Gail Dines Raises The Bar Of Mount St. BS To New Heights: The #2257 Issue

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2257 Update: Could The Free Speech Coalition Have Made A Better Case?? J. D. Obenberger Thinks So.

It was Ernest Greene's comment to the previous post on Dist. Judge Michael Baylson's ruling upholding the 2257 regs that got me thinking that perhaps the Free Speech Coalition might not be offering the best case to be made against these regulations.

And now, I see that Ernest is hardly alone in that assessment.

Today, attorney J. D. Obenberger, who specializes in defending adult businesses and adult content and who operates an excellent legal blog (XXXLaw.com) on adult entertainment issues, posted an article over at XBiz.com providing his own assessment on Baylson's ruling last week. It's detailed and a long read, but it cuts to the heart of the major issues involved in the 2257 case.

Obenberger's main thesis parallels Ernest's comment in that he is respectfully critical of the approach of the lawyers representing the Free Speech Coalition, who was the main plantiffs in the legal action. Their main impetus was to attack the 2257/2257A regulations as an excessive burden for adult commerce due to the paperwork and legal hoops of obtaining the required records, and to emphasize the burden of having legal performers over the age of 18 being required to maintain for open access to legal authorities detailed and intimate information that could be used against them.

Obenberger sees this approach as counterproductive, because it allowed Judge Baylson to defend the regs using the time honored "Those damn pornographers just don't want to work hard enough to protect children from kiddie porn!!!" card.

I don't think that's an honest appraisal of what happened – and if the real issues were really set out, Americans would be outraged. None of the huffing and puffing of the commercial producers of porn about how much time and money Section 2257 compliance costs them – or its comparison with the amount of child pornography that exists – will ever carry the day in any courtroom to invalidate Section 2257, because to the courts of law (and in the values of the American people) the burdens imposed on commercial pornographers, even enormous burdens, are appropriate and constitutionally permissible if they will deter or prevent even a few children from performing in sexually explicit works.

In other words, having your personal, private sex business exposed to trolls and stalkers is the worthy price of "protecting" even one underage child from getting caught up in porn. Even if child porn is already illegal. Even if it's the underaged preadult who initiates the act against the will of the industry (see Traci Lords). The only reason, this logic goes, that the "pornographers" even complain is because they are simply lazy greedheads at best....and active sex-trafficking pedophiles at worse. They should be lucky to even be allowed to even exist, since at least 2257 gives them that right...we could just banish them outright. Think of the children, damn it!!

Where this goes off the rails, Obenberger says, is that there is an alternate approach that could have been taken by attorneys opposed to the regs, which could be far more effective in winning over both the legal and moral high ground. And, it might even have the support of the very appelate court that kicked the regs back to Baylson to begin with. (Italicized emphasis in original quote; bolded emphasis added by moi)

In Philadelphia, in the cradle of our constitutional liberty, three judges of the Third Circuit laid out a path for the total demolition of Section 2257 on another ground, far more important to Americans, when they reversed Judge Balyson and remanded the case to him on April 16, 2012. They telegraphed a message that a statute that invaded the important privacy rights of ordinary Americans in their own homes went far too far and could not stand.

Section 2257 is important to ordinary Americans because it assaults the most private intimacies of human beings and the records of those intimacies in the most protected of places, inside shoeboxes and on cameras in closets of American bedrooms throughout the country. It forces Americans to show recordings of those intimate moments to men with badges, on demand, under penalty of five years imprisonment, as if the Bill of Rights did not exist. In the era of Edward Snowden and Bradley Manning and Julian Assange, and after disclosures about the regularity with which our license plates are tracked wherever we drive and about the interception and retention of our email and phone calls by the NSA and CIA and agencies we've never heard about, the intrusion authorized to the government under Section 2257 just might be the kind of straw that breaks the camel's back to precipitate a broad rethinking of the government's wholesale invasion of the most personal privacies, just as Watergate and the burglary of Daniel Ellsberg's psychiatrist's office was in the early 1970s. The government's claim of right to view the private sex videos of ordinary Americans is the personal and emotional kind of issue that can jump-start participatory democracy and spark strong and effective popular demands for broad social change.

 Now, you would think that 2257/2257A only dealt with age verification, and that only records showing proof of legal age and identity were required for adequate approval. However, even exposing the real identities and locations/addresses of performers, directors, and producers of sexual content can carry a real risk of inadvertent exposure of personal, private information that could be used in an inappropriate, or even physically damaging, fashion. What is to say that it wasn't 2257 documents that allowed for the original Porn Wikileaks (before it was transformed by Sean Tompkins into the safer and "kinder" adult portal as we know it today) to gay bait and smear performers?

Obenberger also goes deep into Judge Baylson's decision, pointing out how he attempts to parse the original Third Appellate Court decision in such a way to defend the regulations, in spite of the directions given him by the higher court. Essentially, Baylson takes all of the Department of Justice's arguments to his heart, and simply dismisses out of sight and out of mind the objections and concerns of the defendants...mostly by downplaying the potential impact of the regulations on non-commercial sexual speech.

To this end, Obenberger offers a detailed, five-part breakdown of Baylson's ruling, and then thusly summarizes:

This five-level attack is engineered to evade and escape the conclusion of his reviewing court that finds this statute to apply to private, noncommercial persons, leaving open only the question of whether its application is "substantial," that is numerically frequent enough in comparison with legitimate applications of the statute. Judge Baylson [first] tells the Third Circuit that they are wrong on the law, and then articulating that he is following their determination of law, he applies an unusually high barrier of proof in consideration of the issue at hand - he finds an inadequacy of proof, and he then asserts three further lines of defense that appear to this observer to be variously disconnected from the actual issues at bar, a misstatement of constitutional law, and a repackaging of the Government's argument that because it does not intend to apply the law, its constitutionality cannot be reviewed by a court.

