18USC2257- pretext for an assault on photographic art

http://www.forbes.com/services/2005/06/23/porn-entertainment-movies-cz_sl_0623porn.html?partner=rss

 

Media

Naked Censorship?

Seth Lubove, 06.23.05, 10:00 AM ET

 

Is your Internet browser a little less polluted with porn today? Are

you seeing fewer banner ads promoting hard-core sex? If so, thank U.S.

Attorney General Alberto R. Gonzales. Largely unnoticed in the

mainstream world, his new porn record-keeping regulations went into

effect today, causing fits of apoplexy among much of the porn

world....(refer to full on-line article)

 

HOWEVER the Forbes article should be coupled with this one to see how

others may be viewing the new regulations - rightly or wrongly:

 

http://glikglik.blogspot.com/2005/06/2257-boobs.html

 

June 23, 2005

2257 Boobs

 

18 USC 2257, the US Federal law to stop porn on the Internet went into

effect June 22. Dozens of raunchy sites closed down rather than comply

with the initiative according to Boing Boing.

 

But it also appears to have overtaken the online art world as well.

The stringent law includes defining a porn distributor as a web site

with nude postings. The boobs in eBay's internal censorship department

seem to have overreacted. They've been pulling some non-prurient nude

pictures from their auction site. In one case, a nude artwork

including a US Post Office breast cancer awareness pin. The pin is

modeled on a US stamp diagrammatically showing how to do a breast

cancer self-check.

 

According to artists on eBay, an entire Community Bulletin Board

thread supporting the artwork was pulled. And posters were threatened

with suspension of their eBay accounts. Even private eBay community

groups were forced to remove protest threads.

 

Ironically the 1900's photograph used as the basis for the collage was

purchased on eBay.

 

Bruce Miller:16:29

 

------------

 

Additional comment in post that follows

 

Hunter

COMMENT

 

As a journalist, and having friends in low places, I have been following this story for about a month now, ever since the new regulations were published in the Federal Register. There has been little indication until now, however, of how the revised regulations might be viewed by those in the non-porn business sector. The revised regulations came into effect on the 23rd of June 2005 and it seems some, such as E-Bay, have now simply pounced on anything displaying bare skin, whether actually covered by the regulations or not.

 

Presumably the E-Bay lawyers can read and know with certainty that the actual law has not changed That law is Title 18 USC c:110 s:2257 which deals with ADULT porn has not had a single word change. What has changed are the detailed regulations surrounding it which are, specifically, those that appear in the Code of Federal Regulations [aka: CFR] and, more precisely, 28 CFR 75.

 

The law and the regulations have been on the books for years. Those initially creating the work, called, in the regulations, the "primary producers," have been required to keep certain records for years to verify model age and legal status. Publishers, print and internet, referred to as "secondary producers" have not had to maintain the same level of recordkeeping but, rather, could formerly deal with supporting documentation such signed releases certifying the age and other particulars - and which records may actually have been keyed to a stage name for the model rather than their real name and other details.

 

In the new and improved regulations the "secondary producers" are now required to maintain much more extensive records including documentary evidence of the model's real name and a statement of age backed up by actual copies of government issued ID. Merely being a hosting company, e.g. hired server space or an ISP, makes one exempt if there is no reasonable way to control what is carried by the servers they maintain. Where there is a level of control then the regulations seemingly apply as does the record keeping requirement.

 

The key here is what the law considers to be "porn" for the purpose. Mere nudity or something more? The answer is in a detailed reading of the law and the regulations. The record keeping requirement applies ONLY to images depicting ACTUAL SEXUAL ACTIVITY/CONDUCT and not to any lesser kind of depiction... not even to an image of SIMULATED sexual activity. To be covered it must be sexual and must be real. Everything else, not depicting actual sexual activity, is EXEMPT.

