PFIR Statement on Adult Content Regulations and Broader Impacts

[David Farber <dave () farber net>]

Begin forwarded message:

From: Lauren Weinstein <lauren () vortex com>
Date: July 1, 2005 7:06:53 PM EDT
To: dave () farber net
Cc: lauren () vortex com
Subject: PFIR Statement on Adult Content Regulations and Broader Impacts




PFIR Statement on Adult Content Regulations and Broader Impacts

( http://www.pfir.org/statements/adult-content-regulations )

July 1, 2005

  - - -

The U.S. Department of Justice (DoJ) has promulgated and is about to
begin enforcing a set of regulations known as "18 U.S.C. 2257" which
relate to record-keeping requirements for a broad range of
"adult content" in virtually all media, including print, video, film,
Web sites, etc.

Summary, detail, and other data regarding these regulations are
viewable at:

   http://my.execpc.com/~xxxlaw/2257Tables5.24.05.htm   ("Technical"  
View)

and:

   http://www.openmindmedia.com/records/   ("Layman's" View)


While the ostensible intent of 2257 is the laudable goal of
protecting minors from abuse and exploitation, it appears that the
regulations' very wide scope will have a chilling effect on all U.S.
entities who deal in even peripherally-related materials that are
viewed as objectionable under "lowest-common-denominator"
definitions.  Presumably this very wide impact is viewed as a
positive attribute of the regulations by their framers.

However, this is a matter that goes far beyond the limited confines
of adult entertainment.  Regardless of how one feels about
pornography or adult-oriented content in general, the precedent set
by these regulations should set off alarm bells for everyone who
"publishes" *any* sort of materials -- however exotic or mundane
they might be in any form of media, including virtually all Web
site operators.

The use of administrative regulatory frameworks in this manner to
"control" otherwise legal materials has set the stage for the
application of the same reasoning to entities who aren't such easy
targets as adult content producers.  Will well-heeled copyright
interests now insist that regulations be drafted requiring that all
U.S. Web sites -- containing any form of content -- maintain
detailed records of permission to display *every* article, graphic,
and photo, to proactively ensure no possible violation of copyright
or other intellectual property rights?

If such rules work against adult content sites, the temptation to
apply similar reasoning and techniques much more comprehensively
will be very intense indeed.  While such an approach might appear
logical from the standpoint of protecting intellectual property,
the effects would likely be devastating for the interchange of
information and legally-protected speech.

The presence of complex record-keeping requirements can easily
discourage the publication or display of completely legal and
non-infringing materials by many (especially smaller) entities,
simply because the burden of compliance will be too great and the
risks of error too onerous.  Such a deleterious effect would
dramatically skew the balance toward what amounts to an assumption
of wrongdoing, which is essentially contrary to American traditions
of free speech rights.

At the very least, such dramatic shifts should only be the result
of full, detailed, and open legislative processes, not the spawn of
regulatory fiat.

Today the regulations relate to adult content.  But the pattern set
by 18 U.S.C. 2257 could soon affect the speech rights of us all, even
if watching old reruns of "I Love Lucy" is the closest many of us
routinely get to adult entertainments.

--Lauren--
Lauren Weinstein
lauren () pfir org or lauren () vortex com or lauren () eepi org
Tel: +1 (818) 225-2800
http://www.pfir.org/lauren
Co-Founder, PFIR
  - People For Internet Responsibility - http://www.pfir.org
Co-Founder, EEPI
  - Electronic Entertainment Policy Initiative - http://www.eepi.org
Moderator, PRIVACY Forum - http://www.vortex.com
Member, ACM Committee on Computers and Public Policy
Lauren's Blog: http://lauren.vortex.com
DayThink: http://daythink.vortex.com
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