By these means, he assassinates the most vital danger to Section 2257, as I see it, its effect on ordinary Americans. With their constitutional corpses disposed of as unimportant matters in the determination of this cause, he then treats the statute as though it were largely just any other scheme of regulation for an industry traditionally subject to close regulation. The absurdity of that proposition is beyond the scope of this article. In the end, he dismisses almost every argument that the industry could make for itself - and hoisting a flag up the pole that in this kind of case, dealing with real people and the protection of real children, the court will take off its glasses and not look very closely at how many constitutional protections are grievously offended. After all, it's just pornographers that he's dealing with now, after the deft application of his scalpel, and their rights appear minimal to him.

If the line of argument by Baylson sounds familiar to BPPA readers, it's because it sounds like the exact same arguments put forth by the AIDS Healthcare Foundation in regards to the condom mandate for porn performers as opposed to mandating condoms for the general population. Maybe the industry should be lucky Baylson presides in Philadelphia and not Los Angeles or San Francisco.

But, to say that these regs don't have the possibility of a huge impact on non-commercial sexual speech is a major reach...and the recent controversies over social media throttling of adult sexual speech and commerce over the Internet should cast a real light over the potential firestorms that could develop. Baylson may have the liberty or the naivete to say that since the government hasn't applied 2257 in 5 years, people have nothing to worry about it being revived tomorrow...but that doesn't mean that there aren't active antiporn agents out there just waiting for the government to fire that weapon in the future.

The most hilarious and head-shaking irony of Baylson's "limited" ruling is that none other than Gail Dines was one of the principal witnesses for the defense of 2257....although even that didn't stop her and her antiporn associates from numerous violations of that reg in the production of their epic documentary The Price of Pleasure. (Though, I'm guessing that Dines would simply cite "Fair Use" and the notion that her theft of porn content for the purpose of condemning its producers and user iwas justified under "educating the masses" about the alleged "harms" of porn and BDSM. Riiiiiight.) The point is, though, Dines would probably have no problem with the government reviving 2257 as a joint effort to not only bust the primary producers of commercial porn, but also the "secondary producers" who repost their content on their own private blogs or websites.

And that's where the virtual F5 tornado hits the pig farm... because if you think that the recent actions of Yahoo!/tumblr, Blogger, and WordPress cracking down on adult blogs for their affiliate linkage and explicit pics is intrusive and invasive enough, then what would you say about Yahoo! and Google reacting to getting bombed by government agencies propelled by antiporn/anti-"sex trafficking"/child protection groups calling for more direct censorship of sexual content on the Internet? Imagine the firestorm that would ensue if, say, Tumblr was to announce that they would be requiring all their adult blogs to provide official 2257 information for all the naughty stolen....errrrrrr, shared pics deposited there? Or, if tube site uploaders were required to have 2257 info at the ready before they uploaded their vids to xHamster or Xvideos or Pornhub or whatever tube site service they used? Get the picture??

Since "opt-in" type ISP censorship like what's being proposed in Great Britain probably isn't going to fly too well here, and more direct "obscenity" prosecution (save for any jurisdiction within Polk County, Florida) is probably not going to happen for at least the next 2, if not 10 years, it may be that drowning adult content providers to death via excessive paperwork and verification would be the default means for the censors to meet their goals here in the US. All it would take is one state Attorney General to do what they successfully did against Backpage and Craigslist ads by shaking down Internet providers like Yahoo! and Google to impose the same 2257 verification requirements on all bloggers/website owners who produce or share sexually explicit content, under threat of prosecution under "child porn" or even "child exploitation" laws. Between that and Apple's exploitation of its monopoly status in mobile apps to freeze out adult sexual content, you can literally wipe out sexual content overnight.

This is why Obenberger's article is more than worth the time to read...and to react.

2257 Regulations Mostly Upheld By Federal Court Ruling, Save For Private Home Inspections: The Aftermath

I can't say that this wasn't really unexpected, given the political and social climate.

US District Court Judge Michael Baylson issued his long awaited ruling yesterday regarding US Statute Code 2257 and 2257A, the regulations which required performers of sexually explicit media to provide manditory age verification and other information to law enforcement for federal inspectors on request.

Essentially, the law was upheld on all conditions except for one: inspections at private residences of performers without prior notice were held to be unconstitutional abridgments of the Fourth Amendment. The remainder of the regs, however, were upheld and found to be justified on the basic of "public safety" overwhelming any "right of privacy".

Basically, Judge Baylson took the position that fighting child porn and preventing underage children from being "exploited" outweighs any invasion of privacy that the regulations had on legal adult performers. In short, the ends justify the means.

I won't go into the heart of the decision here, since both X-Biz.com and AVN have their own excellent analysis (and pay particular attention to Mark Kernes' righteous critique of Baylson's ruling over at AVN), but there is a dangerous precedent being established here regarding regulation of sexual speech.

If Baylson's ruling is upheld on appeal, this would give censorship forces a new weapon to use against companies which offer their media outlets for legally protected adult sexual content. I can already see Gail Dines, Dawn Hawkins, and the anti- "sex trafficking" lobby licking their chops at the thought of using the threat of 2257 inspections to drive porn producers and performers into bankruptcy or drive them out through death by paperwork asphyxiation.

