Law of Sex
DMCA Evolution: Forum Solicits Input on Possible Changes to Notice and Takedown Procedures
The Digital Millennium Copyright Act’s (DMCA) “notice and takedown” procedure and the attendant “safe harbor” protections afforded to service providers often spark controversy and debate. Originally designed as a way to balance the interests of copyright holders and online service providers, the DMCA’s 14 year history has demonstrated that well-intended laws can quickly become outdated and misused. Often DMCA notices are sent by, or on behalf of, competitors seeking to damage another party’s business, or by those who do not understand basic “fair use” concepts. On the other hand, DMCA safe harbor can be manipulated and invoked by parties that Congress never intended to protect from copyright infringement liability.
Change is in the air, however, at least for traditional DMCA notice and takedown procedures. Recently, the United States Patent and Trademark Office opened a public forum in pursuit of ideas for improving the notice and takedown process explicated by the DMCA. The forum was to be the first of a series of such, all geared towards the ultimate goal of increased efficiency, as well as continued protection for copyright holders, under the DMCA. The public discussion came after a green paper released in July 2013 by the Department of Commerce’s Internet Policy Task Force examined problems with the current notice and takedown process.
The purpose of the forum, according to Patrick Ross, a USPTO spokesman, was to solicit input to answer the questions raised by rights holders, service providers and the public at large, as addressed in the green paper.
The speakers were from a diverse cross-section of those affected by the DMCA: The Software Alliance, the Computer and Communications Industry Association, the Artists Rights Society, Google and many others.
One of the most common complaints from rights holders, according to the forum, is the inability of small and medium-sized artists or enterprises (SME’s) to keep up with infringement of their work. A proposed solution to this was the encouragement of collective representation for infringement research.
Additionally, one of the main and pressing topics examined at the forum was whether standardization of forms for the notice and takedown procedure would be helpful, both to rights holders and service providers. Overall, many of the participants believed that standard forms for notices seemed a good beginning, but certainly not a good end. The feeling at the forum was that there remained much work to be done. Several of the speakers, both service providers and rights holders, stressed the need to maintain balance in any solution designed to bring more efficiency to the DMCA, so that both sides would find value in the notice and takedown procedures.
Another possible solution discussed was creating “Trusted Submitter” programs, something Google has done, to more efficiently process DMCA notices. More diverse solutions were offered as well, such as the potential creation of a certification mark or badge for Internet search results, to alert consumers which pages were authorized or licensed sites for the particular intellectual property being searched for.
Given the large volume of notices received by most service providers, which often makes responding in a timely fashion difficult and costly, this is a great moment in time to examine better and more efficient methods of protecting copyrights online. The DMCA has been an important tool, for both rights holders and service providers alike, and may need to be updated to continue as such.
As discussed at the forum, it is important to keep in mind the balancing of interests that goes into any intellectual property issues on the Internet. Rights holders must be given a fair and easy way to prevent and police infringement, while online service providers must have an opportunity to efficiently and easily handle incoming notices. Those who abuse the notice and takedown process must also be held accountable.
Byte-Sexual: Recognizing the Evolving Relationships with Our Electronic Devices
Does the virtual assistant on your smartphone just “get you”? For many smart phone users, interacting with a natural speech-recognizing, intelligent, digital assistant - ever-present on their devices - has become a way of life. It was impossible to imagine just a few years ago that we would become a society dependent on our bots, for everything from driving to a place we’ve never been to seeking out the latest movie reviews. Perhaps predictably, some individuals prefer interacting with artificial intelligence over human beings. Others have even developed ‘feelings’ for their digital devices. Yes, there is even a name for such a fetish: mechanophilia.
For the past several years, the popular online dating website Match.com has been defending a lawsuit alleging that the company utilizes fake user profiles in order to encourage real members to renew their subscriptions. The suit also claims that Match does not adequately vet their profiles, and that the site may be filled with hundreds of profiles that are inactive or scams.
