User:TheDJ/explicit

This statement is FAR from finished and still requires heavy editing and expansion.

This page details my take on the issues of sexual explicit content and how we should handle it within Wikipedia and Wikimedia Commons. I have written this down because the subject is complex and there is so much information that needs to be taken into account. Especially the law aspect is something I wanted to get clarified because they were often quoted incorrectly or out of context. This is my personal vision based on the information I have collected so far. It may change at any time and if you think I have missed important sections of laws or Foundation regulations, please point them out to me on the talk page.

Censorship

I'm squarely against censorship, for any reason other than those required by US federal and Florida state law.

Tagging

I am against tagging, because I think it is an enabler for filtering. However, my position on this is thus flexible, that if the community decides that it would be beneficiary for the project to start tagging, I would not be heavily opposed. if we do tagging of legal content however, then I am of the opinion that any cultural sensitive topic (depictions of allah, depictions of homosexual conduct, unveiled women, depictions of gore, depictions of the FSM, etc) should be allowed to engage in similar tagging.

Filtering

Default filtering is censorship in my opinion. An opt-in filtering system might be acceptable to me at a community level, though I would be a heavy opposer in such a debate.

Scope

Jot down what i think about project scope, pruning that is being discussed etc...

What is pornography ?

There is a clear definition of "sexual explicit conduct" in the US, which I think is the best guideline here. 18 U.S.C. 2256 says:

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
  (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
  (ii) bestiality;
  (iii) masturbation;
  (iv) sadistic or masochistic abuse; or
  (v) lascivious exhibition of the genitals or pubic area of any person;

What is child pornography

18 U.S.C. 2256 says:

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
  (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
  (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
  (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

In the case of child-pornography, the capitalized element is added to the definition of "sexually explicit conduct"

(B) For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means— 
  (i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, OR LASCIVIOUS SIMULATED SEXUAL INTERCOURSE WHERE THE GENITALS, BREAST, OR PUBIC AREA OF ANY PERSON IS EXHIBITED;
  (ii) graphic or LASCIVIOUS SIMULATED;
    (I) bestiality;
    (II) masturbation; or
    (III) sadistic or masochistic abuse; or
  (iii) graphic OR SIMULATED lascivious exhibition of the genitals or pubic area of any person;

However, I do note that the definition above is of child pornography. Not of responsibilities of how to DEAL with child pornography. In my opinion, as a community we should always do our best. We do not require proof that a person is not a minor (unless ordered by the Foundation), it is the responsibility of the uploader. But just as with copyright violations that are the primary responsibility of the uploader, in cases where we can derive or where we as a community (consensus) decide that the person might reasonable be identified as a minor, we have the moral obligation to instantly delete that file and by strong enough indications of child pornography, to even report such things to the police.

Obscenity

Children are protected even further, trough 18 U.S.C. 1466A. which criminalizes material that has "a visual depiction of any kind, including a drawing, cartoon, sculpture or painting", that "depicts a minor engaging in sexually explicit conduct and is obscene" or "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value.

In court, this latter class of material is usually tested per the Miller Test for obscenity.

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
• Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific.)

What is NOT pornography

This is my own definition of elements explicitly excluded from being pornography

• Any image where nudity (full or partial) is a local culture phenomena or common practice. (consider Papua New Guinea)
• Works of art. In cases that are bordering art or are controversial as, the notoriety and recognition of the artist comes into play. This should NOT be a US-only view.

Record keeping

There has a been a lot of discussion about wether or not the Foundation or even the community itself, is required to keep records about the age of nude models as specified by 18 U.S.C. 2251. This law requires that records be kept about the models proving their identity and especially their age. The specifics about record keeping can be found here.