Not to mention, the ease of personal and private information about performer's real identities being accessible to potential stalkers and blackmailers (remember the original Porn Wikileaks scam got most their information they used to gaybait and slander performers through 2257 documents), and the requirement that even "secondary producers" (such as adult webmasters trading videos and pictures for their paid sites) must have such information available upon request or face random raids from the Feds or face possible sanctions or even jail terms for "child porn" production.

And if you think that even your free blog can't be potentially affected by this..well, think again, because given the decision yesterday by Tumblr to modify their policies regarding sexually explicit content to be more in line with the consensus (porn can stay, as long as it is hidden deep in the lower basement beyond reach and not searchable, and marked with a scarlet letter "X" for easy recognition and stigma), it's not a long shot to say that the major media companies could easily go further and simply erase all sexual content further down the road. 2257 can easily be used by the Feds as a wedge to force Yahoo or Google to impose sexual censorship without actually pulling a site or a blog; simply requiring a blogger to have the necessary papers for that porn pic (s)he uploaded to her blog would be more than enough.

Bottom line here: that in 2013 a performer such as Kylie Ireland or Nina Hartley or Vicky Vette must provide paperwork everytime they upload a video to their pay sites verifying that they are not under 18, and that they must prove that they don't perform with underage performers every single time they take a picture or film a scene...even though there are already laws against child porn and sexual abuse of children in the first place??  Seems like the adult media industry could learn some lessons from the Black community about assumed guilt and collective punishment...and permanent stigma.

Why Porn Performers Deserve Their Humanity: The Fakery of Porn Wikileaks/Donny Long And The Arrogance Of Slut Shaming

[Originally posted over at my Red Garter Club 3.0 blog; reposted here with slight editing. As always, the views reflect my personal views and no one else's...unless you happen to agree with them. :-)] 

I have been a commentator and fan of the adult sexual media for pretty close to 10 years now.

I've seen porn starlets and stars come and go; some better than others, some prettier than others; some more successful than others.

Some get in it for the quick thrill of the fast money and the easy sex; then fade out never to be heard from again. A few stick around avd become professionals, even icons, whose personas and performances become frozen into the deepest fantasies of fans forever.

A few do become victims of their successes, getting caught up in the fast life of too much money too quick, and they suffer the consequences of their excesses.

Most of them, though, generally make their money, do their damage, live out their fantasies and dreams, and then decide that they've done enough and move on to different phases of their lives...attempting to become just regular folk living their lives.

Of course, the stigma attached to performing active sex on stage or screen or online follows them throughout the rest of their lives. It can be anything from a positive that drives their ambitions, to an albatross that feeds popular prejudice that denies them more "legitimate" employment.

In a truly progressive and sane world, their profession wouldn't even matter...they would be judged as any other person would ask to be judged: by their deeds and actions and their ethical treatment of people.

Unfortunately, we are far removed from that world...and even in 2011 it is still considered perfectly OK to condemn a woman or a man (mostly, the former) for having a sex life not redeemed by the usual conservative stereotypes.

Such is the case with the practice of "forced outing" a performer who would rather keep her/his private life/information out of publc view.

Forced outing is an issue that has long vexed sexual communities; with the conflict between exposing the hypocrisy of those who publically condemn and seek to repress nonviolent, consensual sexual behavior or media depictions thereof while privately partaking in the same behavior they would condemn in others; and respecting the fundamental right of privacy. It can be a tool of forceful social change when done properly; but it can also be, when taken out of control, a tool of social destruction.

In the case of Pornwikileaks.com, it's definitely the latter, in my view.

Their prototype, naturally, is the highly controversial and successful Wikileaks site that has been both praised and derided for revealing corporate and governmental crimes and misdemeanors.

The Pornwilileaks version, however, has a much darker and more sinister motive....laced with liberal amounts of racism, misogyny, utter hatred of performers...and especially deep, entrenched homophobia.

Their "About" page practically leaps out the page with gay hatred; stating that their primary objective is

“To get the gays out of straight porn and illegal gay pimps that have ruined porn and shut it down making condoms mandatory by the government now. The fag loving has got to stop. California is full of gay Mexicans and now they can even marry which is so wrong.”

Now, all of you know my opposition to the condom mandate as proposed by groups like the AIDS Healthcare Foundation (AHF), and backed by people such as Michael Weinstein and Shelley Lubben.

My opposition is based on respect for the performers' right of free choice and the fact that the existing system of testing and prevention mostly designed and run by AIM has done as effective a job that can be done under the circumstances.  I didn't say that the policy was perfect, only that it was effective, and that forcing condoms down performer's throats would be not only counterproductive, but also highly ineffective.

Yet, for all their professing of wanting to "save" porn, they really have a strange way of showing their it.

Their site claims to have the relevant information of over 14,000 performers, including their real names, current residential addresses, phone numbers, and even medical information. They boast that they would acquire and reveal information on performers' medical condition, including highly illegally obtained information on a performer's STI status.

The site also boasts of a section called "Category High Risk HIV", in which they place people which they describe as "either gay or [you] fuck fags".

And how ironic that they attempt to perceive themselves as opposing the condom mandate, when their actual acts in developing their "database" depends almost entirely on destroying the one organization standing in the way of imposing that mandate...namely, AIM.

You see, the reason Pornwikileaks has such a vast database of illegally pilfered information is because one of their agents were able to somehow break into AIM's database of confidential medical information...thusly making that info available for public posting everywhere.

