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Appeals court overturns law targeting 'sexually explicit' photos

The 6th Circuit tosses federal law saying Americans taking naughty digital pics of themselves and a willing adult partner must make those images available for the attorney general's perusal--or to go prison.

A federal appeals court has struck down, on First Amendment grounds, a long-standing requirement forcing people who produce "sexually explicit" images to keep detailed records about their operations.

The 6th Circuit Court of Appeals ruled on Tuesday (click for PDF) that the "2257" record-keeping requirements--which bedeviled the adult industry because they apply even to Web sites that "reproduce" sexually explicit material--are overly broad and violate Americans' free-speech rights.

Tuesday's ruling is a remarkable win for adult publishers, not just because of the weighty nature of the regulations but also because the lawsuit has been going on for so long. The case was originally filed in September 1995, and this is likely going to be the last word unless the U.S. Supreme Court gets involved.

Although the Justice Department tried to downplay the impact of the record-keeping rules, the court reasonably noted that the regulations apply even to couples taking erotic photos for their own private use. Uploading them to the Web is regulated as well, of course.

"This reach is extremely broad, and the most commonsense limitation, for which the statute and regulations provide some support, would be to limit the statute's reach to photographs taken for a commercial purpose, that is, photographs taken for the purpose of sale," the 6th Circuit said. But, the judges added, "the plain text and definitions of the terms used commercial limitation on who will be considered producers."

Translation: an adult couple taking a single erotic photo of themselves with a digital camera in their own bedroom is required to (a) inspect their own government-issued photo identification; (b) ascertain that they're at least 18 years old; (c) photocopy their own IDs; (d) photocopy the erotic image; (e) file this information in physical form; (g) display the date and a street address "prominently" in their files; (g) open these files to agents of the Justice Department without advance notice.

If they don't take each of those steps, both members of the couple, according to the law, are subject to a federal felony--up to five years in prison, as well as fines. Yes, all of you CNET readers who have, uh, creatively experimented with digital cameras are unindicted felons too. So are all those stars of celebrity sex tapes.

Unconstitutional? Probably. Idiotic? Certainly.

Fortunately, the 6th Circuit recognized this, and concluded: "The government has drawn a similarly over-inclusive line here by including all sexually explicit photographs, whether created for commercial purposes" or otherwise. (The lawsuit was filed by a swingers' magazine called Connection that allowed couples to send in explicit photographs of themselves.)

There are two more points worth noting:

Misleading justification: Under both the Clinton and Bush administrations, the Justice Department has claimed that this law, known as 2257 because of its location in the U.S. Code, is necessary to protect children. But even possessing child pornography is a separate crime, still on the books, with criminal penalties severe enough to induce paranoia in the adult industry. A better explanation for why this law exists is that Congress is trying to put law-abiding porn producers out of business by weighing them down with more and more regulations--backed with mandatory prison time for non-compliance.

Everyone's a felon: When nearly everyone's a felon, staying out of jail depends on whether a prosecutor likes you or not. You can guess where political dissidents or people protesting wars end up. Besides 2257 and the obvious example of drug laws, the U.S. Congress has slowly created a a dizzying number of federal felonies, including sharing copyrighted music with a friend or family member (a crime) and fibbing to your brother-in-law over the phone that you really do intend to pay back a loan immediately (a crime). Whether you know it or not, you're probably already an unindicted federal felon too.