Record-Keeping is Burdensome for Pornographers

I think we’re all fully versed as to the costs of some regulation, such as Sarbanes-Oxley, that requires massive record-keeping and certification. However, many in the pornography industry are complaining that the DOJ has instituted record-keeping requirements so complex that it will surely drive them out of a legal business. The requirement? Keep records verifying the age of every employee that shows up on-camera for ten years. WSJ article here. Jeepers! Regulations passed last year require all online purveyors of sexually explicit videos or photographs to retain each subject’s birthdate, copy of government-issued ID, and list of aliases used in the industry.

According to the article, owners of websites are up in arms, saying that the DOJ wants to drive their legal adult entertainment sites out of business under the ruse of fighting illegal child pornography. Apparently, some would be performers don’t want to use their real names. Some owners of websites don’t want to list the address of their home business and announce to the world that they run adult entertainment websites. OK, sorry. But you can’t have it both ways.

Legitimate, legal businesses keep records. Every employer I ever had made a copy of my driver license and my social security card. The DOJ can call any legitimate business in the country and ask for proof of the age of its employees, and those employers can comply. Why? Because we have laws, such as child labor laws and tax laws where this information comes in handy. I guess the adult entertainment industry is uninterested in tax laws. How do they file W-2s if they have no actual name of performers? If you want the adult entertainment industry to be legal, then act like one. Obviously, re-sellers of materials are the ones with the larges burden, but they may be carved out of the regulations. I’ll leave the far-reaching privacy concerns to Dan, but for now, I’m unsympathetic to complaints of keeping records of employees’ identities. Try complying with SOX.

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9 Responses

  1. Dan Filler says:

    I think the problem with the rule is not that producers of porn (i.e., the actors’ employers) have to keep these records – that has been a requirement all along – but that every reseller will as well. As far as I can tell, resellers are the only ones affected by these new regulations.

  2. Victor says:

    Yeah, what he said (Dan Filler). The new regulations are precisely like requiring every bookstore that sells novels and every library that lends them to maintain complete records of the true name, age, birthdate, and government-issued ID of every author, plus all the pseudonyms those authors have ever used. DOJ is just trying to put all retailers of erotic materials out of business.

  3. Simon says:

    “Unsympathetic” is the right word, I think. It seems churlish for the porn “industry” to complain – and for the rest of us, poetic justice to see – that DoJ is doing to them essentially what they pay their actors to do to their actresses.

  4. SAN says:

    The burden goes much farther than you might think. It goes to all resellers (all downstream vendors). For obvious reasons, the “models” don’t want their personal information distributed to every single reseller.

    To put this into a more mainstream light, the equivalent would be requiring your local Blockbusters to maintain a detailed personnel file on every actor who appeared in something like Final Destination.

    I have no problem with the requirements for the content provider (for all the reasons you’ve mentioned). But the regulations going beyond them is clearly designed to shut them down. Call it an attempt to dodge the court cases on the First Amendment.

    As far as your W-2s, why would they necessarily be employees? Self-employment seems a more natural model for the industry (and Hollywood).

  5. OK – so I’m guessing Ms. Hurt has no interest in becoming in-house counsel for “Moan & Loan”, which gives clients a free porn video with every payday loan.

  6. SeventyNine says:

    I’d just like to add that these regulations (I believe they are promulgated under 18 USC 2257?) are burdening activities well beyond the pronographic industries.

    For instance, websites where users can post anonymous pictures of themselves nude can no longer operate (because they can’t get the regulatory required credentials from anonymous users). While, yes, posting pictures of one’s privates on the internet isn’t exactly an expression falling within the core protections of the first amendment, it surely has some expressive value for the poster – particularly where other users are invited to aesthetically judge and critique the photos (e.g. – shut down due to regulations).

    Surely the government could satisfy its interest in preventing child pornography from entering such sites by less burdensome means. For instance, users could be required to certify they are over 18, IP addresses could be logged, and posted images could be subject to approval and removal.

  7. Ann Bartow says:

    EFF gives an overview of the new regulations here:

    The regs don’t seem all that onerous for commercial distributors – all they need to do is obtain the records of the legal name and date of birth of each performer from the producers when they obtain the porn. That’s less paperwork than many other commercial transactions entail.

    I guess how you react to these regs reflects how you weigh the relative importance of catching the producers of child pornography again the possible chilling effect of a seemingly small regulatory burden on the production and distribution of “adult” porn.

  8. SAn says:

    Ann, this is the nasty bit from your link.

    “While this law has been in effect for years, recently the Department of Justice (DOJ) issued new regulations that expand the definition of a “secondary producer” of sexually explicit material. As of June 23, 2005, new federal regulations apply the record-keeping requirement to these secondary producers, and defines them as anyone “who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction” of sexually explicit conduct.”

    As I mentioned above, the “second producer” basically picks up any intermediaries in the distribution. And how could they have any of the required information. My Blockbuster example would produce a massive amount – and likely impossible to comply with – of paperwork burden for the non-porn industry, so it would also produce exactly the same amount of impossibility for porn resellers.

    If they want to try to catch child porn, other solutions are more effective. Possibly on the lines of requiring that American resellers must deal with approved producers. ie: those that comply with the regulations. These regulations are attempting to shut down porn.

  9. Ann Bartow says:

    I don’t have time to unpack everything you’ve said and respond with a lot of detail, but here are some quick reactions:

    1. The regs are clearly pitched at commercial distributors, possibly exclusivley so (If defer to EFF’s analysis on this point). If one party is writing a check, asking the transmitting party to send the required records along with the porn as a condition of payment is not onerous. The record keeping likely pales in complexity to almost any copyright-related transaction Blockbuster is involved in; they can handle it.

    2. You have offered no “effective solutions” to child pornorgraphy that are less burdensome. In your previous post you suggested that: “users could be required to certify they are over 18, IP addresses could be logged, and posted images could be subject to approval and removal” meaning once the child porn was in circulation, you could catch the folks who accessed it, but that wouldn’t reach the producers. Now you are suggesting “requiring that American resellers must deal with approved producers,” which strikes me as a lot more burdensome than just keeping track of the names and ages of the poeple depicted in the porn, which you would still have to do if you were going to select and monitor “approved producers,” as part of the “approval process,” wouldn’t you?

    3. People buy billions of dollars of porn every year online using credit cards; if the paperwork from Visa, Mastercard and Am Ex related to all those transactions doesn’t overwhelm the porn industry, keeping track of names and ages surely isn’t going to, so I’m pretty sure your porn supply is safe, though possibly compliance with the regs will make it slightly more costly.