Reprieve on New Sex Video Regs

Industry brokers deal with federal government to stay enforcement pending litigation outcome

This past May, Attorney Gen. Alberto Gonzales signed regulatory expansions to the Child Protection and Obscenity Act that he said would help the Department of Justice prevent children from being exploited through pornography.

But civil libertarians as well as producers of pornographic, erotic and sexual explicit video products as well as Web sites that make such material available are raising questions about whether the new regulations, finally implementing provisions of a federal amendment enacted in 1995 in response to the rise of the World Wide Web, may infringe on basic constitutional rights.

The imminent implementation of the regulations, which formally went into effect on June 23, set off a flurry of concern by major Web providers, including Gay.com, that their sites might be liable to criminal prosecution, though a last-minute agreement between the government and a leading industry group presumably averted enforcement action, at least for the moment.

The new regulations require producers of materials that portray explicit sexual conduct to maintain records of identification for all performers to demonstrate that they are at least the age of consent. The regulations specify that acceptable identification for products made in this country is limited to official documents issued by American jurisdictions, which means that performers from foreign countries trying to use their passports for identification will be disqualified. The new regulations also require that all Web carriers of such video products maintain the same records as the original film producer. Finally, the regulations are retroactive to 1995, when the amendment was first passed, meaning that most of the adult video currently on the market would be illegal.

The regulations, far-reaching and carrying criminal penalties, unleashed a wave of reaction among many adult content providers across the country. Gay.com temporarily shut down its personals site in advance of the June 23 enforcement date, fearing that images in that section for which the Web service had no documentation could subject the company to prosecution.

However, one day before the regulations went into effect, the Free Speech Coalition, an industry group representing companies in the adult entertainment industry and Web site operators, reached an agreement with the justice department that no action would be taken against members of the Coalition before resolution of a federal lawsuit challenging the constitutionality of the new regulations, set to be heard in a Denver court on September 7. Only companies that were members of the Coalition as of June 25 would qualify for this enforcement stay, so a major effect of the agreement was that the group’s membership ranks swelled during the final few days of last week.

In the wake of the agreement, Gay.com resumed normal operation of its personals section, issuing a statement declaring that it was back in business, “censorship-free.” Other providers, however, such as BoundAndGagged.com remain shuttered.

In what may be a separate development, Yahoo.com suspended its chat rooms in the wake of government investigations of adult users who have met underage youth in those venues.

According to Tom Hymes of Free Speech Coalition, if the justice department regulations are upheld by the federal courts, it would have devastating ramifications on the online dating industry. Bigmuscle.com, for example, which posts many sexually explicit photographs of its members, would be required to keep on file documentation of the age of any of its users—under the regulations, the primary producers—who post to the site. Foreign passports would not be acceptable.

The impact on the availability of adult sexual material, especially any produced between 1995 and June 2005, would likely be enormous.

The next step in this story will unfold beginning September 7 in Denver.

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