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Criminalizing Online Innovation: State Attorneys General Seek to Amend Section 230

Friday, August 02, 2013 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

Deceptively invoking the ‘save the children’ mantra yet again, State AG’s are reigniting the battle against online escort advertising websites, this time calling on Congress to amend one of the Internet’s few statutory guardians: Section 230 of the Communications Decency Act.  Section 230, arguably the most important law to date in terms of protecting online speech and innovation, provides immunity to certain online service providers against liability for their users’ content or publications.  If you’re getting a sense of déjà vu, it’s rightfully so.  Going all the way back to 2009, State AG’s across the country have been waging the same war against online escort ads for years. 

Directly on the heels of the Summer 2013 National Association of Attorneys’ General meeting, 47 State AG’s penned a letter to the Legislature, asking them to amend Section 230(e)(1) to include two simple words: “or State.”  By amending this provision of the statute, all state criminal laws would be excepted from Section 230’s immunity, thus exposing service providers to a grand scope of potential legal liability never before seen throughout the history of the Internet.  The proposed language would essentially afford State AG’s the latitude and discretion to prosecute online service providers for user-generated content that runs afoul of some state’s statute.  Currently, criminal prosecution against online service providers in these circumstances is limited to federal level law enforcement, which tends to be a bit less reactionary when it comes to prosecuting online speech.  One obvious reason for this is that federal prosecutors are appointed; not politically elected like local sheriffs. Citing to the alleged irony that the CDA was intended to protect children and is now used as a shield to foster child exploitation, the letter references recent headlines tying sex traffickers to web-based advertising platforms. 

As with most policy debates involving the delicate balance between online freedom and safety, coming to a solution that will satisfy both sides is difficult, if not, nonexistent.  Unfortunately for State AG’s, this particular issue simply doesn’t lend itself to compromise.  The Internet was designed to be the foremost method in dissemination of free speech.  Requiring online service providers to keep track of, comply with, and actively enforce every single state criminal law in the country against their users would effectively eliminate the same user-generated content sites that currently drive the virtual marketplace.  Giving that kind of power to 50 State AG’s is a clear and present danger to free expression on the Internet. 

The scope of a State AG’s jurisdiction is intentionally limited to state-specific issues.  The Internet, by its very nature, has no jurisdictional boundaries.  State AG’s should not have the authority to address state-specific Internet issues, because they do not exist.  The notion of online service provider criminal liability brought on by state-level enforcement is fundamentally incongruent.  If the theoretical arguments don’t convince you, then just look at the sheer logistics of the proposal:  The likelihood of successful enforcement of over 50 criminal statutes without clogging up the judicial system is a near impossibility.  Another aside warranting mention speaks directly to the incredulousness of the proposal in general.  The fact that State AG’s consciously turned a blind eye to proven congressional intent and years of well-settled case law, and continued with this illogical request for legislative action, furthers the perception that shock-value is playing too big a part in this.  Legal and tech news outlets have been abuzz about the letter since it went public.  If this is the reaction resulting from a simple written request, one can only imagine the media exposure if this proposal actually gets some traction, and bills start getting introduced.  Attorneys General are typically elected officials who are predictably working their way up the ladder of the state political machine.  At the risk of sounding jaded, it is not beyond the willingness of some AG’s to parlay this cyberspace freedom battle into  some attention-grabbing news headlines for themselves.

Further, who’s to say that imparting this power on State AG’s would even solve the problem at hand?  History certainly tells us otherwise.  All of the examples of sex trafficking reported in the letter involved Backpage.com, an online classifieds forum deemed by the AG’s to have intentionally constructed a business model around the sex trade.  Notably absent from such allegations is the fact that Backpage.com did not become the premier venue for adult classifieds until Craigslist was forced to shut down similar services because of the threat of prosecution by a similar band of overzealous State AG’s.  Like all good stories, there’s some kernel of truth behind the AG’s claims.  Child exploitation via the Internet is a real issue and needs to be addressed by law enforcement.  But the fact of the matter is that criminal activity is going to occur in the online world just as it does in the offline world.  Permitting state-level criminal prosecutions may eliminate a particular online venue used in committing sex trafficking crimes, but it will not eradicate online sex trafficking crimes.  If anything, it will force participants underground, making law enforcement efforts even more difficult. Backpage.com is not the only venue for escort advertising, and some foreign-based websites may be much less cooperative when it comes to subpoena responses, or assistance with missing children investigations. This misguided attempt to seize authority to prosecute U.S. escort advertising sites under state law only chills speech and innovation, not criminal activity.  The online world is just like its brick and mortar counterpart – its marketplace operates under the principles of supply and demand.  As long as there is a demand for sex trade participants, the marketplace will evolve to accommodate that.  And innocent online service providers who are not complicit in any sexual exploitation issues will get swept up in the onslaught of criminal prosecution.  Leaving a core issue of interstate commerce like the Internet in the hands of the federal agencies sounds like a reasonable, continued solution. If rampant child exploitation is, indeed, occurring on Backpage.com or elsewhere, there are plenty of federal statutes available to address the problem.

We’re routinely seeing the argument that Section 230 was intended to be a shield for online service providers, but these days, it’s more commonly being used as a sword instead.  Common sense will tell you that almost any law can be viewed in such a manner – whether it’s the shield or the sword simply depends on where you sit.  Section 230 is a legal cornerstone on which the Internet was developed and continues to thrive.  Granting the State AG’s request to amend this statute to permit state level prosecution against online service providers would not only damage the virtual marketplace, but generate an unequivocal chilling effect on online speech.  As legitimate a cause it may be, risking irreparable harm to innovation and the global economy is not the solution to abolishing the sex trade, or any other moral impairment that may be occurring online. 

Larry Walters has been on the forefront of defending the adult entertainment industry for over 20 years, and has defended numerous high profile obscenity cases for adult site webmasters. He operates Walters Law Group (www.FirstAmendment.com) which focuses on Internet law, First Amendment issues and intellectual property.
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Florida Sheriff Continues ‘War on Porn’ and Sets Sights on Backpage

Friday, June 07, 2013 Text size: 
By Lawrence G. Walters, Esq. & Kimberly A. Harchuck, Esq.

Polk County Sheriff Grady Judd is well known for his faith-based campaign against erotic entertainment.  His morality police strike again, this time with a promise to go after the world’s second largest classified ad website, Backpage.com.  The threats of prosecution come on the heels of a four day sting operation resulting in the arrest of almost 100 people, with charges ranging from offering to commit lewdness to aiding and abetting prostitution, deriving proceeds from prostitution, escape, traffic offenses, possession of illegal drugs, battery on a law enforcement officer and resisting arrest.  According to deputies, the people arrested responded to advertisements posted by undercover detectives posing as prostitutes or were prostitutes who posted ads and came to the detectives’ location to offer services.  Judd subsequently held a press conference stating that he now has permission from the State Attorney’s Office to launch a full criminal investigation into Backpage and its operators for facilitating organized prostitution and human trafficking, and plans to begin doing so. 

Notably, this is the same sheriff who declared a so-called war on porn just a few short years ago.  Having publicly vowed to eliminate all “smut” and “perverts” from his jurisdiction, by any means necessary, Judd has certainly kept working towards his goal of eradicating the “smut peddlers” who have the audacity to allow erotic speech to reach the residents of his county.  Judd’s unique brand of Florida justice cuts off speech he disfavors at its source through threats, intimidation, and actual criminal prosecution against purveyors of such speech, with his most recent victims including website operators publishing interracial sex acts, and a convenience store operator selling girly videos.  And nothing if not consistent, Sheriff Judd repeatedly justifies these tactics under the guise of enforcement of state obscenity laws, while disregarding bothersome legal constraints like jurisdictional boundaries, federal protection of website operations, and basic constitutional rights. During a previous obscenity case against a Netherlands-based website, he was quoted as saying that Polk County would have jurisdiction over anyone involved in running the website, even if they don't live in Polk County, as long as Polk County residents are able to view that website.  Dutch porn sites beware!

