About Birthdate Verifier

[Bakunin]

This is about the new "Birth Date Verifier" system in place on AFF.

I'm not a citizen of the United States, and therefore not subject to your laws regarding legal age for accessing adult materials.

While I may be over your legally required age, I still find it offensive that I have to enter personal information simply because your legal system demands it.

Where your servers are located is irrelevant; while you must uphold certain laws of the United States of America, I have no obligation to do so. The fact that some kind of record is kept of the information I input is even more offensive.

Just thought I'd bring this up.

[Guest Agaib]

I'm not an administrator or owner of this site but I do know a few things.

While you may not be legally required to uphold the laws of the United States of America, AdultFanfiction.net is. The birth date verifier has been put in place in order to protect this website from prosecution by people who accuse them of servicing adult material to minors. I don't think there's any real way that adult-fanfiction.org can actually change how it behaves depending on the country of origin of a client. For this reason they're left without much of a choice. The record that is kept I'm sure really can't be used against you in any way since you're over 18 so you really don't need to be offended by it. Really the issue lies not with adult-fanfiction.org but with the laws of the United States of America and I'll assure you that I'm not any happier about them as you are.

[Guest DarkAvenger]

Actually, wherever the server for a site is located at, all users are required to uphold the laws pertaining to that location while on that site.

It's like visiting a foreign country, you cannot just walk up and shoot someone in say... Russia because you are from say... Spain. If you told the law there that you could do that because you were not a citizen of their country they'd think you were nuts and likely lock you away under the jail rather than in it.

We apologize if it personally insults you to have to fill out the form, but that's simply how it is and how it will remain.

So, while you may be legal to view any/all material no matter what age you are in X country, if the server is not located in X country, then X country's laws do not pertain too you or the site while you are on that specific site.

Hope that clears a few things up for you.

[rjones21]

The following is an email i sent to the admin along with the response:

COPA is technically unconstitutional. Here is an excerpt from wikipedia:

'The federal government was enjoined from enforcing COPA by a court order in 1998. In 1999, the United States Court of Appeals for the Third Circuit upheld the injunction and struck down the law, ruling that it was too broad in using "community standards" as part of the definition of harmful materials. In May 2002, the Supreme Court reviewed this ruling, found the given reason insufficient and returned the case to the Circuit Court; the law remained blocked. On March 6, 2003, the 3rd Circuit Court again struck down the law as unconstitutional, this time finding that it would hinder protected speech among adults. The government again sought review in the Supreme Court.

On June 30, 2004, in Ashcroft v. American Civil Liberties Union, the Supreme Court upheld the injunction on enforcement, ruling that the law was likely to be unconstitutional. Notably, the court mentioned that "filtering’s superiority to COPA is confirmed by the explicit findings of the Commission on Child Online Protection, which Congress created to evaluate the relative merits of different means of restricting minors' ability to gain access to harmful materials on the internet." The court also wrote that it was five years since the district court had considered the effectiveness of filtering software and that two less-restrictive laws had been passed since COPA, one prohibiting misleading domain names and another creating a child-safe .kids domain, and that given the rapid pace of internet development those might be sufficient to protect children. The court referred the case back to the district court for a trial, which began on October 25, 2006.

In preparation for that trial, the Department of Justice issued subpoenas to various search engines to obtain Web addresses and records of searches as one part of a study undertaken by a witness in support of the law. The search engines turned over the requested information, except for Google, which challenged the subpoenas. The court limited the subpoena to a sample of URLs in Google's database, but declined to enforce the request for searches conducted by users; Google then complied.

On March 22, 2007, U.S. District Judge Lowell A. Reed, Jr. once again struck down the Child Online Protection Act, finding the law facially violates the First and Fifth Amendments of the United States Constitution. Reed issued an order permanently enjoining the government from enforcing COPA, commenting that "perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."'

And the link to this informaion:

http://en.wikipedia.org/wiki/Child_Online_Protection_Act

By abiding by this law you are exposing yourself to the danger of a civil lawsuit each time you kick a 16yr or 17yr old off the site and delete their account. Not to mention some 16 and 17 yr olds in Ohio have been emancipated by the courts and are legally adults, not minors.

Better discuss this information with your laywers before you find yourselves and the site sued by someone you kicked out under the COPA.

