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August Legal Update: 2

August Legal Update: 2

August 30, 2003
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Will virtual reality boost the paysite market?
Yes, it will soon
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Out of 179 votes. Results based on votes submitted by members of XBIZ.net social network.

" The tide may be turning back in favor of individual privacy after a long run in favor of enhanced security measures by the federal government. "

This month's legal update by attorney Lawrence G. Walters, Esq., examines several recent concerns over the legal issues surrounding adult sites. Here's the latest information that you need to know in order to protect yourself and your business…

Legislative Update
Yet another anti-erotica bill has been introduced in Congress. This one is called the “Protecting Children from Peer-to-Peer Pornography Act,” and is cosponsored by Joe Pitts (R-Pa.) and Chris John (D-La.).

The Bill would require Internet file swapping services to obtain parental consent before allowing children to use their software. “Its alarming today how easy it is for our children to inadvertently access pornography over the Internet and become victims of sexual predators. . . ,” said Pitts. The Bill requires that the Federal Trade Commission and the Commerce Department develop “do not install beacons” that parents could use to block the ability to download file swapping software. However, some experts express doubt that such technology could be effectively developed. “I don’t think anybody has built such a thing and frankly I don’t think such a thing is possible, or at least not likely to be effective in this kind of world,” said Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation (EFF), not to mention the fact that children can access erotic material through many other means, such as chat rooms, news groups and email. Acknowledging the difficulty in creating such technology, the Bill’s sponsors provide an eighteen month window within which to develop the “beacons.”

Governor Flynt
Many Californians reeled, and some just smiled, as Hustler publisher Larry Flynt, threw his hat into the ring of gubernatorial contenders in the political circus known as the Governor Davis Recall Vote. Flynt, a registered Democrat, civil libertarian and free speech advocate, claims he would resolve California’s budget problems by expanding slot machine gambling within the State.

More than 250 people originally registered to run as candidates in the recall election scheduled for October 7, 2003. The number now has been whittled down to 135. The best known candidate is, of course, Arnold Schwarzenegger. Nobody knows how this menagerie will shake out, but the result may have far reaching consequences for the upcoming presidential election in 2004. The State of California carries the largest number of electoral votes, and is a cherished prize for any presidential candidate. If a Republican is elected as California’s new governor, in response to the recall petition, President George W. Bush may stand a better chance of being reelected, depending on the winner’s success in attempting to resolve the serious financial woes facing the State of California.

Toys in the Dishwasher
Life isn’t all fun and political games for Larry Flynt. He recently found himself on the receiving end of a law suit for sexual harassment, filed by a former employee who claimed she found sex toys in the company dishwasher. Elizabeth Rene Raymond, a former executive assistant to two top officers of Flynt’s company, was fired from her job a year ago, and now claims that Flynt fostered a hostile work environment. She claims that the toys in the dishwasher were used on the prostitutes who visited his office. That’s one way to suit up for the Governor’s race.

Turning of the Tide?
The tide may be turning back in favor of individual privacy after a long run in favor of enhanced security measures by the federal government. In two separate moves, the United States House of Representatives voted overwhelming to pull back a key provision of the Patriot Act, which allows the government to conduct a “sneak and peek” searches of private property, and the Senate has moved to kill the Total Information Awareness (TIA) program which would have made records of millions of law abiding Americans subject to governmental scrutiny.

The Senate also denied funding to the controversial Computer Assisted Passenger Prescreening System (CAPPS II) which would have evaluated the flight risk of airline passengers upon ticketing, until further study can be conducted. Both Houses of Congress may be reacting to a popular backlash against more intrusive surveillance methods proposed or enacted in response to the 9-11 terrorist attacks. Additional evidence of such backlash can be seen in the litigation instituted by the ACLU against the library snitch provisions of the Patriot Act, requiring libraries to provide information about their patron’s reading habits.

Attorney General John Ashcroft is desperately trying to hold on to the power granted by the Patriot Act, by scheduling an 18 city, 4 week, nationwide tour, during which he will attempt to “explain” the Patriot Act to a skeptical America. United States’ citizens are a private bunch of people, and this sort of intrusive spying on domestic citizens was certain not to be tolerated for very long after the initial shock of 9-11 wore off. It appears that surveillance agencies such as the CIA and FBI must now resort to good old fashioned police work, and maybe a healthy dose of information-sharing to avert future terrorist attacks.

Penthouse Goes Bust
After weeks of speculation, and some public denials, Penthouse finally threw in the towel and filed for Chapter 11 bankruptcy. The petition for bankruptcy was filed by General Media, Inc, a subsidiary of Penthouse International, Inc., seeking protection so it can restructure its operations and debt. The August issue of Penthouse will still be published, although the future of the company thereafter is uncertain. Some industry experts have speculated that print magazines such as Penthouse will have difficulty surviving in light of “lad” magazines such as Stuff and FHM, along with Internet erotica. Some industry experts have speculated that print magazines such as Penthouse will have difficulty surviving in light of “lad” magazines such as Stuff and FHM, along with Internet erotica.

Shielding Innocent Eyes
With all the talk in the adult Internet industry about challenges to governmental efforts to force the adult industry to protect children from inadvertent exposure to adult content, the adult webmaster community’s inherent obligation to do so often gets lost in the mix. Not only is protecting children from adult content the right thing to do, it makes good business sense.

Children are a terrible source of traffic, and they increase the legal risks associated with presenting adult content. The adult Internet industry is comprised of brilliant programmers and innovators, some of whom have forged many technological advances such as the VCR and many common business practices found on the Web. Certainly such a talented and diverse group can develop technology designed to weed out the presence of minors from inappropriate content.

This author has developed a birth date verification script, which is made available to his clients, as an interim solution until something technologically superior can be developed. However, a collective call should emanate through this industry to focus on the issue of protecting children, while at the same time protecting the rights of adult webmasters to purvey erotic material to a consenting adult audience.

A proposal to create a .xxx domain name was revealed and explained by its proponent, ICM Registry, at the recent Internext convention. Whether through such grouping or other technique, some form of voluntary age restriction must be implemented before the government does it for us.

Just recently, the government filed an appeal to the United States Supreme Court, seeking to reinstate COPA. This issue will truly be the greatest challenge facing the adult Internet industry in the conceivable future.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”


LEGAL PERSPECTIVES

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