The concept of interacting with a ‘bot’ or artificial intelligence is not new. Many of us have clicked a ‘live chat’ help button, only to quickly realize that we were ‘speaking’ with a computer program designed to help resolve our issue before a paid employee was required to spend time figuring it out. But the technology driving modern artificial intelligence like Apple’s Siri is astounding – and only getting better. Soon it may be difficult to discern the difference between live chat with a human being as opposed to a programmed bot. For website users seeking purely online interaction or flirtation, the distinction may be unimportant.
The use of ‘virtual’ or ‘fantasy’ profiles is not new (or unique) to the online dating world, but recently the government has begun to question whether this practice is “fair” or “deceptive.” But is there anything inherently ‘wrong’ with individuals flirting with bots or artificial intelligence? Is it possible that some socially awkward or shy individuals may actually prefer virtual relationships rather than the thought of real human interaction?
Director Spike Jonze recently released his film “Her,” staring Joaquin Phoenix and Scarlett Johansson, about a man who falls in love with his operating system. Eventually, the OS, who goes by “Samantha,” tells the main character, Theodore, that she must leave (along with all the other operating systems). The implication is that the incredible number of relationships she was having with humans became too much for her and that she and the other systems no longer wanted to be among humans.
The question seemingly posed in the film was why any human would choose interaction with a bot over interaction with another human. A more relevant question might be: must we question why?
Many of the online dating websites using virtual profiles do so with full consumer disclosure, including statements on landing pages, in user agreements, and through distinct labels placed on the profiles and any messages they may send. Despite the disclosures, millions of individuals willingly interact with these programs, and apparently enjoy the process. The role of the government in regulating, or even prohibiting, this form of entertainment must be questioned.
This issue has increasingly made headlines. Just this month, a man petitioned the State of Florida to allow him to lawfully wed his laptop computer. In the case of Chris Sevier, the laptop wasn’t exactly his original object: His computer was filled with porn and due to this, he claims he “fell in love” with his computer and began “preferring having sex” with it over living persons. Sevier, in fact, argued that his “love” for his computer should be validly recognized by the court. While an extreme and perhaps humorous example, this case is illustrative of a trend on the horizon that can no longer be ignored: People are developing relationships with their digital devices and programs.
Maitresse Madeline, a fetish webcam model, has also spoken out about this very issue. Earlier this year, a man paid $42,000 for a single webcam session with her. Madeline believes that this exorbitant sum can be explained by the fact that individuals are actually paying for the virtual relationship, not paying in spite of it. According to CNET, Madeline told Kinky.com, "They're often paying for the ambiguity that a Webcam relationship can create and that relationship over Webcam is, essentially, their fetish." Sometimes, it seems, virtual relationships on the Internet are exactly the experience users seek. Madeline went on; "They often want to be whoever they can dream up over the Internet and prefer to only have a relationship online.”
This new world of virtual love has already been alluded to within the confines of the law. Michael Froomkin, a law professor at the University Miami, leads an annual conference called We Robot,” where the goal is simply to get people thinking about the legal implications of a world with robots in it. According to Froomkin, it’s not unusual for technology to get ahead of the law. “You design stuff to make it work and you don’t think a lot about the legal and social consequences,” Froomkin told NPR. “So by the time the lawyers get in the room, the standards are already baked and the stuff is already deployed.”
Froomkin’s point is a valid one and has played out repeatedly, as the law lags behind technology. Although we may be years off from a fully functional, human-like bot with a deeply developed personality like “Samantha,” we do currently live in the world of Siri’s and virtual profiles. The future of bots may not be here just yet, but who’s to judge how humans should be permitted to interact with the bots of their choice? The one aspect that distinguishes humans from bots is free will. As creatures born with free will, should we not have the choice to interact with, and be entertained by, our digital creations?
Censorship by Money: Snuffing Out Adult Entertainment by Denial of Banking Services
Adult film stars are reportedly having their bank accounts systematically closed by JP Morgan Chase bank, for no other reason than their connection with porn. According to industry publications and more directly, tweets from adult film performers, Chase has been busy sending letters to hundreds of performers, arbitrarily closing their accounts with the financial institution. One actress, Teagan Presley, attempted to open another account at Bank of America after her termination at Chase but was immediately denied. Our law firm has received numerous similar stories of account closures or denial of banking services.
