If A Minor Reads My NC-17 Fic, Will I Go To Jail?
by Ophelia
http://members.aol.com/opheliamac/home.htm
Last week I got an e-mail from someone asking for a copy of one of my stories. This particular fic has two versions, one PG-13, one NC-17. Anyone's interest in my fanfic thrills me, and I was about to send the uncut version, because I personally prefer it. But just before I hit the "Send" button, I wondered, "How old is this person?" Deciding to play it safe, I attached an expurgated copy of the story instead, plus an apology and a link to the adult version in case my correspondent was over the age of 18.
After that (and I always think of these things after), I did a quick check with the person's e-mail provider and found out that yes, janedoe@someisp.com was a high school student. I just about had a heart attack. I am a worrier, and a good one, too, and quickly manufactured a rabidly straitlaced mother for this girl who would find the downloaded adult fic on her daughter's hard drive, see my attached e-mail address, and begin harassing me. I imagined a series of complaints to my ISP, online pornography watchdog groups, and the federal government. About the time I had made myself into the index case for a whole slew of lawsuits that would bring repressive new legislation against fanfic authors (I have to do this occasionally -- it's like a fire drill, but cathartic), I decided it might be a good idea to check out what the actual possible consequences for sending adult matter to an underage person is. The considerations below reflect what I found out.
Things Consider Before Posting Adult Fiction:
Personal Beliefs. No reliable, widespread technology exists to keep adult material out of the hands of minors, and parents and teachers are hardly superhuman. How much would it bother you if your fic ended up being read by a 16-year-old? What about 14? 12? 8? Labeling and rating your adult stories are good ideas, but they rely purely on the honor system. It's a good idea to examine your beliefs about adult fiction and its possible impact on minors before posting.
Social Issues and Public Opinion. Any time you affix your e-mail address to a story you risk flame mail, but authors who work in fields that require the faith of the public, such as law enforcement, the schools, or large television ministries (don't laugh! It could happen!) might want to take the possibility of "exposure" into particular account.
ISP Terms of Service. Some Internet Service Providers place a "no-porn" policy in their Terms of Service (TOS) agreement. AOL's TOS is probably the most restrictive of the major ISPs. It markets itself as "family friendly," so almost any transmission or storage of adult material while using AOL's service is in theory forbidden. Penalties range from written warnings to the cancellation of a violator's account, but in practice the anti-porn TOS are almost never enforced unless someone complains. (See "Social Opprobrium," above).
Federal Law. (U.S.) Here is the text of three relevant Federal Statutes, from Title 18 of the United States Code (From the FBI's Innocent Images web site):
Section 1462. Importation or Transportation of Obscene Matters
Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company, other common carrier, or interactive computer service for carriage in interstate or foreign commerce any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.
Whoever knowingly takes or receives from such express company, other common carrier, or interactive computer service any matter or thing where the carriage or importation of which is unlawful as described above.
Section 1466. Engaging in the Business of Selling or Transferring Obscene Matter
Whoever is engaged in the business of selling or transferring obscene matter, who knowingly receives or possesses with intent to distribute any obscene book, magazine, picture, paper, film, videotape, or audio recording, which has been shipped or transported in interstate or foreign commerce.
Section 1470. Transfer of Obscene Material to Minors
Whoever, using the mail or any facility or means of interstate or foreign commerce, knowingly transfers or attempts to transfer obscene material to another individual who has not attained the age of 16 years.
As it relates to fanfic, Section 1462 appears to forbid sending, receiving, posting and downloading NC-17 fic between U.S. adults and adults in other countries. Section 1466 forbids transmission of such materials between adults living in different U.S. states. Fortunately for us, these statutes are rarely, if ever, enforced. Throughout the last 30 years, the Supreme Court has repeatedly decided that the First Amendment ("Congress shall make no law . . . abridging the freedom of speech, or of the press") supersedes anti-pornography laws. The anti-porn laws remain on the books, however, and could theoretically be enforced. I am unaware of anyone trying to prosecute an amateur writer who posts to the Internet under these laws, even in the celebrated Jake Baker case, described below.
For our purposes, the key to Section 1470 is "knowingly." If someone writes to you and says, "Hi! I'm 14. Will you send me some porn?" You must answer no. Even if you have left your story unrated, even if you don't personally consider it "obscene," if it contains explicit sex, excretory activity, or especially gruesome violence, you cannot legally send it to a person who you know is a minor. I expect this law applies to mailing lists and possibly to newsgroups where members have identified themselves as minors. I don't know of any cases of this being tested in court, however. "(Adult" mailing lists and newsgroups do exist for the purpose of excluding readers 17 and under -- not that they can't give false ages). However, Section 1470 does not state that you have to ask a person's age before sending material to him or her (though that would be a good idea), nor does it say that you have to second-guess or investigate the person (though a handle like Britny4Ever_14 should be a red flag). Whether you choose to actively screen your readers or adopt a "don't ask, don't tell" policy, the "knowingly" caveat means that if you take some precautions, you can probably stay within the law.