 

E-Bay is not alone in assessing the impact of the revised regulations, for this will affect in some ways others such as Yahoo, MSN, and virtually any other website, bulletin board, community group, ect, who might be construed to be a "secondary producer," and that also includes print publications, I might add. It will also include photography groups such as photo.net, at least to the extent that they do or do not allow material to be posted that requires the recordkeeping to be complied with. Some, such as E-Bay, seem to have moved, rightly or wrongly, on this issue as a matter of self protection but without actual reference to the law and the revised regulations, what they cover and what is exempt.

 

I note with interest that E-Bay has reportedly removed even TEXT based discussion and a TEXT based protest group from their service, much less the images. Text only material is NOT addressed in any way in the law or regulations... only images and even more specifically photographic images. The law and regulations only cover to a very limited extent photographic composites but do not cover such things as paintings, sculpture, drawings, ect.

 

There is a panic across the land, it seems, and it will spread and it will get worse. As photographers and some of whom do art nudes it is in your interest to know where you stand and fight back against unreasonable application of a law and regulations which clearly do not cover your work and with which you have no absolute obligation to comply.

 

 

Hunter

If your in depth reading of the law is correct (and I have no reason to doubt it) then I have no problem with it as it stands.

 

The problem arises with the excessive reaction to it (knee-jerk comes to mind) that organisations/individuals respond with.As for fleabay they have had such bad publicity recently that I am not surprised by their reaction and in addition I would say they behave very much as a law unto themselves (people endure this as they benefit overall - personally I would like to see competition arise to challenge their dominance).

 

It is not beyond the bounds of possibility that law-makers (politicians) actually expect an over-reaction and factor that in to their framing of a law. I am not saying that this is the case here or that my point is factual - just a suspicion (a strong one).

 

"Panic" of this nature and aspects of "hysteria" seem to be coming ever more common but I do not see any way of avoiding this. It is down to the individual to acquaint themselves with the law and observe it (with the right to campaign against it as a given).This applies to photographers just as it does to others.

 

To return to your heading - no I do not see it as a direct pretext.

I can direct anyone interested here for more information, including a link to the actual regulations:

 

http://www.xxxlaw.net/

 

Click "What's New" (or just scroll down the page to the main part dated May24.) In the following text are two links:

 

"Attorney General Gonzales Signs Order Adopting Revised Regulations

Implementing Section 2257

 

May 24 Update. Today's Federal Register publishes [NOTE: LINK: links to the

official US govt newspaper [the Federal Register] that records these changes) the eagerly-awaited final rule adopting revisions in the Justice Department's regulations in implementation of 18 USC Section 2257. We have compiled a preliminary table [NOTE: LINK] contrasting the existing regs, the proposals made last summer, and the final regulations promulgated today."

 

In the FR (PDF) scroll down to page 29619 and in the left and middle col observe this wording:

 

"...(1) A primary producer is any person who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital

image, or picture of, or digitizes an image of, a visual depiction of an ACTUAL HUMAN BEING ENGAGED IN ACTUAL SEXUALLY EXPLICIT CONDUCT.

 

(2) A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book,

magazine, periodical, film, videotape, digitally- or computer-manipulated

image, picture, or other matter intended for commercial distribution that

contains a visual depiction of an ACTUAL HUMAN BEING ENGAGED IN ACTUAL SEXUALLY EXPLICIT CONDUCT, or who inserts on acomputer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of an ACTUAL HUMAN BEING ENGAGED IN ACTUAL SEXUALLY EXPLICIT CONDUCT, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing...."

 

Note: the emphasis in CAPS is mine for ease of isolating the wording

 

Hunte

Dai, have you bothered to find out how "SEXUALLY EXPLICIT CONDUCT" is ACTUALLY defined? The problem in doing "artistic nudes is running afoul of (E).

 

http://straylight.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002256----000-.html

 

TITLE 18 > PART I > CHAPTER 110 > 2256

 

2256. Definitions for chapter

 

Release date: 2004-08-06

 

For the purposes of this chapter, the term?

 

(1) ?minor? means any person under the age of eighteen years;

 

(2) ?sexually explicit conduct? means actual or simulated?

