xxxlaw

While we all wait for the publication of the new regulations, a couple of things that may clear up substantial confusion in this and a few other 2257-related threads I've been following lately:

1. From the decision of the DC Circuit in 1994 that effected the termination of an injunction that had prevented the regulations from being enforced, a la the present injuction against enforcement of COPA, come the following words in the pre-internet era that explain the DC Circuit's view of the regulations regarding some of the issues raised here by content providers and webmasters:

American Library Association v. Reno, 33 F.3d 78, 90, 63 USLW 218, ---, 308 U.S.App.D.C. 233, 245 (1994).

[start of quotation]

Contrary to what appellees suggest, the secondary producers' records serve important ends. They confirm the secondary producers' compliance with the Act and provide what is likely to be a more reliable depository of the information identifying and establishing the ages of the persons depicted. The photographer who sells a picture to a magazine may disappear three months later, and his records with him. The magazine, on the other hand, is apt to remain in business. Furthermore, because a given issue of a magazine or book may contain pictures of performers taken by several photographers, it serves the interests of law enforcement efficiency to be able to verify their ages at a single location. Finally, the requirements imposed on secondary producers serve the Government's interests by denying their commercial markets to child pornographers.

33 F.3d at 94, 63 USLW at ---, 308 U.S.App.D.C at 249

Third, we address the district court's contention that "the Act is overly burdensome because it will invade the privacy of adult models and discourage them from engaging in protected expression" because "[e]xposure of their true names, aliases, and addresses could subject them to stigmatization, harassment and ridicule from others." [Citations omitted] The Act and its implementing regulations, however, do not require that this information be disclosed to anyone other than "the Attorney General or his delegee,"[Citation omitted] the persons for whom they willingly pose while engaged in sexual acts, and those who publish the resulting pictures or videotapes. The first of these has a legitimate right to the information, and we believe we may safely assume that the performers are not concerned over the prospect of being stigmatized, harassed, or ridiculed by the producers they help enrich. [

End of quotations]

The Court of Appeals denied en banc rehearing over the dissent of two judges of that court in American Library Association v. Reno, 47 F.3d 1215 (C.A.D.C, 1995). The United States Supreme Court denied certiorari at American Library Association. v. Reno, 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995). That is not, of course to say that this is the final word on the topic, but this will point the posters to the countervailing arguments that must be faced in any future litigation.

2. I don't know of any "privacy right" that can't be waived by an adult model. The essence of an adult model release is the model's decision to waive privacy regarding publication of images of the most private parts of her body, and depictions of her engaging in the most private and intimate conduct, inlcluding things about her or him which are normally seen, heard, or experienced only by the model's lovers. The release of the identity information just like the release of her right of privacy in these depictions just like privileged medical information, (e.g. HIV test results) can surely be waived in the European Community. It is not any Eurpean law or European value attached to privacy that would prevent the release of the information to secondary producers. Rather, the photographers may have failed to secure appropriate release, and seemingly from the posts, photographers on both sides of the Atlantic may have misadvised the models as to the required disclosure of the identity information to their customers because they may have misunderstood the secondary producer requirements or decided to bet on the propostion that they are not valid.

3. It's dangerous to rely on press accounts to judge a situation, but the only published accounts I have read of the murder of a porn model have involved allegations against the photographer, not an obsessed surfer jumping out from behind the bushes. It seems to me that the privacy issue seems to fit - like a custom-made suit - the desire of photographers to assure exclusivity regarding the model. The incident regarding the death of a McGill University student who was a model, here in the US, really did occur. The idea that a stalker would become an affiliate to track down the object of his affections may be viewed by some as far-fetched and conjectural when, In fact, a great many of the models can be found more directly through modelling boards and talent agencies, and it may be far easier for such a stalker to connect in that way.

None of this should be misunderstood by anyone as expressing postive feelings about the regulations. However, It is imporant for everyone involved in this debate to know that there is another rational side to the issues, and that any challenge to the regulations will be far from a slam-dunk.

J D Obenberger