A Concerned 25yr Old Member

Robert Jones

Subject: Out for the weekend, back on Tuesday May 15th

I have personal matters to attend to (my college graduation and my

wedding) and will be back Tuesday May 15th, 2007. Please be patient and I

will respond to you when I return. Thank you for your patience!

~Dark Avenger

Moderator & Head Tech

I figured posting both here would get me a response to my concerns.

[Guest DarkAvenger]

I know for a fact that I responded to you. The day I got back, no less than 45 minutes after I turned my computer on. Here's the response, since it seems to have conveniently fallen out of your email inbox into the ether. If you want full headers, let me know, I'll be glad to provide them for you.

Date: Tue, 15 May 2007 00:44:09 -0400 [05/15/2007 12:44:09 AM EDT]

From: "Adultfanfiction.net Admin" <admin@adult-fanfiction.org>

To: Jareth Marlone <robertjones21@HotPOP.com>

Subject: Re: COPA

Thank you for bringing this to our attention.

We are quite pleased when members take the time to do a little research and present information that may, or may not, pertain to the smooth running of the site.

It shows that you care and that your involvement goes beyond superficial, or merely just reading (or writing) fanfiction.

And while we do appreciate this information, we will continue to utilize the Age Verification software until a FINAL decision by the US Supreme Court has been reached regarding the Child Online Protection Act (COPA). (Please note a lot of issues are still in court at this point in time.) This decision is expected to be reached sometime this year. (Or at least we are hoping lawmakers can do it in that time frame.)

In the meantime, we, at AFF.net believe that until a final decision has been reached, the site can come under fire and fines and/or jail time can be brought to bear before such a decision has been made.  And we seriously doubt that should such event happen, the government would be willing to reimburse the fees the site would have to pay.  Or the jail time that the mods could possibly face.

Again, thank you for your interest, however, until a decision has been reached, we feel that this is our best protection.

~AFF Moderators

Now, since perhaps that answer was not satisfactory enough for you or you simply somehow ignored the secondary response from us, here's the conversation between myself and the lawyer who sold us the birthdate verifier:

Me:

The birthdate verifier (which we have implemented on our site) states things about COPA, but according to many members recently, COPA has been struck down 100%. I know there are other laws up in the air, that much I know for sure. However, I'm not on the "up and up" for legality stuff. Could you please fill us in a little so that we know we are not using something that's now technically against the law? Thank you!

--

~Dark Avenger

Moderator & Head Tech

Him:

You have to be careful not to get legal information from non-lawyers.

First of all, COPA has been enjoined by the federal courts since it was first passed.  Therefore, it has never gone into effect, which the courts have been wrestling with its constitutionality.  There has been no final determination yet, however.  The trial court recently conducted a full trial on the case, and ruled the law unconstitutional.  However, that ruling continues to be appealed, and will probably go back up to the U.S. Supreme Court (for the third time!) after an intermediate appeal to the Third Circuit Court of Appeal.  That could still take years.  Regardless of the courts’ rulings, using the device would never be ‘against the law.’  In that case, you would be doing more than the law requires.  So, in short, COPA is still being debated in the courts (although it has been struck down several times), and there is no prohibition on using the device or referencing COPA compliance in the fine print.  As you mention, there are several other labeling/rating/age verification laws pending out there, but none have passed yet.

Let me know if you have any other questions.

____________________________

Lawrence G. Walters

Attorney at Law

Weston, Garrou, DeWitt & Walters

781 Douglas Avenue

Altamonte Springs, Florida 32714

www.FirstAmendment.com

Tel: (407) 975-9150

Fax: (407) 774-6151

Toll Free: (800) 530-8137

E-mail: larry@lawrencewalters.com

Aside from all of the legal mumbo-jumbo, we run the site, the member's don't. We could deny people entry for having purple hair if we wanted to. It's like any restaurant or hotel, "we reserve the right to refuse service to anyone". *shrug* So we refuse to serve those under the age of 18.

Before the laws came up in court, we already had our TOS which denied entry to anyone under the age of 18, people just felt a little free-er to ignore it then I suppose. We kicked them off then, we kick them off now. No difference.

