Umar Kahn is a 34-year-old computer technician who likes to drive around late at night. Nothing new there — late at night is the only time Los Angeles is not gridlocked in traffic. It’s probably the least annoying time to be on the road in this town. Unless you run a stop sign, that is.

So you get pulled over. Running a stop sign is not that big a deal when there’s no one else on the road. Maybe the cop will understand, you think as the Glendale officer makes his way up to your car. He knocks on the window. License and registration. You know the drill. The cop shines a light in your face. No biggie. You start explaining. Then the light shifts down to your lap.

You’re not wearing any pants.

This should be someone’s nightmare — you know, the L.A. version of showing up naked at a board meeting or to defend your dissertation. Except it’s not. This actually happened last week to the above-mentioned man.

According to CBS2, when the police asked the man to explain why he’d removed his pants and underwear, Kahn explained that he was sexually frustrated. He hadn’t had sex in a month, he told them.

Didn’t Glendale’s Police Department get it? Stripping in his car gave Kahn a sense of freedom. “My thing is the freedom,” the butt-ass naked man elaborated.

And it doesn’t stop there. LAist writes that the drives are only part of the kink. The plan, it seems, is to get high, drive around and find a cul-de-sac where Kahn can park and help himself relieve his sexual frustration.

“Los Angeles County Superior Court records indicate Kahn was convicted for indecent exposure in 1998,” writes LAist’s Lindsay Ross-Williams. He’s being investigated for a situation similar to this more recent incident, which unfolded a year ago — in Pomona! That’s 43 minutes away for those of you who are not from these parts. There is “getting around” and then there’s getting around!

We seriously can’t imagine any kink that’s more L.A., driving around desperately seeking parking, before one can actually get off. Come to think of, it sounds a lot like our sex lives. Except, you know, we wait until we get there to take off our pants.

Photo by Daniel Echeverri.

There is a lot of misinformation floating around the web about the Porn Wikileaks story. In the interest of informing the dialogue and helping performers understand their legal options, we have summarized the four legal items that are getting the most attention in the Porn Wikileaks story and provided some information about what the law actually says in regard to HIPAA, 2257, defamation and the Computer Fraud and Abuse Act.

HIPAA

Much has been said about Porn Wikileaks’ violation of the Health Insurance Portability and Accountability Act (HIPAA), particularly due to misinformation in the media claiming that the wiki has made available adult entertainers’ STI test results. While Porn Wikileaks has a “High Risk HIV gay porn actors working in straight Porn” list and “High Risk HIV” list and makes claims within some pages regarding the sexual health of the listed performers, these appear to be — like much of the information on the site — merely cases of libel.

The site has not yet published any medical information, though the DailyBeast and Salon have both published the possibility that the creator of the wiki may publish performers’ health information in the future.

Even if Porn Wikileaks did publish this content, however, a close look at HIPAA shows that these regulations only apply to covered entities, such as health care providers, health insurance companies, HMOs, Medicare, and Medicaid, to name a few. There are several organizations and entities that are not covered by the privacy rule (employers, for example).

The short of HIPAA is, essentially, that any covered health care providers require your authorization to disclose identifiable health information (that is, health information that contains identifiers such as one’s name, address, birth date, or social security number), unless other laws require these providers to disclose it. Thus, because Porn Wikileaks is not a covered entity, they cannot be prosecuted for violation of HIPAA regulations even if they do release medical information.

The responsibility in this event, would fall on the entity that did not take sufficient measures to safeguard this information — or on any employee proven to have leaked the information to the site.

A note must be made here about the information that is actually available on the Adult Industry Medical (AIM) database. We spoke with AIM’s attorney Jeffrey Douglas this morning about the information made available by the Adult Industry Medical database:

The information on Porn Wikileaks that could have come from AIM are the legal names, the stage names and birth dates, correlated. But home addresses, IDs, numbers — all of that could not [have come from AIM].

Most likely, this information came from 2257s, forms required under the Child Protection and Obscenity Enforcement Act of 1988, that are collected to ensure all performers in an adult shoot are over the age of consent.

2257s, Also Known As 18 U.S.C. § 2257

By this law, any producer of explicit material must obtain and retain a 2257 form for every model involved in a shoot along with copies of their IDs (click to see what this form essentially looks like).

While the law itself does not require such stringent record-keeping of anyone who isn’t directly involved in the contracting of performers for shoots, the Department of Justice (DOJ) extended the law by designating a second class of producers, which involves “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.”

