http://www.canada.com/ottawa/ottawac...a-f183b6e52d77
Critics say industry's enemies, after failing to ban it, are trying to regulate it to death
Glen McGregor
The Ottawa Citizen
June 23, 2005
Canada's privacy watchdog has been asked to determine whether a U.S. clampdown on Internet pornography violates the rights of Canadian adult industry performers.
A lawyer representing a B.C.-based porn company wants Privacy Commissioner Jennifer Stoddart to see if contentious new U.S. federal regulations that take effect today offend Canada's privacy laws.
At issue are revisions to U.S. rules that require porn producers to keep photo ID and release forms from anyone who appears in sexually explicit images. The regulations, intended to combat child pornography, had been in effect since the early 1990s, but today they will be expanded to encompass Internet porn sites.
The new rules would require anyone who posts a sexually explicit image or video on the Net to also publish the address where copies of the release forms and the model's photo identification can be located, so that the records can be checked by U.S. federal agents. The regulations would also force administrators of online dating sites to block explicit images posted by members who don't provide their personal information.
The adult industry contends the changes are part of a larger campaign by the religious right and the Bush administration to wipe out the porn business through regulations after failed attempts using obscenity law.
The industry claims the new rules will do little to stop child pornography, which is already illegal, but the blizzard of paperwork could put as many as half of all online pornography companies out of business.
Lawyers for the Free Speech Coalition, a U.S. industry lobby group, appear in the 10th District federal court in Denver today to ask for an injunction against the updated regulations, arguing that they violate the First Amendment right to free expression and also violate international privacy laws, including Canada's.
The problem for Canadian producers is that much of the adult material made here is sold to U.S. distributors and websites. Under the new rules, producers will have to send copies of the model's personal information to others who buy the material.
When a model gives a copy of her driver's licence or passport to a photographer, copies of that personal information could end up in the hands of the U.S. webmaster who eventually buys the pictures or video.
That would violate Canada's Personal Information Protection and Electronic Documents Act, says Vancouver lawyer Paul Kent-Snowsell, who wrote to Ms. Stoddard to alert her to the issue.
"The U.S. is trying to assert its jurisdiction outside of its borders," Mr. Kent-Snowsell said.
"It impacts on the privacy, obviously, of any adult performers and the effects of the privacy acts and what a Canadian corporation may be obligated to do to comply with the U.S. regulations."
Mr. Kent-Snowsell says the new rules will also restrict foreigners, including Canadians, from working in the adult industry because they may not have the required U.S. photo identification. This could possibly offend international trade treaties.
"I know that our legislators aren't thinking about the adult industry when they are working on free-trade agreements, but there may be something to that, under restraint of trade."
Because website administrators must publish the addresses where the records are stored, the regulations could also have safety implications for smaller operations, such as "web-cam" girls who run adult sites from their homes, he says.
Mr. Kent-Snowsell represents the Sweet Entertainment Group, a Vancouver porn producer affiliated with several adult websites.
He also wrote to B.C.'s privacy commissioner to ask him to look into the issue.
The new regulations have stirred speculation that some U.S. sites would move their host computers to Canada. But it is unclear if simple relocation of the servers would be enough to dodge U.S. law, says University of Ottawa law professor Michael Geist.
"It's certainly possible some might move their content to servers outside the U.S. -- and Canada is a likely destination. But whether they are willing to move to Canada to completely avoid the U.S. jurisdiction is entirely another question."
Indeed, Canada might not be able to provide any protection from the reach of U.S. rules. The U.S. Department of Justice theoretically could seek indictments against Canadian companies that sell online to the U.S., but don't meet the record-keeping requirements, says J.D. Obenberger, a Chicago lawyer specializing in First Amendment cases in the adult industry.
A Canadian could not be extradited for failing to meet the records requirements, but would risk arrest if he travelled to the U.S.
"That guy won't be visiting his relatives in Tucson, Arizona," Mr. Obenberger said.
The original record-keeping regulations were adopted on the recommendation of Reagan-era attorney general Edwin Meese and were inspired by the admission of former porn star Traci Lords that she had appeared in adult films as early as age 15.
