Just when you thought Congressional Logic couldn’t get any more contorted, the Capitol Hill Gang has upped the ante, again.Couched within the massive collection of new law, tweaked law, and redefined terms that have been dubbed the “Adam Walsh Child Protection and Safety Act of 2006” is a whole new section for 18 USC 2257,a new statutory sidekick if you will, to keep 2257 company – the brand spanking new Section 2257A.
Never mind the fact that 2257A has really nothing at all to do with child pornography, child exploitation, or child safety. Heck, in that, all it does is share common ground with its cousin, 2257.
Also set aside that 2257A ropes in an enormous amount of material that nobody can reasonably suspect constitutes anything close to child pornography; the same can be said of its predecessor.
What bugs me about 2257A is that it essentially segregates producers of sexually explicit content into two types; I call these two producer types the “Preferred Producer” and the “Presumed Criminal Producer.”
A Preferred Producer, apparently, is a “Mainstream Hollywood” type of fellow. Sure, his movies are utter trash, but the young-looking people in them are only pretending to have sex, maybe giving a little “lascivious exhibition” of the genitals here and there – but nobody is actually getting buggered.
Well… unless maybe Mickey Rourke is involved. I hear he likes his sexually explicit conduct “actual” as opposed to merely “simulated,” if you get my drift.
At any rate, Preferred Producers are producers who do make “simulated sexually-explicit material,” but they aren’t “pornographers.”
A Presumed Criminal Producer, on the other hand, is someone who creates content where the buggering is real, and you can tell that it’s real.
These purveyors of the putrescent are true “pornographers,” unlike their Hollywood counterparts, who are… um… “artists,” I guess.
Get this, folks: if you’re a Preferred Producer who creates the right kind of “simulated sexually explicit material,” all you have to do is certify to the Attorney General that you “regularly and in the normal course of business” collect and maintain “individually identifiable information regarding all performers,” and promise to keep those records handy in case the feds want to take a look, that’s the extent of your record keeping obligations.
Hell, if you’re a Preferred Producer, you can’t even get in that much trouble for failing to have the records. So long as what you’ve produced really isn’t child porn, or exploitative of children in some way, you’re facing a year in the poke, max.
No problem; that boils down to checking and making copies of identification documents, and storing them such that they can be accessed and produced for inspection in a reasonable time frame.
If you’re a Presumed Criminal Producer, however, you must cross-reference every identifying aspect of your performers six ways to Sunday and woe betide if you don’t cross every T and dot every I — and you had better be ready to be inspected without notice by your friendly neighborhood FBI agent or other authority designated by the AG.
Oh, by the way, if you’re a Presumed Criminal Producer the feds can confine you to the shady corners of one of our country’s correctional facilities for a visit of up to five years, just for a simple record keeping violation. Some will argue that such a penalty for a purely “technical” violation is highly unlikely – but the language of law clearly provides for such a possibility.
What’s that you say? That’s not fair? How explicit a depiction is has nothing to do with the age of the performer in that depiction? These are statements that are true, but apparently irrelevant, according to our pals in Congress.
I’ve simplified things for the purpose of my rant here, but not much. Ask your attorney once Bush has scrawled his signature to the Act on Thursday, and s/he can break down the details for you. Suffice to say that the bar we must clear as “pornographers” and producers of actual sexually-explicit content is like a world-record pole vault to our Hollywood equivalent’s limbo stick.
So what’s the deal Congress? What gives, DOJ?
Why are there seemingly reasonable record-keeping regulations for Hollywood producers, who on occasion have distributed nude images of performers who are actual minors, while legitimate adult entertainment producers, who do not let minors anywhere near their productions, are subject to onerous and cumbersome regulations – including some requirements that are arguably not possible to comply with at all?
My guess is that we won’t get an answer until we see them in court – again.
By revising the 2257 regulations now – right at a time where the FSC and DOJ are making progress on narrowing the scope of 2257, possibly even crafting a compromise we can all live with – our Congress has done everyone involved a profound disservice.
Rather than wait on the result of FSC v. Gonzales, instead of allowing the Court and the parties to the lawsuit to fully litigate the important questions raised in the case, Congress likely has taken the whole question back to the drawing board.
We’ll have to wait and see what the FSC has to say about the new Adam Walsh Act, and its implications for the lawsuit in progress, but my hunch is that a stroke of Bush’s pen on Thursday will effectively mark the end of one lawsuit and the beginning of another.
