New Anti-pornography Law

[Guest yamsham]

On July 27th, President Bush signed a bill called House Resolution 4472 into law. It's an amendment to Section 2257 of Title 18 of the United States Code, called "The Federal Record Keeping Statute for Certain Pornographic Depictions," which deals with the visual depiction of simulated sexually explicit conduct. It seems that, like a lot of things, it was created with good intentions, to fight child pornography.

But the new amendment to Section 2257 contains some ambiguous language which could be applied in a very broad fashion. Below is the section of HR 4472 to which I am referring. I emphasized the words that gave me pause.

(a) Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which –

 

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

I think it's clear that "shipped" and "transported" can, and was probably intended to, include the internet. The site where I read about this included a list of things for webmasters to consider in the event they are investigated by the DOJ.

But that isn't what really makes me wonder. It's the phrase "other matter". What could that mean? Or rather what could it be stretched to mean by some right-wing conservative fundamentalist? Could it include fanfics? Or an adult-oriented fanfic archive?

[Guest chibi4president]

But that isn't what really makes me wonder. It's the phrase "other matter". What could that mean? Or rather what could it be stretched to mean by some right-wing conservative fundamentalist? Could it include fanfics? Or an adult-oriented fanfic archive?

You're right...that is a good point...

[Guest Mike256bit]

No, I'm fairly certain this is limited to actual performers, those depicted in images and video. Real people. Fanfiction* exempts itself by not depicting real people.

*Though, I wonder, of course, about real-person fiction.

[StoryJunkie]

pfft!

How can "real person" be fiction? Isn't that an oxymoron?

What about pictures you take at the beach and put on photobucket?

(Gnaws fingernails)

[Guest yamsham]

No, I'm fairly certain this is limited to actual performers, those depicted in images and video. Real people.

I don't think it's limited to real people. The wording is so vague, it could apply to a lot of things. Or could be made to apply to a lot of things. It says: "...digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter..."

Where it says "actual human being," that's clear. But then it says "picture". Well, wait a second, isn't a "picture" something that depicts an actual human being? Why would it be necessary to segregate that word from the definition? I think what it's trying to do is cover up a semantic loophole, where it could be argued in a court of law that images of legal-age men and women engaging in sexual acts who have been digitally altered to look younger are not real people. But it's so vague. "Digital image," "digitally- or computer manipulated image" could apply to anything. Sexually explicit fan art, for example. Scans of hentai doujins. Hentai animated .gifs.

I still think that "other matter" is a very significant phrase.

[NightScribe]

The "shipped and transported" I don't believe is anything to worry about. It applies most likely, like certain statutes already in existence. For instance; adult toy companies will not sell or ship to certain states in the U.S. south, because of their laws regarding said items. As for transporting, it's like buying fireworks in Indiana, legally, but it is illegal to transport them back to Illinois.

The internet itself does not ship or transport information; it transfers it, from computer to computer. I know it may sound like the same thing, but I'm looking for flaws in this ambiguous legalese. Don't misunderstand me, I think child porn and children's exposure to porn is wrong, I'm certainly not condoning it. What fires me up is vaguely written laws that can encroach on our constitutional right to free speech. Writing fiction falls under free speech. The "other matter" is interesting, it sounds tacked on. It sounds like they were talking about visual images and tangible items (books, mags, etc). Fanfic is not visual, the use of images to convey an idea; it is the use of words to do so.

Fortunately, there are advocacy groups and the ACLU who keep an eye out for these kinds of things, and we're lucky to have them. This is just another bogus move by the current fascist regime.

[Guest Evil_Labs]

They're talking about pictures directly taken of people or images digitally created to be ultra-realistic and portray actual people, not fictional individuals.

The text is somewhat vague, but it is because it's vague that it will probably not survive the first challenge to it that comes up.

[Guest yamsham]

One other disturbing aspect about this new law is that it isn't only directed at the creators of porn. It's also directed at websites, webmasters, et. al., who only host pornographic material. These have been re-defined as "secondary producers." You could call it a "chilling effect" law, where rather than face the financial demands of a lawsuit should the DOJ decide to prosecute them, a lot of people will cave before it can even come to that and remove all the potentially actionable material from their sites.

