2. Compliance with the regulations will require disclosure of the actual names and other personal information of performers to thousands of persons in total disregard of the performers' privacy rights.
Because of the expanded definition of "secondary producers," in addition to webmasters and other content aggregators, now even web designers appear to be required to acquire and maintain the records required by 2257. This means that tens of thousands of persons may gain access to personal information of models and performers, including their addresses, driver's license numbers and even Social Security numbers.
Fair-minded individuals, let alone law enforcement policy makers, should see this requirement as utterly incomprehensible at a time of rampant and increasing identity theft, cyberstalking and other identity related crimes that the government has so far shown virtually no ability to slow down, let alone prevent.
Moreover, anti-terrorism experts have repeatedly warned of the terror potential of widespread abuse of personal information obtained by terrorists to undermine the public's confidence in the nation's banking and other economic institutions.
The government's 2257 policy regarding private information disclosure is incomprehensible unless, of course, the real aim of the regulation is to dissuade persons from ever performing in adult content. Consider the following and judge for yourself.
During the comment period last year, a large number of attorneys and others expressed concerns and provided data to the government regarding the likelihood of misuse of personal information provided by the performers.
For example, we warned of increased physical danger to the performers that would inevitably result from the broad dissemination of their personal information contemplated by the regulations.
Additionally, we pointed out that, while identity theft, stalking, cyber-terrorism and other national security matters are real, current and growing problems, since the passage of 2257, only three underage performers are known to have presented fake identification in more than 100,000 industry titles released during that period. This is the government's response:
"Sixty-two commenters commented that revealing personal information of performers, for example, in the form of their addresses on driver's licenses used as identification documents in compliance with this regulation, is an invasion of performers' privacy and could lead to identity theft or violent crimes. Forty commenters commented that including the names and addresses of businesses where the records at issue are located would similarly lead to crimes against those businesses. The department declines to adopt these comments. While the department is certainly concerned about possible crimes against performers and businesses that employ them, the necessity of maintaining these records to ensure that children are not exploited outweighs these concerns." Federal Register: May 24, 2005, Vol. 70, No. 99, page 29615.
3. Live and recorded video streams with "actual sexually explicit conduct" will constitute "depictions" that must be copied and maintained in both the primary producer's record keeping system as well as in every secondary producer's 2257 record-keeping system.
According to my friend and esteemed constitutional attorney Reed Lee, "assuming you've got a website that's doing 12 parallel streaming videos, 24 hours a day, seven days a week for the seven year minimum that you're required to keep the records ... we're talking about 500 terabytes worth of information."
Remember, this requirement might well apply to each party "who enters into a contract" with a third party who provides (i.e., "inserts") a video stream on their computer site. Sec. 75.1(c)(2). Virtually every adult entertainment attorney commenting on the regulations last year pointed out the absurdity of requiring the redundant creation of such huge archives. The government's cavalier response should make your blood boil:
"Thirty-two commenters commented that the requirement that a copy of each depiction be maintained would be unduly burdensome, leading to vast stocks of magazines and videotapes, and even storage of computer images would be unmanageable and prohibitive for small businesses. Thirty-five commenters also commented that the requirement to keep copies of each image is impossible to comply with due to the vast amount of data involved in storing digital images, especially, e.g., producers of live streaming video. The department declines to adopt these comments. Maintaining one copy of each publication, production, or depiction is critical to making the inspection process meaningful. Commercial publishers and producers can reasonably be expected to comply. Furthermore, modern computer and disk storage capacities make digital archiving and back-up relatively inexpensive and space-efficient." Federal Register: May 24, 2005, Vol. 70, No. 99, page 29613.
Unfortunately, the aforementioned requirements are only a selected sample of many more absurd burdens that 2257 will soon bring to the adult entertainment business, unless we, the industry and its attorneys, convince the courts to enjoin this censorial madness and malevolent targeting of constitutionally protected materials.
You Must Fight
Bugs Bunny has always been one of my heroes. This is, in part, because Bugs is basically a pacifist and a live-and-let-live kind of rabbit. It is only after an antagonist, usually an arrogant bully, refuses to let Bugs live in peace that the clever rabbit will fight. But from that point on, the other guy is screwed.
Bugs Bunny is the animated embodiment of the phrase "right makes might." He is the epitome of a good fellow that obeys the law and basically just wants to live his life in peace. He is, therefore, I believe, the perfect metaphor for the adult industry, an industry that obeys all the child pornography laws and would just as soon carry on making money without making any waves.
Unfortunately, like the antagonists in the Bugs Bunny cartoons, the administration's unprovoked and unjustified attack on the adult entertainment industry in the form of new onerous regulations is nothing short of mean-spirited bullying and harassment. This is especially so in light of the DOJ's acknowledgement of receipt of numerous clear and lucid explanations, arguments and other commentary regarding why the new regulations would be so burdensome, impractical, inefficient, counterproductive, unfair and even dangerous.
Exacerbating the injustice of the situation is the fact that it is clear that the DOJ knows there are much simpler and much more effective ways of providing the government with reliable data that evinces that all performers in adult materials are adults. The DOJ has been informed of numerous other methods that would do a better job of protecting children while also protecting the rights of performers and adult entertainment businesses. For example, one proposed system would employ an encrypted centralized database accessible by law enforcement.
Another proposed system involves content that could travel on the web with the 2257 data encoded in encrypted form in the content itself. One such system is even the subject of a 1999 patent application in which I am a named co-inventor. The product built to implement that technology, was repeatedly brought to the DOJ's attention, to no avail over the last six years by the San Francisco Bay Area software company that acquired the patent rights.
In fact, the DOJ has stubbornly refused to implement any regulations that would effectively use currently available technology. For example, instead of mandating the creation of a single intelligently secured database which might discretely include all the required information for adult content distributed in the country, the DOJ has elected instead to require the creation of thousands, or even tens of thousands of separately located databases. In sum, the administration has elected to implement regulations that will do little more than infringe the rights and scare the hell out of the greatest number of persons in the adult entertainment business possible. This is exactly opposite to the way regulations impinging on constitutional freedoms are supposed to be promulgated. In fact, our legal system requires that if cherished constitutional freedoms are to be diminished, if at all, they may only be diminished for compelling reasons, and then only to extent absolutely necessary to accomplish a limited and compelling purpose. Assuming the validity of the 2257's stated purpose, to protect children, implementation of the current 2257 regulatory scheme is like using a chain saw instead of a scalpel.
Consequently, at this point, I think its safe to say that the bully has crossed the line — big time. Our response? I can see Bugs face looking directly into the camera and saying "Of course you know, this means war."
In this series' conclusion, we'll look at what can, and should, be done about these problems.
Gregory A. Piccionelli is one of the world's most experienced Internet and adult entertainment attorneys. The Los Angeles attorney can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com.