Pornography Clampdown

[Guest Rich.]

No, but that's not what the phrase 'clampdown on porn' suggested to me. And perhaps as a consumer rather than a producer, my outlook is slightly different.

 

The rewrite of 2257 was a blatant attempt to "clamp down on" the porn industry. What did you think it was?

 

(The law is still as toxic as it ever was if anyone chooses to enforce it.)

 

Seeker,

 

The porn industry is desperate for consumers NOT to find out. I think you're interested in how the clampdown might affect you, as consumer? I'll write this as three separate posts, to prevent a Magnus Opus, and to give you and other Members a chance to comment.

 

PART 1

 

OK, here's how it is currently playing out in the UK!

 

Every year thousands of consumers of porn receive criminal sentences. I don't know whether in the USA your police have targets, but over here this is such an easy win for ours. They don't even have to do a great deal of work. We only have 3 ISPs over here, and BT (the big one) routinely feeds them the information they need to make an arrest. I'm assuming the other two do as well.

 

As Deej mentioned, the rewrite of 2257 was a blatant attempt at a clampdown. However, I don't consider that as important for most consumers as them not realising that 2257 gives them NO protection, whatsoever. I'll give you an example, I'll name him John.

 

John regularly accesses three twink sites that are 2257 compliant. He's arrested for child pornography offences. His answer is that all the sites meet 2257. PC Plod, the arresting officer, says, "prove it".

 

First hurdle, just because the sites John's accessing put up a splash screen doesn't mean they actually are 2257 compliant. He gets a solicitor (lawyer) and instructs them to contact the three studios and demand they release copies of the 2257s for all the hundreds of videos he's downloaded.

 

Second hurdle, two of the studios are genuinely compliant, but 2257s are to protect the studio, not the consumer. The studios refuse to release them. Point blank. They know that if they release the true identity of any performer into the public domain, they are out of business. So they tell his solicitor it will be a fight all the way to the European Court. (Although not tested, it is considered opinion that the EU Human Rights Act would protect the privacy of the performer). The other studio is in Eastern Europe, even though it's got a .com name.

 

No matter. He instructs his counsel to fight without the 2257s. He's a wealthy guy.

 

Third hurdle, the counsel tells him to plead guilty. "Why?", says John. He learns that counsel would have to show the court the content he's been downloading and watch as mothers and fathers sitting on the jury think, 'that could be my 16-year-old son'. A lot of legal age, 18-year-old twinks, don't look it!

 

John, remember, does NOT have the defence that the performers WERE of a legal age.

 

He pleads guilty. If he's lucky he'll get a suspended sentence. If he's been downloading the more brutal stuff, which depending on the judge could just mean threesomes, he'll go to gaol. He'll have a criminal record, and because a lot of employers (not just in cases where the prospective employee will be working with children or the vulnerable) are now requiring CRBs (Criminal Record Bureau checks) he may well find he's train-wrecked his life.

 

As an aside, and to lighten the mood, recently volunteer elderly female flower arrangers at a church over here were required to provide CRBs because they 'might' be in the church at the same time as the choirboys!

 

Richard

[seeker630]

Thanks for the response Richard.

 

is this hypothetical or do you know of actual instances?

 

Anyone know of similar happenings in the US where there really was no child pornography involved?

[happyguy2]

Wow, this is something that should worry anyone. Even though twinks aren't my main interest, one simply worries that some stuff is downloaded and viewed with a false sense of security. I can't wait to read the rest of your "opus".

hg

[+ deej]

Please don't conflate 18 U.S.C. 2257, a U.S. law, with any law in the U.K. They are, quite simply, different beasts.

 

2257 is the records-keeping requirement for producers of porn. Producers are required to have the specified proof of age on file, at the address of the Custodian of Records, and subject to inspection by DOJ inspectors without notice.

 

There have been NO (none, nada, zip) consumer prosecutions having anything to do with 2257, nor will there ever be. It is not a consumer protection law.

 

I suppose one might use a web site's 2257 statement as defense, but the only sites likely to have a false 2257 statement are FAR more likely not to bother with it at all. No prosecutor will bring a case against a consumer using content from a 2257-covered site unless they first confirm that the site's 2257 status is not up to snuff, which will put the site out of busines and take the consumer off the hook. Of course that *other* stuff the consumer likely has, well, that may cause hurt but it didn't come from a 2257-compliant site and won't have anything at all to do with 2257.