While not relying on obscenity principles to justify the threats against the Backpage.com publication, Sheriff Judd may be playing a bit fast and loose with the scope of potential accomplice liability as applied to online advertising outlets.  Merely providing web-based advertising space to escorts does not automatically equate to aiding and abetting prostitution or solicitation.  That theory was briefly explored by state law enforcement authorities, but generally abandoned after a humiliating loss in federal court by the South Carolina Attorney General.  So how plausible is it for a local sheriff in Central Florida to bring down a globally disseminated website with Texas-based operations and out-of-state owners?  It would not be surprising for Sheriff Judd to attempt to pave new legal ground with such a prosecution, and grab some headlines in the process.  His constituents appear to support these dubious law enforcement efforts, as Sheriff Judd is routinely reelected or goes unchallenged at the polls.  This mentality, coupled with Florida’s 2013 statutory amendment increasing prostitution-related civil penalties from $500 to $5,000 per offense - literally 1000% - is reason enough for Backpage to take note of Judd’s threats.  Despite the fact that escort activity is not inherently illegal, but recognized and licensed as a valid occupation in numerous jurisdictions, online escort advertising sites are routinely targeted and pressured to censor their ads.  Many readers will recall the voluntary demise of Craigslist’s ‘erotic services’ section despite years of censorship battles in and out of the courtroom, and shortly thereafter, the guilty plea entered into by Escorts.com in a federal prosecution, resulting in unprecedented financial penalties imposed on a site of its kind.  With ambiguous accomplice theories like conspiracy and aiding and abetting dictating potential legal liability of online service providers, it’s really no wonder why Sheriff Judd feels emboldened to take action against Backbage.com, as part of his enforcement of an ultra-conservative, erotophobic agenda. 

Agendas aside, there are still laws in place expressly designed to protect online advertising venues from legal liability derived from user-generated materials published on the sites.  Specifically, Section 230 of the Communications Decency Act would allow an online service provider like Backpage to assert an immunity defense in response to any legal claims based on its third party advertisements.  While Section 230 immunity is relatively well-settled in civil cases, it’s Judd’s threat of criminal prosecution that gives one pause for thought.  Arguably, Section 230’s immunity would also extend to state criminal laws, and could present an insurmountable hurdle for Polk County law enforcement.  However, this issue has not been conclusively determined in the courts.

Backpage would certainly also rely on free speech principles in defending against any criminal prosecution based on the content of its advertising.  Because of the adult nature of escort ads, the line between prostitution-related offenses and free speech can often be blurred in these instances.  But absent some sort of involvement by Backpage.com in the escorts’ day-to-day business activity, or clear knowledge that specific escorts were using its services to violate the law, the First Amendment may keep law enforcement at bay.  Sheriff Judd counters that “Backpage.com charges for advertising and charges more for adult entertainment advertising. They are deriving profits from and facilitating prostitution."  This facile argument ignores the difference between “adult entertainment” and “prostitution,” in the same way that Judd’s office has ignored the difference between illegal “obscenity” and legal “pornography” in the past.  But these threats of criminal prosecution have the makings for a good ole’ fashion, small town constitutional street fight.

Previous battles involving online escort advertisers have undoubtedly proven that eliminating one particular venue of disfavored expression will not eliminate the perceived problem, but will only result in a change of venue.  Backpage reported an unprecedented increase in users almost immediately after Craigslist shut down its adult services category, and eventually became the U.S.’s largest escort service advertiser by 2012.  This notion was reiterated by Backpage’s counsel, Liz McDougall, in her response to Sheriff Judd’s threats.  "Unless the Internet is wholly shut down the end result of [Judd’s] strategy will be that our children are advertised through offshore websites who are outside the jurisdiction of U.S. law enforcement […]."  With the circumstances at the mercy of one of the country’s most notorious moral crusaders, it’s difficult to envision Sheriff Judd doing anything but continuing down the path of draconian law enforcement, especially with such a newsworthy issue.  Fortunately, the better of the legal arguments reside with Backpage, but the results of any politically-heated censorship battle are, as always, unpredictable.  

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Feminism or Fascism: Iceland’s Stunning Ban on Pornography May Be Spreading

Monday, March 18, 2013 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

Iceland recently made headlines with the latest project on its allegedly progressive agenda: a nation-wide ban on pornography.  No stranger to proscribing activities related to commercializing sex, Iceland has already passed laws banning printed pornography, prostitution and stripping, and has done so all in the name of feminism.  Rattling off the standard laundry list of the evils of porn, the Icelandic Parliament noticeably lingered on the “damaging effects” adult material has on the children who view it and the women who participate in it.  Iceland’s Office of the Interior Minister defended the ban by stating that Icelandic citizens deserve to live and develop in a non-violent environment, therefore, the resulting law is “not anti-sex, but anti-violence.”  What’s potentially more concerning is that this feminist backlash against commercial sexualization is gaining serious momentum throughout Europe, as evidenced by the European Union’s recent parliamentary vote on a blanket pornography ban.  Taking a page from the Nordic view on feminism, the EU claims the ban will foster gender equality and combat sexual stereotypes by sanctioning individuals and businesses “promoting the sexualization of girls.”  With Parliament disclosing very little about the potential ban, most Europeans are looking to the recent path blazed by Iceland for some guidance on what’s to come.*  So what is the likelihood of Iceland being the first democratic state to successfully ban pornography?  The answer to that question probably depends on your definition of success…  

Given that Iceland is expected to implement similar blocking filters to those used in China and Iran, it stands to reason that Iceland would enjoy comparable success in restricting online content.  However, the environmental and temporal differences between Iceland’s efforts and that of middle and far east authoritarian regimes, shouldn’t be so easily dismissed.  Countries like China and North Korea limited citizens’ access to online content, but such restrictions have been in effect practically since the Internet’s inception.  Any armchair psychologist will tell you – and any parent of a toddler will confirm – it’s human nature to want what you can’t have.  And if whatever you can’t have, is something that was in your possession but was taken from you, well that ups the ante even more.  Like most citizens across the globe, Iceland’s people have had unfettered access to online adult material.  To put it bluntly, it doesn’t matter how inherently progressive a country is, when you confiscate a piece of personal autonomy, there’s bound to be consequences. 

Even if the Icelandic government seamlessly weathers whatever discontent that’s thrown its way, there’s still the matter of enforcement.  Logistically speaking, Iceland will employ filters barring citizens from accessing flagged websites, and fire walls prohibiting Icelandic credit cards from purchasing adult content.  But what about the tangible transport of digital pornography?  Streaming, downloading and cloud access aren’t the only ways to retrieve digital content.  What’s stopping someone located in another jurisdiction from entering Iceland’s borders with a pornographic DVD?  With so many vehicles capable of transporting digital content, common sense says that it would be impossible to inspect each and every tablet, flash drive, laptop, and Smartphone that crosses Iceland’s borders.  As long as there’s been contraband, people have been smuggling contraband – the digitization of such contraband has only made it that much easier. 

The ability to control infiltration of the banned content leads directly to the next hurdle – the black market.  We live in the Internet Age; every technological restriction is met with a response circumventing that restriction.  Whether it’s a scrubbing tool used to mask IP address identification or software that scrambles collected geo-location location, there are countless techniques enabling the average Internet user to evade government-imposed limitations. 

Without getting too high up on the First Amendment soap-box, this type of regulation tends to invoke the constitutional scholar in all of us.  If Iceland wants to completely ban pornography, exactly what kind of material is considered “pornography”?  Without careful and meticulous drafting, any such law will inevitably encompass content as innocuous as the mere display of genitals.  Some reports say that the ban would only include “violent or degrading content.”  As admirable as that is, we’re still left with the subjectivity surrounding the definitions of “violent” or “degrading.”  Another variable to throw into the mix in determining what would constitute pornography is the intended purpose of the material in question.  Specifically, was the content created for private consumption or commercial use?  If Iceland’s chief concern is to prevent the commercialized sexualization of women and children, logically, only material disseminated commercially would violate the ban and any application of the law beyond that specific scope would be a flagrant infringement on privacy rights.  Given the widespread creation and sharing of private erotica, a substantial amount of pornographic material would presumably be unaffected by the legislation. 

In a very short time, Iceland will undoubtedly find itself at the age-old prohibition impasse, asking which holds more clout: a government imposed ban or the tenacity of those looking to circumvent that ban?  As shown with most government-sanctioned goods or services, a black market develops; those participating eventually monopolize the marketplace; a consistent profit is generated; and ultimately standard supply and demand principles are used to exploit and perpetuate a marketplace devoid of legislative supervision.  Government-imposed prohibitions might change behavior, but a behavioral change does not prove that the problem was solved; only that it has been forced underground.  On that note, one must question whether the “problem” existed in the first place.  One person’s degrading porn, is another’s…you know the rest.  Ultimately, Iceland is unlikely to become a porn free zone irrespective of the pending legislation.  If history has taught us anything, it’s if there’s a will, there’s a way. 