[Guest Mike256bit]

They're talking about pictures directly taken of people or images digitally created to be ultra-realistic and portray actual people, not fictional individuals.

The text is somewhat vague, but it is because it's vague that it will probably not survive the first challenge to it that comes up.

The first thing I thought of was images digitally doctored to make of-age girls look like minors. Totally legal, of course, since no one is endangered.

[Iggy_lovechild]

I just hope this doesn't make sites like photobucket more diligent with their member's content. I have a bit of hentai in my account, particualrily a very graphic doujinshi....

[Guest Mike256bit]

I just hope this doesn't make sites like photobucket more diligent with their member's content. I have a bit of hentai in my account, particualrily a very graphic doujinshi....

Is that right? Is it worth asking what doujinshi?

[Guest Alien Pirate Pixagi]

You should switch to Filexoom.com, they don't care what you upload. Not to mention they give you 2G of storage.

[Iggy_lovechild]

Is that right? Is it worth asking what doujinshi?

It's a little peice of gorgeously rendered "Hellsing" smut. Pairing: AlucardxIntegra.

You should switch to Filexoom.com, they don't care what you upload. Not to mention they give you 2G of storage.

Thanks, I'll prolly check it out and join up when I have more time on my hands. I don't relish the idea of having to upload everything all over again. I can be far too lazy for my own good.

[quamp]

Well, the thing about it is that online, it's not enforcable.

The internet is international, and as such, it cannot be subjected to specific US laws except in cases of intranation commerce. A few years ago, South Carolina passed a law which severely regulated what was put on the internet. The law was struck down in part for "exceeding the authority of the state" and being to vague.

[Guest DarkAvenger]

First, it's impossible to police the entire internet with one law in one country. If every single country out there made the EXACT SAME law, then maybe, just maybe it would be 100% enforceable.

Next, I see that they are talking about the following things with this law -

- photography of real people engaged in sexual activities

- digitally manipulated pictures of real people engaged in sexual activities (For example, I have a photomanip of Gackt and Hyde naked and kissing. They didn't do that, but someone sure made it look like they did!) Also, like another member said, images rendered to make the "of age" model look like they are under 18.

- anything having to do with "real people" (celebrities, your next door neighbor, yourself, etc.) engaged in sexual activities.

Note - (I do not see it as vague that they are only discussing real people. It's pretty clear for a law actually.)

Now, to the last part of that, I see that perhaps dojinshi of J-rockers might have an issue if made or obtained inside the USA. Again, they can only police what is within the borders of the USA.

Also, it would be possible that an un-disclaimed celebrity fanfic could fall into this category. This, my friends, is why we require disclaimers that all events are fictional and that all of the people the story is about be over the age of 18 in the celebrity sections of the site.

In the event that a celebrity asks us to take down something, we do it, no ifs ands or buts about it. If I recall, shortly before I became a moderator here, there was one incident with Justin Timberlakes mother forcing fanfic about him to be taken down because it was "slander", etc etc etc. But they targeted ONE fanfic, one without a disclaimer, if I recall correctly.

Also, I do not think that this particular law was meant to govern the internet, but rather the still-rather-large child pornography industry within the USA and to keep out the material produced "legally" in other countries. While it /could/ perhaps be used, in a very round-about way, for the internet, I doubt they'd push that, since all the other laws attempting to govern the internet are actually hanging in limbo (supreme court) currently.

EFF has been allerted to the goings on with such laws, including the "obscenity" one that is attempting to ban all homosexually oriented material, and they are closely watching to see what happens. If, and when, a move is made in court with such internet laws, the EFF will be there, no doubts about that. (Trust me, I know they have been allerted... I told them myself and presented them with the facts AND received notice that they were closely watching everything I showed them.) If it comes down to it, they'll fight it, tooth and nail, with lawyers they have on staff and hopefully come out on the victorious end of it all.