 

(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

 

(B) bestiality;

 

© masturbation;

 

(D) sadistic or masochistic abuse; or

 

(E) lascivious exhibition of the genitals or pubic area of any person;

 

and so forth and so on.

Yes I have looked at 2256 BUT the wording in 28 CFR 75 modifies that as 2256 relates only to images of minors. 28CFR75 is derived from s:2257 not s:2256 and has SPECIFIC definitions [noted above] relating to images of adults and those definitions are limited to the particular "...ACTUAL HUMAN BEING ENGAGED IN ACTUAL SEXUALLY EXPLICIT CONDUCT..," wording highlighted.

 

The value of 2256 is in the definition of what constitutes ACTUAL EXPLICIT SEXUAL CONDUCT for purposes of both 2256 re: minors and 2257 re:adults and where the term is used within the regulations at 28CFR75, and only that. 28CFR75 explicitly and intentionally eliminates the recordkeeping requirement in the case of "simulated" behaviour where the subjects of the images are adults. Very few arts photographers step over that line.

 

Hunter

Some case law: The test for 2256 [Dost] and the test for 2257 [Miller]

 

In United States v. Dost, the District Court for the Southern District of

California stated:

 

in determining whether a visual depiction of a MINOR constitutes a "lascivious exhibition of the genitals or pubic area" under [18 U.S.C.] S 2255(2)(E), the trier of fact should look to the following factors, among any others that may be relevant in the particular case: [NOTE: some or all of the factors, even one, may determine that the work, concerning a MINOR, is indecent]

 

1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; (also see US v Knox)

 

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

 

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

 

4) whether the child is fully or partially clothed, or nude; (also Knox, ibid)

 

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

 

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

 

In the case of depicted adults, the work is tried under the Miller test. Miller does not address indecency (protected speech when concerning adults) but restricts itself to testing for obscenity (not protected speech.) Therein also lies the distinction between 2256 and 2257

 

Under Miller, Miller v. California, 413 U.S. 15, 24 (1973) "the basic guidelines for the trier of fact" to determine whether a work is obscene and, therefore, subject to state regulation, are as follows: [NOTE: unlike Dost all three factors in Miller must apply for the work to be obscene]

 

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest;

 

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

 

© whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 

 

Hunter

Right, but the whole new record-keeping regulations are ostensibly for the purpose of determinng whether or kiddie porn is depicted and they don't make any exception for wrinkled oldsters.

 

Violating any of the regulations can be a felony for each instance. That's the "chilling effect" the corporate suits are getting goosebumps from. Cthulu knows there are enough arguments here about some nude or the other being "porn", it wouldn't be difficult to find someone willing to complain about any art depicting a human not in a burqua.

 

The way those regs are written you might eventually win but the effort of doing so would probably re-calibrate "Pyrrhic victory".

Case law does not support even mild concern for art photography of adult models, much less the apparent panic reaction in pulling images most likely clearly exempt in the first instance. You are right to point out that even those OBVIOUSLY above the minimum age [18] are not exempted even when actual sexual conduct is depicted. 28CFR75 is a political animal, and which advances a conservative religious viewpoint, that is driving this, so it appears.

 

The key question here, then, is why, since the 2256 and 2257 provisions have been on the books since ca1990 are they becoming so bothersum to E-Bay, et al, now?

 

The equation is simple:

 

Is it a photograph? Yes. Does it show ACTUAL sexual conduct [per2256]? No! Then it is exempt.

 

Is it a drawing, sketch, painting or sculpture? Yes. Then it is exempt.

 

If a photogrpah, was the image made before 1995? Yes. Does it show ACTUAL explicit sexual conduct? Yes. It is exempt by reason of the date of creation.

 

Hunter

Why now? Because of the complications of complying with:

 

http://my.execpc.com/~xxxlaw/2257Tables5.24.05.htm

 

It's just too much of a bother to figure out what applies and what doesn't. They're not taking a moral, ethical, or artistic stance, they're just figuring cost vs benefits, and they're pulling contrary comments 'cause they don't want be perceived as lacking in warm-fuzzies by the rest of their universe.

