According to Xbiz.com, “The Free Speech Coalition says it is looking into legal options available for performers affected by the PornWikileaks.com site, which has exposed volumes of personal data information on thousands of performers.”

“Free Speech Coalition stands in opposition to the violations of performer privacy by PornWikileaks,” FSC Executive Director Diane Duke said Friday. “This is not an issue of free speech; it is about violating the privacy of performers. It’s about potential extortion and exposing performers to potential harassment, stalking and other criminal activities.”

The domain name PornWikiLeaks.com was just registered in December at Godaddy and is under privacy, but seems to have launched just earlier this month.

The site is  already ranked by Alexa as being in the top 28K of all sites, and Compete.com is showing 30K+ monthly visitors.

The site lists the “real names” of 23,745 “porn actors and actresses” and also has a list of “High Risk HIV gay porn actors working in straight Porn”

“Ms. Duke went on to tell xBiz that federal authorities are probing breaches of federal law in the accumulation of data that has been exposed on the website. The investigation, she says, centers on the illegal access of medical databases.”

“The FSC disclosed Friday that attorney Corey Silverstein is representing client Paul Armstrong in a possible action against individuals using the PornWikileaks website for illegal activity.”

“He is seeking performers who have had their personal information posted on PornWikileaks or have been threatened by those connected to the site.”

“While I cannot discuss the specific nature of my clients’ allegations and any action that is being prepared, it is important to note that this is not a simple free speech issue,” Silverstein said. “The individuals running this website are allegedly intentionally and knowingly jeopardizing the safety and privacy of adult performers all over the world while purposely defaming them in the process.

The FSC has asked those who have been affected by PornWikileaks and their attorneys to contact FSC at PWL@freespeechcoalition.com.

For its part ponrwikileaks.com posted an answer to FSC on its site.

In short the answer is we are operating legally but in any event outside of the US and there’s nothing you can do about it:

From PornWiliLeaks.com

(edited with much of the graphic language removed)

“This is more info about laws and proof that all the threats we are getting are pointless and nothing can be done to stop us.”

“This is a great read even though again they skipped over the reason behind our site and the point of all this because they want to protect the gay mafia, but it does have a lot of good points about laws in the USA vs Porn Wiki Leaks. Too bad we are not in the USA hahahahha but even if we were looks like no one could do shit to us because nothing on our site was stolen and even if it was its not stolen by us. Also everything on our site is 100% true that “WE” have posted so libel is out the window but that’s a USA civil bullshit thing anyways. Some things that “OUR MEMBERS” have posted might not be true but we are not liable for that and we will never reveal who our members are so they are protected also.”

It’s called freedom of speech. Ever hear of it?

As far as where the site is hosted get ready because its going back to Sweden soon but a copy will stay right here and be going on several mirror sites once we hand out the database like candy for the public to start making there own pornwikileaks.com wiki websites on thousands of domains.

It’s so funny to see the porn industry, an industry full of ex-cons, drug addicts, prostitutes, pimps and sex offenders that make their money doing “parody” movies that are full on rip-offs and thievery of Hollywood mainstream movies, would get so bent out of shape about having a few real names revealed. Damn!

What do you have to hide? Do you really think you can be world famous international criminals and thieves and no one know your real names?”

I’m sure the US Legal System and politicians can’t wait to defend you!

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.

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.

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.

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.”

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.”””

I’m sure Jeffrey Douglas who is quoted widely by pornwikileaks.com to support its argument that they are operating legally, is less than thrilled, since he works with the FSC.

The sites has an quite lomng Q & A they lay out who is behind the site and the point of the thing which you can read here.

“”

Q. What is pornwikileaks?

A. “PORNWIKILEAKS is a web based media organization that is currently in it’s beginning stages of development. It’s one part pornography, one part shock media, one part wikileaks expose’, and one part parody.”

