California Is Considering New Draconian Porn Regulations

Lotus Lain is used to showing herself off. She's a professional porn star who, in her videos online, is often wielding whips, joining orgies, and even partaking in a comprehensive "anal workout"—basically, bringing to life fantasies that most people keep private.

But though Lain commands a big audience—a combined 40,000-plus followers on Instagram and Twitter)—she values her personal space. Which is why she and other porn performers are a little freaked out by a new set of porn industry health and safety regulations currently under consideration in California.

The regulations, invented by the state's Division of Occupational Safety and Health (a.k.a. Cal/OSHA), cover everything from safety training and condom usage to whether or not you can ejaculate on someone's face. Regulations are typical in porn—they're designed to protect performers from contracting HIV and other STDs—but these new rules are especially heavyhanded. If passed, porn companies would have to keep medical records of their performers, condoms would be mandatory on set, and jizz facials would effectively be banned.

For starters, there are privacy concerns. Porn stars have long struggled with stalkers, doxxers, and overzealous fans who pry into their personal lives, and sharing medical records with all porn employers would only make that information easier to hack. In 2011, somebody broke into the online database of the Adult Industry Medical Healthcare Foundation (AIM)—a now-defunct clinic based in LA County's "Porn Valley" that for years operated an industry-standard STD testing system for porn performers—and released the real names and other personal details of over 12,000 performers on a website called Porn Wikileaks.

The AIM clinic shut down in 2011 (in part because of a lawsuit over the leak), and served as a warning about what could happen if personal medical information was too easily available. Now, the industry relies on a more secure testing system, called the PASS program (or Performer Availability Scheduling Services). It's a free-to-use system that requires testing every 14 days for infections like HIV, syphilis, Hepatitis B and C, and gonorrhea—and it's specifically designed to maintain performers' privacy. According to Diane Duke, the CEO of the Free Speech Coalition, the trade group that led efforts to develop the system, PASS's test results are culled from multiple testing clinics (rather than one centralized one), and its online database keeps private details to an absolute minimum.

"If the producer goes on the site, they will see either a green check or a red X. Green check means that the performer has taken the proper tests, the performer has tested clear, and the tests have not expired," Duke said. The system doesn't ever divulge the reasons for why performers might get an X, and performers' addresses and other personal information isn't available on the database.

The proposed Cal/OSHA regulations, which could go into effect as early as next year, would basically replace this program. Employers would have to keep an accurate medical record for each porn performer, including their vaccination status, testing record, and plenty of personal information. Those records would have to stay on file with the employer for the duration of employment, plus 30 years.

The proposed guidelines are outlined on the Division's website in a detailed, 21-page document, which details this new record-keeping procedure plus rules on workplace conditions to face ejaculations ("ejaculation onto the employee's eyes, non-intact skin, mouth, or other mucous membranes" is not allowed without "barrier protection").

These new regulations have been in the works since December 2009, when the AIDS Healthcare Foundation's president Michael Weinstein petitioned Cal/OSHA's seven-member Standards Board to revise their blood-borne pathogen regulations to include porn makers. Up until that point, the standards mostly were intended for hospitals, nursing homes, and other medical work environments. The AIDS Healthcare Foundation, which has spent years lobbying for tougher STD-prevention standards on the porn industry, wanted specific language addressing the porn industry.

Julia Bernstein, a spokesperson for the California Department of Industrial Relations (through which Cal/OSHA is run), said that the Standards Board is now reaching the final stages of the decision-making process. The board will likely vote on the final language in a meeting slated for February 18, 2016, and if the rules are adopted, they'll head to the Office of Administrative Law for approval, and then to the California Secretary of State, to go into effect on July 1, 2016.

The AIDS Healthcare Foundation's communications director, Ged Kenslea, says the Foundation fully supports these proposed rules. They've also sponsored a new statewide ballot initiative, for the November 2016 ballot, which would beef up Cal/OSHA enforcement standards and require performers in California to wear condoms during sex scenes. It's modeled on Measure B, the "condoms-in-porn" law that was passed in LA County in 2012.

"We think testing is important, but testing is not HIV prevention," Kenslea told me. "The equivalent would be using a pregnancy test as a form of birth control."

Last week, representatives from two trade groups—Duke from the Free Speech Coalition and Chanel Preston, a porn performer and president of the Adult Performer Advocacy Committee—wrote a scathing letter to the Standards Board, which dismissed the decision-making process as a "complete disaster" and accused the committee of ignoring the input of porn professionals.

"It is evident that the voices of the actual workers, the real stakeholders, did not matter and were not considered or included in the proposed regulations," Duke and Preston wrote.

Bernstein declined to comment on the letter, but she stressed that the process involved a great deal of public input. In particular, there were hearings at a Standards Board meeting in San Diego last May, in which dozens of porn performers, industry professionals, health experts, and representatives from the AIDS Healthcare Foundation weighed in.

"It's not just a one-and-done vote, and that's it," she said. "It's been a lot of back and forth for five years to get to this point."

There are concessions in the new rules: Employers wouldn't have to keep their employees' social security numbers on file, and they'd be able to store the medical records with an off-site physician, who would probably be more capable of keeping those records under lock and key.

None of this impresses Preston, though. In the age of the internet, she knows how insecure one's private data can be, having dealt with leaks of information about herself and her family.

"In one year, a performer easily will work with 30 companies. I mean, imagine having that many companies having your medical records. That seems a little absurd," she said.

Plus, she adds, a pornographic "employer" could basically be anyone. "I could be considered a producer. If I wanted to shoot for my website, I would have to pay a performer," she explained. "I'm not set up, nor would I want to have that responsibility, to keep someone's medical records. And I don't think other performers would want me to either. Not that they don't trust me, but I have no training on HIPAA regulations or anything like that. I would not be comfortable with just any producer having my medical records."

Lotus Lain is also worried about her privacy. She reflected on a recent shoot she did with a new director, and she wondered how he might handle her medical info, who on his staff might have access to it, or whether it might eventually end up in the wrong hands.

"So what if it's like, later, he gets married to some lady and she's never liked the fact that he did porn and she starts looking through his shit and going crazy and contacting people and stuff and throwing our records out there because she's vindictive or something if they get a divorce?" she said. "You never know what could happen."

Follow Peter Holslin on Twitter.