 

George O. would instantly recognize this brave new world.

Will Perlis , jun 24, 2005; 11:43 p.m.said: George O. would instantly recognize this brave new world.

 

Indeed he would. Actually in the real adult businesses they are beside themselves with this one because a lot of content comes from offshore and from places with data privacy laws in place. It puts those producers in the position of furnishing the data and breaking their domestic law on privacy or not furnishing the data and being frozen out of the US market. Catch22 in a nutshell.

 

There has been a complaint in Canada by a producer to the Canadian privacy commissioner seeking to have them inform the US govt about privacy requirements in Ca. In the UK and Germany as well as in other countries there have been absolute refusals to supply the model ID due to domestic privacy laws. US adult webmasters are thus stuck, big time, with work that they paid for and that was legal last month but will get them locked up this month.

 

In the UK, in particular, where I reside, there is a near absolute prohibition against sending data like that, even with explicit permission of the models, to anywhere outside the EU where there is no compatible protective legal shield against it's mis-handling or uncontrolled dissemination to third parties. In the US there is no such privacy law so data of the required detail simply can not be furnished.

 

In another of the Scandinavian EU countries there is a slightly different but just an onerous prohibition against making copies of official documents such as passports and driver licenses - some of the very few kinds of ID the DoJ will accept.

 

In many cases there is some, and not without cause, fear that such personal ID of models could be harvested and sold, especially with very very loose controls and no laws against that, such as in the US. The fear is that models then could be put at risk of economic (e.g. credit granting) or even personal harm.

 

The Free Speech Coalition, an adult webmaster association in the US, has filed a request in the 10th US District Ct [Denver] for an injunction. One of the basis for that is the assertion that the law is ex post facto (requiring documentation for existing works up to 10 years old) and thus not constitutionally permissible. Hearing scheduled for 8-8-05. We'll have to wait and see how that goes. Actually looks like a re-play of the COPA flap which the courts ultimately held to be over broad.

 

Look here for a detailed article on a previous 10th Cir Ct case:

http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=229097

 

Alberto In Wonderland

By: Arthur Schwartz and Michael Gross

Posted: 5:00 pm PDT 6-3-2005

 

(in part)

 

...Sundance Associates v. Reno, 139 F.3d 804 (10th Cir. 1998), it is important to read what the Sundance case actually says. Sundance determined that it was beyond the power granted by the Congress in the statute [NOTE: referring to 18USC2256/2257] for the Attorney General to promulgate regulations that created, out of thin air, the definition of "secondary producer" that contradicted the express terms of the statute. In Sundance, the United States Court of Appeals for the Tenth Circuit in Denver stated, "The government's approach leads us down a path toward Alice's Wonderland, where up is down and down is up and words mean anything...." (more comment can be read on line)

 

Hunter

My guess is that the major effects of these regulations (if the govt can make them stick) will be:

 

1) A large movement of porn work and currency to Eastern Europe.

 

2) In the US, some records-keeping violation prosecutions of selected "barely legal" productions.

 

3) Lessening the competition for Vivid. They can afford the bookkeepers and DBAs needed to keep all the records.

 

 

4) Lots of anxiety and perhaps some real problems for Jock Sturges, Sally Mann, and such.

 

The seriously nasty kiddie porn production won't be affected at all. Those people are already breaking vast numbers of laws carrying heavy penalties, are seemingly willing to run any risk, can't be deterred by fear, and can't be rehabilitated. The new regs won't get any more of those off the street.

Will Perlis , jun 25, 2005; 11:45 a.m.

My guess is that the major effects of these regulations (if the govt can make them stick) will be:

 

1) A large movement of porn work and currency to Eastern Europe.

 

+++That is the case now, and mainly on economics of the production. Therein is one of the main problems with furnishing ID as the DoJ wants. Frankly I see this as an opportunity to making phony ID a growth industry.

 

2) In the US, some records-keeping violation prosecutions of selected "barely legal" productions.

