F-890421.451 +quot;Obscene1.txt+quot; WARNING TO SYSOPS AND BBS USERS NATIONWIDE 890421: L

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F-890421.451 "Obscene1.txt" WARNING TO SYSOPS AND BBS USERS NATIONWIDE ========================================== 890421: Lawrence A. Stanley, Attorney at Law CoSysOp, PARENT SIG BBS: 714-735-4279 Below are the relevant provisions of the "Child Protection and Obscenity Enforcement Act of 1988," which was signed into law by President Reagan on November 18, 1988 and takes effect on August 18, 1989. Please note the impact on pictures of ADULTS and the SYSOPs and users who POSSESS them. Due to the length of the text -- only a small part of it appears here -- I have kept my comments to a minimum. Every U.S. citizen concerned with his/her "right to be let alone" -- to read whatever he/she wishes to read, to explore whatever thoughts and ideas he/she wishes to explore, and to produce or disseminate whatever materials he/she wishes to produce or disseminate (provided same are produced with the consent of the persons involved) -- should familiarize himself/herself with this law. This Act neither protects children nor addresses any real social problems. It is a draconian measure which seriously curtails First and Fourth Amendment rights and, if successfully enforced, will effectuate the "G-Rated" culture for which religious zealots have been fighting for the past 10 years. It is unfortunate that most of the American people stood by and watched in fear and trembling, but then again, it is never too late to strike back. Court challenges, civil disobedience, and pressure on prosecutors and elected officials -- which are possible only with strong grass-roots organizing and financial contributions -- can turn the tide in favor of the First and Fourth Amendments. "Grass-roots organizing" means: IF you care about pictorial OR WRITTEN material on BBSes, post/upload this information to as many other systems as you can. "Financial contributions" means: MONEY and that The PARENT SIG is going broke spreading this info to other: systems, groups, publishers, and media leaders (who do not pay one penny for it) in effort to protect and RECLAIM YOUR right to read, write, see, and U/D, what YOU want. The provisions of the law are in quotations. My comments are in brackets and set of from the text by bars. --------------------------------------- SECTION 2257. RECORD KEEPING REQUIREMENTS. (a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which -- (1) contains one or more visual depictions made after February 6, 1978 of actual sexually explicit conduct; and (2) is produced in whole or in part with materials which have been shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction. --------------------------------------- [Factors to keep in mind: this section is retroactive to February 6, 1978 and applies not only to "adult" materials, but any matter -- book, film, photograph, in digital or analog configuration, or otherwise -- which contains a depiction of ANY person (adult or minor) engaged in "sexually explicit conduct" (which includes a showing of the genitals). This provision does NOT apply to production, transfer, or receipt of materials actually containing depictions of minors engaged in "sexually explicit conduct" (including a showing of the genitals) as those activities are prohibited outright under Sections 2251 and 2252.] --------------------------------------- (b) Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct -- (1) ascertain, by examination of an identifiable document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; (2) ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and (3) record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation. (c) Any person to whom subsection (a) applies shall maintain the records required by this section at his business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times. (d) (A) proof that the [producer] failed to comply with the provisions of subsection (a) or (b) of this section...shall raise a rebuttable presumption that such performer was a minor; and (B) proof that the [producer] failed to comply with the provisions of subsection (3) [below]...shall raise the rebuttable presumption that every performer in the matter was a minor. --------------------------------------- [This provision will be applied if the government decides to prosecute an individual based on the suspicion that some person depicted in the book, magazine, periodical, film, videotape, or other matter may be under the age of 18 and is either engaging in "sexually explicit conduct" (including a showing of the genitals) or assisting another person in engaging in "sexually explicit conduct" (including a showing of the genitals). Under the age of 18 means just that: a depiction of a 17-year-old is as actionable as a depiction of a 5-year-old. The information required to be gathered here seriously infringes upon the privacy rights and rights of equal protection under the law of performers. Why should performers be required to divulge to their employers all names EVER used by them? In fact, why should performers in the sex industry be required to provide any more information than employees in other fields of business?!] --------------------------------------- (e)(1) Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described [herein]...a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located. (2) If [such person] is an organization, the statement required by this subsection shall include the name, title, and business address of the individual employed by such organization responsible for maintaining the records required by this section. (3) In any prosecution of a person [for transporting, mailing, or distributing depictions involving individuals under the age of 18, proof that the matter transported, mailed, or distributed] did not contain the statement required by this section (e) shall raise a rebuttable presumption that such performer was a minor. --------------------------------------- [Rebuttable presumptions