As it regards 2257 compliance, the DOJ makes the following specifications:

A primary producer must examine a government-issued picture identification card belonging to each performer in the visual depiction that demonstrates that the performer is 18 years old or older. The primary producer must then record the legal name, any aliases, and the date of birth of the performer, record the date of production of the depiction, and make a copy of the picture identification card. Once production is complete, a copy of the visual depiction must be maintained along with these records. All information on a performer may be redacted other than the name, date of birth, and information that identifies the type and validity of the picture identification card (e.g., driver’s license or passport number). All of the primary producer’s records for all its visual depictions must also be cross-referenced by name and alias of the performers.

If a secondary producer produces a copy of the visual depiction, the secondary producer must obtain from the primary producer the records associated with that depiction. Finally, the visual depiction must be labeled with the location of the records.

That essentially means that it’s not just studios that have access to these forms with performers’ identifying personal information, but that a number of middlemen receive access to the forms as well.

As Barbie Davenporte at LA Weekly‘s AfterDark LA blog notes, “There is no law preventing the sharing and distribution of 2257 documents within and outside of the industry.”

When we spoke with AIM attorney Jeffrey Douglas this morning, he elaborated on this point:

Adult is a highly competitive market. If you’re a distributor [of adult films], desperately trying to make sales, some guy calls you and says, ‘let’s set up a system where I sell your product, you drop-ship it for me, I make two dollars on every sale, you make six dollars on every sale, everybody’s happy.’ Federal law requires that I turn over all the performers’ information. There’s no guarantee people claiming to be a seller are not a stalker, a crazy or a hostile. Federal law and the market guarantee privacy invasion on a wholesale level.

In terms of protection of performers, the DOJ allows for the redaction of home address, social security numbers, and anything else other than the name, date of birth, and information that “identifies the type and validity” of the performer’s ID, such as a driver’s license number. The 2257s and copies of IDs do not have to be maintained in hard copy, but could also be kept and secured electronically. These two things, however, are not requirements and practices may vary across the industry. As such, there does not appear to be any basis for a claim regarding the disclosure of information contained in these forms.

This law was put into place to help prevent child pornography. Sadly, in the process of potentially safeguarding the exploitation of minors (which, Douglas rightly noted in our conversation with him, may still occur with the use of fake or stolen IDs), a gaping hole was left exposing the personal information of thousands of performers.

“Congress created a significant allocation of resources for hundreds of thousands of small businesses in the United States [with 2257 regulations],” said Douglas. “Did they hold a hearing? No. Do they have any idea what the implications are? No. Can anyone think of any other circumstances where Congress has burdened any industry in this way without holding a hearing to see what it would do? Did they ask law enforcement? No. There has never been a hearing on 2257 from its inception to its current form. All amendments are part of omnibus bills, budget bills, rewrites of the criminal code. They just toss in regulation without any dialog with the industry being regulated. And the people paying the price are small businesses and individuals whose privacy is being invaded. [This industry] is a very attractive punching bag.”

Douglas offers a solution on a state-level basis: to lobby to make it a crime to publish personal identification documents of any individual.

Defamation

Without a doubt, much of the content of Porn Wikileaks could be classified as libelous. Libel is covered under defamation law (which in California, is written under Cal. Civ. Code §§ 45 and 45a but we include §46 as it brings up the sort of statements involved in the case of Porn Wikileaks which, given the information coming out about the man allegedly behind the site, may yet find some relevance):

§45: Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

§45a: A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. [Editor’s note: Per §48a.4(b), "special damages" are all damages one can prove he has suffered or incurred as a result of the libel.]

§46: Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.

Certain things are considered defamatory per se, meaning a plaintiff need not prove special damages. In his post detailing how much Wikileaks and Porn Wikileaks differ, Maymay brings up the case of James Jamesson, who posted his negative HIV results to counter information on the Porn Wikileaks site claiming otherwise.

This statement doesn’t simply potentially affect Jamesson’s livelihood by threatening his career, it could technically also be viewed as defamation per se if the statement or statements made also implied that Jamesson knows of his positive status, since the knowledgeable spread of HIV is a felony. Other statements that appear on the site alleging individuals are “child rapists” and “hookers” indicate the people specified are guilty of a crime, and thus, fall under the category of defamation per se.

In cases involving public figures (anyone who has achieved pervasive notoriety), the burden is generally placed on the plaintiff to prove the statements made are false and establish there was actual malice involved. In this case, “actual malice” has nothing to do with cruelty; it merely refers to the publication of information by one who either knows that the information is false or who is acting with reckless disregard for the truthfulness of the statement.