Q. How did pornwikileaks begin?

A. “PORNWIKILEAKS began as DEREKANDREWHAY.com a website devoted to exposing Derek Hay and his high risk HIV gay agenda, his illegal pimping operation, his thievery, and his international money laundering scheme. The website became hugely popular in the wake of Derrick Burts HIV positive status last fall. We were the first to break the name of Derrick Burts as the official “Patient Zeta” when NO OTHER media outlet, adult or otherwise, would print any details. Go through our forum and check the dates. We were at least 4 weeks ahead of any other mention of Derrick Burts name. AIM Healthcare even refused to provide a quarantine list to performers, a huge betrayal, and we called them out on it. Eventually, people started calling us the “Porn Wikileaks” and so PORNWIKILEAKS was born.”

Q. Who is behind pornwikileaks?

A. “PORNWIKILEAKS has grown to 5 active participants, with several more quiet investors and behind the scenes characters. We have funding when needed but we are seeing how things develop in a grass roots word of mouth type way right now.”

Q. Is pornwikileaks racist, homophobic, misogynistic?

A. “No. But you’d never know it would you? We believe straight people have the right to defend their territory against predatory closeted homosexuals who bring HIV into straight porn and impinge on our safety and our rights. We have nothing against homosexuals in particular, we just believe that gays belong in gay porn because they do not test for HIV in gay porn and many of the gay performers already have HIV. It doesn’t matter if a crossover performer is tested. Derrick Burts proved that. Working in an HIV positive gay scene one day and a tested straight scene the next day does not work for us. We also reserve the right to use all words in the english language, including the word fag, when expressing or venting our frustration over the current state of affairs.
As for racism, we all have foul mouths, but the behind the scenes players and members on our site represent a wide selection of colors, races, religions and sexes. Internet forums are a medium of words. Foul mouthed words have power and we allow for their use; especially when dealing with hysterical individuals who threaten us.”

Q. What is the main goal of pornwikileaks?

A. “To entertain people. To shock people with the truth. To expose secrets that hinder intelligent, well-informed choices. To make people laugh. To expose phonies and bullies in the porn business. And to make PORNWIKILEAKS.com the biggest and best place on the web to find out information, gossip, news and humor about the porn industry and it’s stars.”

Q. Does pornwikileaks hate women and pornstars?

A. “No. We like to fuck hookers like everyone else. (smiles) But we think the wannabe celebrity whores in the porn business deserve a little attention, or shall we say, “parody.” We see that the porn industry has butchered just about every famous movie or tv show in their attempt to exploit the media and use shock value to make a few sales. Perhaps it’s time the tables were turned? Porn stars and porn industry news is an area the main stream media largely ignores but the general public craves information about. Adult industry news outlets are terribly biased and bland. People want to know who did porn and who’s fucking who over and what “straight” porn actor is really a fag. We provide a service.
If you think you can spread your pussy on camera, gay escort on the side, be a world class traveling hooker, or a macho “straight” tranny dick sucker (embracing your pseudo celebrity on cum stained red carpets) and NOT be known by your real name too? You are greatly mistaken in this age of google.”

Q. Don’t you care about the safety of the girls?

A. “What’s more dangerous? Someone knowing your real name? The same name you use every day in every public encounter, at the grocery store, at the bank, at the gym? Or snorting cocaine off your closeted gay pimp’s cock and getting fucked in the ass by all his gay friends that you didn’t realize we’re gay? Being pimped and trafficked illegally and internationally to criminal organizations worldwide and then having your money stolen from you? Only to be sent home crying? We see it every day in this business. It might look like we don’t care. But I’d say it’s more like we don’t give a fuck. One day you’ll hear a story about the porn girl who was saved from her downward spiral by her parents due to her family finding her name on our list of real names of porn stars.”

Q. So pornwikileaks is ANTI-PORN?

A. “Hell no! We didn’t say that. We’re very pro porn. Do your thing. Fuck it. Lick it. Knock it. But porn is not for everyone. We’re equal-opportunists. But don’t tell us revealing a girls real name is harming her. It could just as easily be saving her life.”

