November 9, 2012 4:01PM

A Condom Conundrum: Private Parts in the Public Sphere

While they were turning out to the polls to help reelect President Obama on Tuesday, residents of Los Angeles County also approved a ballot initiative known as "Measure B," requiring the producers of "adult films"---meaning porn, not Criterion Collection fare---to acquire a public health permit and adhere to a number of regulations, most controversially a mandate that performers wear condoms on the set. Prominent industry figures such as James Deen have opposed the measure on the grounds that it is unnecessary in light of the existing rigorous testing regime, counterproductive in the context of shoots that require performers to have intercourse for "nonstandard amounts of time," and will ultimately be ineffective as filming will simply move outside Los Angeles County.

These are all compelling points, but the measure also raises some interesting theoretical questions in an industry where, as in journalism before it, new technology has blurred the once-sharp lines between amateur and professional content production.

While I will refrain from linking to any examples on this family-friendly blog, "traditional" professionally produced adult video now competes with an array of sites specializing in amateur or quasi-amateur sexual content. Some entrepreneurial couples and individuals launch their own personal sites, making home videos and live webcam streams available to subscribers. Other sites act as middlemen, purchasing home videos shot by amateur couples for online distribution. Still others serve as platforms on which individuals and couples can stream live sexual content from their home web cameras, earning revenue based on the number of viewers. While it seems clear that Measure B is not intended to target these amateur producers, they do seem to fall within the scope of the law's definitions, strictly construed.

Here's a thought experiment: Imagine a couple who sometimes tape their sexual activity for---at least initially---their own private enjoyment. In the past, when money was tight, they periodically sold these videos to a subscription-based website that specializes in homemade fare, and they expect that they may do so again in the future as the need arises. At what point are they required to  register with the state and pay a permit fee if they wish to continue taping in their own bedrooms? If they fail to do so, are they later liable should they attempt to sell or self-distribute those recordings, either for a subscription fee or on an ad-supported website?

Now, realistically, I find it almost inconceivable that Los Angeles would seek to enforce the law against the imaginary couple I've described. I find it slightly more plausible that an L.A.–based couple who maintain their own site could be affected, and one can also imagine an aggregation and distribution site or platform being targeted---perhaps at the urging of traditional studios looking to eliminate the competition---though it is hard to see how such sites could feasibly comply with some of the law's requirements. If a similar law were adopted nationally, or by many states---making it harder for professional studios to resume business by moving elsewhere---some of these scenarios become a good deal less far-fetched.

Again, given that the intent of the law is fairly clearly to regulate traditional professional porn studios, I expect that in practice they are likely to be the exclusive targets of enforcement for the foreseeable future, and those who wish to continue shooting scenes sans-latex will find plenty of nearby jurisdictions happy to welcome their business. Still, I think it's an interesting class of hypotheticals to contemplate, because it problematizes the widespread view that there's some sharp and clear distinction between the realm of private intimacy shielded from state interference and the realm of commerce subject to broad regulation. Here, it becomes especially clear that the commercial regulation inevitably implicates rights of personal sexual choice and bodily autonomy. But commerce has never really been some hermetically sealed domain, where rules that conflict with the values or preferences of workers and entrepreneurs somehow don't count as impinging on personal autonomy, in contrast with the sacrosanct domain of the home where such intervention would be anathema. In a digital economy that makes "home" and "workplace" the same place for a growing number of people---where the boundary between personal projects and production for profit becomes increasingly blurred---that distinction seems likely to become increasingly untenable in more and more areas.