*As this post went to press, the EU Parliament voted against the anti-porn proposal due to censorship concerns: “Language that would ban online pornography has been dropped from a report approved by the European Parliament.”

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2012 in Review: Internet Censorship & the Acronyms We Love to Hate

Wednesday, January 02, 2013 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

With the new year upon us, two things become painfully apparent in concluding 2012 sans post-apocalyptic bedlam: 1) the Mayans seem to have preferred tequila breaks over finishing their calendaring duties, and 2) there are no more excuses justifying willful blindness to any of the damage done during the last twelve months.  No, we’re not talking about the 10 lbs. you packed on since Thanksgiving, but more along the lines of extremist legislative proposals by lawmakers across the globe, particularly in the area of Internet regulation. 

Recently, the United Nations’ International Telecommunications Union (“ITU”) culminated its World Conference on International Telecommunications (“WCIT”) in Dubai.  The WCIT, comprised of almost 200 nations, was called for sole purpose of ratifying the ITU’s Telecommunications Regulations, which were drafted in 1988 to address interconnection between international telephone/telegraph networks.  This year’s update, however, went off the rails a bit when some world leaders viewed the conference as an opportunity to gain government control over Internet operations.  Countries like China, Russia and Middle Eastern nations lobbied for proposals that would allow member countries to regulate a broad range of Internet governance options that are currently under the authority of international third party NGO’s.  One proposal went so far as to call for all signatory governments to have “equal rights to manage the Internet,” ranging from technical operations to actual content review.  The U.S., along with Canada and the U.K., argued that greater government involvement in overseeing the Web would inevitably act as a gateway for countries already censoring the Internet within their respective borders to justify even more restrictions and invasive monitoring.  Standing firm against the WCIT’s potential chilling effect on the world’s largest communication medium, the U.S. and its backers staged a walkout during the final vote on the WCIT’s revised Internet treaty. 

Almost 90 countries signed the newly ratified regulation which, among other things, gives participants the unilateral and unrestrained ability to access private telecommunications services and block allegedly harmful commercial communication transmissions.  Those countries that refused to sign the revised treaty are under no obligation to abide by it, and will only be bound by the language of the original 1988 agreement.  As you can see, the situation still fosters a global epidemic of confusion, as about half the countries involved in the summit are now playing by an entirely new set of self-serving regulations with a colossal potential for abuse. 

Whether or not we have a digital Cold War ahead of us remains to be seen.  That said, before we start congratulating each other on the staunch free speech principles of our esteemed U.S. ambassadors in Dubai, we might want to make sure those ideologies still hold true in our own backyards.  The U.S.’s rejection of the ITU telecom proposal was a critical step in the right direction.  However, that effort doesn’t negate, or even lessen, the blow felt from similar regulations proposed by U.S. lawmakers just a few short months ago. 

Under the guises of such noble causes as consumer protection, reducing unemployment and even battling terrorism, the U.S. government allowed censorship to rear its ugly head in 2012 with the likes of SOPA, PIPA, CISPA, and ACTASOPA, the bill thought to have had the most momentum out of the lot, would have given the U.S. government almost total control in blocking access to foreign websites – sans due process – exhibiting the slightest hint of infringing activity.  Fortunately, the public fought back with a world-wide Internet blackout campaign, wherein hundreds of service providers – ranging from Google to Wikipedia – went dark or posted “CENSORED” messages on their sites.  After January’s historic public backlash, SOPA (and its sister bill, PIPA) were removed from the House and Senate calendars indefinitely, but hopefully for good.  This prior attempt at overzealous domestic regulation doesn’t quite resolve with the U.S.’s current position as the WCIT’s problem child.  Such contradictory actions beg the question: How is the U.S. government any different from the countries it chastised at the WCIT?  And even more so: How can we as Americans look at Chinese officials with disgust or Russian citizens with pity, when the U.S. Legislature ambushed its people with similar Draconian directives on domestic soil? 

So often we hear the war-cry of grass roots movements, reminding us that all citizens have a voice; activism starts at home.  The unfortunate reality is that although it’s true that activism starts at home, so does sanctimonious complacency.  Given the series of disturbing events in the U.S. over the last few months, we’re seeing the relatively ‘kumbaya’ American disposition that often appears in the wake of national tragedies and natural disasters.  As important as solidarity is in times of tribulation, it’s easy to forget that the legislative machine doesn’t stop rolling.  If anything, such devastating events act as the shiny objects diverting citizens from yesterday’s cause.  In today’s over-stimulated Information Age, the inadvertent label of ‘old news’ would be the kiss of death for any anti-censorship movement.  If the ‘out of sight, out of mind’ adage has proven true with anything, it’s with the American people and the activity of their lawmakers.  Legislative Internet censorship is a very real concept; a concept, that if dismissed by citizens, will undoubtedly find itself buried within the folds of yet another massive bill aimed at pulling on heart strings – whether in the form of protecting children, or giving hope to the unemployed via economically-friendly rhetoric. 

Earlier this year anti-censorship activists rallied in an exhibition of civil unrest, the likes of which never seen by the so called “Internet Generation.”  One would think that with the U.S. drawing a line in the sand on a global scale, additional censorship regulations disguised by muddying acronyms in the coming year would be highly unlikely.  One would think…  That said, the WCIT is just one battle in the constant war between government regulation and the free exchange of ideas.  The U.S. has taken a significant global position on Internet freedom, but before our free speech piety gets the best of us, let’s make sure our government maintains that position in leading its own people first.

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Canada’s Copyright Modernization Act: A Law With Global Impacts

Friday, November 09, 2012 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

Canada is home to many adult website operators, and a large consumer market.  While developments in U.S. copyright law have been at the forefront of late, recent dramatic changes in Canadian copyright law are also of significant importance and may provide a blueprint for future modifications in U.S. law.    

This past summer, in the country’s fourth attempt to amend its copyright laws since 2005, lawmakers finalized the new Canadian legislation, which substantially alters global copyright enforcement procedures – particularly in the online realm.  In a blatant effort to rid the country of the reputation that garnered its placement on piracy watch lists across the globe, Canada has now done a complete one-eighty with its cutting-edge Copyright Modernization Act.  Specifically drafted to parallel WIPO protocol, the Act pledges to assist Canada in becoming a major player in the global marketplace’s digital economy by striking the perfect balance between the rights of copyright holders and the public.  Or so they say… 

Consumers

Admirably, the Act broadly expands the Canadian legal concept of “Fair Dealing.”  Fair Dealing – comparable to America’s “fair use” – allows certain non-rights holders to use copyrighted material under specific circumstances, as long as the use doesn’t threaten the interest of the copyright holder.  Previous copyright law limited Fair Dealing to: 1) research; 2) private study; 3) news reporting; 4) criticism; and 5) review.  In a nod to free speech, the new Act extends the Fair Dealing umbrella to educational purposes, parody and satire.  The hitch?  To fall within Fair Dealing application, the nature of the use must be entirely non-commercial. 

With the serious limitations resulting from the non-commercial requirement for Fair Dealing, Canadian lawmakers recognized the need to appease the country’s technology-based businesses that often rely on incidental use of copyrighted materials.   While many companies involved in the tech industry are copyright owners, a complex web of quid pro quo licensing, sublicensing, and assignment drives the evolution of technological advancement in online entertainment.  Accordingly, in the name of fostering innovation, the Act clarifies that automatic, technical and incidental reproductions are not a copyright violation.  This means that many businesses which rely on copyrighted works as a supplement to a process, are most likely no longer impeded by the need to obtain express permission for a minuscule use of a copyrighted work during research and development.  Software companies, specifically, will now be permitted to freely engage in research involving encryption, security testing and reverse engineering without fear of ramifications that may arise from incidental use of copyrighted works.  Another business feeling a weight lifted off its shoulders is the fledgling broadcasting industry.  In the past, broadcasters in Canada – like most countries – had to pay copyright holders for any temporary copies made of music that would be played on the air in addition to payment for actually broadcasting the music.  Because of their temporary nature, broadcasters no longer have to pay for the creation and use of such copies as long as they are retained for less than thirty days. 