This is not the first time financial institutions have targeted the adult industry. Last year, adult performer Chanel Preston reported being denied a loan from City National Bank in Los Angeles due to her status in the adult industry. Earlier that month, industry producer Marc L. Greenberg was also denied a loan from Chase on what the bank called “moral” grounds. Years ago, PayPal turned its back on the adult industry, and refused to process payments for most adult-oriented products and services. More recently, blogs have noted that online payment processors such as Paypal, along with WePay, have ramped up their hostility towards erotica, by shutting down accounts of bloggers involved in merely publishing content of a sexually-oriented nature.
In response to these discriminatory banking activities, a popular Change.org petition has been created, demanding that Chase reverse these decisions. The public pressure on Chase previously caused the bank to reverse its decision on the denial of payment processing services, through its subsidiary, Paymentech, to a condom sales company who challenged the action. The outrage felt by adult industry performers and publishers is certainly justified, but is the activity illegal? Certainly, private banks can do business with whomever they choose, right? That’s partially true, but there’s more to the story. Initially, there are some restrictions imposed on the banking and financial community when it comes to illegal discrimination. For example, banks cannot systematically deny loans and other services to disadvantaged minorities, without running afoul of federal law.
However, the stunning truth is that these account closures appear to be motivated by none other than the U.S. Department of Justice (DOJ), which created a leaked program dubbed “Operation Choke Point” designed to pressure banks into denying service to certain disfavored industries including “pornography.” Vice News notes that megabanks and other financial institutions, like Chase, are responding to this pressure by closing adult performers’ accounts, and denying services to other adult businesses. The banking industry, itself, seems to be uncomfortable with this governmental overarch into the financial sector. American Bankers Association CEO Frank Keating wrote a Wall Street Journal op-ed noting that the banks may have no real say in the issue, since the choices are either to comply or get slammed with a penalty. William Isaac, the former chairman of the FDIC has even called Operation Choke Point “way out of control.”
The government’s efforts in applying thumb screws to federally-regulated banks in order to snuff out erotic businesses engaged in First Amendment-protected entertainment constitutes censorship - pure and simple. Instead of falling into the realm of discretionary private business decisions that would ordinarily be protected from legal liability, denial of banking to adult industry participants at the behest of the DOJ likely violates federal civil rights conspiracy laws, including 42 U.S.C. § 1985. This infrequently-invoked federal statute prohibits two or more individuals (or government actors) from conspiring to deprive a person’s civil rights or equal protection under the law. While the statute has primarily been used in the context of racial discrimination, it could well provide a legal vehicle for claims against banks and others who have conspired with the DOJ to discriminate against adult performers based solely on their participation in erotic expression. This sort of retaliation against citizens for participating in constitutionally-protected activity is intolerable, if not illegal. The idea that our government would use the full force and intimidation of the Department of Justice to pressure banks (who are now largely indebted to the feds for bailing them out in 2008) into terminating customers it finds politically advantageous, represents a new low in governmental censorship.
Restricting the ability to access fundamental banking services can spell disaster for any business, and the DOJ presumably knows this. In fact, the author predicted this sort of governmental interference in the financial system as a means to impose censorship of erotica as far back as 2002, in the article entitled “A Chokehold on the Gatekeepers.” Cut off the ability to move money, and the business dries up.
Far from achieving its perhaps original purpose of curbing money laundering and other illegal activities, Operation Choke Point has become a means for the federal government to use banks to do its own dirty work of censoring adult businesses – something it could not do directly, thanks to the First Amendment. While affected performers and businesses may suffer in the long term, the continued popularity of digital currencies like Bitcoin and Litecoin may prove to be an important alternative for the adult industry to stay in business. Already, it has been reported that the affected businesses are flocking to Bitcoin to avoid the banking problems. While accepting Bitcoin as a payment method has inherent risks, and no one alternative currency is the perfect solution, this is another example of the Internet routing around censorship. So long as creative solutions are considered by the affected industries, the banks will lose some of their ability to control the content of entertainment and free expression.
