Disclaimer: I am not a lawyer, and the following does not constitute legal advice. Actually, one of the things that bugs me most about our laws is that legalese is so hard to parse, that you often have no idea what constitutes "following the law" without paying a highly-priced professional to interpret the rules for you - which may well be overturned in a court setting. Nevertheless, the following are the issues as I understand them, and I may not be a lawyer, but I am a critical thinker.
I've been trying unsuccessfully to articulate the reasons why the 2257 Regulations [link to Wikipedia article] make me feel uneasy, and I think it all comes down to this: the law places an unconstitutional burden on protected speech, but it does so with the justification of protecting children from sexual exploitation. And, frankly, it's incredibly difficult to construct a convincing argument placing the importance of essential liberty above the alleged "safety" of children (and there is no doubt policy-makers take advantage of this fact). No matter what I say about how 2257 chills speech and gives the state way too much control while taking away the privacy of its citizens, my entire argument could be destroyed by a simple, "don't you care about the children who are being sexually abused and exploited?"
I don't want to seem insensitive (though it may be inevitable) to the plights of abused children, but where does it stop? How much of our rights and freedoms are we willing to give away "to protect the children", when it's not even clear that we're doing that much? The 2257 Regulations do nothing to prevent child sexual abuse. If someone is intent on breaking the law, drafting more laws isn't going to stop them. What 2257 does is make it easier for law enforcement to identify and prosecute illegal speech. But at what cost?
What really bothers me about 2257 is that it shifts the burden of proof from the accuser to the accused. If you are accused, then you are guilty unless you can provide the required records proving your innocence. If you cannot, then even if the prosecution can't prove the speech you've created is illegal, then you can still be punished (rather harshly) on account of not having those records. I get the sense this law was pushed forward by frustrated prosecutors who felt it was unfair that producers of "indecent" pornographic speech were getting off unpunished just because they couldn't prove that the speech was breaking any laws.
The other thing that really bothers me about 2257 is that it reinforces the position of law enforcement as enforcers of social control, instead of mediators of public conflict, which they're supposed to be. I am unnerved by the thought that a cop could look at an image, decide that a crime has been committed, and then press charges without ever receiving (or even soliciting) a complaint from anyone involved in the creation of that image. I know victims are not always in a position to stand up for themselves, but I was under the impression that this country was founded on the principle of NOT infringing on the fundamental rights of the innocent in a [sloppy] attempt to get at criminals.
You might think that the 2257 Regulations (read them here [broken link]) don't apply to you. You might think they only apply to big profit-making pornography industry companies. Well, you're wrong. The courts have argued that individuals intent on sexually exploiting children are not motivated purely by commercial interests, and therefore ALL speech that includes pornographic content ("actual or simulated sexually explicit conduct") falls under this law, including the videos you make with your wife in your bedroom.
You could argue that the courts are never going to prosecute you, for any number of reasons (because you're not a threat, because the videos you've made are obviously not illegal, whatever), but that's entirely beside the point. The law is on the books, and you are expected to obey it. If you do not, you are subject to the penalties, whether you manage to get away with it or not. And it's not good for society to have laws that most people aren't expected (or don't expect) to follow. Above all, this is not like getting a speeding ticket; failure to comply is a federal crime, and you could spend up to 5 years in prison - all because protecting children from sexual exploitation (even if that means tossing innocent people in the slammer) is serious business.
You might think that the 2257 Regulations are reasonable. After all, there is an official age limit for involvement in pornographic media, what's so bad about keeping records to enforce that? Well, it's reasonable to require individuals intent on creating this type of media to check first and make sure those involved are of age. What the recordkeeping requirements do is burden the civilian with what should be law enforcement's duty to investigate. It's their job to get in contact with those involved and ensure they are of age, if they believe otherwise. This falls under shifting the burden of proof.
Moreover, the recordkeeping requirements are simply too much. Can you imagine having to create and maintain documents (viewable by government agents at any time) for every single alcoholic beverage you drink, every single cigarette you smoke, every NC-17 movie you ever watch, just so that law enforcement has an easier job of prosecuting people who give alcohol, cigarettes, and NC-17 movies to minors? It may be a noble task, but it's just too much control, it takes the fun out of everything, and most of all, it's an unlawful restriction on liberty. And it gives the impression that law enforcement doesn't trust you to follow the law. Sure, distrusting its civilians is a better way of cracking down on crime, but do you really want to live in a country where the government doesn't trust you? It's "guilty until proven innocent" all over again.