Copyright Holders 

Although the Act touts equality for all those involved in the digital marketplace, it significantly shifts the legal power dynamic in favor of copyright owners.  Copyright holders not only have more intimidating remedies in pursuing infringers, they too, get to experience an expansion of their rights as a whole.  The Act promises the utmost enforcement of: 1) Moral Rights; 2) Distribution Rights; and 3) Making-Available Rights.  The traditionally European concept of Moral Rights allows the copyright holder to protect the “integrity” of the work for up to fifty years after publication, and was incorporated into the Act as a parallel to WIPO’s international notions.  Distribution Rights will allow owners to control the first sale of copies, and hopefully curb preemptive leaks and distribution of pirated works.  Finally, in taking a stance against peer-to-peer file sharing sites, the Act introduces Making-Available Rights that allow the author to control how their work may be accessed in cyberspace.  Granted, some of these rights aren’t exactly new to the copyright game, but Canada is one of the first jurisdictions to put it all in one comprehensive piece of legislation. 

Then there’s the latest and greatest “notice and notice” regime; a process that will undoubtedly impact online service providers for years to come.  In the past, copyright owners had the right to seek a court order demanding that access to online infringing material be blocked.  However, under the Act’s “notice and notice” regime, the onus to protect one’s copyright is no longer on the rights holder – it’s on the notified service provider.  ISPs are now obligated to proactively discourage any use of a website or online service that could be considered infringing, by acting as a liaison between copyright owners and ISP’s customers.  Service providers are required to forward any notice they receive from a copyright owner to their customer, if the rights holder alleges the customer is engaging in infringing activities.  Not only are ISPs required to retain detailed records of such notifications, they are even subject to penalties for noncompliance as an “enabler” of infringement.  With the not-so-affectionately dubbed ‘enabler provision,’ Canada is one of the few jurisdictions in the world to specifically provide a civil remedy for copyright owners against online intermediaries who “willfully and knowingly enable” copyright infringement.  The ‘enabler provision’ is intended to supplement the already expanded rights of copyright owners discussed above.  Claiming that many sites veil their piracy by claiming they are simply a platform for user-generated content, lawmakers maintain that legitimate ISPs have nothing to fear as they are exempt from ‘enabler’ liability if their activities are restricted to that of a true intermediary (e.g. – caching and hosting). 

If you’re wondering why some of this sounds a bit familiar, that’s because it should…  Remember SOPA?  The legislation, once dubbed “the killer of the Internet,” was abandoned last spring after millions of Americans cried foul in an unprecedented rallying against a web-regulating law.  Apparently Canadians didn’t feel quite the same way…  Despite the legislature’s supposed intention of confining the law’s application to piracy-driven websites, the Act’s ‘enabler’ liability could unintentionally encompass legitimate websites or online services like forums, dating sites, classified advertising sites, or indexing sites.  Arguably, the same broad language is what ultimately killed SOPA.  Cyberspace has evolved almost completely to a Web 2.0 world, chock full of user-generated content as far as the eye can see.  Unfortunately for those UGC sites (e.g. – YouTube, social media, etc.), the very core of their business models can be alleged to “enable” copyright infringement, when their services are misused by infringers.  This obviously has a grave impact on Canadian-based websites, considering the non-commercial limitation on the country’s Fair Dealing rights. But as we’ve seen with U.S. copyright laws, the Canadian equivalent may potentially apply to all websites available in Canada, regardless of their jurisdiction of origin.  Therefore, website operators throughout the world should educate themselves regarding the new obligations and rights provided by this landmark Canadian legislation.  

Conclusion 

The evolution of the Internet continues to confront legal restrictions imposed by numerous countries, passed in an attempt to balance technological advancement with protection of artistic expression.  The substantial developments in Canadian copyright law signals big changes on the horizon, as each nation grabbles with these vexing legal issues.  While online communication can only be effectively regulated by a global authority that does not yet exist, the rights of webmasters and copyright holders will be significantly impacted by technology regulation such as Canada’s Copyright Modernization Act.

Note: On November 7, 2012, most of the Canadian Copyright Modernization Act went into effect, upon publication of a government proclamation order.  Notably absent from the order were the provisions addressing the controversial “notice and notice” regime.  Although the Canadian government has yet to delve into much detail regarding the exclusion, rumors of “fierce behind-the-scenes lobbying” over the logistical details of the regime has made it clear that further policy development is needed before that controversial new system can take effect. 

Lawrence G. Walters heads up Walters Law Group, www.FirstAmendment.com; a law firm focusing on First Amendment, Internet and Intellectual Property Law.  Mr. Walters represents clients located throughout the United States, Europe, and Canada, on federal and international law issues. Nothing in this post is intended as legal advice, but is provided solely as general legal information.  

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Caged Pussy Riot: Protecting the Peace or Putin’s Political Revenge?

Friday, September 14, 2012 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

Between YouTube videos sparking Middle Eastern riots and the Westboro Baptist Church continuing its ministry one hateful protest at a time, recent headlines illustrate the unique place that Free Speech rights occupy in American society and jurisprudence.  While these particular examples of expression are obviously disturbing to many, it is just such offensive speech that is most important to defend.  By protecting the most egregious and distasteful speech, we ensure that all other expression remains comfortably within the fold of First Amendment protection.  However, this mantra of perpetual tolerance for the unpopular voice – no matter how difficult it may be – is a uniquely American axiom.  Especially true in this world of tech-based immediate gratification, we don’t think twice about the instantly accessible 140 character religious soapbox thanks to Twitter, or Facebook’s uncanny ability to spawn a political rant with one too many four-letter words at your fingertips.  Free speech is something that Americans actually dub as a right.  The unfortunate reality is that freedom of expression is often a luxury in other parts of the globe.

A Moscow court sentenced three members of Pussy Riot, a Russian feminist punk rock band, to “two years depravation of liberty in a penal colony” for charges of “hooliganism motivated by religious hatred.”  The sentence stems from an unauthorized performance of the group’s song “Virgin Mary, Get Putin Out” during a church service at a Moscow cathedral.  The song addresses the lack of division between church and state and criticizes the presidential administration’s alleged symbiotic relationship with Russia’s largest religious sect, the Orthodox Church.  Citing to Head Patriarch Kirill’s public support for Putin in Russia’s presidential election as a prime example of the incestuous theopolitical relationship, Pussy Riot claims that their protest art simply speaks against Kirill and Putin’s conservative tendencies and the well-publicized close ties between the two.  Although having fled Russia in fear of further persecution, the remaining members of Pussy Riot continue disseminating the band’s message.  Presumably responding to the band’s continued rebellion, Russian officials then called Pussy Riot’s lawyers before the Moscow Police Investigation Committee for alleged participation in a protest rally on the eve of Putin’s May inauguration.  The interrogation summons came just days after a video surfaced of the estranged Pussy Riot members thanking their supporters and subsequently burning a photo of President Putin.

The band’s sentence was met with condemnation across the board.  Dubbing them “prisoners of conscience,” Amnesty International stated that the band’s detention is a result of simple expression of personal beliefs.  Both, the EU Foreign Affairs Office and the U.S. State Department, denounced the court’s decision by questioning the alleged politically-motivated prosecutions and the resulting “disproportionate” sentences.  Protests in support of the band have been held around the globe, including a St. Petersburg music festival which commenced this past Monday despite numerous threats from city officials urging to cancel the event.  Dozens of musicians and celebrities have joined the ranks of supporters, and are calling on their fans to recognize the harm Russian officials are doing to artistic expression.  Madonna found herself targeted by government scrutiny after officials promised to closely monitor her concert for “homosexual propaganda,” as such “Western values” are now criminalized as “promoting homosexuality to minors.”

As some music geeks might already realize, Pussy Riot’s politically-charged, expletive-laden lyrics are reminiscent of the U.S.’s very own Riot Grrrl Movement.  In the early-90’s, underground female empowerment bands like Bikini Kill, Bratmobile and Heavens to Betsy dominated the American punk rock scene with a similar ‘bull in a china shop” approach to modern feminist discourse.  Notoriously anti-government and anti-sexism, the Riot Grrrl Movement condemned traditional social themes from capitalistic greed to conventional gender roles.  The Riot Grrrl bands performed with the common goal of calling for action against the status quo – such actions were often unpopular and even offensive.  Admittedly, Pussy Riot should not be exempt from reprimand simply because their illegal performances are accompanied by political expression.  That said, common sense alone warrants questioning the proportionality of what amounts to a zoning violation warranting two years of incarceration in a Russian prison.  Political activism and a healthy dose of social dissonance are crucial to the civic evolution of any society regardless of its placement on the globe.  Arguably, this suggests the only thing separating Pussy Riot and Riot Grrrl bands is the First Amendment.   