 

+++This will happen sooner then later. Some, perhaps many, will simply move themselves and their websites to offshore hosting to negate the DoJ requirements by placing themselves out of reach. On regulations alone, and without any other extraterritorial (arrest and extradition) powers, the DoJ would be helpless to do anything about it. They are just not going to get a court in another country to even hear a case like that if the activity is legal in the second country.

 

3) Lessening the competition for Vivid. They can afford the bookkeepers and DBAs needed to keep all the records.

 

+++In fact one of the proposed new business models is for those who now buy in their content to start producing it themselves, inside the US or offshore. The production side could see a large number of new, small, independent players fragmenting what is now a fairly stable industry into a number of many smaller parts with competing interests. Not necessarily a desirable state of play.

 

4) Lots of anxiety and perhaps some real problems for Jock Sturges, Sally Mann, and such.

 

+++Yup!

 

The seriously nasty kiddie porn production won't be affected at all. Those people are already breaking vast numbers of laws carrying heavy penalties, are seemingly willing to run any risk, can't be deterred by fear, and can't be rehabilitated. The new regs won't get any more of those off the street.

 

+++Sadly, all too true. Absolutely no one in the legit side of the adult business would ever dream of putting up a pay-to-peek kid porn operation. It would be a death wish. Other parties in the business would fall over themselves to turn them in. Most of that stuff is traded peer to peer (or maybe that should be perv to perv) by other means than by posting on openly accessible websites, much less commercially operated websites.

 

Hunter

Would photo.net be held responsible if any of the less "artistic" and more "graphic" nudes posted in the gallery section turned out to be under 18 and was viewed before it was seen by an administrator and removed? Photo.net isn't really an ISP or service provider. It seems like it's more of a "secondary producer" since it actively provides space for nudes, going so far as to provide gallery space specifically for them.

 

If it could affect photo.net perhaps someone who knows about these things should bring it to Brian's attention (if he's not already aware of it). I'm not a lawyer, I can't tell if it affects photo.net or not.

Bob, IANAL either but here is some advice based on having done a detailed read of 28CFR75:

 

The key word to remember is "commercial" in the sense of where the the regulations are directed. Photo.net is not a "commercial" operation to which the law is, on its face, intended to apply - BUT -

 

I recommend the following initially, as the revised regulations are already in effect, and until additional advice can be obtained.:

 

1] Put an explicitly worded policy in place, or just add to an existing one, prohibiting posting any work with any element of those things that define "explicit sexual conduct" AND because there is concern that such work might violate either 2256 (U-18 minors) or 2257 (adults) include the broadest wording necessary to catch both . The key words are in s:2256 - including, to be compatible with both 2256 and 2257, both actual acts and simulated acts:

 

(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

 

(B) bestiality;

 

© masturbation;

 

(D) sadistic or masochistic abuse; or

 

(E) lascivious exhibition of the genitals or pubic area of any person;

 

NOTE 1: where (D) includes sadistic or masochistic "abuse" I do not believe that it would include mere posing in some sort of fetish outfit but, on judgement, something more - e.g, spanking, whipping, ect. Something entirely more overt in applying the word "abuse."

 

NOTE 2: where (E) uses the word "lascivious" that is a judgement call because it is not specifically defined in law but the way to approach it is to apply the Dost test standards (noted in detail in a post above) to any image where the person photographed looks U-18, even where there is doubt, and the Miller test to any that looks OBVIOUSLY over 18 (also noted in detail in a post above)

 

2] Promptly remove any work that violates the policy. It need not be seen first by a moderator but you should rely on the judgement of anyone who complains about an image and investigate it, at least - even if the moderator's judgement is not to remove it in the end.

 

3] Individually advise the poster of the reason (inappropriate image per the policy) in detail on the first instance; but ban them permanently on any second instance as a matter of policy.

 

4] In the event of a clear AND unambiguous violation of 2256 concerning children, remove the material from open view but preserve the image in a private [moderator only] file along with details on the poster and notify the authorities. That is the only reasonable and responsible thing to do. You may, on that case wish to inform, or not, the original poster of what action has been taken.

