BME: Banned in America
"Censorship reflects society's lack of confidence in itself. It is a hallmark of an authoritarian regime."
- Justice Potter Stewart, US Supreme Court
As of June 24, 2005, publishing BME was made illegal in the United States, with my wife Rachel and I each facing life in prison due to our involvement in the site. In no way am I exaggerating the risk we were at. Our lawyer, who specializes in free speech issues, advised us that there was a good chance of prosecution, beating the charges would be far from guaranteed, and that if we had any sense we leave America immediately and tell others to do the same.
Taking his advice, we moved all of our servers back into Canada which has far broader protection of speech and the press, as well as the required privacy protections. Bringing BME back to Canada where it started cost us a great deal of time, money, and effort, but in the long run will be essential in keeping us online. Without this move it would have been only a matter of time before the site was forced to shut down, have its records seized, and seen us imprisoned.
What caused this?
The specific laws in question are the "18 USC 2257" regulations, a set of record-keeping rules which the US government claims have been put in place to combat child porn. They stipulate that for all photos published, copies of ID and other information must be kept and that these must be made available to the US Department of Justice for at least twenty hours a week, without warning or warrant required for inspection of the records or our place of business (ie. our home).
This doesn't affect only photos or video directly produced by BME; this would also affect content produced by BME members -- so every photo on BME and every photo on IAM could have these requirements applied to it. Any photo that is "sexual" in nature or of a "sadistic" or "masochistic" subject matter (even if the photo is blurred or behind a password wall) is affected. This would certainly include suspension, play piercing, nipple piercing, genital piercing, and of course everything in BME/HARD and BME/extreme.
"The more corrupt the state, the more numerous the laws."
- Tacitus
How do the 2257 regulations affect BME?
In simple terms, to continue publishing BME in the US I would need to do the following:
For every photo on the site, I would need to get a copy of the person in the picture's ID as well as other information like all of their online aliases, when and where the photo was taken, and share this with the US government.
Only US content could be posted to BME, in part because of US ID requirements, and in part because such record keeping would be a violation of foreign privacy laws. Almost all foreign content would have to be removed immediately, and foreign members banned.
Rather than simply beginning now, these laws are retroactive to almost the day that BME started and would affect all past photos posted as well as new ones.
Any photo that I could not (or would not) provide full ID records for would need to be removed immediately.
Linking to BME by other sites could be illegal as well. Clearly most people submitting to BME would not be willing to share such records with the government, nor should they have to. Every single photo found to be in violation would be a $25,000 fine plus five years in prison. There are nearly a million photos on BME. You can see that they've been very clever -- this is not a direct attack on free speech, but a set of requirements that more so violate search and seizure laws and privacy concerns. As such, I hope you understand why we chose to leave the US to Canada where far more liberal publication laws allow us to continue running BME without these changes, rather than taking the risk and expense of trying to fight this in court as foreigners.
"America is at that awkward stage; it's too late to work within the system, but too early to shoot the bastards."
- Claire Wolfe
How do the 2257 regulations affect piercers, suspension groups, and artists?
If a US body piercer publishes photos of nipple piercing, genital piercing, or anything else that could be considered sexual, sadistic, or masochistic in nature, this could be covered by the new laws. In addition, this could cover play piercing and suspension if there is nudity involved or if a court decided to class these activities as sadistic or masochistic. That means that if you're an American piercer or suspension group that wants to operate inside the law, you will need to keep copies of ID of anyone you work with, along with records on the dates and times and locations of any photos or video taken, share that with the US government, and make a public statement on your website detailing this compliance ” and don't forget this is retroactive ten years back.
Please note that this only marginally affects US people publishing on BME because now that BME is outside of the US we can not be forced to share records with the US DoJ and have no intention of ever doing so. In addition, with photos on BME, we are the “producers†of the content, so the risk of prosecution falls to Rachel and I rather than to you. I don't believe you have to worry.
How do the 2257 regulations affect IAM members?