Prosecutors claimed that the cathedral performance was intended to directly insult the Russian Orthodox Church.  Congregants found offense in that insult, and having to witness such overwhelming offensiveness resulted in “grievous harm” to them as Orthodox Christians – this amounted to a hate crime.  There you have it: three women dancing and shouting for under 60 seconds in a religious venue may cause witnesses to be so profoundly offended, that such actions couldn’t have any other purpose but to convey hate speech.  In all actuality, the performance may have been vulgar and even disarmingly insulting.  But to foster the delicate balance between unpopular speech and the unwilling listener, only communication likely to result in imminent violence may qualify as true hate speech.  The Russian court found that the band’s actions “crudely undermined social order.”  Even so, any such activities – no matter how crude – are still a substantial leap to hate crime.  Preservation of “social order” does not permit the U.S. government to censor speech.  Admittedly, the average American would prefer to keep their Sunday church service a low-key affair.  However, should a group of rocker chicks donning combat boots and luchador masks arrive, screaming their discontent with President Obama and organized religion, the likelihood of the disruption amounting to hate speech is slim to none…at least under U.S. law.  

The E.U.’s Organization for Security and Cooperation recently recognized a growing trend in Eastern Europe where government, lobbyist groups and even court systems are “taking a more restrictive stance on content deemed offensive, morally questionable or dangerous for children.”  Fittingly, Putin’s infamous intolerance for dissent has recently hit a new high.  In the three short months since resuming the presidency, Putin has “directed at least 19 political cases to the Russian courts” and allowed parliament to enact laws restricting public protest and reinstating criminal libel.  The fines for protest-related offenses were increased exponentially and now range from $9,000-30,000, depending on one’s level of involvement.  The draconian legislation even likens citizens engaging in political activities with foreign-funded nongovernmental organizations to “agents of foreign interest” (read: spies).  Clearly meant to encumber activist groups, the laws arrived hot on the heels of Putin’s latest erosion of civil rights; Bill 89417-6, Russia’s Internet censorship legislation.  The Bill allows Russian domains to be blacklisted without judicial oversight if officials find the site’s material “extremist in nature” or “harmful to minors.”  Should the website fail to remove the offending material within 24 hours of notification, the service provider must block the entire site.  Despite its gravity and global implications, the Bill’s week long sprint through Parliament ensured the inevitable and it will become law on November 1.  Although publicized as a safety directive, there’s little doubt that the Bill will be used as yet another instrument of oppression to silence Putin’s opposition. 

Protecting offensive speech – whether pertaining to religion, politics, sex, etc. – is crucial to ensure that all speech remains protected.  Intimidation tactics used to silence the opposition is nothing short of sheer cowardice.  When those tactics are employed by government officials to selectively prosecute political opponents and dissenting voices such actions are shockingly short sighted as those in positions of political power should unquestionably recognize the importance of protecting the marketplace of ideas.  As is often said, the cure for bad speech is simply more speech, not censorship.  As we may see in the coming months, decisions like the one at hand create a very predictable chilling effect.  When witnessing such injustice at the hands of all three political branches, it’s only a matter of time until the Russian citizenry allows fear of government retaliation to dictate expression of their opinions, thus effectively eliminating public discourse of certain topics.  Say what you will about Pussy Riot’s message, government restraint on that message is purely a pretext for censorship.  Taking into account Putin’s history and recent Russian legislation, it’s virtually certain that Pussy Riot won’t be seeing a presidential pardon in their future.  But with the appeal slated for October 1, and both sides showing no sign of waning, the Pussy Riot saga is far from over and will undoubtedly have a lasting impact on Russia.  Given the international attention this incident has received, and the resulting uniform condemnation of blatant censorship, we can hope that one defining American value will begin to take hold internationally – Freedom of Speech.   

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Mommy Porn & Social Media: Erotic and Mainstream Meet in the Middle

Tuesday, July 31, 2012 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

Christian Grey. If you haven’t heard that name uttered dozens times over the last year, it’s safe to say that you may have been living under a rock. While certainly not a literary prose masterpiece, the Fifty Shades trilogy hasn’t done too bad for itself, reaching a sales record of over 31 million copies worldwide just a few days shy of its thirteen month publication anniversary. Evidently tired of their typical lackluster fiction, women across the globe embraced literary erotica in a way never before seen. Sophisticated marketing campaign? Nope. Just your average suburban housewife word of mouth and young professional girly gab session via Facebook. Quite possibly the first truly erotic novel since the advent of the “Oprah Book Club” group dynamic – promotion simply fueled by women talking to other women – has generated a massive demographic of female readership that just keeps growing. So a mediocre piece of fan-fiction centering on the BDSM escapades of an older, emotionally unavailable, brooding alpha male and his younger, innocent, eager-to-love and be-loved companion, is redefining the landscape of mainstream literature as we know it?

Well, don’t get Gloria Steinem on speed dial just yet. The appeal of Fifty Shades has been the subject of many debates over the last year – why are women across the globe scrambling for this book to the point that retailers can’t even keep it on the shelves? For those that viewed the book as more than just another piece of dark chick lit to pacify rainy day boredom, Fifty Shades proved that it could live up to all the sexual liberation hype by simply being available to its target demographic. Whether it triggered long-suppressed bondage fantasies or simply offered an uninhibited escape from the mundane, the book provided a [albeit hazy] glimpse into a fetishist counterculture that was barely even acknowledged in mainstream society, let alone openly discussed during public discourse. This mysterious and clandestine faction of the adult entertainment world collided with the civilian world, and surprisingly, everyone survived.

That being said, what about the classic “porn is taboo” default – a mentality that is supposedly true when it comes to the average female? Is a passage detailing the physical, mental and emotional landmines of a sub-dom relationship between a naïve college student and an emotionally troubled masochist with the help of whips, chains and riding crops from his “playroom,” less oppressive than Debbie Does Dallas? Despite the fact that many schools of feminist thought are rooted in the notion that pornographic materials are damaging to women’s civil rights, feminist-minded activists and writers around the world are praising Fifty Shades as a carnal awakening ”encouraging women to explore their sexuality.” Regardless of the reasoning behind it, generally speaking, certain demographics of females tend to be more receptive to literary erotica as opposed to its visual counterpart. This preference often remains true regardless of the particular content presented in the respective materials.

Notably, there have been contemporary instances where allegations of obscene literature have made their way through the legal system and caused substantial commotion throughout the adult industry during the process. In 1973, the US Supreme Court, in Kaplan v. California, determined that visual images were not necessary to label a work obscene. Even more recently, in 2006 during what became known as the “Red Rose Case,” US Attorneys in the Western District of PA charged an author (and former client) with six counts of distributing obscenity stemming from fictional erotica that she published on her website. US v. Fletcher.  This begs the question: in light of the widespread acceptance of Fifty Shades, has text finally become immunized from obscenity charges, or at the very least, less susceptible to prosecution compared to the past? Even if future prosecutors refuse to acknowledge the shift in public perception, there is no doubt that the book’s notoriety and widespread acceptance by the public, will impact juries and community standards arguments for years to come. Lawyers can, and will, predictably reference Fifty Shades of Grey in closing arguments in obscenity cases for years to come.

The Fifty Shades collection is the fastest and bestselling literature series in Kindle history – therefore, it’s no surprise that Fifty Shades of Grey was the first book to sell more than one million Kindle copies. Many have attributed this symbiotic relationship to the fact that Kindles, like other e-readers, afford the reader a level of privacy regarding her current read that was previously nonexistent. In book form, erotic covers were a dead giveaway. With digital manuscripts comprising over 90% of Fifty Shades sales, the marketplace – at least that of female-centric soft core S&M literature – was noticeably receptive to the more covert viewing alternative provided by e-readers. By allowing women to explore literary genres that they traditionally spurned for fear of public exposure of less-than-pure reading habits, e-reading technology is clearly helping to bridge the gap between erotica and mainstream literature. Just as Sasha Grey (who, coincidentally, may play the story’s “Anastasia Steel” in the upcoming film) made the virtually unprecedented leap from porn to mainstream, the Fifty Shades series represents a quantum leap in the mainstreaming of porn.

