opinion

The Industry's Best Asset

Tom Hymes
One amusing phenomenon in the war over sexual expression has been the tendency of the opposing sides to use the same data to make mutually exclusive arguments. It happens all the time in positions taken by advocates and public officials, and it occurred in full display during U.S. Senate hearings in January, when more than one anti-porn speaker recited a litany of numbers to illustrate how prevalent the "filth" is, and then attorney Paul Cambria recited the same (or similar) numbers to illustrate how popular it is.

Both sides believed the numbers inherently sustained their point of view. Besides revealing a chasm of disparity in a chamber ill-equipped to bridge the sexual, intellectual or technological divide, as well as an all too apparent unwillingness for either side to listen to the other, the sharing of numbers also was an insight into how the opposing camps come to favor vastly different solutions, and why the adult entertainment's soft underbelly — its billing and transacting mechanisms (and one of its greatest assets) — might also become a No. 1 target for its enemies.

By greatest asset, I mean what also has become obvious to those same enemies who have been "following the money" for a long time. In the past, they followed the money to identify the so-called kingpins, with an eye toward prosecution. In a digitally connected global economy, in which virtual businesses engage people around the globe every second to sell and exchange intangible products, the concept of following the money has taken on a whole new meaning. Since there is no technology that can intercept or prevent people from exchanging files or visiting websites without engaging in world-class repression and censorship — like they do in China and want to do in Polk County, Fla. — and because legislative efforts in this country to regulate online adult content have come up against the 1st Amendment and lost, there is an almost desperate desire on the part of our enemies to find more creative ways to bypass the 1st Amendment.

One way, although not a new way, is to starve the beast rather than kill it. In this scenario, you recognize that there is no way to intercept either the content or the payment and instead apply regulatory pressure to specific chokepoints — in this case anyone who processes for adult transactions. The desired result will determine the amount of pressure applied, and also whether the majority of current stakeholders (adult webmasters) will be able to survive. But in the current environment, in which claims of a "national health crisis" are being made with a straight face, is there any doubt that a law along these lines, presented in this climate, will have as its goal the complete regulation (read: decimation) of online adult content in the name of protecting our children?

It may not be successful, but it is going to happen again. Even if it comes with a strong whiff of unconstitutionality, it will be roundly justified as necessary — a sin tax, similar to how one deals with any contraband online, such as liquor, tobacco or gambling. You choke the chicken until it's dead. In this case, you make it a requirement that nothing can be sold unless it is wrapped in age-verification software, for instance, or you impose a filtering or coding requirement that must be in place or else the transaction is unofficial, illegal, punishable by years in prison and heavy fines. This may happen, and if so, it will be similar to U.S.C. 18 § 2257, in which otherwise lawful activity is made criminal unless certain useless things are done.

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