And then there is the case of a man named Donny Long, whom has been rumored to be the front man
behind Pornwikileaks. Long was a former porn performer who broke from the industry about two years ago, but not before launching everything from a website to a message board casting all kinds of fury against nearly everyone. He has developed a reputation as a misantrope and a troll who basically uses every means necessary to out performers he doesn't like, and he has often used Twitter as his chosen weapon until he got banned due to complaints of stalking from those performers targetted. The language of PW is pretty much a mirror of some of the smack that Long has spread in the past in other venues. (For the record, Long has denied that he is the creator of Pornwikileaks, though he does defend its overall mission.) Opponents and victims of Long's wrath have formed their own website, DonnyLongIsAConvictedFelon.com, to counter his claims and correct the reacod.

Why is that interesting??  Because it wasn't the last time that AIM had their database hacked into and information released to the public.

Remember the case of Desi and Elli Foxx?? They were the mother/daughter performer/sex worker team which filed a public lawsuit against AIM claiming that the latter didn't do enough to protect their private info from being released to a previous forum which predicated Pornwilileaks. (Their case was settled out of court.) It was only a coincidence that the group most aggressively pushing the lawsuit just so happened to be the AIDS Healthcare Foundation, who aggessively favors the condom mandate and who would benefit the most from getting AIM out of the business of testing performers. Right...only a coincidence.

Another "coincidence" to ponder?? When gay/bi performer Cameron Reid (aka Derrick Burts) revealed himself to be "Patient Zeta", the performer who tested positive for HIV in the scare last year, it was that very same Donny Long forum who, claiming to refute his charges that he contracted HIV on the set of a mainstream video, (allegedly) put out a YouTube video of Burts with fellow gay performer James Jameson, as proof positive that Burts contracted HIV directly from "those fags". Jameson, for his part, flatly denies that, even going as far as stating that he is HIV-negative and has been his entire life. Interestingly enough, Burts/Reid found his way to the reach of AHF via some contracts, and now he is their biggest booster, as well as pushing the condom mandate while soundly criticizing AIM for not doing enough to help him during his time of need.

Once again, this may be pure coincidence, or it may be just a sign that Donny Long and Pornwikileaks might be in cahoots with AHF, Shelley Lubben, and certain other antiporn groups out to basically dissect the industry for its own ends..even if unwitting allies. I wouldn't put it against the latter scenario..though it's probably more the former.[Note by Anthony: That reflects my personal view and my view alone, not anyone else here at BPPA.]

The obvious issues arisen from this is whether or not AIM is a victim of a malicious racist hack bent on their destruction, or a serial bungler who doesn't know how to handle sensitive information (as former porn director/agent Mike South has written in his analysis), or perhaps even a secret participant in the whole chirade to silence those like AHF who want to overthrow them and impose the condom  mandate (as some commentators over at the LukeIsBack porn gossip blog have suggested).

But, while that question fleshes itself out, there is a much  bigger issue of how those who perform in porn and sex work are seen by the world as large. Unfortunately, in some mainstream venues, the idea that porn stars and prostitutes and even women who gambol in sex for personal pleasure can be seen as fully normal and human seems to be a very foreign principle.

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Which brings me to the "slut shaming" portion of this blog entry..and the single, cold-hearted brain cell that is Chris Malyszczyk of Cnet.com, who wrote what he considered to be an analysis of the whole PornWikileaks saga.

Apparently, Christopher isn't a fan of porn, and that's his right and his perogatime...but what he says about porn performers being outed against their permission speaks volumes about his disrespect and utter loathing for them....even while he probably jerks off watching them.

For some reason, I am reminded of Eric Schmidt's dictum.

You know, the one that went something like: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."

It comes to mind because someone whose motivations seem slightly troubling has taken it upon himself to be the Julian Assange of porn.

For there now exists a site called PornWikiLeaks, on which, as you might be able to imagine, certain intimate details of porn stars are displayed for all to see.

The site doesn't display diplomatic messages from one porn star to another. Instead, it attempts to offer a comprehensive revelation of who these stars really are.

Riiight. Because we all know that women who do porn are really diseased sluts and nuts who fall to their knees at the first sight of hard cock, right Christopher?? So, we have every right to know every nook and cranny of what they do, who they do, where they do it, and what disease they catch while they do it. After all, we can't have them damn fags and them "jigaboos" out there polluting normal people with AIDS and other diseases..'ya know, Verne???

And...it's only "slightly troubling" but otherwise totally acceptable for a rogue agent like Donny Long to basically harrass, stalk, and potentially abuse women and men who perform in porn merely because he has a racist/sexist/homophobic fetish, and because he sucked so bad as an aspiring agent?? All because...well, they're evil slutty porn girls?? How touching.

However, many of those who earn an often meager income from their carnal knowledge don't really want their neighbors to know what they do to pay the rent. Moreover, some have left the industry in order to become elementary school teachers or accountants.

So one can only imagine that when PornWikiLeaks reveals not merely their real name, but also address, pictures of their family, and phone numbers, they might just be a little upset.

Oh dear...maybe becuse it's non of those neighbor's damn business what they do?? Or, because the stigma attached to being a porn performer or an erotic actress (unless your name happens to be Kim Kardasian or Paris Hilton or Carrie Prejean) is such that even outright repudiation of your past doesn't prevent you from total embarrassment or even removal of your job and livelihood if your past becomes revealed?? Or, maybe, Chris believes PW to be an excellent way to score a quick and easy lay, since obviously these "sluts" are incapable of being human enough to say "No"??