In cases involving private parties (and we are unsure of where the threshold of notoriety is exactly, so please seek legal counsel if you’re interested in pursuing this route), the burden of proving that the statements are true fall on the defendant. The plaintiff need only show negligence on the part of the publisher (that sources are not reliable, that statements are not verified for accuracy, etc).

Please note that as far as defamation cases are concerned the old and tired adage “truth will set you free” is 100 percent true. Truth is an absolute defense in any defamation claim; and by the same token, any statement that is proven to be true will not result in any damages even if the statement is horrifying, so please take this into consideration when considering this option.

“A civil suit gets you money or it doesn’t. If you sue someone without money, you just get a judgment against them,” Douglas said, bringing up another consideration. “That’s better than nothing. But you have to track them down and build a case first. A more systematic way is to hit up their service provider, make them take a look at the site and realize that it is way too much grief to keep up. But it’s bigger than that: if you can’t deter the next one down the line from doing this, it’s little good.”

(To learn how to reach the host of Porn Wikileaks in the Netherlands and the Dutch Data Protection Authority (DPA), see this post, which also includes some other options).

Computer Fraud and Abuse Act

If it can be proven that the creator of Porn Wikileaks exceeded authorized access of AIM’s database or unlawfully gained access to it by exploiting a weakness, it is possible he can be held accountable under the Computer Fraud and Abuse Act. However, as Maymay rightfully states, “Success with that hinges on whether or not it can be proven that PornWikileaks was not merely a passive recipient of the information but actively involved in the breach of AIM’s database.” That has yet to be proved.

According to Davenporte, AIM is currently investigating whether a breach occurred and combing through every access made to the database to find “one or more that features an information download that exceeded the allowed accessibility.”

“There are many possibilities we are exploring, but assuming we can show that somebody accessed essentially the entire database, that without question was a crime,” AIM attorney Jeffrey Douglas told AfterDark LA. “We don’t know whether or not it was a classic hack or whether [AIM's] database had structured flaw that allowed it.”

It becomes apparent, given this overview, that the course of action for performers is grossly limited. The system, as we know it, is broken. For decades, the adult industry has survived on a code of honor as it regards personal information, but this code is no longer sufficient. Further, while concerns about protecting children from exploitation are justified, we cannot continue to do this at the expense of the safety of an already marginalized group of people. In order for things to change, we’re going to have to think bigger than this website and the people behind it.

Many thanks to Mark R. Matthews, visiting professor of law at the Thurgood Marshall School of Law at Texas Southern University, and AIM attorney Jeffrey Douglas for their insight on the laws at play.

Photo in the header by IXQUICK.

Yesterday a private health clinic that conducts the testing of Los Angeles’ porn industry told NBC LA that the database holding tens of thousands of patient records had been compromised and that this information had been made available online. The statement from the Adult Industry Medical Foundation (AIM) comes several days after industry insider Mike South first posted about Porn Wikileaks, a site devoted to exposing the real names and addresses of adult performers and the connection of the leaks to AIM.

South, like many in the industry, had known about Porn Wikileaks for a while, but, like many in the industry, had held back from making it public — until the connection between the leaks and AIM became undeniable.

“People started emailing me saying ‘I only used that performer name one time, ever and that was when I tested at AIM,’” South writes in his blog. In California, adult performers are tested at least once a month.

“First I verified two people, then two more, both of whom shot only one time, but were required to get an AIM test,” South continues. “All made up a performer name and of the four, two never even used the same name on a model release and one never even shot, the shoot fell through. Yet all the names and hundreds, even thousands of others appear on this real name list on this site.”

The number, according to Gawker is over 15,000, though, as South has noted, not everyone on the database is active in the adult industry. The actual number of active performers is closer to 1,500.

If that’s not sufficiently worrisome, Porn Wikileaks itself is far more than just an exercise in providing information: the entries about porn stars refer to them as “whores” and “hookers” and when Richard Abowitz got in touch with the person who allegedly created the site, the latter offered the following reason for the site’s creation:

To get the gays out of straight porn and illegal gay pimps that have ruined porn and shut it down making condoms mandatory by the government now. The fag loving has got to stop. California is full of gay Mexicans and now they can even marry which is so wrong.

The damage is immeasurable: to date, no test results have been posted but addresses and phone numbers have been, which means thousands of working performers now have to worry about their safety even in their own homes. Those who are not working — who perhaps never did — have to worry about how the information will affect their personal lives. AIM is seeking to press charges over the breach, but they too can expect to be on the receiving end of legal action.

UPDATE: On April 2, director and Taboo mag editor Ernest Green responded to criticism about AIM. You can read his comments here.