[Guest Rich.]

Please don't conflate 18 U.S.C. 2257, a U.S. law, with any law in the U.K. They are, quite simply, different beasts.

 

2257 is the records-keeping requirement for producers of porn. Producers are required to have the specified proof of age on file, at the address of the Custodian of Records, and subject to inspection by DOJ inspectors without notice.

 

There have been NO (none, nada, zip) consumer prosecutions having anything to do with 2257, nor will there ever be. It is not a consumer protection law.

 

I suppose one might use a web site's 2257 statement as defense, but the only sites likely to have a false 2257 statement are FAR more likely not to bother with it at all. No prosecutor will bring a case against a consumer using content from a 2257-covered site unless they first confirm that the site's 2257 status is not up to snuff, which will put the site out of busines and take the consumer off the hook. Of course that *other* stuff the consumer likely has, well, that may cause hurt but it didn't come from a 2257-compliant site and won't have anything at all to do with 2257.

 

Deej,

 

I completely agree with everything you've said. 2257 is specific to the USA but everyone throughout the world producing 'legitimate' content complies to it because the the USA is a major market and without complying you severely restrict your sales. My point though, and I'm sorry if I didn't make it clear, is that a large number of consumers throughout the world (that have a minimum 18-year-old age requirement) are under the mistaken impression that any content compliant with 2257 gives them some kind of protection against prosecution. I was simply highlighting the misconception that if you are charged with downloading child pornography, you are able to access the documentation that makes up the relevant 2257 that would prove your innocence.

 

Apologies for the confusion.

 

Richard

[+ deej]

Deej,

 

I completely agree with everything you've said. 2257 is specific to the USA but everyone throughout the world producing 'legitimate' content complies to it because the the USA is a major market and without complying you severely restrict your sales. My point though, and I'm sorry if I didn't make it clear, is that a large number of consumers throughout the world (that have a minimum 18-year-old age requirement) are under the mistaken impression that any content compliant with 2257 gives them some kind of protection against prosecution. I was simply highlighting the misconception that if you are charged with downloading child pornography, you are unlikely to be able to access the documentation that makes up 2257 that would prove your innocence.

 

Apologies for the confusion.

 

Richard

 

You're unlikely to need it. Prosecutors (at least in the US) would need to prove that supposedly 2257-compliant product is in fact non-compliant, and prosecutors MOST DEFINITELY can get access to those records on call. That is why the records exist in the first place.

 

More to the point, if the site is found to falsely claim compliance THE CONSUMER IS OFF THE HOOK. They thought they were purchasing legal product. The site is the criminal.

 

Outside the US, having porn at all is a crime in some locales so it is incumbent on all consumers to know local laws. But please do not make blanket claims that apply everywhere. They just don't, can't, and shouldn't.

[Guest Rich.]

I'm sorry, Deej, I didn't realise that in the USA if a consumer accesses a site that claims 2257 compliance and shows adults sexually abusing children they are off the hook. It's the site's fault. Wow! It's very different over here!

 

Richard

[+ deej]

A site like that isn't likely to claim compliance, and if they do and you believe them you probably deserve charges.

 

Most child porn prosecutions don't originate with commercial websites. It's underground stuff that gets people in trouble.

 

But look at the nattering just this week about a coverboy that "looks" underage. People really BELIEVE that rentboy would risk their business by allowing him to advertise??????

 

There's a reality disconnect here.

[Guest Rich.]

Thanks for the response Richard.

 

is this hypothetical or do you know of actual instances?

 

Seeker,

 

The outline I gave concerning 'John' is based on fact, it happened to an acquaintance who was accessing heterosexual twink porn. The judge gave him a suspended sentence even though a few of the pictures he had downloaded were in Category 4 (Category 5 being the worse). However, his local newspaper ran the story in a particularly lurid way. He got his tyres slashed, a brick put through his window and was verbally threatened. He had to resign his job, later moving to another part of the country where he wasn't known. He is now barred from applying for a huge number of jobs due to the fact that the offence would show up on a CRB check.

 

At the time I spoke to a mate whose a Barrister, he told me that every time he's in court, he only has to look at the lists to see a similar case.