*For those who have no idea what EFF is, please visit their site and look around some. http://www.eff.org/

While aff may not be "at the top of the ballgame" we aren't the main targets right now. There's a million and one (more than that) sites out there with photographs that are their primary targets. Artwork would be after that, and that would be hard as hell to police, considering artistic license and all that. Then, would be fanfiction and the likes. Frankly, we're so far down that list, it's not even funny. Hell, my own site is further up the list than aff is, because I have adult-oriented artwork hosted on my site. (And while we may have the yahoo group for artwork, it's still not a part of our site and thus would simply be shut down by yahoo and that would be the end of it as far as I can tell.)

I guess my point is, we're pretty well under the radar, despite the fact that we've all got our undies up in a bunch about all of this. I know my reason for being so paranoid is simply because at some point, we could be the target and I want to be prepaired long before then and be able to have a history of being prepaired to show for it.

From a tech standpoint... I've offered what I can, but I am only one person... standing, a good lot of the time, on the opposite side of the lines from some of the other moderators. What I could provide was shot down as "not good enough"... mainly because I, myself, am not a lawyer, nor a corporation willing to go to court and take the fall if it ever comes to that. I understand that to a certain extent and know when I'm out-numbered. *shrug* Thus, we're left needing $600 that we don't have. Doesn't everything come down to not having enough money? *shakes head*

But... I digress and I'm sure you're sick of reading my post at this point, so, I will go to bed... at 4am. >.> *trundles off to bed, yawning loudly*

[Guest yamsham]

DA, I knew that you were largely responsible for getting AFF up and running again (if other people were involved, don't take that as a slight for your efforts; I just don't know about it). But it seems there was a lot of stuff going on behind the screen, research and what-not into the law, that I couldn't see or appreciate. For what it's worth coming from a complete stranger, believe me, I do now. Thank you (and everyone else) for all your hard work.

[NightScribe]

I'd like to join yamsham in giving my thanks to DA, and the others, who put in so much time and effort behind the scenes.

I understand, and agree, with the need to wipe out child pornography. And I also understand that, with technology being what it is now, how images can be altered. Hey, let's stick (insert celebrity name here) face on this body! Result; looks like someone famous is doing something they've never done and would never dream of doing. Or make a 30 yr old look like they're 14.

A couple of days ago, after this topic got going, I thought of the book "Farenheit 451." Books were banned, burned, by the government. And one of those firemen began to read the books. In the end, and this was the best part, he ended up going on the lam, and finding others who kept the books alive. By memorizing them and passing them on in the oral tradition. (If I remember correctly, it's been a few decades since I read that). Bradbury was on to something.

The pendulum has swung, unfortunately, to the very conservative side. Reactionary leaders always stir up trouble. I mean, my God, Galileo proved Copernicus was right and he was excommunicated and condemned as a heretic by the church. And it only took them 400 years to say, "oops, sorry." Michelangelo was constantly battling the church when he painted the Sistine Chapel. The Church later had another artist cover up some of the nudes in the Final Judgement painting. When they began the restoration a while back, they removed those garments. How many centuries did that take?

I don't know what my point is here. I'm still a little groggy. It comes down to politics, lobbyists, morality police, religious beliefs, wagging the dog (yeah, we got a mess in the Middle East, think I'll pass a law about porno). What's next? Putting a double-breasted pinstripe suit on David and a housecoat on the Venus di Milo?

Sorry for rambling, think I'll have more coffee and wake up.

[NightScribe]

This is a little dry, loaded with leagalese, but an interesting read. Try to get through it.

FreeSpeech Article Re: Resolution 4472

[Guest Melody Fate]

This is a little dry, loaded with leagalese, but an interesting read. Try to get through it.

FreeSpeech Article Re: Resolution 4472

Interesting article. I'm probably going to have to reread it about eighty times to "get it."

The mention of sexually assaulted children rather irritated me. Not because I feel they weren't victims. They were, and what happened to them was absolutely terrible, but because it's often made out like the only way children suffer in this country is by being sexually abused.