Local and State Legal Problems. (U.S.) These are not likely to come up for people communicating over the Internet, since the Federal Government has pretty much declared the Internet as its turf. The only time state law might make a difference is when two people in the same state posted something over a LAN (local-area network) or a WAN (a wide-area network) which demonstrably keeps all communications within one state. State and local pornography laws vary, and the best protection against these problems is to know the relevant laws for your area. Also, most people only encounter LANs, and particularly WANs, while at work, and it's not a good idea to swap porn there anyway.
Having said all that, it is now time for:
Theoretical Consequences. You thought you were going to get out of here without the obligatory dystopian, "The Internet Is Stealing Your Rights" and "The Internet Will Be Destroyed By Right-Wing Madmen," didn't you? Didn't you?! Never mind figuring out how you're supposed to care if the thing that's stealing your rights is about to be destroyed anyway. Here are some new laws and potential laws related to kids and the internet.
The Child Online Protection Act (COPA). The result of two separate bills intended to make material that is "harmful to minors" inaccessible to them over the Internet. The more disturbing of the two original bills was called S. 1482, which included Internet Service Providers among the entities that could be prosecuted if "harmful" matter fell into the hands of minors. This means that if I had sent my NC-17 story to young janedoe@someisp.com, then my ISP, her ISP, our respective telephone or cable companies, plus the owners of any U.S.-based routing computers in between, could all have been prosecuted for their failure to keep my story about Mulder and Scully having sex in the shower out of Jane's hands. S. 1482 was passed by Congress in 1998, but its provisions were blessedly modified before then-President Clinton signed the bill into law. Significantly, the bill was also known as CDA II, due to its similarity to the Communications Decency Act <http://www.cdt.org/speech/cda/> , which the Supreme Court found unconstitutional in 1997.
The current version of COPA <http://www.copacommission.org/commission/original.shtml> excludes ISPs and other telecommunications companies from liability under the law, but commercial web sites and some internet services would be bound by it. The ACLU and other groups challenged COPA as soon as Clinton signed it, and a federal appeals judge has blocked it from being enforced while the Supreme Court reviews it. To read more about COPA and to see an analysis of its constitutionality, visit the Center for Democracy and Technology <http://www.cdt.org/speech/copa/> (CDA). For the opposite point of view, visit the COPA Commission Home Page <http://www.copacommission.org> .
For other laws, both proposed and passed, that affect Internet freedom of speech, visit CDA's legislation page <http://www.cdt.org/legislation/> . Prepare to be afraid.
But wait, there's more! Suppose S. 1482 had been enacted in its original form, and for some reason I wanted Jane Doe to be able to access my story. What if I posted it to a web site hosted outside the U.S. and just sent her a link? That would work, wouldn't it?
Maybe not. A much-watched lawsuit between 2600.org <http://www.2600.org> , "The Hacker Quarterly," and the Motion Picture Association of America (MPAA, which includes the Fox Network's parent company), resulted in 2600 being ordered to remove both the code to DeCSS (a DVD de-scrambling program) and all links -- both hyper and text -- which pointed to pages where DeCSS could be obtained. Since the issue over DeCSS was basically one of intellectual property, this court decision has chilling implications for all fanfic, not just the NC-17 variety. The Electronic Frontier Foundation <http://www.eff.org/Intellectual_property/Video/MPAA_DVD_cases/20010530_ny_eff_supl_brief.html> has a .pdf file of the most recent judgment against 2600, including the prohibition of links.
And finally there is the story of Jake Baker, the first (and as far as I know, only) U.S. citizen whose original, amateur, Usenet-posted porno fantasy caused him to get arrested. The problem with Baker is not so much that his story was pretty disgusting even by Usenet porn fantasy standards -- it included hot curling irons and sodomy, for instance -- but that he used the real name of one of his classmates at the University of Michigan for his fictional victim. The FBI came after him and he spent 29 days in jail, although -- significantly for us -- they charged him with transmitting a threat over the Internet, not transmitting porn over the Internet. In the end all charges were dropped, which is sort of a mixed blessing for society. Still, people who write actorfic, especially the more gruesome variety, ought to take note. For an in-depth version of the Jake Baker story, along with a constitutional analysis, read this article <http://www.trincoll.edu/zines/tj/tj4.6.95/articles/baker.html> .
So. Breathe deep the gathering gloom. (Go on, you're an X-Files fan -- you enjoy it). Well, okay, paranoia isn't really necessary. As long as you use common sense when writing adult fic, nothing dreadful is likely to happen to you. Keeping track of proposed legislation and writing your senator or state representative (but not into your adult fiction) is also a good idea, as is looking into Internet pornography law for your country, if you are not a U.S. citizen. My personal solution is never to post under my own name, and to avoid directly e-mailing NC-17 material to anyone, even if their handle is HotGrandma@retirementvilla.com. I do plan to continue sending links, however, until and unless the Fox Network sends that 2600 judge after me.
By the way -- after I was done freaking out and scrounging the FBI's web site for information about what happened to people who corrupted minors, Jane Doe wrote me back. She confirmed that she was underage and thanked me for sending the PG-13 version of the story. As for NC-17 fic, she said, "I'm not interested in that stuff. It doesn't appeal to me."
Nothing like being made to feel immature by a 14-year-old.
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