Unintended Consequences

Stephen Yagielowicz
Yesterday, XBIZ News reported on Sen. John McCain’s newly proposed legislation, the Stop the Online Exploitation of Our Children Act – which if enacted would result in some very burdensome and unintended consequences for both webmasters as well as for the Department of Justice.

While it’s too early to speculate on many of the “final” aspects of the legislative initiative that would require webmasters to report potentially illegal images or face prosecution and fines of up to $300,000, the burden that this would impose isn’t difficult to speculate on.

The problem arises due to the nature of the images being covered, which include those that depict children as well as those which are “obscene.” While blatant examples of child pornography are easy to identify and should be reported, even trained professionals have difficulty determining whether a “young looking” model is 18 or older. Even more problematic is the issue of obscenity, which is legally vague by definition – a definition which is in part based upon community standards, which vary by jurisdiction.

Because nearly all “sexually explicit” imagery is deemed obscene in one jurisdiction or another, responsible operators will face a dilemma; should they report “everything” to be on “the safe side” – and is that side really safe, when in reality what they are actually doing is telling the government that there’s potentially obscene material on their website?

For example, we run a small TGP/MGP that accepts open submissions from webmasters, using text links in order to avoid any ‘2257 issues. While the descriptions are filtered by our software to eliminate references to child pornography using the ASACP-provided “banned words” list, no further review is performed on these submitted galleries. We do, however, provide a link next to each listing allowing visitors to easily report galleries which may contain illegal material.

Although this site is designed to be as automated as possible, I do perform random spot checks from time to time and some of the material that I find is well beyond anything that I would personally feel comfortable in publishing. Because some of this material may be considered obscene in some jurisdictions, if this law is enacted, I’d have to report it and keep records for six months. The recordkeeping isn’t necessarily too bothersome, as I could “easily” maintain a six-month archive of our listings; but that is the “easy” part.

Because I cannot afford the time that it would take to manually check every submission – submissions which could be changed after my initial review – I have a problem with only two real solutions: either close down the site or report everything. Since the site is one of the primary feeders for our paysite, I won’t close it. I also don’t want to debate whether or not the German pissing videos I may not consider to be obscene really are, in front of a jury in Salt Lake City. So, my solution would be to mirror submissions straight to DOJ and let them decide, which would not only overwhelm them (especially if all domestic TGPs and MGPs did this); but put the kiss of death on my submissions and traffic flow.

While I’m certain that the supporters of such legislation would welcome the closing of yet another adult website, I’m not going to make it that easy for them: I’ll do my best to comply with the law and if that means that DOJ gets a daily automated email from me containing hundreds of links to porn galleries that could contain obscene material, then so be it. Perhaps they’ll consider these unintended consequences and make some intelligent recommendations concerning the details of this proposed legislation that would allow the realistic compliance of webmasters and serve the greater good and intention of the law.

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