Web Sites Fight Proof-of-Age Rules For Porn Performers

The adult-entertainment industry is embroiled in a legal battle with the federal government over new regulations that many online purveyors fear could put them out of business.

At issue are rules established last year requiring any Web site carrying sexually explicit videos or photographs to maintain records proving that the performers are at least 18 years old. The rules apply whether the Web site owner produced the content or merely republished it. And they were made retroactive, so site operators must maintain records for all content filmed or photographed in the past 10 years. First-time violators face prison sentences of up to five years.

The Justice Department issued the regulations after Congress instructed it to update a 1988 child-protection law applying to filmmakers and magazine photographers. The new concern, the government has said in court filings, is the proliferation of Internet sites promoting content featuring "teens" and "young-looking performers."

Critics say the record-keeping rules are overly burdensome and part of a widening assault by the Bush administration against legal forms of sexually explicit material. "This has nothing to do with protecting children," Lawrence G. Walters, a Florida lawyer who represents several porn sites, said of the new regulations. "They're trying to shut down the adult-entertainment industry with overregulation."

There aren't any reliable data on the size of the online adult-entertainment industry: Most sites are private businesses that don't report revenues. Many are operated by just a few people working out of small offices or their own homes. David Card, an analyst at Jupiter Research, a New York-based technology-research firm, estimates that adult content on the Web may generate only about $250 million a year in U.S. revenue. At the other extreme, Adult Video News, an industry publication, estimates the figure at $2.5 billion.

The new regulations -- known in the industry as "2257" because of their section of the U.S. criminal code -- apply to content produced after July 3, 1995. They require Web sites to collect a performer's date of birth, a copy of a form of government-issued identification and every alias ever used in the industry. The records must be stored for seven years along with copies of any content in which the performers appeared.

The new rules don't apply to Web-hosting companies, which provide computer space for storing online content, or to Internet-access providers, nor do they apply to sites that publish links to sexually explicit content but don't actually publish images.

An adult-entertainment industry group, the Free Speech Coalition, has filed suit in federal court in Denver seeking to have all record-keeping provisions of the 1988 law thrown out on the grounds that they violate the First Amendment. The court issued a preliminary injunction in December blocking the Justice Department from enforcing the new regulations against so-called secondary producers, who merely republish existing material. But the judge indicated he was unlikely to side with the group on the broader challenge. The U.S. Court of Appeals for the 10th Circuit is set to hear an appeal from the Coalition. A Justice Department spokesman declined to say how the law has been applied. He also declined to make any officials available for interviews, citing the pending suit.

If the regulations survive, they could prompt thousands of adult-oriented sites to shut down or move overseas, industry executives say. Some executives say they doubt that moving overseas would protect a site from prosecution. Mark Prince, whose Montreal company, 2much Internet Services Inc., sets up live, sex-oriented chats with women filmed via Web cams, says he is complying with the U.S. rules by collecting documents from his performers, because of business relationships with U.S. companies. Several of his performers have quit over privacy concerns, since their information could be shared with other adult sites, he says, adding that more than 100 women working for his company's U.S. clients have done so, too. "Some of the performers were terrified," he says.

Some sites have already shut down. The Web master of one shuttered site, ladieslinks.com, posted a message blasting the government for using "child pornography prevention as a cover to eliminate adult materials all together."

The new rules have prompted a number of companies outside the adult-entertainment industry to ban certain images. Tribe.net, a social-networking site based in San Francisco, had allowed users to post sexually-explicit photos, but now has started prohibiting such content even though it wasn't clear that the rules would apply, says Jan Gullett, chief executive of Tribe Networks Inc. "We really didn't want to take any chances," he says.

Production of child pornography has been outlawed under federal and state law since the late 1970s. The 1988 law required filmmakers, photographers and other primary producers of sexually explicit content to keep records documenting that their models and actors were at least 18. But the law didn't impose the rules on producers of computer-generated or digital images, which have grown exponentially in the Internet age.

Jeffrey J. Douglas, chairman of the Free Speech Coalition and a criminal-defense lawyer, says the regulations accomplish "absolutely nothing." Existing laws barring distribution of child pornography already are "sufficient incentive," he says, to keep adult-oriented businesses from publishing images of minors.

The government has been stepping up enforcement against child pornography. Last year, Attorney General Alberto Gonzales announced that one of his top priorities was to fight obscenity. In the 12 months that ended Sept. 30, 2005, the Federal Bureau of Investigation opened 2,402 cases under the Innocent Images National Initiative, a program focusing on investigations of sexual predators who use the Internet or other online services. That compares with 113 cases in 1996, according to a Federal Bureau of Investigation spokesman.

Porn-site operators complain that compliance with the new record-keeping regulations is difficult because many adult-content producers have no desire to reveal personal information about performers, out of concern for their privacy. Also, many sites such as video retailers stock libraries going back several years. Tracking down information on such content would be prohibitively expensive if not impossible, especially in the case of production companies no longer in business.

Scott Coffman, who runs AEBN Inc., a Charlotte, N.C., company that sells digital copies of 40,000 adult movies online, says his company has failed to persuade several filmmakers to provide information about actors. AEBN, which has 180 employees, has spent more than $300,000 to hire five extra workers and buy computers to try to comply with the rules, he says. So far, the company has complete records for only about half of the movies it sells, he says.

"I don't see how me and another 10,000 sites storing the records helps, because the only records I'm storing is what the manufacturers are giving me," Mr. Coffman says. He has no way to confirm that the information he receives is accurate, he adds.

The Justice Department has said in court documents that the new rules aren't overly burdensome. It said there are legitimate concerns that adult-entertainment companies may use underage performers. It introduced a copy of a Web page describing a model as "young, cute and innocent looking." When it announced the rules, the agency said minors are "often forced to engage in sexually explicit conduct."

Another provision causing concern in the new rules is a requirement that Web sites list the address where records are kept. For many Web site operators, this is their home. "A lot of people don't feel comfortable saying, 'Guess what, I run adult Web sites,' " says Connor Young, vice president of the Free Speech Coalition's board who runs Ynot Network LP, an information portal for the adult industry.

The 15-year-old Free Speech Coalition, based in Canoga Park, Calif., had more than 600 members in June when it filed its lawsuit against the government. Its membership has since jumped to more than 3,500, says Mr. Douglas, the group's chairman.

In its lawsuit, the Free Speech Coalition contends the government has never conducted an inspection of anyone under the 1988 recordkeeping law. And in court, a Justice Department attorney acknowledged a 2004 U.S. government report to Congress stating that there hadn't been any inspections under the law since it was enacted.

District Court Judge Walker D. Miller issued the preliminary injunction barring the government from going after secondary producers and also blocked a requirement that operators of sexually explicit Internet chat rooms store copies of all their sessions. But as to striking down the broader law, he said the industry coalition hadn't established "a strong likelihood of success on their First Amendment claim."