• These records would have to be kept for anyone involved in the depicted/produced "sexual explicit conduct" as defined above. (75.2a and 75.1n) if produced after 1995
• For work produced after march 18th 2009, works with simulated sexual explicit conduct or actual "lascivious exhibition" require this as well
• Records need to be kept for eternity (at least there is no expiration date that I could find).
• Commercial re-users of images would be secondary producers (see below).
• Specific disclaimers are required on every webpage showing the image in question. (75.8d)

The law identifies 2 types of people required to keep such records. Primary producers and secondary producers. If anything, we would be a secondary producer. The definition is as follows:

Secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing. When a corporation or other organization is the secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the secondary producer of that image or picture.

Interpretation

Statements[1][2] by Mike Godwin lead me to believe that the Foundation considers itself to be an ISP exemption, offering a service to readers, editors and uploaders. As such they will delete offending material as reported to them, but do not consider themselves to be a secondary producer. There is some merit in this reasoning in that Google, Yahoo and Flickr for instance use the same argument to not keep such records. The act itself even specifies such leeway in 75.1c4 IV, beyond the one of the Communications Decency Act 47 U.S.C. 230. Wikipedia is no exact match to either being of the type ISP or being a secondary producer. What Wikipedia is required to do can only be decided in court of course.

From my own interpretation, I see even more possibilities for the above however. Note the particular vagueness and broadness in the 2nd part of the definition of secondary producer. The part after or who inserts is from the new 2009 law and was a hot topic at the time. (old law quoted in this case) The old law was clearly focused on commercial activities. The new law seems intentionally vague. This is most likely because they don't want any fish to escape. Now the interesting part is that there are no exceptions defined to this large net. Giving the rather specific definition in the earlier section "or other matter for commercial purposes", this might actually work for us. The first section makes it clear that a very specific type of behavior is supposed to be tackled. Were this section not to contain "or other matter intended for commercial distribution", libraries would have to have records for each book containing nude models. That is an impossible situation of course. It might be possible that a judge would consider such broadness + the stated ISP exception as an opening to require interpretation of the law by the judge.

On October 23, 2007, the 6th Circuit U.S. Court of Appeals ruled that the record keeping requirements were facially invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech. However the US DoJ, under control by US Attorney General Michael B. Mukasey, has asked for, and was granted, an en banc review of the initial decision of the 6th Circuit Court in order to see if the initial decision should be overturned. The Sixth Circuit subsequently reheard the case en banc and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents. The dissent says that Connection is incorrect (because it is a commercial entity and the 'anonymous' advertisers were not anonymous to the publisher at all). The dissent also states that the problems raised by Connection with the statute en face, were not really addressable in their court, because Connection could not show the substantiality required to overturn a statute en face. Additionally the court notes the lack of interest by justice to use the statute for prosecuting people for material created in the private of their home or even for uses that are not really commercial. The dissent states that if justice were to ever interpret and use the statute in such ways, the breadth of the law would likely have to be addressed in court (specifically leaving open the door that there are possibly exceptions), but it did not find it unconstitutional for the statute to exist in that way as long as it was not yet used in that way (saying that the value of the law is too big to overturn it en face [so without addressing a specific case]). So the loophole for the foundation is one of lack of prosecution of such parties. Everyone is waiting for more parties to be sued so the law can be better understood.

Now how does this matter ? It doesn't. This is up to the Foundation, not up to us. If they want to take that bet, then that is their choice (if the board supports them). Even if they are violating this administrative law, it will probably be a fine and we would have to delete a lot of material, but that is not a big problem.

Conclusion

• As long as U.S. uploaders can provide the papers that the US requires for their models, there are no problems. The US has no jurisdiction over non US citizens, so these do not have to worry.
• We might want to voluntarily tag images that are likely to require record keeping, in order to inform re-users that they might have to make sure they have the appropriate documentation as well. Such tagging would be a "service to our fellow users", much as our trademark and insignia tags would be.
• We might want to consider implementing a rule that a confirmed email account is required for uploading such imagery. This would mean that if the Foundation ever gets court orders regarding material, such a user might be more easily identifiable for the justice system.