 

Additionally, after taking these immediate steps seek some real legal advice - perhaps some of the lawyers here might contribute to that privately for the benefit of the community - and refine the policy accordingly.

 

Hope this information leads you to a safety point position for the benefit of the community. I do not think it is either overly burdensome or overly restrictive to the great majority [99.999%] of the art nude photographers that participate here. With this position in mind Photo.net would not be liable to maintain the records envisioned by the regulations because Photo.net, with a "no post" policy in place, is not positioning themselves as a "secondary producer," but rather the opposite.

 

Regards,

Hunter

Bob, there is one further matter to consider and that is a compliance notice. It would be prudent to consider that an " exempt" notice be posted, in particular to the nude gallery, possibly along with specific reference to a Photo.net policy, as outlined above. This could be done by using a mandatory view click through entry page before anyone can access the nude gallery(ies)

 

The following, or very similar, wording is very commonly used:

 

MAIN TITLE: 18 U.S.C.Section 2257 and 28 CFR Part 75 Compliance Notice

 

"All visual depictions displayed in the following galleries are exempt from the provisions of 18 U.S.C. section 2257 and 28 C.F.R. Part 75 because said visual depictions do not consist of depictions of conduct as specifically listed in 18 U.S.C section 2256 (2) (A) through (E), but are merely depictions of non-sexual nudity, or are otherwise exempt because the visual depictions were created prior to July 3, 1995."

 

Insert two buttons "proceed to galleries" and a second which can bring up a "report" form page where a complaint can be sent to the moderators about some particular gallery [or image,] perhaps with a copy>paste of the page URL or the actual image URL.

 

That would most certainly reinforce the ability to police the nude works and bring some attention to those where someone, not only the moderators, has a doubt or objection.

 

Hunter

Bob, I'm not a lawyer either, I just know a few to talk to about current events.

 

Brian needs to get some solid advice from one in the adult entertainment field (and right now there's little that's solid to go on, IMO).

If you want to go outside the community and get specialist, advice here is one powerhouse choice. Though there are others, Paul is a cautious and relatively conservative 1stA lawyer amongst the adult indistry's lions.

 

Paul Cambria, Jr. of

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria [buffalo, NY and Los Angeles, CA]

 

He can be reached at (716) 849-1333 ext-344

or

e-mail pcambria@lglaw.com

 

His practice is nationwide and he divides his time between the firm's offices in Buffalo and Los Angeles. He has represented many prominent individuals including publisher Larry Flynt, Musicians DMX and Marilyn Manson, and Vivid Video (an adult vidoe production house)

 

Hunter

MORE INFORMATION THAT SEEMS TO SOLVE MANY PROBLEMS WITH THIS QUESTION OF THE NEW 28 CFR 75 REGULATIONS

 

Trying to work through some of the apparent conflicts between the USC sections 2256 / 2257 and the new regulations in 28CFR Part 75 - a colleague pointed this out and, after checking, it seems a valid explanation:

 

As near as I can tell, the 2257 requirements do not now ... and perhaps never have, applied to just nudity... no matter HOW graphic or revealing.

 

from 2257 (the section concerning ADULT images)

 

(h) As used in this section-

 

(1) the term 'actual sexually explicit conduct' means actual but not simulated conduct as defined in subparagraphs (A) through (D) of paragraph (2) of section 2256 of this title;

 

ref: http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002257----000-.html

 

 

from 2256 (the section concerning U-18 models - but which also claims to set the parameters of 2257):

 

(2) 'sexually explicit conduct - means actual or simulated-

 

(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

 

(B) bestiality;

 

© masturbation;

 

(D) sadistic or masochistic abuse; or

 

(E) lascivious exhibition of the genitals or pubic area of any person;

 

ref: http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002256----000-.html

 

Note that ONLY A,B,C,D are covered under section 2257 but 2256(2)(E) does NOT apply to images of ADULTS (18+)

 

Note also that simulated sex is NOT incorporated into section 2257, in fact it is expressly excluded, but it concerns itself only with "actual" sexually explicit conduct set out as A, B, C, or D in 2256.