Critics say industry's enemies, after failing to ban it, are trying to regulate it to death
Glen McGregor
The Ottawa Citizen
June 23, 2005
Canada's privacy watchdog has been asked to determine whether a U.S. clampdown on Internet pornography violates the rights of Canadian adult industry performers.
A lawyer representing a B.C.-based porn company wants Privacy Commissioner Jennifer Stoddart to see if contentious new U.S. federal regulations that take effect today offend Canada's privacy laws.
At issue are revisions to U.S. rules that require porn producers to keep photo ID and release forms from anyone who appears in sexually explicit images. The regulations, intended to combat child pornography, had been in effect since the early 1990s, but today they will be expanded to encompass Internet porn sites.
The new rules would require anyone who posts a sexually explicit image or video on the Net to also publish the address where copies of the release forms and the model's photo identification can be located, so that the records can be checked by U.S. federal agents. The regulations would also force administrators of online dating sites to block explicit images posted by members who don't provide their personal information.
The adult industry contends the changes are part of a larger campaign by the religious right and the Bush administration to wipe out the porn business through regulations after failed attempts using obscenity law.
The industry claims the new rules will do little to stop child pornography, which is already illegal, but the blizzard of paperwork could put as many as half of all online pornography companies out of business.
Lawyers for the Free Speech Coalition, a U.S. industry lobby group, appear in the 10th District federal court in Denver today to ask for an injunction against the updated regulations, arguing that they violate the First Amendment right to free expression and also violate international privacy laws, including Canada's.
The problem for Canadian producers is that much of the adult material made here is sold to U.S. distributors and websites. Under the new rules, producers will have to send copies of the model's personal information to others who buy the material.
When a model gives a copy of her driver's licence or passport to a photographer, copies of that personal information could end up in the hands of the U.S. webmaster who eventually buys the pictures or video.
That would violate Canada's Personal Information Protection and Electronic Documents Act, says Vancouver lawyer Paul Kent-Snowsell, who wrote to Ms. Stoddard to alert her to the issue.
"The U.S. is trying to assert its jurisdiction outside of its borders," Mr. Kent-Snowsell said.
"It impacts on the privacy, obviously, of any adult performers and the effects of the privacy acts and what a Canadian corporation may be obligated to do to comply with the U.S. regulations."
Mr. Kent-Snowsell says the new rules will also restrict foreigners, including Canadians, from working in the adult industry because they may not have the required U.S. photo identification. This could possibly offend international trade treaties.
"I know that our legislators aren't thinking about the adult industry when they are working on free-trade agreements, but there may be something to that, under restraint of trade."
Because website administrators must publish the addresses where the records are stored, the regulations could also have safety implications for smaller operations, such as "web-cam" girls who run adult sites from their homes, he says.
Mr. Kent-Snowsell represents the Sweet Entertainment Group, a Vancouver porn producer affiliated with several adult websites.
He also wrote to B.C.'s privacy commissioner to ask him to look into the issue.
The new regulations have stirred speculation that some U.S. sites would move their host computers to Canada. But it is unclear if simple relocation of the servers would be enough to dodge U.S. law, says University of Ottawa law professor Michael Geist.
"It's certainly possible some might move their content to servers outside the U.S. -- and Canada is a likely destination. But whether they are willing to move to Canada to completely avoid the U.S. jurisdiction is entirely another question."
Indeed, Canada might not be able to provide any protection from the reach of U.S. rules. The U.S. Department of Justice theoretically could seek indictments against Canadian companies that sell online to the U.S., but don't meet the record-keeping requirements, says J.D. Obenberger, a Chicago lawyer specializing in First Amendment cases in the adult industry.
A Canadian could not be extradited for failing to meet the records requirements, but would risk arrest if he travelled to the U.S.
"That guy won't be visiting his relatives in Tucson, Arizona," Mr. Obenberger said.
The original record-keeping regulations were adopted on the recommendation of Reagan-era attorney general Edwin Meese and were inspired by the admission of former porn star Traci Lords that she had appeared in adult films as early as age 15.
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