Surprisingly, just as technology is aiding in advancing porn to the mainstream, it also has a hand in the budding relationship between porn stars and the public. Recent studies show that social media is helping bridge the gap between mainstream society and the adult entertainment industry. Porn stars have taken to social media sites to enable direct communication with civilians in hopes of promoting themselves and developing their respective brands. Allowing the public to engage in this type of personal interaction discourages the typical porn star stereotypes as it allows the stars to be more approachable to their fan base. Given that the very core of the adult industry is rooted in fantasy, performers are finding that allowing the public a glimpse into their private lives facilitates a sense of reality to the relationship. By cultivating that “real” relationship, the entertainers eventually hope to make porn more mainstream, and therefore, more ”socially accepted.”

Never before has the author been able to conclude a post with as strange a statement as this: the average woman is using personal technology to access BDSM erotica hoping to broaden her sexual horizons and bring out her inner kink goddess, while the average porn star is using conventional social media hoping to make herself and her profession appear as mundane as possible. Regardless of where you fall on the spectrum, it is undeniable that technology is allowing, if not actually compelling, the normalization of pornography in mainstream culture – and based on the public’s reception of such activities, the ultimate goal of societal acceptance may not be as unattainable as once thought.

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The Ends of the Earth – How Far Can U.S. Content producers pursue foreign infringers?

Friday, May 04, 2012 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck
Introduction.

We all witnessed the uproar over PIPA and SOPA at the beginning of the year.  Internet free speech advocates took to cyberspace in a call for action against these proposed laws.  Advocating for the broad principle of intellectual property protection, lobbyists for the mainstream film industry argued for the enhanced ability to go after foreign “rogue” websites involved in infringing activity.  While the underlying motivations for enacting PIPA/SOPA may have been well-intentioned, they impacted personal freedoms to the point that made many Americans uncomfortable, and the legislation soon stalled in response to the public pressure.  A major concern with PIPA/SOPA was that the bills granted the U.S government legal authority over any website domain, wherever hosted or operated, even in the absence of a domestic jurisdictional connection.  While the legislative efforts continue, the courts have recently expressed concern, through a series of legal decisions, with enforcement of intellectual property rights against foreign website operators.  These decisions may have a substantial impact on the ability of U.S. content producers to pursue foreign websites for copyright and trademark infringement.    

U.S. courts primarily gain personal jurisdiction over the parties by the physical presence of the defendants in the location where the lawsuit was filed.   However, when the defendant is a foreign entity or individual operating a website, U.S. courts have been increasingly hesitant to find the existence of jurisdiction, merely based on web presence.  A U.S. district court can exercise personal jurisdiction over a defendant if the party is “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”  Fed.R.Civ.P. 4(k)(1)(A).  This means that personal jurisdiction over a non-resident defendant may be acquired by: (a) the defendant’s physical presence in the subject state; or (b) the state’s long-arm statute.  A “long-arm” statute allows a court to assert jurisdiction over an out-of-state (or foreign) defendant based on injury suffered by the plaintiff in the state, or some other activity creating a relevant connection.   Most long-arm statutes permit this type of extraterritorial jurisdiction so long as doing so constitutes ‘fair play,’ and otherwise comports with Due Process notions.  

Recent Judicial Decisions. 

In the earlier days of the Internet, U.S. courts seem to have had no qualms about imposing American law on websites maintaining any form of customer base within the U.S., regardless of where the site was operated.  However, in recent times, as the world has gotten smaller and foreign online presence more established, judges are starting to realize that the U.S. may have previously attempted to exert a little too much control over the Internet.  With seemingly endless cyberspace growth fostering a more “global marketplace,” U.S. courts may be starting to pay more heed to other countries’ laws and sovereignty.  Concerns such as diplomacy and comity have come to the forefront, as all nations compete for a seat at the Internet table.  

This struggle has played out in the attempt to enforce U.S. copyright and trademark law abroad.  Over the last few months, several courts have addressed the issue of whether foreign websites can be held liable for intellectual property violations asserted by U.S. plaintiffs.  These courts have all dismissed the cases for lack of jurisdiction.  In Fraserside IP L.L.C. v. Hammy Media, Ltd., 2012 WL 124378 (N.D. Iowa Jan. 17, 2012), a federal judge found that the adult entertainment power house, Private Media Group (through its IP holding company), could not establish personal jurisdiction to sue operators of the adult tube site, xHamster.com, in the state of Iowa.  Finding that the Cyprus-based tube site lacked sufficient minimum contacts in Iowa, the court rattled off a laundry list of reasons for its decision: "xHamster has no offices in Iowa, no employees in Iowa, no telephone number in Iowa, and no agent for service of process in Iowa.  xHamster does not advertise in Iowa.  No xHamster officer or director has ever visited Iowa.  xHamster does not maintain any of its servers within Iowa.  All of xHamster's servers are located outside of the United States."  This ruling is consistent with the general principle that the mere availability of a website in the U.S. will not be sufficient to establish personal jurisdiction over the site operators.  The same ruling occurred with Private’s case in Iowa against another foreign tube site, DrTuber.com.  Fraserside v. Moniker, et al., Case No.: 11-cv-03040 (N.D. Iowa 2012). 

A few months after the xHamster.com decision, a California district court protected another adult entertainment website by denying the plaintiff’s motion for a default judgment in the “faceporn.com case,” Facebook v. Pedersen, 10-Cv-04673 (N.D. Cal. March 2, 2012).  Relying on a relatively broad jurisdictional argument, Facebook claimed that the defendant intended to compete directly with Facebook and given Facebook’s global notoriety, anyone infringing on Facebook’s intellectual property would know such infringement is harming a California entity.  According to the district court ruling, plaintiff’s argument failed two-fold as Facebook lacked any evidence that the defendant purposefully directed its activities at California and further, was unable to prove that the defendant’s conduct successfully redirected traffic away from Facebook.  Notably, the court essentially made the arguments for faceporn.com, since the decision was based on a motion for default judgment.  

Coming out of Nevada just over a week later, another off-shore website dodged the jurisdictional bullet in the case of Stevo Design, Inc. v. SBR Marketing, Ltd., 2:11-CV-0304 (D. Nev. March 13, 2012).   The Nevada district court ignored any potential personal jurisdiction issues, instead dismissing the case based on lack of “subject matter” jurisdiction – an issue that had not even been argued by the defendant.  Subject matter jurisdiction involves the underlying authority of the court to consider the case, in the first instance.   Often seen as a relatively simple hurdle, U.S. law gives the federal courts subject matter jurisdiction in when the suit is based on a violation of a federal statute, or when the resident of one state sues a defendant of a different state (or another country).   Claiming that several of its sports betting reports were unlawfully uploaded and published via the defendant’s website, SBRforum.com, plaintiff’s sued forum site for various violations arising under the Lanham Act and the U.S. Copyright Act. The court noted that all of the alleged infringement occurred entirely on SBRforum.com.  Because the defendant’s website was operated in Costa Rica, the court found that it lacked subject matter jurisdiction to even consider the case since federal statutes provide no relief for infringement that occurs solely in a foreign nation.

Conclusion. 

What may have been taken as a ‘given’ in the past is now being questioned by this new line of cases, imposing what appears to be a higher burden on those seeking to hold foreign website operators responsible for U.S. intellectual property violations.  The mere fact that the site is globally available and happens to maintain a U.S. customer-base may no longer be sufficient as a basis for bringing foreign defendants into U.S. courts, under recent judicial rulings.  Whether these rulings are a brief respite for foreign website operators, or the beginning of a new judicial trend, remains to be seen.  But adult content producers become more aggressive in pursuing theft of their content by foreign website operators, these legal issues are sure to gain significant attention in the coming months.

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The Politics of Porn - 2012

Monday, February 13, 2012 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

By the close of 2011, the Republican presidential hopefuls had their work cut out for them.  It was starting to look like the people had gotten their fill of Michele Bachmann’s eccentricities.  Such a sentiment was confirmed at the Iowa caucuses, when the Tea Party Chair, receiving only 5% of the votes, placed sixth among the other candidates, ultimately resulting in Bachmann’s withdrawal on January 4, 2012.  Despite consistent double-digit polling numbers since early fall, January claimed another candidate in former Utah Governor, Jon Huntsman.  Withdrawing from the race on January 16, the former ambassador pledged to “stay relevant” in the race, and has kept that promise by actively supporting Mitt Romney.  Then, of course, there’s Herman Cain – once his luck ran out with the ladies, the voters soon followed.  Despite suspending his candidacy back in December amidst allegations of sexual misconduct, Cain has done his best to remain in the spotlight, still lobbying for his 9-9-9 Plan and has yet to formally endorse one of his former competitors.  And we can’t forget 2012’s latest casualty, Texas Governor, Rick Perry.  After his promises to end “Obama’s war on religion” evolved into concerns of Perry’s War on the Establishment Clause, steam behind Team Perry was waning towards the end of 2011, and finally came to an end on January 19

At this point, it’s almost mid-February and oh how the tides have turned.  Deemed a misfit for most of his political career, Ron Paul has ridden the ‘rebel, nonconformist’ wave all the way to its peak.  With that success, comes mainstream popularity and partial loss of Paul’s famous underdog status.  Struggling to reconcile the Congressman’s political identities, voter support seems to be reaching a plateau, although not necessarily declining.  The likely result: Paul is applauded for his valiant effort, but ultimately directed by the GOP powers-that-be to graciously keep the rebel rousing within the confines of the Texas state line.  