 

Hope this helps in further understanding the new regulations as this information is not repeated, or set out, but 28 CFR Part75 merely makes reference to it and the confusion seems to come because section 2256 says one thing but section 2257 actually modifies that list of displays of behaviour triggering the recordkeeping requirement, by leaving OUT "E" and excluding the reference to "simulated" when the images are of adults.

 

With this in mind it is now easy to see that, almost without exception, fine art nudes that might be found here or on any other art forum would most likely be exempt.

 

Hunter

Kai,

 

You have proposed a wonderful cure, but unfortunately it killed the patient.

 

Lannie

Sorry, I meant Dai, Dai.

The camel's nose is in the tent with this kind of legislation. This is not just another set of attempts to control pornography. There are two distinct trends that I find disturbing in this kind of legislation: (1) it is part of a general trend to regulate the web, and the web has done quite well without any of that, thank you; (2) it reflects a general right-wing tendency of religious fundamentalism to intrude itself into others' lives, using the law to do it.

 

To say that, "Well, we are okay since our work is exempt from this legislation" misses the point of the larger conservative trend manifested by this kind of legislation. I hope that we don't get back to the days when someone like Edward Weston had to worry that, if he sent something through the mail, he might find himself afoul of federal law if a single pubic hair might be showing. Besides, when there is even a chance that someone's legitimate work might be subjected to some kind of scrutiny to find out if it just might qualify as being in violation, then rest assured that there will indeed be a chilling effect whose magnitude cannot be foreseen at the moment.

 

Try looking up Sally Mann right now on the web. So many searches pull up dead links already (and I just completed the first search that I have ever done for her name, since I wasn't sure who she was when I saw her name mentioned above) that one can scarcely find anything even as threatening as this:

 

http://www.afterimagegallery.com/dlmann.htm

 

I take little comfort in eBay's backing off, notwithstanding that I find the site generally revolting (but have picked up some interesting old cameras there). Everyone sems to be running, whether they are guilty or not, and that is not a good sign. Such behavior signals resignation and defeat before the battle is even joined.

 

When the lawyers come to be running Photo.net and every other creative outlet, then where will we be? We will NOT be anyplace that I would like to be.

 

ANY threat to First Amendment rights ought to be a general call to arms. Giving up big chunks of territory at the outset does not bode well for a possible long-term future, one in which we shall likely be struggling (and wasting time) to see that we are inside the legal lines. Organizations such as PN and many others will bend over backwards to be sure that they are WELL inside the limits. The air of paranoia is palpable.

 

I find the whole situation too revolting for words.

 

Lannie

 

J. Landrum Kelly, Jr., Ph.D., Political Science/Political Theory, Florida, 1978; Post-doc in Political Philosophy, Johns Hopkins, 1982

<i>The camel's nose is in the tent with this kind of legislation. This is not just another set of attempts to control pornography. There are two distinct trends that I find disturbing in this kind of legislation: (1) it is part of a general trend to regulate the web, and the web has done quite well without any of that, thank you; (2) it reflects a general right-wing tendency of religious fundamentalism to intrude itself into others' lives, using the law to do it.</i><br><br>

 

Great Cromwell's Breeches! He's right!<br><br>

 

Don't the <i>Ignorami Federali Republicani</i> understand that we common-sense average sane people --religious and non-religious alike-- <i>want</i> to have as many hard-core XXX goodies as possible funneled into our lives and our kids' lives through our PCs???<br><br>

 

Don't they know that we love it when web-based porn promoters take over our browsers and PCs using worms, spyware, and other forms of invasion-of-privacy via innocuos-looking spam ("Here's How You Can Save Thousand$$$ on Your Next Car!!!" or "Click Here for Your Free Prize!")???<br><br>

 

Sheesh! The Giant Right-Wing Religious Fundy Cartel is waaaaaay out of touch with both reality and the <i>Vox Populi.</i><br><br>

 