IDing is reasonable, given the age restriction. But having to keep these records is overkill. I would even go so far as to say that having these records for cases that appear to be borderline (i.e., "barely legal" porn) is not just reasonable, but a really good idea. Still, I don't think it should be a legal requirement (especially not across the board), simply an intelligent defense for those few who think that misunderstandings could lead to mistaken charges.
In a discussion on the constitutionality of the 2257 Regulations, and whether they should apply to all producers of pornographic content or only those producers of content that could be reasonably mistaken for illegal speech*, one defender argued that one could not always tell, just by looking, the difference between an 18 year old and a 21 year old, or, more importantly, the difference between an 18 year old and a 15 year old - hence why the records are crucial. This may be true, but it reveals much of the intent behind the law. Very few cases would involve a reasonable confusion between a 15 year old and a 21 year old (or, more importantly, between a 12 year old and an 18 year old).
We have a federal age restriction on pornography set at 18, even though teens under the age of 18 have often been sexually active of their own volition [link to Wikipedia article]. Remember that the purpose of these laws is to combat the sexual exploitation of children - a concept that evokes images of prepubescent children being raped on camera for profit: very visceral, emotional images that tug on our heartstrings, and short-circuits those reasoning faculties that might prevent us from agreeing to give up more of our rights and liberties. Is the state really using this law to prevent prepubescent children from being raped? I think, comparatively, it would be very easy to tell the difference between a prepubescent child and an adult, as opposed to trying to parse younger teens from older teens. After all, if (actual) child pornography were indistinguishable from adult pornography, then why would pedophiles even bother?
No, this law is being defended on the merit that the state wants to be able to criminalize speech that is visually indistinguishable from legal speech: porn that features teenagers that are indistinguishable from adults. Teens that, quite unlike victimized children, may actually want to participate in pornographic speech - speech that, in some cases where the teen is over the local age of sexual consent, depicts legal conduct (quite apart from the court's conviction that child pornography - which really has nothing to do with this - is a form of speech inextricably linked to conduct that the court has a "compelling interest" to combat. I agree that the courts have a compelling interest to combat the sexual victimization of children, but the interest is far from compelling when we're talking about sexually mature teens).
If setting an age limit at 18 means a few prematurely developed 15 year olds might slip through the cracks [link to Wikipedia article], I fail to see why that is a serious problem. The real activity the age limit is meant to prevent is the abuse and exploitation of children who are too young to have an interest in sex, and there are extremely few cases where an 8 year old could possibly be mistaken for an 18 year old. We've already got more than enough laws on the books, that cover more than enough ground; the more we expand their reach, the more protected speech will be chilled, and the less freedom and privacy we'll have.
Once the government has put into place a system that can enforce the criminalization of speech indistinguishable from protected speech, what's going to stop them from raising the age cutoff from 18 to 21? After all, some 18 year olds are still in high school. What about parents who don't want their kids wasting their college tuition on fucking when they should be studying at university? Boom, the cutoff age jumps from 21 to 25. Which will be great for the lobby who wants you to wait until marriage and only have sex for procreation, in church-approved positions (and still feel ashamed afterwards). Because, you know, the worst possible thing that could happen in the world is a 17 year old masturbating on a live webcam feed - worse than widespread poverty, drug addiction, gang violence, war and famine, murder and genocide...
You think any of this would happen if we had a healthy and positive approach towards sexuality? And what really gets me is the fact that sexual crime and pathology thrives in a climate of sexual repression and obsession. Pathologizing healthy sexual urges does nothing to curtail criminal sexual behavior (in fact, it may have the opposite effect). If we want to "fix" the sex problems we have, the answer is not to push sex further and further under the rug, but to pull it out, dust it off, and stop behaving so pathologically towards it. Sex is a part of life.
*Read this argument for the unconstitutionality of the 2257 Regulations (it's very good). And then read this response (a bit harder to stomach). I know, they're long, and filled with legalese, but they're very interesting if you have the time and patience to plod through them.