Former Speaker of the House, Newt Gingrich, was thought to be down and out this past summer after a series of questionable spending excursions and the infamous mass exodus of several high-ranking campaign officials.  But ever the true politician, Newt has overcome the instability of his early campaign and gained enough momentum to be considered a genuine presidential hopeful.  

Probably the biggest candidate surprise of the campaign thus far is former Pennsylvania Senator, Rick Santorum.  Battling disheartening numbers since the day he threw his hat into the ring only to surge ahead in 2012 by winning four of the eight presidential primaries thus far, Santorum is the very definition of a “comeback kid.”  Making no apologies for his socially conservative politics, Santorum ready and willing to squeeze out the very last bit of libertarian influence that might be left in the GOP, and based on recent numbers, he might just be able to do that.     

The one constant since the beginning of the campaign trail is Mitt Romney’s title as the election’s front-runner.  Romney is currently blowing everyone out of the water with ninety-five pledged delegates; that’s more than the other three candidates combined.  Maybe the American people think a business consultant as President is the only way to completely pull out of this economic tailspin, or maybe we all harbor deep-seeded respect for Mormon’s with good politician hair – either way, Mitt Romney isn’t going anywhere any time soon. 

 So what do the Republican Presidential candidates have to say about adult entertainment issues?  Not that the Obama Administration has been the champion of personal freedoms that was originally hoped for, but at least the DOJ’s decision to focus on child pornography instead of filing any new obscenity cases allowed the industry a bit of momentary relief.  However, it’s safe to say that if a Republican takes over the presidential seat, it’s going to be a different ballgame all together.  

According to Morality in Media’s (“MIM”) President, and former DOJ official, Patrick Trueman, “Vigorous prosecution of those who violate our nation's obscenity laws is critical now.  Our nation is suffering a pandemic of harm from pornography that is readily available - even to children on the Internet and in other venues.”  Trueman has targeted Santorum, Romney and Gingrich for months, requesting that the candidates take a public stand in favor of his anti-porn efforts.  

Heading straight for the newbie, Trueman successfully got Santorum to sign the Family Leader Pledge (made famous by former candidate Bachmann’s “ban on porn”) all the way back in July of 2011.  The pledge requires Santorum to uphold, among other things, the “Humane protection of women and the innocent fruit of conjugal intimacy — our next generation of American children — from human trafficking, sexual slavery, seduction into promiscuity, and all forms of pornography and prostitution, infanticide, abortion and other types of coercion or stolen innocence.”  

Nothing if not persistent, Trueman continued MIM’s crusade this past October by demanding that the 2012 presidential candidates publicly disclose “their respective views on the enforcement of obscenity laws.”  MIM officials eventually obtained statements by all three of the frontrunners after calling on MIM followers to continue the crusade through emails, calls, and meetings with the candidates urging them to respond to MIM’s request for disclosure.  

 In his response to MIM, Santorum wrote: “Federal obscenity laws should be vigorously enforced. If elected President, I will appoint an Attorney General who will do so.”  

In a one-on-one interview with MIM staffers, Gingrich was asked if he will enforce existing laws that make distribution of hard-core adult pornography illegal, he responded: "Yes, I will appoint an Attorney General who will enforce these laws." 

The only candidate to reference online content in his written reply to the MIM demand, Romney stated: “It is imperative that we cultivate the promotion of fundamental family values. This can be accomplished with increased parental involvement and enhanced supervision of our children. It includes strict enforcement of our nation's obscenity laws, as well as the promotion of parental software controls that guard our children from Internet pornography."  Although, Mitt’s status as one of MIM’s golden boys of piety may have hit some rough terrain as it was revealed that everyone’s favorite squeaky-clean Mormon accepted a maximum amount campaign donation from Daniel Staton, chairman of the board of the company that owns Penthouse.  While this may not be tantamount to accepting a donation from Max Hardcore or Extreme Associates, this minor campaign faux pas is going to raise more than a few eyebrows. 

With MIM sparking GOP discussions of a resurrection of strict enforcement of obscenity laws, notions of MIM President’s Trueman staging a re-entry into politics seem unsettlingly attainable.  So is the country in imminent danger of the DOJ turning into the “Trueman Show” come January, 2013?  Hopefully not, but with polling data saying one thing, schizophrenic primary numbers saying another, and public opinion exhibiting an extreme of the two on any given day, it truly is anyone’s race.  The stakes are high for the country and our Constitutional freedoms.  And with the top three presidential candidates pledging to reinvigorate the ‘War on Porn,’ one can’t help but hope that the adult industry won’t be one of the losers in 2012. 

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Killing the Messenger: The Campaign Against Online Escort Advertising Sites Part II – Operational Policies & Legal Issues

Sunday, December 04, 2011 Text size: 
By Lawrence G. Walters & Kimberly A. Harchuck

In Part I of the Killing the Messenger blog post, we addressed the latest headlines highlighting the plight of online escort directories, specifically including the story of Craigslist.org, Backpage.com, and Escorts.com.   We now turn to an overview of the legal issues associated with such attention-grabbing stories and attempt to identify preventative measures to be considered by those associated with the online escort directory business model. 

One of the unanswered questions resulting from the epidemic of law enforcement activity against online escort directories is whether the mere acceptance of advertising revenue from escort-related activity is against the law?  Does some state or federal statute prohibit this business model, or is this a large ‘bluff’ by those seeking to censor disfavored speech?  Indisputably, prostitution is against the law throughout the United States except for small portions of Nevada, where legal brothels are allowed to exist.  Virtually all states prohibit not only the act of sex for hire, but many related offenses such as deriving proceeds from prostitution, renting a space for purposes of prostitution, and facilitating (or aiding and abetting) the act of prostitution.[1]  At the federal level, earning money from prostitution that involves some element of interstate commerce (such as website operation) can allegedly violate the Travel Act and money laundering laws[2], as seen in the Escorts.com case.  However, not all escort directory websites are equally vulnerable to prosecution under these laws, as discussed below.  Paying close attention to certain relatively common business practices and developing reasonable advertising review policies can make a significant difference in the degree of risk associated with operation of an online escort site. 

Escorts, although engaging in presumptively lawful companionship activity, awkwardly fall within what has become known as the “sex worker” occupation.  While those in the adult industry recognize that these companionship providers do not equate their services with sex, their business is erotic and adult-themed entertainment.  Nudity may or may not be involved, although stripping in the privacy of a home or hotel room is typically not against the law,[3] and does not constitute prostitution.  However, the association with the ‘sex worker’ category is often perceived by mainstream society as having some type of involvement with actual sexual intercourse, or some other form of sexual activity.  Until this perception is corrected, escorts will continue to fight being unfairly, and automatically branded as prostitutes by those not familiar with the nuances of the profession.[4] 

Federal conspiracy, solicitation and money laundering statutes certainly don’t help an escort site’s plight.  The epitome of broad and vague statutory language; these laws expose even the most tangentially involved individual/entity to potential legal liability. 

Under classic criminal conspiracy, the government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts to execute the agreement, and (3) intent to commit the substantive crime.  The language of the conspiracy statute cited as grounds for Count I against Escorts.com defined the alleged conspiracy as two or more persons conspiring to commit an offense “in any manner or for any purpose” – you can’t get much more general than that. 

As seen in the Escorts.com case, the breadth of the solicitation and money laundering laws may be even more alarming.  Looking at the plea agreement, the only admissions of fact were that:

1)      the website allowed escorts to post advertisements pertaining to their services,

2)      the company owning/operating the website received revenue from the escort’s ads and subscriptions from users paying to view such ads,

3)      the site’s users were allowed to post reviews, and,

4)      “some” of the escorts advertising on the site engaged in prostitution at some point during the advertiser’s association with the site.