 

I'm not sure if the reaction to even a hint of underage sex is the same in the US as it is here, where the word paediatrician can sadly get mistaken for the word paedophile.

 

Richard

[Guest Rich.]

A site like that isn't likely to claim compliance, and if they do and you believe them you probably deserve charges.

 

Most child porn prosecutions don't originate with commercial websites. It's underground stuff that gets people in trouble.

 

But look at the nattering just this week about a coverboy that "looks" underage. People really BELIEVE that rentboy would risk their business by allowing him to advertise??????

 

There's a reality disconnect here.

 

Deej, I used that as an extreme example to refute your argument. However, twink sites even in the USA, trade on finding 18-year-olds who look younger. It's that borderline scenario that can cause consumers problems outside of the USA because the DOJ isn't the one prosecuting them, and those 2257s are not accessible for an individual to use as defence in a foreign country. There are also many really professional sites that have .com names that are actually based outside the US. They all claim 2257 compliance. Just like the 'get your meds here' site scams. You wouldn't know they were a scam from looking at them. How many not-so-on-the-ball Americans believe it's OK to access them?

 

I'm not sure you realise that globally the 'average-Joe' has come to believe that seeing 2257 compliance gives him some kind of protection. It's that misconception I was simply trying to dispel.

 

Richard

[seeker630]

Seeker,

 

The outline I gave concerning 'John' is based on fact, it happened to an acquaintance who was accessing heterosexual twink porn. The judge gave him a suspended sentence even though a few of the pictures he had downloaded were in Category 4 (Category 5 being the worse). However, his local newspaper ran the story in a particularly lurid way. He got his tyres slashed, a brick put through his window and was verbally threatened. He had to resign his job, later moving to another part of the country where he wasn't known. He is now barred from applying for a huge number of jobs due to the fact that the offence would show up on a CRB check.

 

At the time I spoke to a mate whose a Barrister, he told me that every time he's in court, he only has to look at the lists to see a similar case.

 

I'm not sure if the reaction to even a hint of underage sex is the same in the US as it is here, where the word paediatrician can sadly get mistaken for the word paedophile.

 

Richard

 

I don't feel qualified to speak for US attitudes as a whole - we are a large & diverse country. I live in more educated, liberal & affluent area of a somewhat conservative state. The occasional arrest for possession of child pornography typically gets a one or perhaps two-paragraph story on the inner pages of the second section of the newspaper. 'Pedophile' isn't a commonly-used word here, and unless a child is actually molested or the porn is particularly extreme (actual sex acts and/or VERY young children), there's not much of a public awareness.

[Guest Rich.]

Seeker,

 

I'll try to type up PART 2 this p.m. I think you might be surprised at what is actually going on behind the scenes in the USA. I have to confess, some of it shocked me, and I'm not easily shocked.

 

... and unless a child is actually molested...

 

I think you might be flabbergasted.

 

Richard

[Guest Rich.]

Seeker,

 

So far, I outlined what's happening over this side of the pond in regard to the 'average-Joe's' mistaken belief that 2257 provides some sort of protection as he selects and consumes internet porn. So, what do I know about what's actually happening in the USA?

 

PART 2

 

A very, very dear friend of mine, an American Gentleman of a 'certain' age whom I've known half-a-lifetime called me just after the New Year. His studio had been raided and he himself arrested. His crime? He's an artist! OK, he'd call himself a 'commercial' artist! I'm guessing that 99.9% of his work has never had any kind of sexual content. Actually, scrub that, it's probably closer to 999.9%.

 

Apart from his commissioned work, he has created, in his lifetime, I would guess around 200 canvases that depict erotic work. If you imagine full colour, airbrushed, highly stylised 'Tom of Finland' type images but starring twinks instead of hunks, you're close to the idea. He has a rostrum camera, photographs the originals and sends the results to his agent in Germany who then sells them on as prints. I consider myself privileged to own an original.