Adam Walsh's death was horrifiying. Jon Bennet Ramsey death was horrifiying. But any time a child dies it's horrifying.

In 2002 over 3,000 children were killed by handguns Yet, how much attention does that get? Unless something like Columbine happens, not much. People talk about gun control, but in most cases, we say, "Look, Mom and Dad, keep that gun in a safe place!" and that's about it. Rarely do we ever even take much action against a parent who's stupidity and carelessness caused the death of a child, because we take the attitude, "Poor people, they suffered enough."

If you have a child, the chances that he/she will get killed by a gun, never inteneded to harm them, are much higher than the kid is going to be killed by a sexual preditor.

Yet, a quick poll of my friends indicates that not one of them ever inquired to the parents of their children's friends, if a gun was kept in the home and what safety measures were taken to make sure the children would never have access to that gun.

These are the same people who feel that anyone who ever was arrested for a sex offense, even if proven guilty, should be forced to wear a neon sign hanging around their neck saying, "I AM A SEX OFFENDER! I WANT TO RAPE AND KILL YOUR CHILD!" Okay, maybe that's exagerated, but one of my friends want a law passed in our state, that any house where a sex offender lives, there must be a sign out in the yard. Any apartment where a sex offender lives, the outside of the building must identify that a sex offender lives there. even if a jury said they were not guilty. As far as she is concerned, she's got to protect her kids, so the rights of anyone else doesn't matter. And she's not the only one who feels this way.

The odds of a bunch of folks writing fanfiction/fiction about sex leading to the death or damage of a child is probably miniscule, but let one sex offender ever admit they came here and AFF would become TEH EVIL!

I believe children should be kept safe, but I believe it's better to start by looking at what is most likely to endanger your child, not just the high profile stuff that the media eats with a spoon, because it just horrifies us.

[NightScribe]

Yet, a quick poll of my friends indicates that not one of them ever inquired to the parents of their children's friends, if a gun was kept in the home and what safety measures were taken to make sure the children would never have access to that gun.

As always, Mel, you bring up good points. I have a cynical image of Little Johnny or Janie's parents at a friends house. "How could you have a reproduction of Botticelli's Birth of Venus on the wall, in plain sight! That's pornographic! That woman is NAKED!! Oh, nice rifle collection."

The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

I find it interesting that the freedom of speech is in the first Amendment, the right to bear arms (in regards to a militia) is second. But the minute someone tries to introduce a bill to get AK47s off the street, that's infringing on second amendment rights. Well, I want to write stories with adult themes; that's constitutionally protected, too. I also liked at the beginning, the bit about "in order to prevent misconstruction or abuse of its powers..." James Madison must be spinning in his grave.

This whole thing makes me....grrrr!!!!

[Guest Melody Fate]

Having a father who grew up in a family where sometimes having a gun was the difference between meat for dinner or just potatos, I don't necessarily disagree that people should have the rights to have guns.

However, I can also tell you that even though guns were commonplace for my father's family and all the neighbors around where he grew up, my father knows of only one child ever injured by a gun and that kid accidentally blew his toe off, while learning to shoot.

Guns weren't kept in gunsafes, it just was that kids knew you didn't touch the guns. I don't know why kids don't seem to understand that now, but they did in my father's day. Maybe it was because they all saw guns at work from an early age and knew that guns put big holes in little people, it wasn't just something they saw on TV.

I have a cynical image of Little Johnny or Janie's parents at a friends house. "How could you have a reproduction of Botticelli's Birth of Venus on the wall, in plain sight! That's pornographic! That woman is NAKED!! Oh, nice rifle collection."

*Bursts out laughing* In truth, I think it's more that they just don't think it could happen. "Our children's friend's parents are all decent upstanding middle class folk, just like us. Of course they don't have guns in the house, or if they do, they're kept in a very safe place far away from young hands!"

People have a hard time believing that stupidity gets more children killed than deliberate intent. I find that hard to believe, because it's pretty cold to live in a world where you feel it's more of a chance that someone out theredeliberately wants your child dead, but they'll never split their head falling in the shower. Chances are a parent who puts those rubber flowers at the bottom of the tub, hides the bleach out of the hands of little ones, and makes sure any guns near a child are safe somewhere where they won't be found is going to do more to save their child's life than to know of every sexual preditor in the area and where they live.