A significant factor in the Escorts.com case appears to be the ability of users to post reviews directly on the site.  While the significance of this feature may not be readily apparent to those outside this particular niche, the existence of ‘free form’ user reviews, where customers of the advertisers can post comments and feedback pertaining to their ‘experiences’ with the escorts, can significantly impact the level of knowledge imputed to the escort directory operators.  For example, if a user posts that he or she engaged in illegal sexual activity with a provider (whether true or not) this is something that the government might use to demonstrate actual or constructive knowledge of illegal activity by the website operators.  The element of “knowledge” would be key in any criminal prosecution brought against an online escort site.  Absent some level of knowledge that escorts were ‘crossing the line’ into prohibited conduct, an escort directory should be treated the same as any other online advertising venue for a presumptively legal service.  Only when the site operators learn that their advertisers are engaging in such illegal activity, should the concept of criminal liability even be considered.[5]

With the foregoing in mind, what are the danger zones when it comes to “knowledge” that can be associated with criminal culpability?  The answer to that question can only truly be provided by an experienced attorney that is familiar with the specifics of any particular escort site’s business model and operating policies.  But the following issues should be considered when evaluating potential legal exposure associated with an online escort directory:

  1. User Reviews: As noted above, any sort of free form reviews incorporated into an escort’s advertising space can be dangerous.  Initially, the potential for bogus or fraudulent reviews exists, which could confuse readers and provide prosecutors with plenty of evidentiary fodder, even if the information is not truthful.  Moreover, if a user submits an accurate review that includes references to an escort engaging in sex for money, the government would argue that such a review should impute some degree of guilty knowledge on the escort site operator.  Counter-arguments exist, of course, but allowing user reviews to be placed directly on an online escort’s ad is a practice that should be carefully evaluated, if it is permitted at all.
  2. Age Verification: Escort activities are for adults only.  Law enforcement is particularly concerned about exploitation of minors by online escort directories.  Therefore, use of some age verification device for advertisers is essential.  While all escorts may not be willing to provide government-issued ID’s prior to placing an ad, criteria can be developed so that young (or young-looking) advertisers are required to engage in a higher level of age verification than older advertisers.  A wise mixture of online age verification devices,[6] database searches,[7] and ID checks can be important to reduce the legal risks associated with online escort directories.
  3. Ad Approval:
    1. To Review, or Not to Review?  Should escort ads be reviewed and approved by the site operator before publication, after publication, or not at all?  That is a difficult decision that will need to be made after consideration of the interplay of three federal statutes; 47 U.S.C. §230 (“Section 230”), 17 U.S.C. §512 (“the DMCA”), and 18 U.S.C. §2257 (Section 2257).  We call it; the “Trifecta.” These statutes provide potential immunity, safe harbor and records-keeping compliance exemptions (respectively), for certain online service providers, assuming the business operation is set up properly.  While advance review of images and text might be the natural inclination for the diligent webmaster trying to prevent the publication of improper (or illegal) material, such actions could adversely impact the protections afforded to online service providers by federal law.  For example, selecting which images are acceptable for publication in an ad could make the site a ‘producer’ under Section 2257, and thus responsible for keeping records associated with any sexually explicit depictions.  However, failure to review material before publication could result in underage images or other inappropriate material appearing on the site for at least some period of time, thus triggering other legal concerns. Similar concerns apply to the text of the proposed ads. Reviewing ad text is important to identify any advertisers who intend to offer illegal services.  Different policies can be developed for review of images as compared to text, so all options should be explored with counsel.
    2. Approval Criteria.  Assuming that some level of pre-publication review occurs, what criteria should be used?  This is where the ‘rubber meets the road’ for escort directories and their lawyers. Development of a viable set of publication standards is critical for risk mitigation purposes.  Obviously, any ad that states or suggests willingness to trade sex for money should automatically be rejected.  But numerous questions arise concerning where to draw the line in such circumstances.  What if the suggestion is made using little-known slang terms, or is the subject of a subtle hint as opposed to an outright proposal?  The vernacular of the escort industry is constantly changing, so keeping up with a list of ‘banned terms’ can be a full time job.  If the ad is rejected, should the advertiser be permanently banned, as someone willing to engage in illegal activity, or should the advertiser be offered another opportunity to submit a legally-compliant ad?  If the advertiser is banned, what precautions should be implemented to ensure that he or she does not sign up using different contact information, or a different name?  Should the law of the location where the proposed services will be rendered be taken into consideration, or only the law where the escort directory operates?  The answers to all these questions are by no means clear, and much depends on the risk tolerance of the website operator.  But generally, the more efforts that are used to weed out escorts who demonstrate a desire to violate the law, the safer the site will be. 
    3. Vouching.  What about user or advertiser ‘verification’ or ‘vouching’ services?  The Internet has allowed individuals to obtain feedback about potential customers and service providers in all industries, and escorts are no exception.  Customers can make sure that the thin blonde in the ad is really a thin blonde, while escorts can make sure a potential customer is not violent, deceptive or incompatible.  These are all positive developments for both parties, but implementing a verification procedure increases certain risks for the site providing such services.  Any failure of the system might be blamed on the site operator.   This is where online terms of service and disclaimers are essential. Again, one’s risk tolerance must be considered when verification or vouching services are offered.

As referenced above, it is imperative for escort sites to realize the subtle “red flags” when it comes to escort advertisements.  This is a more difficult job than identifying prohibited images.  A visual image that crosses the line, so to speak, is relatively easy to notice even in a stack of digital ads.  Finding one little word that might violate a site’s publishing standards, on the other hand, is completely different and can be extremely arduous.  Detection of unlawful terminology is often considered so important to the legal health of an escort site, some operators have taken to publicizing “banned terms” list as a guideline for their advertisers and have gone so far to generate an even more comprehensive internal list of flagged terms as an added precaution.  Decisions as to what terms to include in public and/or internal lists are difficult, but reasonable policies can be developed and implemented.  

Although ignorance is bliss, the law often doesn’t see it that way.  Defending prostitution or money laundering charges with an “I didn’t know” argument may, in fact, be the truth, but it’s not likely to get you very far with an aggressive prosecutor.  Even though escort services are presumptively legal, escort directory sites should implement reasonable precautions to identify those escorts with a proclivity to violate the law; preferably before an ad is published.

The preventative measures discussed above are far from comprehensive and have only scratched the surface of online escort directory safeguards.  If nothing else is taken away from this post, understand that operating an escort website is not to be undertaken lightly.  Even if you are able to distinguish your current business model from that of sites like Escorts.com or the former adult services category of Craigslist.org, the law in this area remains murky, and concepts of conspiracy, intent, and facilitation are inherently vague.  Nonetheless, these legal concepts are routinely applied to prosecute individuals having only tangential association with criminal activity.  Given the focus on escort classified sites by state and federal authorities in recent years, a comprehensive risk mitigation strategy should be developed for any existing or new operations in this field.   

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@firstamendment.com or www.FirstAmendment.com.



[1] See e.g., Chapter 796, Fla. Stat. (2011).  See, 796.03 – Procuring person under age of 18 for prostitution; 796.035 – Selling or buying of minors into sex trafficking or prostitution; penalties; 796.04 – Forcing, compelling, or coercing another to become a prostitute; 796.045 – Sex trafficking; penalties; 796.05 – Deriving support from the proceeds of prostitution; 796.06 – Renting space to be used for lewdness, assignation, or prostitution; 796.07 – Prohibiting prostitution, etc.; evidence; penalties; definitions; 796.09 – Coercion; civil cause of action; evidence; defenses; attorney’s fees.

[2] See 18 U.S.C. §1952; 18 U.S.C. § 1957(a).

[3] Some cities and counties prohibit nudity in ‘commercial establishments’ but personal residences and hotel rooms would typically be exempted from the purview of such laws.

[4] For example, the vast majority of BDSM companions (such as dominatrixes) categorically refuse to mix actual sexual activity with their professional services, and none is expected by those who engage such companions.

[5] That being said, as shown by the pressure brought to bear against Craigslist and Backpage, knowledge isn’t always a given in these cases.  Law enforcement may also claim that the operators are, in various ways, turning a ‘blind eye’ to ongoing illegal activity by their advertisers.  Thus far, this argument has not been tested in any published court case.

[6] See e.g., www.BirthDateVerifier.com, provided by the author’s law firm.

[7] See e.g., http://www.idology.com.

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