Header photo by Nick McGlynn, featuring Jessica Janson.

Tice, the breakfast cook, took the items along with two laptops and a wig from their storage locker in January. The Florida police were tipped off when his girlfriend told detectives that he had stashed a bag of dildos under the bed and flat-out admitted he had stolen these from his employers.

The woman, 38, turned over the items and Tice was charged with felony burglary and two misdemeanors. According to The Smoking Gun, he is being held in lieu of $4,000 bond.

The obvious moral of this story is: don’t steal. And if you do, don’t mess with people’s sex wares.

A man in Detroit is facing charges for snooping in his wife’s inbox. His crime is related to a computer crimes statute generally used to address hackers and activity in connection with fraud.

Oakland County Prosecutor Jessica Cooper told the Detroit Free Press that the statute extended to personal e-mail because the inbox was password-protected and the husband downloaded the woman’s e-mails to use them in a “very contentious way.”

This “very contentious” way, is the fact that he was using said e-mails to prove that his wife was having an affair.

“I’ve been a defense attorney for 34 years and I’ve never seen anything like this,” the man’s defense attorney, Leon Weiss said in response to the charges. “This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It’s to protect against identity fraud, to keep somebody from taking somebody’s intellectual property or trade secrets. I have to ask: Don’t the prosecutors have more important things to do with their time?”

Their defense is that the wife had no reasonable expectation of privacy because she kept the password in a notebook by the computer that couple shared.

Andrew Moseman at Discovery’s Discoblog quotes Deborah McKelvy, an attorney not related to the case: “What’s the difference between that and parents who get on their kids’ Facebook accounts? You’re going to have to start prosecuting a whole bunch of parents.”

It’s a complete mess, but let’s be honest. As juicy the dinner party fodder as this case may provide, all we want to know whether we can get in trouble for snooping like that here in Los Angeles.

Apparently, you can. It’s a federal crime to gain unauthorized access to e-mail, Facebook, Twitter, etc. Can an intruder use the expectation of privacy excuse? Of course, there is always a defense. Just know one thing: by admitting you looked at someone’s e-mail, even if you’re doing it to prove they’re doing something wrong, you are exposing yourself to criminal liability.

(We find it amazing that our inboxes are protected but our panties and sheets can still be shipped off to be analyzed for other people’s DNA.)

We’ve said it before and we’ll say it again: there’s no right or wrong in this world. There’s only legal fees.

Nope, we’re not done talking about masturbation, apparently.

William Tyler Black is a substitute teacher in Florida who was recently caught at Wal-Mart masturbating to Sports Illustrated‘s swimsuit edition. According to TrueCrime Report, Black was discovered when a security guard overheard his moans from the next aisle and came around, just in time to catch the culmination of the act all over the store floor.

Black was subsequently arrested on charges of indecent exposure and battery — for mishandling a dangerous substance (i.e., semen) in a public place.

Clearly educators are not paid enough in this country. If the guy had been able to afford a proper subscription to Playboy or even an internet connection, none of this would have happened.

Image from B&N. Information from TrueCrime Report.

The charges leveled against him are severe: sex trafficking by force, fraud or coercion; forced labor trafficking; document servitude; enticement to travel for sexual activity — among others.

According to the story, a 16 year old runaway, known in the indictment as FV (for “female victim”), took residence with Bagley in his trailer park home where he engaged in several sexual acts with her, as well as whipped, beat, flogged, suffocated, waterboarded, electrocuted, mutilated, suspended and caged her over a period of six years.

Upon her 18th birthday, he made her sign a slave contract and began to advertise their sessions via stream on the internet. He also influenced her to dance at a local strip club and pose for Hustler’s Taboo magazine, which caters to people with a preference for BDSM (bondage discipline and sadomasochism).

Clearly, this is illegal because for a period of two years during this time, FV was below the age of consent, which means that legally, she could not consent to any of these activities even if she were perfectly aware of what they would entail. There is also a question of whether she could consent once she reached 18, as when she was admitted to the hospital for cardiac arrest when electrical play went awry, doctors questioned her mental capabilities.

The photographer who shot her for Taboo has come forward saying he did not find her mentally incapable when he shot her in July, 2007, but the question remains and will undoubtedly be addressed during the trial.

Jezebel, Gawker media’s blog about feminist issues, wrote about the topic, glibly asking: “What’s the line between a consensual BSDM relationship — one party as master, another as slave — and a ‘brutally tortured sex slave’? Probably when the FBI says that the woman is mentally disabled and tried to escape.”

