Online Porn: Regulating the “Elephant in the Middle of the Room”

By Dave Wieneke | in Best of / fresh takes, Free speech / censorship, Public policy | 3 Nov 2007 | 8 Comments

This week, two diverse publications–The Christian Science Monitor and Wired Magazine–asked the same question: “Are we going overboard in regulating adult content?”

I attend at least a dozen online-industry events a year, and listen to podcasts, read blogs and pay for research from countless industry pundits. And in each case, the online adult entertainment industry, an estimated 3 billion dollar chunk of online commerce, goes completely unmentioned.  Just compare that revenue to Facebook or Second Life, which get their own conferences.

Online marketing and the law surely converge in this business. Come see how.

According to Wired, adult sites include prolific amounts of user-generated content. (Yes, I actually need Wired to clue me in on stuff like that.) Anyway, go check this on Alexa – YouPorn has a higher media reach and more page views than Weather.com or CNN.  Remember Maslov’s hierarchy of needs?  I guess adult content is down on the more popular physiological level, with these other sites up on the narrower safety or self-esteem levels.

So this quite popular YouPorn site is now at risk of being closed if proposed changes to 18 U.S.C. 2257 are entered into law. The revised law would require site owners to collect records verifying the age and identity of each performer, and to make them available to authorities for as long as the images are hosted publicly. The complications of checking IDs, the liablity for errors or deception, and the public nature of such records would effectively shutter such online submissions. Wikipedia has further details on the law.

The problem with the proposed law is that it places a burden of proof on consenting adults to document consent in a very public way before engaging in what I’ll call “self-expression” using private media. 

Self disclosure #1: As someone who investigated child abuse for several years, I applaud efforts to prevent child exploitation. This isn’t empty praise; I worked on 2,500 cases of reported abuse over three years. Yet the right to free speech is constitutionally enumerated, and this law would have a chilling effect on legal acts of self-expression. 

Self disclosure #2: I worked for The Christian Science Monitor and was constantly impressed by the news team’s willingness to address controversial issues in an unsensational and thoughtful way. When a Monitor writer was abducted in Iraq, the team mobilized to privately influence her release, while the paper’s analysis, even of the abductors likely motives and mindsets, was thoughtful and fair-minded.

So, here The Christian Science Monitor describes a U.S. Supreme Court case involving the Protect Act, which criminalizes communication “intended to cause another to believe” that child porn would be distributed.  In other words, child pornography is in the mind of the distributor, even when none is in their possession.  The Monitor asks if our laws are so broad that we’re starting to police thoughts, rather than the legality of acts.
 
Whether personal speech or the presumption of innocence, the erosion of rights starts in the cases that people don’t want to discuss, let alone take public stands to defend.  The downside is that regulation too quickly becomes the norm. And the public expectation of a regulated net experience becomes a basis for eroding other freedoms in turn.