And besides that, there is this assumption that most normal people are entitled to the right of privacy, of not having either the government or any business entity going into their panty drawers or bedrooms or personal information without their permission and approval But, we all know that sluts, like gays, illegals, inner city Black drug addicts, and other cancers of straight White American society, aren't worthy of having normal people's rights, don't we?? We don't want Big Government in our medicine cabinets or our uteri...but them other people?? No problem.

There is also a suggestion that it is the creator's intention to reveal the STD status of every single porn star, although this hasn't actually happened yet.

But where did PornWikiLeaks get this information? At least some of the leaked data may have come from a database at AIM Medical Associates, a company that routinely tests porn stars for STDs.

AIM told NBC Los Angeles that it is investigating. However, PornWikiLeaks has been going since December, so the investigation might simply be related to the sudden publicity the site is enjoying.

Still, AIM believes it has been violated just as much as the U.S. government. Its spokeswoman, Jennifer Miller, told the Beast: "I can't stress enough, we're victims of a crime. Just like the Pentagon and the FBI, we have been victimized and hacked. We are investigating and we will press all charges."

Oh, but who asked them?? They're just the enabalers of the diseased and vapid sluts who simply don't want to be revealed to be doing their dirty deeds...and besides, who the hell are they to equate themselves to the awesome power of the Pentagon and FBI under assault by the original Wikileaks??

Now, it has been noted that PW has pilfered from a variety of sources to build their "database", not only from AIM...even though it has been confirmed that  much of the medical info and a large portion of the other personal info is straight from AIM's database, which is indeed shared with porn studios as a means of screening out those who might by HIV+ or otherwise affected with STI's. However, it is also a fact that by law AIM is forced to immediately turn in any information about someone testing positive for HIV to the Los Angeles County Department of Public Health Services...which just so happens to be one of the agencies most motiviated to oust AIM and impose their condom mandate, along with the AHF and the state offices of Cal-OSHA. Not to mention the aformentioned suit by Mimi and Desi Foxx against AIM for not protecting their medical records from being revealed; and a later suit filed by AHF and LACDPH calling for AIM to release to them records about performers possibly linked to the HIV porn scare of 2009. Maybe AIM does have serious issues with handling personal data...but that doesn't excuse stealing their data and outing performers against their will.
It should also be noted that the 2257 laws imposed by the Federal government also require porn individuals and production companies to maintain detailed information about every performer for immediate release to government officials (the latter motivated by the myth of "underage children" getting into the industry following the Traci Lords debacle during the late 1980's; reinforced by the latest scandal in Colombia concerning current superstar Lupe Fuentes). Given the ease to which such information can be accessed and even traded, maybe it would make it quite a bit easier for any hacker to get sensitive information and use it to his own profit against the performer's interests??

But, again, that's a concern for normal people who are assumed to be fully human, not porn girls, sex workers, or other dirty sluts.  At least, not to Chris Malyszczyk.

The porn industry is undergoing considerable changes, especially with the huge proliferation of free online porn. Will the existence of PornWikiLeaks make some think twice about their chosen means of making money?

Or is the expectation now entirely reasonable that anything you do, anywhere, at any time could--at any moment--be revealed online for all the world to see, know, and, of course, judge?

In other words....does the Bill of Rights apply to everyone....or are porn performers exempeted merely because of their chosen profession??

In response to such claptrap, an actual sex worker who was outed by PornWikileaks named Maggie Mayhem was moved to post at her blog a thorough ass-kicking rebuke of Chris Malyszczyk and his slut shaming. The entire piece is worthy of a read, but I will give some snippage.

Let’s clear a couple of things up, hater. First and foremost this information was obtained from private medical records. It isn’t a coincidence that one of the major ways that we protect our health and the health of our partners was sabotaged. It’s a clear message: you are not allowed to have both a non-traditional sex life and good health at the same time. This was an act of terrorism. According to your words, hater, we should just sit back and accept this as proper order of the world. We should just accept that mainstream medical care excludes us and degrades us and that if we develop a community model of care that people will do everything they can to shut it down. I guess we should have thought about that when we tried to pay our rent, have a relationship, be part of a family, or go on living our lives like anyone else. We should have just known that someone would eventually think that they were saving California from “Mexicans and gays trying to get married,” by illegally accessing our medical records and posting them on the internet with our real names and an incitement for harassment against us.

Whether or not our industry is conventional has nothing to do with what happened. For example, I think that it is unethical to set up sweatshops in developing nations to exploit the local labor force. If I hacked into the HMO database for a major corporation with factories in developing nations and published the names and private information of thousands upon thousands of low level employees who worked for that corporation at any point in time on the internet alongside calls for harassment against them I would be immediately denounced as a deranged criminal who must be stopped immediately and that would be absolutely, 100% accurate. No one w0uld be debating whether or not those employees should be ashamed of working in retail. No one would suggest that the reason why they dropped their surname or opted for nickname on their employee badge was because they were trying to hide from their occupation. No one would speak as though they should have known that sooner or later someone would inevitably hack into their medical records and post their badge name next to their full legal name alongside libelous language and calls for harassment against them. We would solely focus on the actions of the deranged criminal and discuss ways that we can prevent that kind of illegal and dangerous behavior from happening again.

Like most haters, you’re getting defensive about the fact that people are calling you out for victim blaming. The opening and closing of an essay is prime real estate in a piece of a writing. It’s what people notice first and what they walk away with at the end.  This essay contained 538 words. The opening and closing  (103 words) constitute just under 1/5 (just about 20%) of the total essay length and both are dedicated to questioning whether or not porn performers should feel shame about what they do for a living rather than what actually happened or any form of compelling analysis. The reason that people are receiving this as victim blaming is because you opened your essay by saying, “For some reason, I am reminded of Eric Schmidt’s dictum. You know, the one that went something like: ‘If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.’” It communicates quite a bit about your priorities that you opened and closed your writing with a sentiment of judgement and shame.

