A controversy over sexy images has erupted between the Justice Department and the adult-entertainment industry, spilling over into websites that allow people to post nude photos of themselves in online personal ads, and causing one popular site to take down its photos and alert its members, "Your civil rights are under attack by the U.S. government!"
The flap stems from an intricate set of new rules issued in June at the direction of Attorney General Alberto Gonzales. The rules are designed, the government says, to stamp out child pornography, and they come on top of old rules meant to do the same thing. But unlike the rules already in place, the new rules require "secondary producers" of explicit images (that is, the websites that host the naked pictures that adults like to post) to keep detailed records identifying the individuals in each photo, noting their age, their "stage names," and cross-referencing each with the other. The sites could also be required to keep copies of every page on which a photo has ever appeared, requiring huge investments in digital storage space.
Providers of adult-oriented images say the new rules are redundant and impossible to comply with, and therefore seem a naked attempt by an anti-sex administration to prevent consenting adults from sharing nude pictures with each other, or even enjoying pornographic movies in the privacy of their own homes.
"The people in this administration don't like sex and they don't like pornographers," says Tom Hymes, communications director for the Free Speech Coalition, which is fighting the new regulations in federal court. "They don't believe that they should be doing business. Rather than spend the time and expense to have a jury convict the people who are doing child pornography, they're going to use these regulations to get inside of legitimate adult-entertainment businesses, to create a chilling effect in the industry, and drive as many of them out of business as they can."
The Justice Department, which declined to comment on the issue, gave providers of adult-oriented images only 30 days to comply with the new rules, adding to the recent confusion and jitters. (The penalty for violating the rules could be up to five years in jail.) One interpretation of the rules that seemed particularly frightening to online-dating sites was that people posting explicit pictures would have to show up in person with a government-issued ID to prove they were over 18 before a site could host the picture.
"For dating sites, that would mean that whoever's posting to them would have to fly to wherever that site is based," Hymes said. "Not a workable business model."
It also would undercut the feeling of relative anonymity that drives the popularity of online sex and dating. But the worst part, according to Hymes, is that the new rules could severely restrict the first-amendment rights of adults in the name of stopping child porn.
"It's absolutely unnecessary," he said. "There're already child-porn laws. It's absolutely illegal to have minors on a site. They can come and check it anyway if they think that's going on." Making adult-oriented sites comply with the new restrictions, Hymes said, would be "pre-supposing guilt on an entire class of speech"—that is, the speech of one adult speaking to another adult about sex.
The website that sent out the civil rights alert and took down its photos, Gay.com, was so spooked that it issued new regulations to members that day—rules intended to prevent people from posting anything the government might deem to be "sexually explicit," the threshold at which the new rules begin to apply. With almost comic specificity, Gay.com banned "an image of a hand holding or touching genitals, or appearing to grip or stimulate genitals" (because it might be considered masturbation); "an image of a hand inside pants" (implies masturbation); "pictures with more that one person that include nudity" (suggests a sex act); and, perhaps needing no explanation, "an image showing the buttocks being held apart by hands." (An image of a nude person on all fours was still allowable, the site noted.)
On June 23, the day the new regulations took effect, the Free Speech Coalition reached an agreement with the Justice Department in which the Department would not prosecute members of the Coalition until September. (Gay.com, which did not return calls requesting comment, has joined the Coalition and restored its photos.) In the meantime, a federal court in Denver will hear arguments in August over whether the new federal rules should be prevented from taking effect at all, through the issuing of an injunction.
The promise of immunity until September has had other companies that host adult images in their personals section, including The Stranger, flocking to join the Free Speech Coalition. Hymes said there are now more than 1,000 members. ■