Blue Law Makes Webmasters See Red

SAN DIEGO -- An adult industry trade association plans to head to court this week to fight new federal enforcement efforts that could catch thousands of online porn sites with their pants down.

Under penalty of federal prison terms, new interpretations of existing regulations would require sites that feature photographs or videos of sexual activity to keep records confirming that performers are of legal age.

In an industry that's faced little oversight, the change in policy will spawn mountains of paperwork. But that's not all: Sites may be forced to remove some or all of their racy content because the original records belong to someone else or never existed. Those who can't comply -- including many free sites that rely on stolen content -- will have to shut down or risk a visit from federal investigators.

"People are pretty freaked out," said porn webmaster Jim McAnally, who estimates that more than half of hard-core websites, including some of his, will have to dump significant numbers of photos and videos. "This will affect people from top to bottom."

The new regulations are scheduled to go into effect June 23. The Free Speech Coalition, which represents the adult industry, announced Tuesday that it will file a request for an injunction later this week to prevent the regulation's enforcement. But the details are hush-hush.

"Exactly what day it is we're not at liberty to say, nor what district we will file in or who the plaintiffs are," said spokesman Tom Hymes on Tuesday at the Cybernet Expo, an annual meeting of porn webmasters in San Diego.

Age records in the porn industry are nothing new: Since federal law 18 U.S.C. 2257 went into effect 15 years ago, everyone who produces porn has been required to prove that performers are over 18. (According to adult industry attorney J.D. Obenberger, the regulations were inspired by congressional outrage at a hard-core video performance by 15-year-old Traci Lords.)

Now, the law is getting stricter. The new enforcement regulations would require webmasters that don't produce material to keep age records for every image that shows or implies sexual activity on their sites. (Sites that simply feature straightforward nudity are exempt.)

"If the original content producer can't be found or went out of business or is unwilling to release information, that causes this content to become criminal overnight," said adult industry attorney Lawrence Walters. "These webmasters are facing felony charges if they continue distributing images they've been distributing for the last five to 10 years."

The maximum penalty is 10 years in prison per violation.

According to the Department of Justice, it's time to update the federal law with the internet in mind. The new regulations "merely" improve record-keeping rules, federal lawyers wrote in a defense (.pdf) of their proposal.

The adult industry isn't so sanguine. The government "is passing these burdensome regulations to try to cause people to shut down or move out of the United States," Walters said.

Another adult industry attorney, Eric Bernstein, said he's advising his clients to get their records in order and prepare for the worst. "Everybody needs to assume that they're going to get a knock on the door," he said. "They can't say, 'Well, there are a million adult sites and only 20 investigators, what are the chances I'll get visited?' If they do that, they do so at a very significant risk."

The countless porn sites that steal content from others will be in jeopardy as well, potentially to a much greater extent than they face on the copyright-violation front, Bernstein said. He predicts that the number of free porn sites, which often rely on swiped photos and videos, will drop.

What else will happen if the new enforcement guidelines survive legal challenges? Attorneys and industry insiders expect a major shakeout. "There are going to be a lot of people who go out of business, and a lot of people who fill the gap and go into business," Bernstein said. "You'll see fewer and fewer people buying content from others unless they literally get the records. You'll see new production and new content coming out of this."

In addition, he said, "vintage" porn -- produced before July 3, 1995 -- may become more popular because the new enforcement regulations don't require age records for older content.

The new regulations raise other issues, too. Some adult performers are afraid their personal information -- including their real names and addresses -- will land in the hands of countless webmasters who now need to keep age records for every image on their sites. On the other hand, performers should expect this sort of thing, said William Margold, an industry activist and former porn actor. "When your privates become public, you lose all your privacy," he said.

For now, porn site owners are hoping for a legal victory. That may seem to be a long shot considering the U.S. government's hard-right turn in recent years, but the industry is crossing its fingers.

In the end, said Margold, American citizens will be the ultimate arbiters of their rights to access porn: "Until the public admits it watches this and allows itself to be counted, it deserves to have the stuff taken away."