<i>...To say that, "Well, we are okay since our work is exempt from this legislation" misses the point of the larger conservative trend manifested by this kind of legislation....</i><br><br>

 

Yep. Sure sounds like the Work of the Vast Right-Wing Conspiracy, Inc. in its Never-Ending Quest to Rule the Universe.<br><br>

 

<i>....I hope that we don't get back to the days when someone like Edward Weston had to worry that, if he sent something through the mail, he might find himself afoul of federal law if a single pubic hair might be showing. Besides, when there is even a chance that someone's legitimate work might be subjected to some kind of scrutiny to find out if it just might qualify as being in violation, then rest assured that there will indeed be a chilling effect whose magnitude cannot be foreseen at the moment.</i><br><br>

 

And next on the Bush agenda is outlawing literature, art, and music and getting the next Supreme Court to declare books the tools of the Devil.<br><br>

 

<i>...I take little comfort in eBay's backing off, notwithstanding that I find the site generally revolting (but have picked up some interesting old cameras there). Everyone sems to be running, whether they are guilty or not, and that is not a good sign. Such behavior signals resignation and defeat before the battle is even joined....</i><br><br>

 

On the other hand, such behavior could mean no more than that some folks (a) are greedy weenie$ $pooked by their own $hadow$ or (b) wouldn't know the difference between porn and a Picasso if either bit 'em on the <i>tuchus.</i> But neither alternate view would fit very well into a conspiracy theory, so never mind. <br><br>

 

<i>...The air of paranoia is palpable.</i><br><br>

 

At least in <i>one</i> tiny corner of cyberspace.<br><br>

 

<i>...Ph.D.</i><br><br>

 

Which, one presumes, stands for "Piled higher and Deeper," in reference to the B.S. preceding it. ;-)

The porn industry is probably more powerful than the NRA. I would be willing to assume that they will win in the long run, especially after we get rid of our current political administration. I

To John Esparolini:

 

"The stringent law includes defining a porn distributor as a website with nude postings." --from the original posting by Dai Hunter

 

If Dai is right, John, then you are posting your opinion on a website which could be presumably be closed down as a porn distributor, since one can indeed find--heavens!--nudes on this site. Your legitimate right to express your benighted idea could be shut down along with the filth that you justifiably despise, if this kind of legislation becomes a lasting precedent.

 

There is no paranoia here, John, just hysteria--yours. You fail to take into consideration the fact that, the motives of Georgie Bush apart, legal precedents such as this will NOT stop porn but might indeed have a chilling effect on legitimate art and literature--and do you think that the feeble mind of the state is going to be able to give us a categorical test for determining when art has crossed into porn in both art and literature? The Court has been casting about for many decades to try to find that test. Apparently you have found it in your great personal moral enlightenment. Why not share it with the rest of us?

 

I rarely cite my credentials because they are rarely relevant, but I have studied both the Constitution and case law in this area--and you quite obviously have not.

 

No one wants intrusive porn, but this kind of blanket legislation is too broad and potentially dangerous. Perhaps you are among those who want to go back to the days (not so long ago on my calendar) when one could not find the works of D. H. Lawrence and others in many public libraries.

 

Decades of legal struggle to free us from the minds of conservative hysterics could go down the drain with this kind of legislation, since, like it or not, the web is going to become more important, not less, as a medium of communicating both art and literature. If we do not stand up for the First Amendment on the internet, we shall not find it to have much force in a society where electronic connections are very nearly going to supersede other forms of communication.

 

As for the _ad hominem_ against me, I will let that pass. I have other things to worry about besides your own right-wing knee-jerk reaction. Just be sure that you don't bloody your own nose in your attempt to protect the rest of us from the occasional excesses of free expression.

 

Yes, I am very nearly an absolutist on First Amendment rights--precisely because there are still plenty of misguided but well-intentioned zealots out there who would still like to control what the rest of us can read or view.

 

Enlighten us, John. Define "porn" and "obscenity" in a way that will be legally innocuous to legitimate free expression. I do not believe that you can do it. Prove me wrong.

 

--Lannie