Amen and a-women on that, Maggie.

Sad to say, many performers whom I follow and respect -- and some I even worship -- have  found themselves on that list of outed performers. In fact, anyone whom has used AIM's services -- whether they be in porn or not -- have probably had their privacy breached by this hacking, and they are suspect to being violated at any tiime. (Mike South has posted at his blog some means to which performers who think they ave been violaated can act to get their names removed, or to get PW shut down, and porn legal scholar Michael Fattarousi has also acted to bring legal means against Long to end the harrassment and stalking. Efforts by Long to intimidate and expose performers on Twitter have mostly failed in the wake of strong response by the performers themselves.) The resulting tragedy and its impact on AIM and on the current regime of HIV testing remains to be resolved; whether it turns out to be the concluding act in the AHF/CalOSHA/LACDHS takeover of porn testing and the condom mandate is still well up in the air.

However the results go, though, it still reinforces what to me has been one of my fundamental objectives that has driven my support for and respect of women who take the risks and enjoy the benefits of performing in adult explicit sexual entertainment: that they are treated as nothing less than full human beings, worthy of respect, free will, and accountability for their actions.

No woman -- not even Shelley Lubben or Michelle Bachmann,-- or no man -- not even Glenn Beck or Rush Liimbaugh, however I may loathe their political and social views -- deserves to be treated as any less than fully human. Maybe some day, we will apply that standard to porn/sexwork.  Some day.

[See also Violet Blue's rundown of the whole controversy at her Tiny Nibbles blog here. and also FurryGirl (of Feminisnt) with her perspective on how to protect your privacy from the 2257 laws here. Danny Wylde of Trev West Coast Fiction also has a nice smackdown of Donny Long over at his blog as well. ]

BREAKING: 2257 Regs Upheld by US Sixth Appealate Court

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TPoP: No, it's not fair use

An in-depth examination of the legal question of whether The Price of Pleasure's use of content from pornography is "fair use," or whether it violates 2257, from Harper Jean at Polymorphous Perversity.

The core of the law, 18 USC 2257, is this:

Whoever produces any ...film [or other media] which contains one or more visual depictions ...of actual sexually explicit conduct...shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Seems pretty straightforward. And the definition of "produce" in the law is very broad indeed. It includes:

digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct...

This clearly covers "secondary producers" who repackage content originally created by others - including documentary filmmakers. I therefore think it's reasonably clear that 2257's recordkeeping duties extend to the makers of a film like The Price of Pleasure.

"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.

Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:

“sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

18 USC 2256(2)(a). Notably, the law contains another, different definition of sexually explicit conduct that applies where minors are involved - and that definition specifically employs the word graphic, defined to mean that "a viewer can observe any part of the genitals or pubic area of any depicted person ...during any part of the time that the sexually explicit conduct is being depicted." This is a broad definition of graphic, but presumably would exclude consistent obscuring of the genitals. It is significant, therefore, that the term graphic is not employed in the definition that pertains to material not involving minors. I think it is relatively plain, therefore, that the term sexually explicit conduct (as applied to material involving only adults) includes depictions that are partially blurred. Sexual intercourse or masturbation is still sexual intercourse or masturbation.

....Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:

Sell, distribute, redistribute, and re-release refer to commercial distribution ...but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.

28 CFR Part 75(d).

At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)

So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.

Personally, I have problems with some of the broad wording of 2257 myself (as does Harper Jean herself.) And I do sometimes think breaking bad laws is justified.

However, I'm not at all convinced this is one of them. Even if it is, though, assuming for a second that TPoP is correct and exposing the horrors of a woman-destroying industry, and much needed:

Wouldn't the noble thing to do be to proudly admit to your civil disobedience and assert that it is important enough to do anyway, rather than to slimily insist that what you're doing counts as fair use? Or at the very least to argue vehemently that it should count as fair use (I'm not sure I disagree), rather than sloppily asserting that it already does?

His Vorpal Sword Rakes New 2257 Rules

In case you haven't heard (and you probably haven't due to all the fire being thrown over those OTHER set of regulations that the Bushies just released concerning the "conscience" rights of fundie health care workers to deny reproductive and sexual health services based upon their religious "objections"), the Bushies have also managed to release finally their revisions of the 2257 regulations regarding age notification of persons performing in sexually oriented media.

Needless to say, from a sexually progressive standpoint, these new rules are, if anything, worse than the original....and serve the basic purpose of essentually using paperwork to drive the porn industry out of existence.

I'm sure that there will be more info out on the reaction to these new rules (and I'm guessing that Ernest will have a word or ten thousand to say on this, too....but I discovered this morning an online essay posted to a blog called his vorpal sword that pretty much nails the motivations behind both the 2257 and the "medical conscience" regulations to the point: as the latest bomb in the antisex/morality wars.

It's such an awesome essay that to merely quote snippets would do it no justice...so I'll just offer the link and ask you to go there and read it for yourself.

his vorpal sword: Death-O-Rama, or, Porn Free

The essayist even mines the recent passing of the original "Deep Throat", the Linda Lovelace movie of the same name, Traci Lords, and the passing of Bettie Page, and some history of the Sex Wars. All in all, a complete and thorough dissection of the antisex morality.

I know, I know...