IAM has been moved to Canada along with the rest of the BME servers. None of IAM's logs or records will be shared with the US DoJ, so even if you are American, no definitive evidence against you could presented via IAM use. In any case, as far as I know you can’t be prosecuted for photos of yourself (although you could be if you took a photo of someone else at a BBQ that was explicit), and with BME as the “producerâ€, the charges would likely be levied at us rather than at you.
Banned from the USA
The crazy thing about these laws is that even though I am a Canadian, don’t live in the United States, and the site is published outside the US and served out of Canada, I could still be arrested if I ever set foot in the United States — even if just on a stop-over taking a vacation to somewhere else. It sounds nuts — how can they arrest you for an act that you did in your home country, that’s legal in your home country? It’s like arresting a Dutch citizen for smoking pot in Amsterdam two weeks earlier when he visits NYC on vacation.
I suppose because the Internet is considered “international,†the US feels that it can prosecute “online criminals†no matter where they may be from and no matter where they may have acted. Let me briefly tell you the story of Dmitry Sklyarov, a Russian programmer who was imprisoned in just this way.
In Russia, many computers are older, slower, and far less powerful and considered obsolete in comparison to the ones that are common in America. Because of that, US companies often develop products which can only be used by the wealthy in Russia. A good example is Adobe Systems, who developed the PDF standard. Now, PDF readers exist for almost every computer, including the lower-end Russian machines, but they had a protected eBook variant whose copyright protection limited its use to only more expensive modern computers.
Under Russian law, selling someone an eBook and then blocking them from using it because of the type of computer they have is a violation of the law (that is, Adobe was in violation of Russian law because of the type of copy protection they were using), so Dmitry didn’t feel that he was doing anything wrong when he developed a piece of software that allowed eBook owners to convert the files to standard PDF format so they could read them on older computers as well as on devices like readers for blind users (and his software was designed to work on only legitimately purchased products, and was not intended as a tool for theft in any way).
Adobe caught wind of his software and he was invited to give a talk in California on it. His flight was paid for, they watched his talk from the audience, clapped, and, as he walked off the stage he was immediately arrested by the US Department of Justice and incarcerated. He had committed no crime on US soil, nor had he committed one on Russian soil, but in jail he rotted.
“Take away the right to say ‘fuck’ and you take away the right to say ‘fuck the government.’â€
- Lenny Bruce
Why not just comply? The invasive record keeping and sharing requirements put forth by the 2257 regulations are a violation of Canadian privacy laws (and those of many other free nations). For me to comply with 2257, I would need to violate the civil rights laws of Canada, so I am now forced to never set foot again in the US until the 2257 regulations are struck down (assuming that happens).
More importantly, much of what is documented on BME is private _expression (of the sort that the general public frowns upon), and even _expression that sometimes borders what is legal and what is not (extreme modification, suspension in some areas, even tattooing and piercing at times). Because of this, revealing the identities of everyone in the photos could be disastrous to their public lives. Couple that with dubious and deceitful prosecutions against modification artists and modified people by the US government, and few people would continue feeling safe in submitting photos to BME.
Even if there were no issues with non-US submissions, choosing to comply with the 2257 regulations would absolutely stifle BME’s members ability — and right — to express themselves and share their lives with each other without fear of being monitored by repressive government agents.
“Wherever they burn books, they will also, in the end, burn people.â€
- Ralph Waldo Emerson
So what’s going to happen? We made the decision to leave the US because of these laws, and are thus no longer ruled by their draconian regulations. In summary BME will protect itself and BME will protect its members. By moving out of the US and staying out of the US and choosing a host country that values civil liberties, we are able to continue publishing without making any changes to the way BME is run or our general requirements.
You will not have to attach your ID to photos, and I will never share my records, logs, or email archives with the US government or any other government. The protection and privacy of BME’s members is one of our top priorities and we will do everything we can to allow body modification and play enthusiasts to continue communicating and expressing themselves.
If you would like to support the fight against these regulations, please consider joining the Free Speech Coalition at freespeechcoalition.com, an advocacy group that is currently challenging these laws in court.
Shannon Larratt BMEzine.com