Heres How 2257 Should Be Addressed

[gonzo]

PHILADELPHIA—In the modern age of digital cameras, cell phones and the internet, sometimes it's easy to lose sight of how far sexual content has come, and how ubiquitous it's become, since Congress passed its first version of 18 U.S.C. §2257, the federal recordkeeping and labeling law, in the late 1980s.

Fortunately, the Electronic Frontier Foundation (EFF) remembers.

"At some point in the past, the kind of sexual content that Section 2257 regulates may not have been typically created by the average American," the introduction to EFF's amicus brief in support of Free Speech Coalition's anti-2257 lawsuit states. "But times have changed, with respect to both social mores and technical abilities. Digital cameras and videocameras and the Internet have combined to make it easy and inexpensive for people to take photos and videos of themselves while nude or in sexual situations and to share those images with others ina wide variety of ways."

As the brief's authors—EFF's Matthew Zimmerman and prominent Philadelphia atorneys Carl A. Solano and Edward J. Sholinsky—point out, nearly two-thirds of Americans now own digital cameras, more than a third own video cameras, and nearly three-fifths use their cell phones to take and share digital pictures—any of which can be used to create sexual content. What's more, about three-quarters of all Americans can now access the internet, and about a third of them haved posted content online.

And what that means, according to the EFF brief, is that the "millions of adults [who] exchange or share personally-produced sexually-explicit depictions" are now subject to all the onerous requirements of the 2257 regulations, including a vast but incalcuable number who "merely take sexual photos or videos of themselves in the privacy of their own homes."

And what that means is, "Section 2257’s record-keeping, labeling, and inspection requirements infringe the rights of individuals to participate in anonymous expression, a problem of expanding scope as more and more individuals utilize what are increasingly ubiquitous communications technologies," the EFF attorneys charge.

The brief goes on to summarize some of the legal and social precedent involving protections for anonymous speech, noting, "Courts have long recognized protection under the First Amendment for the right to engage in anonymous communication—to communicate, listen, and/or associate anonymously—as fundamental to a free society. The U.S. Supreme Court has consistently upheld the right to speak anonymously in a variety of contexts, noting that '[a]nonymity is a shield from the tyranny of the majority ... [that] exemplifies the purpose [of the First Amendment] to protect unpopular individuals from retaliation ... at the hand of an intolerant society.' ... Adult sexual communications, if not obscene, enjoy First Amendment protection for all the reasons that animate the right to anonymity."

The EFF brief argues that, if for no other reason, the "wide [and growing] swath of individuals" creating sexual content, who would therefore be subject to the more onerous requirements of 2257—such as being available for records inspections for at least 20 hours per week, and revealing the content creator's name and home address for the world to see—the courts should take as "considerable cause to scrutinize the First Amendment impact of this law."

Read the rest of the brief summary and join the EFF today!

http://business.avn.com/articles/37506.html