may be impossible to overcome where models are no longer available to appear as witnesses, since "experts" can only guess chronological age within a few years AT BEST. The law is patently unconstitutional (although no court has made that determination as of yet), since individuals and businesses which produced materials prior to the passage of this act could not possibly have anticipated the specific record-keeping a labeling requirements specified.] --------------------------------------- (g)(3) "Produce" means produce, manufacture, or publish and includes the duplication, reproduction, or reissuing of any material. SECTION 1466. RECEIPT OR POSSESSION OF OBSCENE MATTER FOR SALE OR DISTRIBUTION. (a) [This section makes it a crime punishable by up to 5 years in prison] to receive or possess with intent to distribute any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording, which has been shipped or transported in interstate or foreign commerce." (b) "Engaged in business" means "sells or transfers possession or devotes time, attention, or labor to such activities as a regular course of trade or business, with the objective of earning a profit, although it is not necessary that the person make a profit or that the selling or transferring or offering to sell or transfer such material be the person's sole or principal business or source of income. The offering for sale of or to transfer, at one time, two or more copies of any obscene publication, or TWO or more of any obscene article, or a combined total of FIVE or more such publication and articles, shall create a rebuttable presumption that the person so offering them is engaged in the business." --------------------------------------- [Again, the rebuttable presumption may be difficult to overcome. In the non-commercial exchange of materials (commonly known as bartering), the fruits of the exchange may well constitute "profits". Anyone care to test this? The Internal Revenue Service has prevailed on similar arguments in the past. It is likely that the Department of Justice will be similarly successful.] --------------------------------------- SECTION 1469. PRESUMPTIONS. (a) If the allegedly obscene matter "was produced or manufactured in one State and is subsequently located in another State," there shall be "a rebuttable presumption that such matter was transported, shipped, or carried in interstate commerce." (b) If the allegedly obscene matter "was produced or manufactured outside the U.S. and is subsequently located in the U.S.," there shall be "a rebuttable presumption that such matter was transported, shipped, or carried in foreign commerce." SECTION 1467. CRIMINAL FORFEITURE. (a) A person who is convicted of an offense involving obscene material under this chapter shall forfeit to the United States such person's interest in -- (1) any obscene material produced, transported, mailed, shipped, or received in violation of this chapter; (2) any property, real or personal, constituting or traceable to gross profits or other proceeds obtained from such offense; and (3) any property, real or personal, used or intended to be used to commit or to promote the commission of such offense. --------------------------------------- [The words "traceable to" could refer to property purchased by an individual after ANY profit whatsoever is derived from the sale or transfer of the allegedly "obscene" matter, regardless of whether the particular profit is actually used in the purchase, unless it could be conclusively proven that such profit was NOT used in said purchase. Any property on (or in) which the allegedly "obscene" merchandise was stored, including warehouses, homes, offices, computer equipment, file cabinets, trucks, automobiles, or other places where things may be stored, as well as equipment used or which may be used to sell or distribute such merchandise. Initially, forfeiture of such property applies whether or not the person charged with the crime is the owner of the property.] --------------------------------------- (d) Warrant of Seizure. The Government may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that [a restraining order prohibiting transfer or disposition of the property] may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property. --------------------------------------- [This paragraph authorizes the seizure of a person's property without the necessity that the person even be charged with committing a crime -- only "probable cause" that the property could be subject to seizure IF (and there are no limitations imposed on that IF) the defendant is later convicted. Moreover, the person is not even accorded an adversary hearing: all this may be done before a U.S. Magistrate by police agents and U.S. Attorneys, without the presence of the property owner or his/her attorney.] --------------------------------------- (j) Bar on Intervention. Except as provided in subsection (m) of this section, no party claiming an interest in property subject to forfeiture under this section may -- (1) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this section, or (2) commence an action at law or equity against the U.S. concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this section. --------------------------------------- [This applies to property owners whose property the government has seized or is in the process of seizing, which property has allegedly been used for the sale or transfer or intended sale or transfer of "obscene" matter. Owners wishing to pursue their property interests will need to retain counsel familiar with the narrow guidelines set forth in paragraph (m) below:] --------------------------------------- (m) Third Party Interests. (1) Following the entry of an order of forfeiture under this section, the U.S. shall publish notice of the order and of its intent to dispose of the property in such manner as the Attorney General may direct. The Government may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of an order of forfeiture as a substitute for published notice as to those persons so