Isaacs Obscenity Case & Life Without Miller
In a not-so-surprising, albeit disappointing, decision affecting the adult entertainment industry, the 9th Circuit Court of Appeals recently upheld the obscenity conviction of fetish producer, Ira Isaacs. Isaacs was originally charged with violating federal obscenity statutes in 2007, after the distribution of several of his fetish films via U.S. mail. Isaacs’s 2008 trial was placed on hold and eventually resulted in a mistrial, amid judicial controversy. Judge Alex Kozinski, who presided over the obscenity prosecution, recused himself within days of commencing the trial, after it was discovered that the Judge had been maintaining a personal humor website exhibiting sexually explicit images. After another attempt to try the case in 2011 was delayed when prosecutors added more charges, the Isaacs case eventually went to a full trial in March of 2012. For a second time, however, a mistrial was declared after jurors deadlocked on the verdict, 10-2 in favor of the government. The case was tried for a third time in April of 2012, which resulted in conviction and is the basis for the recent appeal.
In general, the Obama administration has been decidedly less interested in obscenity prosecutions than was its Republican predecessor. Since 2009, the administration’s prosecutors have tried only two adult obscenity cases, in contrast to the volumes of obscenity prosecutions that took place under President George W. Bush. Notably, Obama’s Department of Justice has not initiated any of its own obscenity prosecutions, but merely followed through with pending cases initially filed by the prior administration.
Isaacs’ most recent, unsuccessful appeal relied more on procedural due process arguments, as opposed to disputing his guilt of violating obscenity laws. The numerous due process claims were rooted in allegations of uncertainty directly related to the Miller Test; specifically, the concept of "prurient interest" as set out in the first prong of the test. According to the ruling, the District Court adopted a proposed jury instruction defining an “appeal to ‘prurient interest” as “an appeal to a morbid, degrading, and unhealthy interest in sex.” After a question was posed by a juror, the Court revised the instruction to read “morbid, degrading or unhealthy.” Isaacs argued that the change “undermined the credibility of his lawyer,” as the attorney, in closing argument, referred to the original instruction. The District Court rejected this contention, finding that the attorney had in fact used both formulations of the instruction during argument so it was “unclear how the revision might have implied to the jury that Isaacs misled it as to applicable law.” Further, the District Court noted that while Isaacs argued that it was error for the Court to correct the instruction, there was an obligation on the Court to clarify issues for the jury, so that they did not abuse their discretion in doing so.
The 1973 case Miller v. California established the standard that is still used today for what defines obscenity. The Miller test, as it is known, has three essential prongs:
- Whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole appeals to the prurient interest
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value
Miller has been a source of controversy and debate in the adult industry, since its inception. The difficulty with the average juror understanding and applying the inherently vague terms of the Miller test can produce unpredictable results. Unfortunately for Isaacs, the odds were against him from the beginning, given the nature of the content at issue. Scat material has typically been some of the most difficult to defend, and explain to juries who tend to be shocked when exposed to the content. While some fetish material has survived obscenity prosecution, this case resulted in a conviction, and now an affirmance on appeal.
Any time an adult industry participant is convicted of obscenity, discussions ensue regarding the continued viability of the Miller test in today’s world, and whether the industry should support a constitutional challenge to the test. Given the Supreme Court’s repeated validation of the Miller test for obscenity, even in recent years, it is unlikely to be changed any time soon. But even if the Court was inclined to replace the current obscenity test, the question becomes: With what? Outright abandonment of the well-entrenched concept of obscenity laws is an unlikely result of any such case brought to the Supreme Court, despite some of the encouraging language in Justice Scalia’s dissent in Lawrence v. Texas. If the challenge was based on the claim that the Miller test was insufficiently clear for common understanding, one could envision the Court handing down a crystal clear, bright-line prohibition on the depiction of specific sex acts, fetish behavior, or BDSM activity, under the guise of more clearly defining obscenity for adult content producers. In situations like this, it is always wise to reflect on what the parties are really asking for – because they might just get it.