But the truth is that sexual preditors are not the major problem children face in what will harm them or kill them. Accidents kill children. Careless people not watching children, kill children. Sexual preditors make up a very small percent of what could harm your child.

As I pointed out in another rant about minors, it bothers me that too many people out there can see the difference between fantasy and reality except when it comes to children. If I want to play Postal II and kill things, then I'm getting rid of my agressions in a healthy way. If I want to write snuff fics, then while that's a bit kinky, I'm still just fantasizing and no one is too concerned.

But let you write a fic involving someone who's not eighteen oh no, it's not harmless fantasy anymore! Deep down, you really are a pedophile who lives and breathes to have sex with someone's children.

There seems to be an attitude around too, that porno sites want to lure in children. Yes, I admit there are some that do. (Back when DBZ was mega popular with kids, my friend's kids regularly got mail inviting them to check out porn sites and the name used was something like "Vegeta69" or something similar.) But most sites I think, would rather avoid it.

One of those companies like NetNanny or Cyber Patrol, used to have a place where you could report sites that were bad. A friend of mine had an archive with a few R rated stories. She went to report them of her own free will, wanting to block them from children. The way the site was set up, it just automatically assumed that the owner of the site would never dream of reporting it themselves, that vigilant parents and teachers would be the ones finding all this smut and reporting it.

Just because I like sex and like to write about it doesn't mean I want to have sex with your child, or have your child read my erotic writing. I think in truth, the amount of people on AFF that want children to read porn is probably less than 1%.

[NightScribe]

Having a father who grew up in a family where sometimes having a gun was the difference between meat for dinner or just potatos, I don't necessarily disagree that people should have the rights to have guns.

I totally understand that. And I know that there are people who are collectors, or who go to the range as recreation, etc. I just don't understand the need to have an assault weapon when you live in a cul-de-sac in the suburbs of a metropolis. One of my brothers lived in the country in FL and he had a gun or two. All his kids have successfully made it into adulthood. But then again, he's the kind of guy who would patiently explain why you should or shouldn't do something. If only more parents would be responsible in that matter and employ a little common sense.

[Guest Evil_Labs]

Parental responsibility has a lot to do with all these things, to be sure. Also, however, we have an extreme hang-up in terms of dealing with 'obscenity' in the US, and normally, when you make an argument, you don't want to mention how 'x will lead to y.' However, in this case, the groups who want these tough child porn laws and such are the same groups who want all adult bars, entertainment, films, and literature made illegal. They may go about it by trying to simply use 'we think it violates our community standards' in many cases, but that is their end goal. Trying to ban kinds and variations of porn, in turn, are the steps in their attempts to move further down that road, and make no mistake that they'll eventually, if they have their way, move on to anything they find 'unwholesome.'

For the supporters of these special anti-porn laws, it's not just children; they use that as a rallying cry to make it seem more acceptable. They want their moral views put in place over most everyone else's, and they will publicly try to humiliate and assassinate the character of anyone who might be legitimiately doing writing or filming, or even just selling. Just look at the CCWA or Family Value's groups websites. They're some of the driving forces behind conservative politics these days, and they clearly state what they're after. And naturally, what they want is more important than anyone else because 'they love the family' and the rest of us are dirty, nasty people.

Now, theoretically, I would think literature that is adult would be near the bottom rung of the targets these groups would go after; I don't expect that this area would be the first, second, or even third line of targets. However, one never knows. Fortunately, as I said before, I'm pretty certain this new law won't apply to writing in most any way, shape, or form.

I've had a question, actually, related to this, for a while. Exactly how secure or open to the public are the information records that are supposed to be kept by companies on adult actors now?

[Guest yamsham]

Jon Bennet Ramsey death was horrifiying.  But any time a child dies it's horrifying.

Unless her name is Joan Benez Ramirez. Then the media doesn't seem to care.