SISEA is “Unworkable” – Not to Mention Likely Unconstitutional

WASHINGTON, D.C. – Late last week, U.S. Senators Jeff Merkley (D-OR) and Ben Sasse (R-NE) unveiled a new bill they’ve dubbed the “Stop Internet Sexual Exploitation Act” (“SISEA”), legislation the Senators said will “require platforms hosting pornography to verify the identity of users who upload videos… require a signed consent form from every individual appearing in the video… prohibit video downloads” and “create a private right of action against an uploader who posts a pornographic image without the consent of an individual in the image.”

Understandably, many in the adult entertainment industry and broader online community were taken aback by the bill and its provisions, including the bill’s definition of “pornographic image” which the bill defines as “any visual depiction, including any photograph, film, video, picture, or computer-generated image or picture, whether made by electronic, mechanical or other means, of sexually explicit conduct.”

In a statement issued Monday, the Free Speech Coalition explained its opposition to the bill in part by noting the bill is “wildly unconstitutional and, if implemented, would effectively silence sexual speech online.”

“Most non-adult platforms would likely react by terminating even potentially suggestive content rather than manage massive databases of personal information or expose themselves to the liability that comes with it,” FSC added in its statement.

Naturally, the bill’s sponsors see things differently. In a press release announcing the bill, Merkley and Sasse positioned their proposal as a response to “disturbing reports of how videos and photos are uploaded to websites like Pornhub without the consent of individuals who appear in them — haunting and traumatizing victims.”

“The posting of intimate photos and videos without participants’ consent is a massive invasion of privacy that drives shame, humiliation, and potentially suicide,” Merkley said in the release. “While some online platforms have recently announced steps to change some practices, much more needs to be done. We must ensure that not another single life of a child, man, or woman is destroyed by these sites.”

While most people would likely agree that the posting of “intimate photos and videos without participants’ consent is a massive invasion of privacy”, the bill is rife with potential First Amendment problems, attorney Lawrence Walters told YNOT.

“If this bill is passed in its current form, it will likely be struck down as unconstitutional for the same reason Section 2257 was invalidated – it treats sexually explicit content differently from other materials and is therefore a content-based restriction on speech,” Walters said. “The Supreme Court has made clear that content-based restrictions are presumed unconstitutional and are extremely difficult for the government to defend under the applicable strict scrutiny test.”

Plus, as Walters further noted, the bill’s questionable constitutionality is only the beginning of its problems.

“The idea of creating a database of revenge porn victims is dangerous and a treasure trove for hackers,” Walters observed.

The bill also “fails to address the issue of a performer who consents to participating in a sexually oriented film, but submits an abuse notice anyway.”

“Who will decide whether those individuals are included in the database?” Walters asked. “Will the FTC establish a tribunal that will hear disputed issues involving consent? Can the performers change their mind if they released their rights to the content? Can producers or website operators submit a counter-notice to the FTC confirming that they have the necessary rights? Many of the details of the bill are unworkable and others violate the First Amendment.”

While adult industry concern over this bill is understandable and reasonable, it’s also worth noting that every year, many troubling bills are proposed by members of the House and/or Senate, but never even emerge out of committee for a vote, let alone become law.

If SISEA does pass as written, it will be immediately challenged in court, where it will likely prove vulnerable to challenge for all the reasons Walters cited above. This is not to say people in the adult industry ought to be complacent about SISEA, or that their concerns are unwarranted; but before this bill can become a problem for the adult industry, it has some other significant hurdles it must clear, first. Among those hurdles will be persuading enough Senators and Representatives the bill is worthy of their ‘Yay’ vote, despite the fact the bill is a massive First Amendment lawsuit just waiting to happen.