[rjones21]

Actually I did not recieve that e-mail, so thanks for including it in your reply here. I think I understand your lawyers take on it, but that still doesn't alleiviate my concerns that someone you kick off will use those court descisions as the basis for levying a civil lawsuit. Especially by those who were emacipated by the state courts and are legally adults dispite being 16 or 17 yrs. old. Fact is ANYONE can sue just about anyone. There have been13 yrs. olds who sued their own parents. What they would believe that they would from sueing you, but it would run up your costs.

Oh, and could you please simply remove thier stories from the achive or put notice in the summariess. I hate seeing what looks to be a great story only to find it belonged to a minor and you took it over. If the story is no longer available it shouldn't be visiable to us readers. Just my opinion.

[rjones21]

In previeous post it should of said on the fourth line:

There have been 13 yrs. olds who sued their own parents. I don't know what they would believe that they would get from sueing you, but it would run up your costs.

I blame my lapse on my having ADHD.

[EveKnight75]

I realize that there are emancipated minors out there who count as legal adults but do you honestly think that the site mods have the time or resources to check out each member's scenario case-by-case? Frankly, that's ridiculous.

We can be confident that someone 18+ is definitely a legal adult. We can't be sure that the same holds true for a 16-year-old unless we pry into private and confidential information. That would be crossing a boundary which most members don't care to cross for the sake of posting fanfiction. Come to think of it, if that were the case, the site would be more likely to get sued for something relating to breach of privacy (which it'd lose). If an emancipated minor sued AFF for discrimination, who do you think would be more likely to win that case?

I'm a pre-law student, and I know that both you and I know the answer to that question.

[rjones21]

It isn't a question of winning the case so much as the cost of defending the site's postion in court. The only solution that I can think of is to make the site completely private, restricting access to most of the site to members only. That would qualify the site as a private club and even then you run into the Supreme Court rulings in:

Roberts v. United States Jaycees (1984)

Board of Directors of Rotary International v. Rotary Club of Duarte (1987)

that stated freedom of association did not prevent the enforcement of state or local antidiscrimination laws. They may be able to cite the federal Age Discrimination Act as well. If an emancipated minor proves that (s)he is an legal adult you would have a definate problem. Ask them to show legal adult status, if they cant or refuse then you can kick them out.

Of course you still would to deal with the potential problem of frivolous lawsuits by legal minors and/or their families.

I'm not even going to touch the pontential conflicts with the laws in the 191 other countries of the world.

So I think my concern are real and not imaginary.

[Guest DarkAvenger]

We're not saying your concerns are imaginary. What we're saying is that the probability of being sued by a parent when their precious 12 year old is "corrupted" by our site is FAR higher than being sued by an emancipated 16 year old. Not only that, it would probably never go to court. We state you have to 18 over and over. That's OUR rule, not necessarily the government's. We're allowed to have our own rules and enforce them. And we are a private club, for those who are 18 and over. It's made clear in a plethora of places, including the bottom of every page of the main site. A court would take one look at it and not even bother with trial.

[rjones21]

Now I'm confused. I thought that a site was a public site if the general public had access ie. Jon Doe can visit the site and read the stories. That the site was a private site if you had log in to access its contents ie. Jon Doe can't just visit and read the stories without being a member and logging in first. In either case I believe you are subject to antidisrimination laws. I guess all I can really say is be careful in how you handle cases and cross my fingers nothing goes wrong. I was always told to hope for the best and prepare for the worst. Last idea for you is to start a war chest just in case things do turn ugly. I REALLY don't want to see the site fail or get shutdown.

[Guest DarkAvenger]

Okay, so in your definition we're like... semi-private or something. Still, we disallow a certain group of people, specifically those under the age of 18 and those who we have banned for longer.

Technically, we are preparing for the worst, that's why the birthdate verifier went up in the first place. The "you go away if you're under 18" thing wasn't working too well. This seems to have at least slowed the kiddies down some.

Nothing will ever be perfect, everything has flaws. This is as close to perfection as we could buy without turning AFF into a pay site, which would lose a lot of the readership and actually, a good deal of our volunteer staff as well.

[rjones21]

Thats good to hear. My biggest concern was that you were ignoring potential legal problems simply due to them being unlikey or improbable. That you might be unprepared for the possibilty, however low it might seem, of getting hit with a legitimate antidiscrimination lawsuit or getting hit by a vindictive and purely frivolous lawsuit. The latter is a concern in this lawsuit happy country that we both live in. I once again DON'T want to see this site go under or get shutdown, and too many frivolous lawsuits would drain the site budget. It's nice to know that you are not ignoring the afforementioned potential legal problems and are considering the site's postion carefully. I think I can go to sleep easier knowing that you are prepared in case things turn ugly.