While Miller suffers from its vague concepts and outdated language, it has provided opportunities for creative arguments, and stunning victories. While the test is difficult on defendants, it is equally difficult for prosecutors, who are used to well-defined criminal offenses that are not dependent on notions of societal tolerance or considerations of literary value. Obscenity prosecutions have dwindled to a virtual halt in modern times, and the difficulty in applying the Miller test in today’s society may be partially to thank. The “community standards” element suffers from outdated concepts of unified values and social mores based on geography, which arise from something out of Andy Griffith or Leave it to Beaver. Today, neighbors have more in common with their Facebook friends spread out across the world than they do with their neighbor – most of whom they never met. Fortunately, the decision in U.S. v. Kilbride recognized this inherent weakness of using local community standards, and required juries to apply national standards – at least in online obscenity prosecutions. With tweaks like these, Miller may be more of a benefit than a hindrance to producers of erotic content, as compared to some other bright line test. Certainly, all obscenity laws are forms of censorship, and antithetical to First Amendment values. The Miller test does little to logically separate specific types of content from constitutionally protected speech. However, it may be as good as it gets for the time being, even if it results in the stray, unfortunate conviction.
So what’s next for Ira Isaacs and obscenity prosecutions? Isaacs recently petitioned the 9th Circuit Court of Appeals to rehear his case, with his lawyer arguing, among other things, that the case was not given the “special care that the First Amendment requires.” The likelihood of Isaacs’ petition for rehearing being granted, however, is slim. Assuming it is denied, the chances of the Supreme Court accepting the case are not promising, either. However, should the Court take interest in the case, it would likely be for the sole reason of again affirming the viability of the Miller obscenity test. For Isaacs and his counsel, they have every reason to try, and should not be faulted to doing everything in their power to undo the conviction. But in the off chance that the Supreme Court takes the case, it’s time to buckle up. If the decision results in anything other than a re-affirmance of Miller, things could get dicey.
Perhaps the Isaacs case will be the last federal obscenity prosecution for a while, as the futility of reigning in the human desire for sexual expression begins to set in for the DOJ. But as long as we have laws on the books that permit the government to put people in cages for making movies involving consenting adults, the guardians of liberty must remain ever-vigilant.
Title 18, U.S.C. Section 2257 (“2257”) has long been a thorn in the side of content producers and webmasters in the adult industry, but now, the controversial statute is being utilized in ways never intended by the drafters of the legislation. Purportedly created as an effort designed to prevent the proliferation of child pornography, 2257 has historically been used by the federal government as a tool to enforce producer compliance with its onerous record-keeping and labeling obligations designed to verify the age of models appearing in sexually-explicit imagery. Some records inspections have occurred by the Attorney General’s office, although actual prosecutions under the law have been essentially non-existent. Recently, however, the statute is being adopted by litigants, industry participants, and governmental agencies as a sword wielded against adult businesses, instead of the protective shield it was meant to be.
A little over two years ago, the industry witnessed the first use of 2257 in a copyright battle between two adult businesses in federal court. In a lawsuit filed by Ventura Content, Ltd. (a.k.a. Pink Visual) against the tube site Motherless.com, the former alleged, among other claims, that Motherless failed to maintain performer records as dictated by 2257 and failed to post the mandated disclosure statement on its website. The requested relief? Ventura asked the court to shut down the tube site based, in part, on its failure to comply with 2257.
Although the ability to protect against copyright infringement is an essential goal in the adult industry, insiders using 2257 as a weapon to battle each other in court sets a dangerous and unsettling precedent. The DOJ’s enforcement of 2257 is intimidating enough, but the thought of a litigation strategy designed to shut down adult media for violations of the statute would add a layer of credibility to 2257 that threatens the industry’s challenges to the statute, and is ultimately self-defeating.
