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On File

By Annalee Newitz

WHEN THE U.S. government wants to police what citizens are saying online, it pulls out the most potent weapon in its arsenal: bureaucratic regulations. The Department of Justice is currently pushing two new regulations that will generate long-lasting records of what people are posting and reading online. What is particularly dirty about all this is that it puts the onus of tracking people onto private businesses, rather than in the hands of law enforcement.

How will this tracking regime begin? With a group of unpopular and often marginal people, of course. You know: pornographers. The DOJ recently issued a regulation updating the Child Protection and Obscenity Enforcement Act for the Internet age. This law, also known simply as 2257 after its number in the criminal code, requires adult businesses to keep detailed records that prove that all the models they use are over the age of 18. Incidentally, these records also will contain the real names of all the performers, and often their addresses too. To maintain "proper records" under 2257 (and avoid steep fines or jail), you must maintain files that contain every single erotic image or film you've published, cross-indexed with age-verification papers for every single performer in them. These records must be kept for seven years. That is a hell of a lot of hard-drive space if you are a porn site that posts streaming videos. It is also a logistical nightmare for any site that does reviews of adult movies or erotic material. Under the new 2257 regulations, republishing an erotic image, even if you are doing it simply for the purposes of criticism, requires you to keep the same age-verification records as the people who created that image. It also includes any website that posts "lascivious" images of naked people or people engaging in "sexual activity."

But wait: there's more. Any site affected by 2257 must also publish a physical address that serves as its "place of business." Someone must be available at that address 20 hours per week just in case a law enforcement officer wants to gain access to those 2257 records. This doesn't seem too onerous if you imagine a Penthouse.com or Vivid Video type of operation. But consider all the mom-and-pop adult websites run out of private residences, or webcam girls who don't turn the cam off when they take someone to bed. These rules mean your local webcam girl and our friends over at sex blog Fleshbot.com must publish their physical addresses online, thus leaving performers and writers vulnerable to stalking and harassment. But hey, it's a great full-access wank pass for cops who can't afford to pay for really primo porn sites every month.

My favorite part of the DOJ's discussion of the new regulation in the Federal Register is where it denies that "a hypothetically possible crime, such as the stalking of a performer," could be "in any way tied to the dissemination of the information about a performer." In other words, the most powerful law enforcement organization in the land doesn't get the connection between stalking crimes and keeping the real names and addresses of porn actors on file at an address made available to the general public. Kind of makes it obvious why the DOJ is having a hard time dealing with terrorism, doesn't it?

I mean, what exactly is the connection between a bad guy knowing the name and address of his target and his committing a crime against that target? Sounds pretty hypothetical to me. So now the DOJ has wisely made the world safer by forcing anyone even remotely connected with publishing erotic images to keep elaborate files on the true identities of everyone in said images for seven years. And we're even more secure because law enforcement officers can wander into adult businesses any time they want, without a court order, and go through every single file for hours or days at a time. But few people, save for the heroic Free Speech Coalition, which is working on crushing this new regulation with injunctions and lawsuits, are going to argue with placing porn under surveillance. After all, porn is naughty, and the people in it don't deserve privacy.

That's why 2257 is a great testing ground for a much broader scheme by the DOJ. This scheme, sometimes called "mandatory data retention," would force all Internet service providers to keep files on everything that people using their services are doing online. Every time you use AOL, the company would have to keep a record of your chat sessions, what websites you visit, your email, etc. Sound like another paranoid fantasy brought to you by the tin-foil-hat brigade? Think again: It is a real proposal that was floated by the DOJ at an April 27 meeting with various Internet service providers. News.com quotes U.S. Internet Industry Association president Dave McClure as saying that DOJ reps want to mandate, perhaps "by law," a set time period during which ISPs would retain data about the personal online habits of all their users. That's how it goes. First they come for the pornographers, and then they come for you.

Annalee Newitz ([email protected]) is a surly media nerd who has no files on you.

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From the June 22-28, 2005 issue of Metro, Silicon Valley's Weekly Newspaper.

Copyright © 2005 Metro Publishing Inc. Metroactive is affiliated with the Boulevards Network.

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