The Bush administration has been doing such a great job with its War on Terror (Every year, since 2001 there has been a major attack somewhere in the world, not to mention no reduction in endemic violence in other parts of the world), it has gone after that other nefarious breed–pornographers.
Regardless of one’s feelings about adult entertainment, the situation is a disturbing illustration of a larger trend in the Bush administration: the use of regulatory powers to advance a conservative moral agenda.
Part of a revision to the Child Protection and Obscenity Enforcement Act of 1988, the new regulations were quietly published last year and target a seemingly mundane part of the porn business – record keeping. While huge corporations such as Time Warner make a hefty profit broadcasting adult entertainment, porn is largely produced by smaller entities, often operating without even an office.
Individuals and small companies producing adult entertainment will be devastated by new regulations requiring them to provide copies of government-issued IDs for performers retroactive to 1995. In addition, these small producers, perhaps operating out of a garage or second bedroom, will need to have a public office, open at least 20 hours a week, where their records are available for inspection.
The regulation, which defines “sexually explicit” very vaguely gives extraordinary powers to regulatory agencies, directly in conflict with protection afforded by the constitution against unreasonable searches and seizures. The Electronic Frontier Foundation has an article on why we need to worry:
Consider the blogger who writes a post on the Abu Ghraib prisoner abuse scandal and wants to post some of the existing or soon to be released sexually explicit photos of prisoner abuse. (Even if the pictures were blurred, under 18 U.S.C. § 2256, the regulations would likely still apply, since the definition of “sexually explicit conduct” includes “sadistic or masochistic abuse.”)
The result very well might be:
For the Abu Ghraib photos, since records of the “participants” are not available (at least not outside the US military), the record-keeping requirements could not be met, and the blogger could face criminal liability for posting the images. This will unconstitutionally chill protected speech — indeed, in this example, core political speech.