Go Figure: When Writing Regs, it Pays to Talk to Those You Seek to Regulate

Back in the early 2000s, during one of several periods in which there was intense legal wrangling over changes made to the record keeping regulations delineated under 18 U.S.C. 2257, I went through witness preparation with two attorneys who were part of the team of litigators representing the Free Speech Coalition (and, by extension, the wider adult industry) in a case challenging the constitutionality of the regulations.

While I’m not sure I’ve ever been an “expert” in anything, I was being prepped to talk about the challenges of complying with the regulations from the perspective of an adult affiliate program. When we reached one of the newly established requirements under the revised regulations – that producers must maintain a record of every URL for every iteration of every image subject to the regulations, I laughed out loud at the preposterousness of the rule.

“Why is that funny?” one of the lawyers asked me.

“Let’s say you’re running a program like mine, which offers promotional content for use by webmasters who promote your sites,” I said. “It’s one thing for me to require those webmasters to register every URL they use our content on, but quite another for either of us to be aware of where those images might be re-uploaded by people who download them from promotional galleries, or by people who use them outside our terms and conditions to promote another company’s site. And don’t even get me started on the use of dynamic URLs that can vary with each new user session…”

The lawyers quickly understood why I had laughed. We began to refer to the requirement as the “six-inch” rule, after I said it was like “a law requiring me to walk six inches off the ground at all times” – in other words, a regulation with which an affiliate program could not comply, even if it wanted to.

I never did testify in that case, mostly because before the litigation got anywhere, the regulations were changed again, leading to a whole new round of legal wrangling (and of which I wasn’t a part). The discussion of the six-inch rule stuck with me though, in part because it seemed so needless. I don’t think Congress was intentionally imposing a regulation with which they knew compliance was impossible, but I do think their reticence to “legitimize” the adult industry by talking to us resulted in an unforced error that could have been prevented by a simple conversation.

What brought that episode to mind today was not another legal battle over 2257, but a pending set of new regulations pertaining to an entirely different sector of adult entertainment. In Minneapolis, Minnesota, the City Council is working on a new set of regulations for strip clubs – and at least one of the Council’s members is doing something I wish the U.S. Dept. of Justice would do when it makes revisions to 2257: He’s talking to the people who work in the clubs for which the Council is writing regulations.

While the Minnesota Public Radio reporting on the city council’s efforts is focused on the intent to improve the well-being of the dancers, what stands out to me is the comments from Councilman Cam Gordon near the end of the article.

Gordon told MPR that early in the process, he wanted to get rid of VIP rooms and to require all dancers to be employees (as opposed to independent contractors) of the clubs.

“But lo and behold, as soon as I reached out to the entertainers, those were two things they absolutely wanted preserved, for very good reasons,” Gordon said. “And so it was important that we had the interaction and we understood that.”

Gordon’s simple insight here – “it was important that we had the interaction and we understood that” – is something which all too often appears to be entirely lost on legislators when dealing with the adult entertainment industry, particularly at the national level.

While the California Assembly has had its share of experience with adult industry lobbying efforts and the adult performers who have been part of those efforts, when the U.S. Congress goes about writing regulations which impact the industry, there is no such back and forth with the industry. Congress seems to look at the industry as a quasi-legal problem to be solved, rather than a legitimate business sector to be regulated sensibly.

The result of Congress’ aversion to communicating with the adult industry, almost inevitably, is regulations like the six-inch rule. If you don’t understand the industry you’re trying to regulate, or the technologies which enable that industry, why wouldn’t you make mistakes that reflect this lack of understanding?

It will probably be a chilly day in the netherworld before a Congressional staffer reaches out to an adult business for feedback on pending regulations – but if our national legislators sit down in the future to craft regulations which affect the adult industry, they could do a lot worse than taking a page from Councilman Gordon’s book and having a conversation with the people who will be most impacted by their work.

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