That San Diego City BEAT Article - And A Word To The Wise

Y'know, one of the reasons I'm glad to be around is to correct not only the mainstream press when it gets something wrong about the adult industry and the law, but also when people actually in the industry (well, not Ford, but that's another issue) when they mindlessly reprint the mainstream crap and call it "news" for the industry.

Now take this article published last week on the San Diego City BEAT website, Not-so-anonymous Sex . It's all about how websites, even social-networking sites, will be required to keep 2257 records -- as if anyone who reads on a regular basis wouldn't know that!

What I take issue with, though, is the reporter's use of the term "dirty pictures," as if that had some legal meaning and/or everyone should know what that is when it comes to 2257.

2257's idea of a "dirty picture" -- otherwise known as "sexually explicit content" -- generally follows the definitions in 18 U.S.C. §2256(2)(A), except that the sexual activity must be actual rather than simulated:

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse;

Moreover, the new regs would add the part of 2256(2)(A) that they left out of the 2005 regs: 

(v) lascivious exhibition of the genitals or pubic area of any person.

Of course, it's that last one that's likely to trip most people up: Nobody knows what the hell "lascivious exhibition" means, considering that the person wouldn't even have to be naked for there to be "lascivious exhibition"; just an obvious erection under the pants, or making a show of thrusting forth the tits or pussy, could be enough to trigger the 2257 requirements if that section remains in the new regs after they're finalized. 

But as things stand now, if the photo doesn't depict any of the first four elements above AND it isn't surrounded by any photos or video that do, as far as I understand, records would not have to be kept of that photo. "Mere nudity" doesn't trigger 2257 recordkeeping. 

And, of course, the City BEAT article is wrong about what hours the producer of such pictures has to be available for inspection. The rule is 20 hours per week -- which is onerous enough -- but they can be pretty much any 20 hours as long as the producer lets the FBI know just what hours those are. (And I doubt there's any sense being a wise-ass and saying the hours are midnight to 4 a.m. weekdays; that would be asking for trouble.)

I also suspect that the article's author didn't understand what Joe Obenberger was telling him when it comes to child porn.

"If they seize your laptop and they find a bunch of pictures of youngish people," [Obenberger] told CityBeat, "you can say, 'I got them from a site that led me to believe they're 18 years of age.' It protects the consumer; it's a warranty that all the people on this site are over 18." 

With all due respect to Joe, if the cops or feds seize a laptop (or desktop) and find nude or sexually explicit photos of underage kids on there, they're not going to care where you got them from or what the site you downloaded them from says they were: If it's pictures of kids nude or doing sexual stuff, it's child porn, and it's illegal to possess child porn no matter where you got it from or what the person/site you got it from claimed it was (i.e., "young-looking adults").

Just a word to the wise: Never trust the mainstream media's interpretations of laws affecting the adult industry -- and look askance at sites that just reprint those interpretations with no legitimate analysis.



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