June 24, 2005 | By Kurt Opsahl

Why the DOJ's 2257 Regulations Aren't "Just a Porn Problem"

On June 23, new regulations from the Department of Justice went into effect, dramatically expanding the reach of a statute, 18 U.S.C. § 2257, intended to regulate the adult entertainment industry. Now it includes every blogger, online journalist, and website owner who displays any image falling under the law's broad (and vague) definition of "sexually explicit" materials.

How? The new regulations expand the definition of a so-called "secondary producer" of materials to include anyone "who inserts on a computer site or service a digital image of" sexually explicit conduct. If you're a blogger or you host a website and write an online article or personal ad with a photo that falls under that definition, that means you.

It's easy to see how quickly this requirement could stop lots of legitimate speech and expression, covering material that's well outside the basic definitions of commercial porn. Consider the blogger who writes a post on the Abu Ghraib prisoner abuse scandal and wants to post some of the existing or soon to be released sexually explicit photos of prisoner abuse. (Even if the pictures were blurred, under 18 U.S.C. § 2256, the regulations would likely still apply, since the definition of "sexually explicit conduct" includes "sadistic or masochistic abuse.")

Under the new regulations, the blogger:

  • is a "secondary producer" and required to keep records of the ages of the participants and copies of their photo IDs; and
  • is required to list a street address where the government may inspect these records without notice (and keep it open 20 hours a week for at least the next five years).

For the Abu Ghraib photos, since records of the "participants" are not available (at least not outside the US military), the record-keeping requirements could not be met, and the blogger could face criminal liability for posting the images. This will unconstitutionally chill protected speech -- indeed, in this example, core political speech.

(Other examples of chilled speech include blogging about Jeff Gannon's explicit escort advertisements, or critical commentary about pornography using actual samples.)

Aside from record-keeping headaches, the privacy and anonymous speech implications for both the poster and any person depicted in such photos are severe. For someone depicted in such images, your photo ID must be made available to anyone who reposts your photos. For a regulation designed to protect people whose photos are taken, this is an absurd rule -- making a treasure trove of information easily available to stalkers and other sickies.

For online sites, a statement giving the location of these records must be displayed on a site's homepage, ending your right to blog anonymously. And it gets worse. The location where the records are kept must remain "available" to law enforcement for unannounced inspection for at least 20 hours per week. Blog out of your home, and you have effectively lost your Fourth Amendment rights.

EFF believes that this warrantless inspection requirement illegally forces bloggers and others to sacrifice a constitutional right -- freedom from unreasonable searches and seizures -- in order to exercise the fundamental rights of freedom of speech and the press. It's a tradeoff that the government should not force people to make.

The Free Speech Coalition, a trade association for the adult entertainment industry, has filed a lawsuit challenging the regulations, and reached a temporary deal protecting only its members from enforcement actions until the court rules on its motion for a preliminary injunction. EFF will be watching that case closely and helping where we can.

But the adult entertainment industry is not the only group that should be concerned. These regulations are a problem for everyone who wishes to keep the Internet a vibrant forum for debate. In our experience, regulations like these can be a potent weapon in discouraging individuals from using the Internet to share or discuss the opinions of others. Most people will steer clear of anything even close to what the government calls "sexually explicit" to avoid having to keep these records, open their homes to inspection, and reveal their home addresses to the world.

EFF is drafting a new section on adult material for our Legal Guide for Bloggers, so we can help you understand these regulations and defend your free speech rights.


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