 

He was charged under the US PROTECT Act of 2003 which has taken me some time to find the appropriate article but reads:

 

Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that–

(1)

(A) depicts a minor engaging in sexually explicit conduct; or

(B) is obscene; or

(2)

(A) depicts an image that is, or appears to be, of a

minor engaging in graphic bestiality, sadistic or masochistic

abuse, or sexual intercourse, including genital-genital, oral-

genital, anal-genital, or oral-anal, whether between persons of

the same or opposite sex; and

(B) lacks serious literary, artistic, political, or scientific value;

 

and follows that provision with the provision

 

© Nonrequired Element of Offense.–It is not a required element of any offense under this section that the minor depicted actually exist.

 

I've emboldened the word obscene above because in the UK that's a vital concept, but I'll come back to it later.

 

His arrest should send a chill down the spine of every American Yaoi and Hentai artist. In truth, I would hope it would freeze the blood of every 'artist', whatever their genre (including adult entertainment), wherever they are in the world.

 

But of course, it only applies to the depiction of twinks right?

 

Nope.

[+ deej]

He was charged under the US PROTECT Act of 2003 which has taken me some time to find the appropriate article but reads:

 

Took you a while? The Google machine seems to find it pretty easy, including the successful (and failed) prosecutions covered under it.

 

You are descending into troll territory.

[Guest Rich.]

Took you a while? The Google machine seems to find it pretty easy, including the successful (and failed) prosecutions covered under it.

 

I bow to no-one Deej, in my inability to find anything! In my defence, I thought the wording I was looking for was in the Miller or Mann Acts. :o

 

You are descending into troll territory.

 

How so?

 

Richard

[Guest Rich.]

Seeker, apologies for the delay, I was a bit busy yesterday (quit laughing, Gcursor!)

 

PART 3

 

The flexibility in defining the word 'obscene' is a major problem. For us in the UK, prior to the advent of the internet, anything showing an erect penis was considered just that, obscene, and by default a criminal offence both to produce and to possess.

 

This caused, during the 1980's and with the rise of the video cassette, a plethora of soft-core porn production showing simulated sex acts without actually showing anything, in an attempt to fill the void in the UK market.

 

Andreas Whittam Smith, then President of the British Board of Film Classification (BBFC), in an attempt to protect the R18 rating against the internet, drove a coach-and-horses (and infuriated the Government of the day) through what was then current legislation by announcing that the BBFC would no longer reject a video solely on sexual content. However, to this day, the only 'legal' hard-core pornography in the UK requires BBFC R18 certification and can only be sold in a very few licensed sex shops.

 

As the internet developed in leaps-and-bounds, publishers of adult entertainment started to push the boundaries of what might be deemed 'acceptable'. BDSM is a classic example. For many years, such fetish DVDs produced in the USA never showed penetration (either oral or anal) of anyone bound. Now websites believe they can get around any charge of obscenity by introducing before-and-after interviews as a way to prove the content is consensual.

 

However, such sites have meant that the US authorities have started to put pressure on the third party payment providers (the companies that bill you on behalf of a website) to police such content. Having been told they could be held liable as retailers and arming them with instructions about what The Man currently considers obscene, this has laughably resulted in financial institutions having to constantly review US adult websites and inform the webmasters about what is acceptable!

 

However, it is likely that the biggest threat and the one that could decimate the on-line porn industry, is 'opt-in', whereby all adult sites are blocked until you sign up to terms and conditions stating that you wish to access such material. The mobile phone 3G networks in the UK have already implemented this. You have to explicitly agree that you wish to access adult material and make a payment of £1 by credit card as proof of age. The UK Government has given our fixed broadband ISPs until September this year to implement the same, or face legislation. The US looks set to try and implement similar proposals, sometime next year.

 

Richard

[TruthBTold]

I think it has to do with the burden of proof whenever there is a criminal prosecution in the United States. I am not sure there is the same burden in the UK. In the U.S., the prosecutor must show beyond a reasonable doubt that the person that accessed the child porno knew or had reason to know that the porno starred someone below age. If the company posted fake compliance documents, then the person obtaining the porno probably had no good reason to believe that the porno contained a child and the prosecutor could never meet his burden of proof. Of course, if the child was six and looked six in the trailer then the person with the porno probably good reason to know it was child porno and the prosecutor could probably meet his burden case even if the company had fake documents.

[Guest Rich.]

TruthBTold,

 

In the U.S., the prosecutor must show beyond a reasonable doubt that the person that accessed the child porno knew or had reason to know that the porno starred someone below age.