Q. Did pornwikileaks hack the AIM database?

A. “No. We’re not sure where the real names came from, but if they did come from the AIM database it would not be necessary to hack anything. From what we understand and have read in the media, AIM Healthcare’s database was publicly available until recently and only protected by a few easily obtained passwords that AIM gave out to hundreds if not thousands of people and companies. AIM apparently kept an online database of the names and medical history of thousands of people who left porn many years ago. We obtained these names from an anonymous source.”

Q. Why do you attack some people so harshly?

A. “We don’t generally. But our members sometimes do. The only people who are treated so harshly are people who threaten the lives of our crew and who try to make big with legal threats. Nothing we do is illegal, and we don’t take kindly to threats. If you threaten anyone on our team all bets are off.”

Q. Does pornwikleaks hate Derek Hay?

A. “Of course. What’s there to like about him? Derek Hay is a gay pimp who gives wannabe starlets cocaine and makes them fuck all his gay porn buddies, causing straight guys in porn to risk catching HIV. He threatens girls and ruins careers of business owners, directors and straight porn actors. He pimps his girls out internationally and then threatens them and steals most of their money. He’s also a British cunt and the the most hated man in the porn business. His operation is highly illegal and unwanted and unneeded. He’s arrogant and he has made many threats. Essentially, Derek Hay is a piece of shit that needs to be stepped on and squashed. PORNWIKILEAKS is not well liked in the porn business right now. But we intend to change that. When Derek Hay is no longer in the porn business and Sharon Mitchell is retired, the porn industry will thank us for making porn fun again.”

Q. You’re putting Sharon Mitchell out of business?

A. “No. Sharon Mitchell is doing a very good job of putting herself out of business. She’s not a doctor. She a former junkie and hooker and kiddie porn performer who began in porn at 14 years old. She’s a phony and she adds two years to her age to hide her kiddie porn past. She does nothing for the people in porn but protect the greedy company owners and people like Derek Hay. She will not be missed.”

Q. What about Mark Speigler?

A. “Mark Speigler is a joke. He pretends to be in the porn business and tries to be a suitcase pimp. He spends most of his time on his couch scratching his balls and hustling free blowjobs from wannabe porn starlets and runaways he picks up on Topanga Cyn Blvd. We here at PWL do owe him a big thanks for promoting PORNWIKLEAKS so well by impersonating Derrick Burts, the HIV positive “Patient Zeta” from last summers porn HIV breakout, after we revealed Burts’ name on our message board. We all thought it was really Derrick for several weeks and this brought tons of media attention and interest in our site. We want to thank Mark for being a contribution to our success.”

Q. You guys are big time gay bashers aren’t you?

A. “Not at all. We just expose closeted gays and crossovers in straight porn who risk the lives of others. The gay and transexual performers operate in a world where HIV is common and unavoidable. HIV is not tested for in Gay and Tranny porn because many of the participants in this field already have HIV. It’s unfair for the girls and the straight men in porn to have to mix with these high risk players and we intend to expose it.
We operate by the policy of “sticks and stones.” We don’t make physical threats. Words are words and we use them freely. If you’re a fag who sucks tranny dick in your private life and does gay escort work and then you come into straight porn and act like a tough guy and talk shit and start threatening people and potentially give people HIV, we are going to humiliate and embarrass you and show the world what an idiot and a fool you really are.”

Q. Does Donny Long own pornwikileaks?

A. “Donny posts on the board once in a while and Donny is good for business. People love to hate him. He’s comfortable and taking a lot of the heat, but other than that we’d rather not say.”

Q. Who are you guys?

A. “We are a collection of people that extend internationally and have been involved in many web based media projects, inside and outside of the adult industry. Other than that we shall remain nameless.”

Q. What is the future of pornwikileaks?

“We live in a world of chaos, fakes, wannabe celebrities and parody. A world where many people will sell their bodies and souls for a shot at riches and fame. A world where the Internet and information rules all. A world where GOOGLE never forgets. PORNWIKILEAKS will continue to stand up for the underdogs and the straight shooters. And we will continue to take down the tyrants, and the liars, and shame them before all. And we will have fun making light of this madness, exposing a lot of phonies in the process.”