Just three business days after my last column explained the futility of subjecting adult social-networking websites to the same record-keeping requirements as porn productions, the 6th Circuit Court of Appeals issued a slip opinion agreeing with me.
No, I don't feel smug, why do you ask?
The record-keeping requirements outlined in 18 U.S.C. 2257 violate the First Amendment, the court decided. The Connection Distributing Co., et al. v. Keisler reversed the lower court's judgment (.pdf) and determined that individuals posting sexually explicit photos of themselves to swinger websites are not subject to the same record-keeping requirements as commercial porn producers.
I feel a breath of hope that we can sensibly regulate age verification and record keeping in adult media. And the decision has me thinking about how new technology confuses us and makes us scramble for control before we're even sure how the new tech will be used.
As soon as we start adapting new technology for sexual or romantic purposes, someone realizes the tech's more nefarious potential. Then the rallying cry goes up: "protect the children!"
Sexually exploiting children is already illegal, but that doesn't stop us from proposing new regulations tied to each new channel of expression.
Ever since the porn record-keeping laws hit the books in 1988, we've been amending them to apply to new media. Proposals to extend the regulations to social-networking sites are on the table. The rules would broaden the government's reach into individual and non-commercial sexual expression.
It's important to be explicit in our laws, and I get why we parse out the types of media that must comply with record-keeping requirements rather than issue a blanket statement like "any and all media now existing and to be invented in the future."
Yet the crime these particular regulations were intended to prevent, child pornography, doesn't change dramatically with each new technology. Last I checked, we don't update the criminal code every time we invent a new way to kill each other.
It's not just about sex, though. Technology confuses us in plenty of other ways, and we sometimes react by declaring certain uses impolite or socially unacceptable, albeit legal.
The Luddite wants us to return to pen and paper (or quill and parchment?) if we're going to write books in coffeehouses, so we don't harsh his mellow with our laptops and portable media devices. Etiquette experts still claim it's rude to send sympathy notes by electronic media because it implies you didn't put any thought or time into it -- as if the value is in the scribing of the words rather than the thoughtfulness of the message.
And two of my closest friends are still arguing, heatedly, about whether using a laptop to access the Dungeons and Dragons manuals during a game provides the same immersive experience as using the printed books.
When the form of the tools -- digital or analog -- distracts us so much that we forget why we're using them, we end up with laws that make no sense when we try to apply them to how people actually connect. Then we have to wait for legal challenges to climb through the court system. By the time that happens, the technology and our use of it has moved on.
The cliché is that we like porn because it's sex without the work of a relationship. But now we've developed technology that lets us experience one part porn, one part prostitution and one part long-term relationship. Our only commitment is an hour or two a week and a credit card.
It's a compelling combination. According to a members-only poll at webcam site Flirt4Free (NSFW), 47 percent of subscribers participate in webcam chats because of the opportunity to form relationships with the performers.
And why else would so many people put up with the lag and instability of certain popular virtual worlds if not for the sexy relationships they form inside?
We can do a better job of accepting how adults adapt new technologies to sex. And we need to stop underestimating our own ingenuity. I'm pretty sure that in 1988, lawmakers did not foresee millions of us cheerfully sending naughty pictures of ourselves or sharing our marital relations with people all around the world over all kinds of networks. Certainly laws designed for VHS don't fit very well into a web 2.0 world.
The root of this particular case is that modern tech bridges the gap between sex (interaction) and porn (entertainment). Some forms of sex look a lot like porn: documenting and publishing our lovemaking to an adult community site, for example, or playing with dominance and submission in a highly erotic 3-D virtual world along with 15 other residents.
If you do things like that, you know it's not the same thing as cueing up your favorite porn scene and doing whatever you do with it. But to an outsider, this creative sexual engagement resembles porn closely enough that it's tempting to apply laws designed for porn to control what people are doing with sex. But when we do that, as the 6th Circuit noted, it makes millions of us felons for noncompliance with section 2257, even though no minors were involved. Oops.
It's too early to tell how the decision will affect the evolution of record keeping, pornography or social networking. Adult industry attorney Christopher Corwin notes on his blog that if the government appeals this decision, the case could make it to the Supreme Court.
Label: Wired.com