 

But under the US Protect Act 2003:

 

It is not a required element of any offense under this section that the minor depicted actually exist.

 

I'm no expert on US law, and you're probably right. However, take a look at this fully 2257 compliant site, and tell me whether or not it would fail the obscenity test in certain American jurisdictions. It's not so long ago I believe, and may even be current in some cases, that even the shipping of physical pornographic material (ie. DVDs) to certain US areas was an offence.

 

Entering troll territory, am I, Deej? That MUST be Canada, right?

 

Richard

[seeker630]

TruthBTold,

 

 

 

But under the US Protect Act 2003:

 

 

 

I'm no expert on US law, and you're probably right. However, take a look at this fully 2257 compliant site, and tell me whether or not it would fail the obscenity test in certain American jurisdictions. It's not so long ago I believe, and may even be current in some cases, that even the shipping of physical pornographic material (ie. DVDs) to certain US areas was an offence.

 

Entering troll territory, am I, Deej? That MUST be Canada, right?

 

Richard

 

Sorry Rich - I've lost the thread of what you're trying to prove. Simple 'obscenity' prosecutions are extremely rare, I believe - especially where material is viewed in private. Child pornography is a different & special case.

[Guest Rich.]

.... I wasn't surprised to learn that a clampdown on porn has started in the USA.

 

Richard

I'm not aware of a clampdown on porn having started?

 

Richard

[TruthBTold]

TruthBTold,

 

 

 

But under the US Protect Act 2003:

 

 

 

I'm no expert on US law, and you're probably right. However, take a look at this fully 2257 compliant site, and tell me whether or not it would fail the obscenity test in certain American jurisdictions. It's not so long ago I believe, and may even be current in some cases, that even the shipping of physical pornographic material (ie. DVDs) to certain US areas was an offence.

 

Entering troll territory, am I, Deej? That MUST be Canada, right?

 

Richard

 

But if the child did not really exist, there would have to be some indication that the pretend person in the film was underage. Perhaps an ad that said so. Or maybe the fake movie producers dressed him in a school uniform so that it was obvious that the purchaser was trying to buy child porno. Or the actor kept referring to himself as a 3rd grader. Hate to get absurd but there are a lot of ways to entrap and the US government is good at it or at least trying. Juries aren't stupid.

[+ deej]

Entering troll territory, am I, Deej?

 

With both feet firmly planted.

[seeker630]

With both feet firmly planted.

 

Sorry - I don't necessarily agree with Rich, but putting forth & defending his opinions doesn't seem to me to constitute 'trollhood'

 

troll (Urban dictionary)

[Guest Rich.]

TruthBTold, I completely appreciate that law enforcement in the USA targets pornography in a different way, in the UK it's really only possible to target the end user, in the US it's much easier to go after the production companies. I'm sure my artist friend wouldn't have had a problem if he'd remained in San Francisco, but he made a decision to retire back to his home town, to what I believe is in a much more conservative State. Even some long established US porn producers are beginning to consider whether there are benefits in doing a geographical, with Nevada looking the likely next stop.

 

However, as I stressed in the Dubai? thread, all US travellers should ensure that their laptops and mobiles do not contain anything that can be remotely construed as pornography, and clear out their browser history, caches and bookmarks to any site that could be incriminating. I honestly didn't think that the Comic Defense League would have to come to the rescue of an American citizen travelling to Canada!

 

I'm constantly playing Big Brother (read Boring Old Fart) and haranguing the younger generation here in the UK that, just because they find it funny to send and post on each other's social networking sites the most gross-out porn they can find, it isn't sensible. OK, it may be easy to find plenty of Spanish bestiality sites claiming 2257 compliance (although how you get the donkey to do the paperwork defeats me!) but IMHO it's madness to access and distribute such material.

 

Seeker, thanks for accepting that in no way am I attempting to 'troll'. As Deej hasn't specified why he thinks I'm doing so, I have to wonder whether he's an insider, because the industry really doesn't want any public discussion of either attacks on consumers or about such current issues as credit card companies being forced to take on the role of US Government censors.

 

As a sometime producer of content, who keeps up with the adult entertainment industry's daily chatter, I feel safe in saying there is a general consensus that the USA adopting 'opt-in' will be the match that'll light the bonfire of internet porn.