Scary words in the US Code

[shira]

I was perusing the U.S. code while reading the thread on that girl who was arrested for photographing herself nude and sending images to her friends. I came across TITLE 18 > PART I > CHAPTER 71 > § 1462 (bolding is mine, for clarity):

Text

§ 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 or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934), for carriage in interstate or foreign commerce?

(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or

(b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or

(c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or

Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful [and this means the things listed in (a) through (c), above - Shira] ?

Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

Note: the reference to the section of the Communications Act of 1934 is:

(2) INTERACTIVE COMPUTER SERVICE.--The term ''interactive computer service'' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

This is pretty clearly saying that if a person goes on the internet and, say, views "lewd or lascivious" images (hard-core sex images, anyone?) or reads lewd or lascivious stories, then that person has committed a felony under the US code. Actually, this section goes MUCH further than that, but you get the point. I find this damn scary.

Now, maybe this law isn't being enforced, but why is it even on the books? Why hasn't it been updated to reflect ONLY those things which truly are illegal? I mean, child pornography is one thing, but my understanding has been that on the internet pretty much everything goes if it involves only consenting adults (and maybe a few barnyard animals). But this law says otherwise.

Read this Section for yourself. I don't get it. What am I missing here?

 

[Sacrilege]

Under the Bush administration, some federal prosecutors have been crusading (Jihading) to shut down hard core bestiality/bondage/torture type porn operations. I think the laws being cited were community decency standards. Apparently, someone has insecurities with sex, or repressed fetishes, or a boring sex life, and hates seeing people have fun in their weird freaky ways.

 

[shira]

Originally posted by: Sacrilege
Under the Bush administration, some federal prosecutors have been crusading (Jihading) to shut down hard core bestiality/bondage/torture type porn operations. I think the laws being cited were community decency standards. Apparently, someone has insecurities with sex, or repressed fetishes, or a boring sex life, and hates seeing people have fun in their weird freaky ways.

The thing I find truly scary is that there's no way a person whose intent is to abide by the law can read that section and know what really is the law and what isn't. The answer CANNOT be to treat every word as though its the gospel, because I know damn well that some of these laws have been found to be unconstitutional. If that's the case, the law should be amended. Or at the very least, annotations should be added to make clear what applies and what doesn't. And I'm sure this is far from the only section with problems.

They say that ignorance of the law is no excuse. But if it's impossible for normal Americans to determine what the law actually is, leaving ambiguous laws on the books in effect stops people from engaging in constitutionally protected behavior. That's inexcusable.

 

[fleshconsumed]

So... if I'm reading this right, you can buy and download domestically produced porn, but if you import it you're a criminal?

 

[shira]

Originally posted by: fleshconsumed
So... if I'm reading this right, you can buy and download domestically produced porn, but if you import it you're a criminal?

No. It's much broader than that. Here's one "path" through the first paragraph:

Whoever . . . knowingly uses any . . . interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934), for carriage in interstate commerce [the cited material]

In other words, if the cited material - from any source - is obtained via computer for the purpose of engaging in interstate commerce, you've broken the law. And if you get the material from such a provider, YOU'VE broken the law.

Interstate (and foreign) commerce is often mentioned in federal laws since the federal government's doesn't have any constitutional power to make many of the laws binding on the states UNLESS there's an interstate commerce component. Federal drug laws use similar language. But the meaning of "interstate commerce" is so broad (as transmogrified by Congress and sanctioned by the courts), it can be applied to almost anything.

And note that it's not necessary for the cited material to be sold. It's sufficient that the provider of the material in some way engage in interstate commerce, however indirectly - for example, advertising on the web pages containing the material.

 

[Billb2]

Trying to read and understand the text in federal regulations is sheer folly. And it has little to do with what, for all practical purposes, actually represents current "law".

The regulations you are reading are the "law" as enacted by Congress. How that "law" is interpreted and enforced is up to the federal agency charged with it's enforcement. The "Separation Of Powers" doctrine requires that Congress make the laws, but that the Executive branch enforces them. Hence, all the government agencies (FDA, EPA, DOT, Labor, OSHA, SEC, etc.) report to the executive branch. They "enforce", as they see fit, the will of the Congress. Recourse, for both the Congress and the Executive Branch, is the courts, which have the final say, unless Congress modifies the "law" to restate what they wanted in the first place.


I used to have to keep up on federal regs (Environmental/health/safety). The only way to do it was to subscribe to a service that would scout the Federal Register and site and interpret what was found. If I needed further info/explanations, they would go all the way to the Congressional Record and case law for interpretations of just exactly the government was trying to accoplish.

 

[wwswimming]

what happens if you look at

Page 3

from the United States ? they're in England.

we must take these pictures home for further examination.

 

[shira]

Originally posted by: wwswimming
what happens if you look at

Page 3

from the United States ? they're in England.

we must take these pictures home for further examination.

Well, according to that statute, if any of those pictures are "lewd" (= "inclined to, characterized by, or inciting to lust or lechery") or "lascivious" (= "arousing sexual desire"), then you've committed a felony.

Frankly, I'm not aware of ANY high-quality porn that isn't lewd or lascivious. What would be the point if it weren't?