I know I shouldn't look. But it's just a horribly grim fascination. Why yes, some people just loooove TPoP! They probably even think it's fair and honest and unbaised and whatnot.

Ah, crusaders...

You know, I am sure some people would say the same thing about me, that I'm some sort of sellout black knight fighting an unholy war...oh, wait...but you know, there is a huge difference between myself and a whole lot of these folk. A huge one.

I am not telling anyone they should view or participate in pornography. I'm not telling anyone they have to like it. Nor am I afraid to look outside my own sphere and see what other people are saying, to hear and read their experiences.

I also, ahem, do not stack my data, misrepresent the findings of various studies, or use material made 2-3 decades ago.

Or flat out lie about the most popular porn of the year 2005. Ahem.

Let it never be said I ever told any person what to do, what to feel, how to think, and used underhanded -and illegal- means to make my point.

That, I think, is a major difference between us and them.

Fair Use, 2257, and Double Standards: A response and challenge to NoPornNorthampton

Adam Cohen of NoPornNorthampton dropped by to comment here recently. As much as I vehemently disagree with NPNH and their allies, on many levels and on many issues, I do welcome his willingness to come by and debate. I will note that this blog is always open to those critical of our position. Likewise, I challenge Adam Cohen and others in the anti-porn blogosphere to show the courage of their convictions and do the same, something they are often not open to doing.

To start out with, Adam Cohen has posted a response to Renegade Evolution's long-standing contention that the anti-porn slideshow used by Stop Porn Culture and similar material on anti-porn websites (including NPNH), which show explicit pornographic images in order to critique them, are in violation of Federal "2257" documentation laws. Cohen counters that the legislation contains a clear exemption for "noncommercial or educational distribution" of such material, basically allowing a "fair use" exemption to 2257.

(At this point, I also want to point to an excellent post on this subject by Elizabeth at Sex in the Public Square. Elizabeth also respectfully takes issue with some of Ren's contentions about fair use and 2257.)

I think a lot of this debate flounders on confusion as to what the legal status of 2257 is at this point, having been amended and greatly expanded last year, only to be struck down in the Sixth Circuit Court. So what is actually covered by 2257 at the moment is unclear.

The original version of 2257 did not have broad application to "secondary producers", however, the amended version did. The "educational" exemption that NPNH cites may very well be in effect per the original version, however, "secondary producer" provisions in the amended legislation call this into question.

Adam Cohen accuses us of trying to censor anti-porn speech. That's not the intention of any of the writers at this site (or any other sex-positive activist site that I can think of). While I can't speak for everybody here, I'm actually very against the amendments to 2257, BUT, if this is to be the law, then the law MUST apply equally to all – no special dispensation for being on the "side of the angels". One of the major objections to the "secondary producer" provisions of the 2257 amendments is the potentially harmful effect that it will have on the sex-related blogosphere, who under the provisions of these amendments, might be considered "secondary producers" of internet porn and charged accordingly if not in possession of a full compliment of 2257-related documents. But the anti-porn folks, apparently, are supposed to get a free pass to show this material without such restrictions. This is nothing less than viewpoint discrimination, plain and simple, and if the 2257 laws are enforced this way, it only compounds the already-problematic free speech implications of such legislation.

To use a specific example, one of the sites we have on our blogroll, SugarBank,* is a prime example of the kind of site that would probably be targeted as a "secondary producer" under the amended legislation. Yep, its a pro-porn site with an abundance of porn imagery found within. However, its quite clear from reading the site that the images are used as a basis for discussion and critical commentary on various pieces of pornography and about the porn industry. Certainly not the kind of discussion and critique that NPNH and the like would agree with, but that goes without saying. Should the government get the expanded 2257 regulations it wants, what do you think the likelihood that a site like SugarBank will be granted the kinds of exemption and latitude that NoPornNorthampton and Stop Porn Culture seek for themselves? Should such an enforcement pattern come to pass, I'd go so far as to say that this would provide a strong legal basis for challenging the constitutionality of these 2257 provisions, on the grounds that they legislate unconstitutional viewpoint discrimination.

And this doesn't even begin to cover laws about not taking reasonable precautions to shield minors from material that's not age-appropriate. This is something John Stagliano is facing jail time for, yet this is also something that Stop Porn Culture and NPNH don't even begin to make such an effort to do when they show explicit images. Again, if you support such laws and the reasoning behind them, then why do you hold yourself above them? A case of "do as I say, not as I do", perhaps? Nor does this even begin to cover the ethical implications of using images of porn performers as poster children for a kind of anti-porn politics that, odds are, the performers in the images would not even remotely support if asked.

So, Adam, since you apparently have an interest in all this, and since you've posted explicit images on the NPNH site yourself on a few occasions, care to join me in opposing the expansion of 2257 to secondary producers, or at least support a broad exemption for ALL fair use and critical commentary of porn? Even sources that are highly favorable to the images in question? If not, I call hypocrisy on that!


* As an aside, let me once again give my highest recommendation to SugarBank and its proprietor, Sam Sugar – it you haven't checked out this site, you definitely should!

Enough, the law is the law.

This is what needs to be stopped.

Call to action, please redistribute widely.

The Stop Porn Culture Slide Show Training Program includes a script, tips for conducting the session; it also includes the power Point Visual presentation, which contains pornographic material. They are saying that this slide show falls under the preview of Fair Use.

However, as it can now be watched, downloaded, viewed, reproduced, and yes, even sold. the creators of Stop Porn Culture, or anyone and everyone else who wishes to showcase, distribute, or otherwise use the material in the slide show is in violation of Federal Law 2257.

