking and registration), would ease the process. Germany has a similar regimen for consumers seeking online access to age-restricted materials, via a local post office visit.

Since it’s only a proof-of-age / identity, it should only need to be done once.

Facial recognition and keyword analysis (the names / aliases / performer nationality), could be combined to produce a database that would show who a performer is, and after which date their filming would be legal.

Technical means would allow a sifting of available content that would remove known legal performers and develop a “hit list” of identities for further investigation, making the haystack smaller and the needle larger; a valuable tool from an enforcement perspective.

Another problem is permanency. While I appreciate that the inspecting agents do not want to play the “oh, he isn’t in today, come back another time,” game and seek tangible accountability from a single, named person, the realities of adult employment instability and address transience, make notices that require both, problematic. This is especially true when dealing with notices displayed on video clips; where unlike updating a line or two of code on a website, costly re-editing and re-encoding of the video clip is required. As it’s impossible to recall videos from the wild, this leaves literally millions of pieces of adult video content displaying outdated and inaccurate record-keeping information. This information (if ever present on the clip) is often removed by pirates and others, making the on-screen notice of online video clips further problematic.

While technological solutions may one day mitigate this factor, at present, it handily illustrates the inefficacy of the current record-keeping regimen, which falls flat upon this insurmountable hurdle for smaller, “mom and pop” producers, that simply can’t recover, re-edit and reissue every piece of content whenever they move (I doubt Sony could do it).

Clarity from the Department about who they really need to keep records would make their numbers and the compliance process much better.

For example, 50,000 affiliates should not need to maintain a duplicate copy of the same material for purposes of inspection. Failing access to these documents, however, how would the secondary producer know the age of a performer at the time of depiction?
The answer is the use of centralized databases to mitigate these problems.

(4) How to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

As I’ve proposed in the past, if the Department is interested in easing its inspection burdens while dramatically improving both the accuracy of its records and depth of its understanding of this industry, then it must provide covered producers with the tools they need to comply with the regulations — at least on the Internet side where it is practical.

For example, I would have no problem in setting up an account at an official website, listing my name and address along with the base URL(s) that I am publishing content to (not individual web page URLs, such as www.domain.com/unworkable/transient/web-address/1234/this-is-terrible.html, but individual domains, i.e., ‘domain.com,’ etc.).
Investigators seeking records proving the age of a certain performer would only need to check their database to know that I am responsible for the material on those sites — without me having to publicly display my name or home address; and without inspectors’ being stymied by private domain registrations, etc. It would also be easily updateable so as to be current at all times — accuracy that the present record-keeping procedures lack.

Even a voluntary registration system would be a win-win for the department and for the affected members of the targeted industry.

At the end of the day, this is 2012, and technological advancements are more than adequate to render the old record-keeping regimen moot; delivering content producers and records inspectors from the drudgery of delving into dusty file cabinets and simply making this whole process work that much more efficiently.

Finally, I won’t say that there is no need to ensure children are kept away from porn, but as for being a useful tool in this endeavor, the current ‘2257 requirements are no more than a flat-earth approach to a round-world problem — it is outdated thinking that simply does not addressing the reality of the situation today.

Also exhorting affected readers to submit their comments to the Department detailing the impact of ‘2257 on their particular businesses, noted attorney JD Obenberger wrote on his XXXLaw.com website that “DOJ does not want to be in the position of defending obvious stupidity while they stand before federal judges.”

Truer words were never spoken.

Here’s your chance to save them embarrassment, and you, some costly headaches… If you would like to share your own thoughts, you have until April 25.