notified. (2) Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the U.S....may, within 30 days of the final publication of notice...petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The hearing shall be held before the court alone, without a jury. --------------------------------------- [This paragraph merely deprives a property owner of his right to a trial by jury. Notice the law says that the Government "may" -- not must -- provide direct notice.] --------------------------------------- (6) If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that -- (A) the petitioner has a legal right, title, or interest in the property, such right, title, or interest, renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section.... (o) Substitute Assets. If any of the property described in subsection (a), as a result of any act or omission of the defendant -- (1) cannot be located upon the exercise of due diligence; (2) has been transferred or sold to, or deposited with, a third party; (3) has been placed beyond the jurisdiction of the court; (4) has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value or any property...[potentially subject to seizure as described above]. --------------------------------------- [These same forfeiture provisions, as amendments to Sections 2253 and 2254, are applicable to anyone who receives any matter containing a depiction of person under the age of 18 (even 17 and 364 days) engaged in "sexually explicit conduct" (including a showing of the genitals). The government may also (though this scenario is unlikely) seize all property connected with the "commission" of the offense without bringing criminal proceedings against the receiver. Such property might include: homes, automobiles, computer equipment, and video equipment, among other property.] --------------------------------------- SECTION 305. THE TARIFF ACT OF 1930. (1) ...whenever the Customs Service is of the opinion that criminal prosecution would be appropriate or that further criminal investigation is warranted in connection with allegedly obscene material seized at the time of entry, the appropriate customs officer shall immediately transmit information concerning such seizure to the U.S. Attorney of the district of the addressee's residence. No notice to the addressee or consignee concerning the seizure is required at the time of such transmittal. --------------------------------------- [Beware to anyone who orders adult materials from outside the United States. This provision eliminates the requirement that Customs notifies addressees of seized materials to afford them the opportunity to respond and protest seizure. What this provision does is (1) makes possible further surveillance of the defendant -- i.e. the seized item will provide evidence necessary to obtain search warrants, wiretapping authorizations, and the like; and (2) makes possible that method of prosecution so successful in "child pornography" cases: the controlled delivery. An unsuspecting recipient of allegedly "obscene" material may find a team of police officers entering his house moments after the material is delivered by the Government. Once inside the home or business (and they will follow defendants home from post office boxes as well), the Government will have a field day -- seizing all adult materials in sight, cameras, videotapes, bank records, charge card records, safety deposit box records, and any other property which the Government believes might constitute "evidence" of intent to commit a "crime" of receiving "obscene" materials.] --------------------------------------- SECTION 1460. POSSESSION OF OBSCENE MATTER ON FEDERAL PROPERTY. (b) ...whoever, in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title, (a) knowingly possesses an obscene visual depiction or a visual depiction of a minor engaging in or assisting another person to engage in sexually explicit conduct [including a showing of the genitals] shall be punished by imprisonment for not more than 6 months or a fine.... --------------------------------------- [Any federal employees out there? If you carry a videotape to work with you, intending to return it to the video rental store at lunch time, you have violated federal law. Any campers or hikers carrying adult magazines on federal land? You too may be prosecuted for "possession". Don't park in any federal parking lot if you have dirty disks in your car and don't drive on any federal highways going home.] --------------------------------------- SECTION 1471. CIVIL FINES. (a) Whoever, produces, transports, mails, ships, or receives any article that has been adjudged obscene in any state or Federal criminal case shall be subject to a civil penalty of -- (1) for a first violation, not more than $10,000; (2) for a second violation, not more than $50,000; and (3) for a third or subsequent violation, not more than $250,000 in the case of an individual, or $500,000 in the case of an organization. --------------------------------------- [Such action may be commenced at any time within 5 years of the alleged violation. This is a civil, not a criminal proceeding. The government thus needn't prove guilt beyond a reasonable doubt, but guilt "by a preponderance of the evidence that the article is obscene under the standards of the community in which the trial takes place." The latter quotations are from subsequent sections of the new Act.] --------------------------------------- If anyone has any questions about the law or recent prosecutions by the U.S. Department of Justice, contact The Parent SIG. Kind regards, Lawrence A. Stanley, Esq. P.S. We especially want to hear from VICTIMS of the hysteria-paranoia over child nudity/porn/sex. STAND UP --- FIGHT BACK --- PASS IT ON ======================================= This text comes from The PARENT SIG BBS 8-N-1 24HRS 300-2400 714-735-4279 Please pass it on to other good systems PARENT SIG,2483 EMERSON,CORONA CA 91720 Marc Schuyten -- voice -- (714)371-2080 =======================================

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