Side note: you would be suprised by what kinds of garbage makes it to trial and wins. I know I am everytime I watch the news. No longer watch local news.

[Guest Agaib]

The lawsuit wouldn't get anywhere. There are a lot of much larger websites that do not allow minors such as Ebay etc. If those big websites aren't afraid of an anti discrimination lawsuit I doubt we should be. The fact of the matter is that no one is going to criticize AFF for not being all knowing about the personal lives its many many many members. Or rather, such criticisms would be few and far between.

Does the law even technically allow emancipated minors to view pornographic material anyway? I'm not entirely sure if it makes that exception. Despite the fact that they are closer to being considered legally an adult doesn't automatically give them all of the privileges. Even an eighteen year old can't legally drink alcohol.

[rjones21]

First I'll tackle the second paragraph. In regards to pornagraphic material, the law varies from state to state and country to country. In many places it is the same as the age of legal consent(if they can legally have sex they can read and view such materials) which ranges from 15 to 21 depending on where they live. Ohio for example the age of legal consent 16 yrs. old if I remember correctly. While an emancipated minor doesn't have full privleges, they do have, as legal adults, full civil rights.

Secondly, Ebay is a commercial business. They can, within reason, deny service to anyone. Just as a bar can throw out people under 21, 5 minutes before happy hour starts. The site admin considers AFF to be a club. According to the Supreme Court, private clubs are not exempt from antidisrimination laws. And as far as the first sentence, the ACLU might disagree with that. If said emancipated minor had a stong enough case, the ACLU might back them up. If that happened the case would most likely make it into court.

But, as I said in my last post, the site admin has taken steps to prepare for such a scenario. It's nice to know that they ain't "flying blindly into a storm" as the saying goes.

[DarkCabaret]

Does the law even technically allow emancipated minors to view pornographic material anyway?

That is a good question, I mean I know if someone were to walk into an adult novelty shop and said "Well I'm emancipated" it wouldn't hold, the laws are in place for a reason!

Then again when you go on yahoo.com or Google.com or whatever site allows a search you could EASILY go to an image search enter a FAKE birth date and get all the naught pictures you wanted. It's nearly impossible to keep every single under 18 year old person away from pornography whether it be photos or text.

Edited June 15, 2007 by DarkCabaret

[Guest Knorg]

It's nearly impossible to keep every single under 18 year old person away from pornography whether it be photos or text.

When I was under 18 and out and about in the local area we used to find pornography stashed in the woods.

I understand this was a worldwide phenomenon.

[Guest Agaib]

But, as I said in my last post, the site admin has taken steps to prepare for such a scenario. It's nice to know that they ain't "flying blindly into a storm" as the saying goes.

While your points are most likely correct I think you're dramatizing them to be honest. "Flying blindly into a storm" seems to imply that a lawsuit is absolutely assured. If the site admin had never considered the issue it really would have been more like taking a walk without checking the whether. Chances are there won't be a tornado in the few minutes you'll be outside.

I personally think that your concern is fairly silly. If the laws are different in each state then I would assume that a site, because it is broadcast all over the US AFF would probably be advised to apply security measures more or less equal to most strict state laws. I'm sure there is at least one state that disallows even emancipated minors to view pornographic material until they're eighteen (don't swear Me to that I havn't exactly gone over every single states' laws). If there was a viable lawsuit for anyone I think someone would have sued some sort of "adults only club" a long time ago for disallowing minors.

[Guest DarkAvenger]

Actually, the "strictest" state would be one that disallowes all types of pornographic material. You can always tell when a website is on a host in those states because they can't have anything remotely even R rated on their site, lol. It's kinda funny. Anyway, we basically have to go with the overall US internet usage laws. That says 18. I've never seen a clause about anything like an emancipated minor. *shrug* Besides, that kind of lawsuit wouldn't start with us, it'd likely start with some high ranking porno site or other. After all, nakied boobies are still ranked far higher in views than the words "nakied boobies". Here you get words. There you'd get the real deal. A horny emancipated minor would probably try to see porn before reading it... at least I know that's the first thing I went for when I got my first "freedom" with the internet. lol