This position, while supportive of the choices made by those in the BDSM lifestyle, is extremely dangerous to take because it ignores consent laws, human psychology and the very foundation of the BDSM lifestyle, which sees consent as a very clear and necessary thing, not a gray area.

Because of the power dynamic inherent in BDSM relationships, it is essential to understand consent to avoid exploitative situations. However distasteful one may find the activities outlined by court documents relating to what Bagley did, these are things that some practitioners of the lifestyle do willingly engage in. Many BDSM communities across the country offer classes on the methodology involved with every activity and take measures to ensure people in the lifestyle have access to resources to safely engage in these activities.

Because of the dangers involved, practitioners of the lifestyle are careful to verify people’s ages and discuss activities before sessions (or scenes), what is acceptable and what isn’t, as well as what words to use to make it stop (which are called “safewords”). Some practitioners like to engage in edgeplay, which is a session with no safewords. Indeed, some practitioners negotiate scenes of consensual non-consent, where one may cry out safewords and try to escape only to be abused further.

These things vary greatly from one individual to another, which is why communication and consent are essential to any such activity.

Now, let’s disregard for a moment the fact that FV was only 16 when this all began and the fact that she may not have been mentally competent. Let’s say she is 25 and fully in her faculties. Let’s say, even, that every activity to which she will be subjected has been explained to her and she has agreed to it. Let’s even say that she has been given safewords with which to stop a scene, should she have had enough.

Is it possible to really be free, even with all of these things in place, if she depends on Bagley for shelter and resources?

We have given this a lot of thought and we’re concerned with the extreme socioeconomic disparity that existed between the victim and Bagley. Because so much of BDSM depends on consent, we have to question how much of FV’s willingness was rooted in her reliance in Bagley for shelter and resources. Given her dire situation, the potential for exploitation is extremely high.

If it’s true that he confiscated her ID, the case is sealed. But we’re not going to sentence Bagley without a trial. It is our hope that a jury of his peers will assess the evidence and give him a just decision.

God help him if any practitioner of BDSM is in that jury and assess the inherent inability of someone in so much need to truly consent to much of anything. That’s the bottom line. Consent isn’t something ephemeral the FBI gets to decide exists or doesn’t. It’s something very, very clear and very real to anyone who engages in the lifestyle.

“He tested negative for the HIV and the STD,” his grandmother, Carmen Jones, told CBS. “But positive for the herpes. It’s the oral herpes.”

A horrifying tale.

Information from CBS Atlanta.

Two star-crossed lovers, though this isn’t a Shakespearean play unfolding in fair Verona. It’s Kunduz province in Afghanistan, where local leaders are enforcing a move toward the harshest forms of physical punishment allowed by Sharia, or Islamic law.

Per the report in the Los Angeles Times:

The young lovers didn’t stand a chance. In a desolate field on the edge of their village in northern Afghanistan, hundreds of men, stones in hand, closed in to carry out the mullah’s death sentence, handed down after the pair eloped against the wishes of their families.

[...] The couple’s gruesome deaths came just one week after another public execution, also in a remote northern village. There, a widow in her 40s was flogged and then shot for conceiving a child out of wedlock with a man she intended to marry, according to accounts by villagers and local officials.

These event come despite Taliban leadership attempts to position itself as a defender of civilian life. Just this month, insurgents issued a code of conduct discouraging the killings of noncombatants, which was quickly followed by the Taliban’s offer to participate in a joint commission with Western military, the United Nations and the Afghan government to investigate and address the deaths and treatment of civilians.

Dangerous times.

Image by Michelle B.

According to reports on MSNBC and ABC, the suit says swim coach Norm Havercroft sexually abused plaintiff Jancy Thompson over the course of a five-year period, beginning when she 15 years of age, adding that USA Swimming had knowledge of the situation but continued to allow Havercroft to coach children.

ABC has been following the escalating investigation, noting in its report:

Sources say that USA Swimming attorneys and insurance brokers attended a mediation session with another alleged victim of Havercroft’s in 2002, which ended in a confidential civil settlement with Havercroft. Documentation obtained by ABC News shows two mediation sessions in the case held that year. In a discovery document from a 2009 sexual abuse lawsuit against USA swimming involving another coach, the organization denied having any knowledge that Havercroft had “inappropriate relations” with any swimmers.

Both 20/20 and World News with Diane Sawyer have reported in the past that 36 USA Swimming coaches had been banned because of alleged sexual misconduct.

Olympic hopeful Jancy Thompson, who has chosen to speak publicly now at the age of 28, told the press: “I was robbed of a normal childhood and never performed to my full potential.”

Information via MSNBC and ABC.