Never mind that not a one of the performers featured in this “educational tool” were asked their opinions, or for their consent, nor were the companies that originally produced the images…but now see, there are questions of a Federal Law which applies to Pornographers, and as these people have essentially made themselves such, the law also applies to them.

Any person exhibiting pornography, even if it is free, is beholden to 2257, this includes SPC, and those who run this seminar. You will note, at the end of the presentation, there is a claim of copywrite over images already subject to copywrite, and used without permission.

You will also note, their attempts to keep this material out of the hands of minors are scant at best.

I encourage everyone to write a letter of protest the organizers of the SPC Training Program, inform anyone and everyone you know who is pondering doing one of these sessions of the lack of 2257 compliance and lack of consent on the part of the performers and owners of the images, and if necessary, alert legal authorities to the use of this slideshow where ever it may occur.

Oh, and I am curious, are people CARDED before attending one of these events? Viewing the slideshow on line? If not, then anyone and everyone involved in this program is guilty of showing pornography to minors…oddly enough, John Stagliano is in court for such things… do the same laws not apply?

Enough.

If Pornographers must comply with 2257, so must their adversaries

Gail Dines, her porn training, and me...

right here.

BREAKING NEWS: 2257 Regulations Delared Unconstitutional by Sixth US Appealate Court

The story from XBiz.com, with a special bow down to Violet Blue via Tiny Nibbles and Fleshbot:

http://xbiz.com/news/85586

CINCINATTI — The 6th Circuit U.S. Court of Appeals ruled today that the federal record-keeping statute 18 U.S.C. 2257 is unconstitutional, holding that the law is overbroad and facially invalid.

Attorney Lawrence Walters told XBIZ that the court’s opinion, while a very significant victory, is not the final word on the question of 2257’s constitutionality and cautioned that adult webmasters should not view it as the end of their 2257 concerns.

“Generally, you have to be very careful with reacting too rashly to any opinion,” Walters said. “This is a panel ruling, and it is not final. The government could ask for an en banc rehearing by the full circuit, and they can appeal the decision.”

Walters also noted that the decision only applies to the portion of the U.S. that is covered by the 6th Circuit – namely, Kentucky, Michigan, Ohio and Tennessee.

The good news, Walters said, is that the government’s options in getting the opinion overturned are all “long shots,” and he said the court’s reasoning in the opinion was very sound.

“The judges on this panel are renowned for being tremendously bright and it shows through in this ruling,” Walters said. “There’s no doubt that the 1st Amendment arguments here were strong, and the court recognized that the law clearly sweeps in too much protected speech, and there are just too many problems with the law, generally.”

The court’s decision came in the case Connection Distributing vs. Gonzales, a case that reaches all the way back to 1995, when Connection, a publisher of swingers-themed magazines and websites, first challenged the constitutionality of 2257. Following a long history of rejections and appeals, the path eventually led back to the 6th Circuit court of appeals, and today’s ruling.

Writing for the majority, Judge Cornelia G. Kennedy stated in the opinion that the court’s hands were tied in terms of trying to impose any limiting construction on the statute that would comport with the intent of Congress, leaving Congressional amendment of the statute the only option for rendering 2257 constitutional.

“The plain text, the purpose and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record-keeping important in battling all of it, without respect to the creator’s motivation,” Kennedy wrote in the opinion. “There is, therefore, no narrowing construction.”

The government argued in the case that 2257 was aimed only at conduct and not speech. Had the court accepted this argument a lower standard of review would have been applied, and the court may have ruled that 2257 was a valid regulatory statute. The court rejected the government’s assertion that 2257 merely regulates conduct, however, in very direct fashion.

“This argument is unpersuasive,” Kennedy wrote. “While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument.”

Kennedy also noted that the child abuse, “the actual conduct in which the government is interested, is already illegal.”

“Child pornography, while speech, can be considered more like conduct because the conduct depicted is illegal, and if that illegality did not occur, no images of child pornography would be created,” Kennedy wrote. “Adult sexual conduct is not illegal and it is in fact constitutionally protected … The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct. It is, therefore, a regulation of speech, because both the photograph and the taking of a photograph ‘bear … [a] necessary relationship to the freedom to speak, write, print or distribute information or opinion.’”

Kennedy said the court was not unaware of the serious scourge of child
pornography — it just believes that there has to be a less burdensome option for
attacking the problem.

“We do not belittle the despicability of child pornography, and we appreciate the difficulties faced by the government,” Kennedy wrote. “There are a myriad of limitations available, however, that would reduce the breadth of the recordkeeping requirements and would more narrowly focus on the government’s interest and therefore remove some of the protected speech from the statute’s coverage. Such limitations have been suggested by witnesses who testified before Congress and by the plaintiffs here.”

Ultimately, Walters said adult webmasters and business owners should take a “wait and see” approach to the ruling, but there’s no question that the ruling should be counted as a victory in one 2257-related battle, even if it is not the decisive shot of the overall war.

“People should treat this as a step in the ladder towards total invalidation of 2257,” Walters said. “It certainly provides a roadmap for future arguments, as well.”

J. Michael Murray, the attorney for Connections Distributing, was not available for comment at press time.

Considering that the ruling applies only to the Sixth District's immediate jurisdiction and that it has no bearing on another suit currently ongoing involving The Free Speech Coalition's efforts to neuter 2257 nationwide, it nevertheless is a huge victory...and probably the beginning of the end for these regs.

Maybe we can finally have some sanity in this country concerning sexual expression after all??