Much more recently, in November of 2013, a John Doe defendant asked a court to examine Malibu Media’s 2257 records in order to, essentially, invalidate their copyright infringement claims against him. Doe was accused of illegally torrenting 19 of Malibu Media’s copyright films and in turn, made the claim that if a film is not accompanied by adequate 2257 records, then it may not be validly protected under copyright. The case is currently still pending.
Although Doe’s attorney’s strategy may have been a bit of a long shot (as it would be impossible to know the status of plaintiff’s 2257 records short of inspecting them himself), the point is not necessarily whether these 2257 abuse tactics are working, the concern is that they are being employed at all. While these instances of using 2257 to buttress industry infighting are the most prominent, there have been others and the trend is disturbing.
The abuse of 2257 unfortunately doesn’t stop with adult industry participants and John Doe defendants, however. Recently, unconfirmed reports indicated that Cal/OSHA has been subpoenaing 2257 records for various adult content producers with an insidious and ulterior motive: busting the companies for violating the LA County ordinance colloquially known as Measure B, requiring condom usage in adults scenes shot within the county limits. According to these reports, Cal/OSHA obtained the 2257 records in order to ascertain dates and times of shoots – information that would necessarily be contained in the 2257 records. Thus, the County would be able to confirm whether the producers are complying with Measure B and pulling the required permits. If it finds out they are not, Cal/OSHA can impose heavy fines. CAL/OSHA records do confirm that the companies are being investigated.
It seems as though instead of simply maintaining records to ensure age verification, adult industry producers now need to worry about a slew of ancillary legal concerns relating to their 2257 compliance. Any problems with a producer’s compliance regime could prevent them from enforcing their copyrights or result in an unfair competition claim by a ‘holier than thou’ company who claims perfect compliance. The problem is: there is no perfect compliance. The byzantine regulatory scheme created by Congress and the DOJ poses risks of technical violations for even the most diligent producer. Any effort to give credence to an ill-conceived law like 2257 is, at a minimum, bad karma, and at most a tacit admission of the validity of the law. My humble recommendation; leave 2257 out of the industry infighting, and adopt a cohesive position regarding the unconstitutionality of the burdensome federal statutory abortion we know as 2257.
Witnessing Transformation – Performers into Producers
The beginning of a new year in the adult entertainment industry is always filled with excitement, trade shows, and hopes for success in the year ahead. Now is also the time when the industry tries to identify upcoming trends in production and distribution of erotic content. Fresh in the minds of many performers and producers are the battles over condom laws, and production moratoria resulting from STD outbreaks. This, combined with advances in technology and plummeting DVD sales, has encouraged many performers to explore alternative forms of erotic entertainment to fill the gaps between shoots. Some choose escorting or headlining at strip clubs. But many others have turned to lucrative live webcam performances and custom video-production.
The effect of these erotic alternatives has been to cut out the middlemen; i.e., the talent agencies, producers, and photographers. All that’s required is a webcam, a good broadband connection, and a knack for turning on your target audience. Many webcam platforms and escort advertising networks allow the performer to take control of his or her content production and therefore, directly profit from the work. With a little creativity and work ethic, some performers have found that webcam performances or custom, amateur videos can be even more lucrative than professional porn shoots. The new middleman is the webcam platform provider or the clips sales studio.
Interestingly, as technology fosters a more one-on-one interaction, the tastes of typical erotica consumers have evolved as well. Why lust after the unattainable blonde bombshell, when that webcam performer with the ‘girl next door’ look might actually be the girl next door? The evolution of technology has allowed the performer to create, market, and distribute their material, all the while inviting customers into their reality. The average porn consumer now wants to know things like what their favorite performer had for breakfast, how they get dressed in the morning, and their plans for the evening. Call it a byproduct of a reality TV-obsessed culture, or just living in the age of social networking; all the world’s a stage and performers are more than willing to share the intimate details of their lives with customers. Ten years ago, an autographed DVD might have been a prized possession for a devoted fan. Now, last night’s panties are up for grabs – for the right price. Some performers may even go the extra mile and engage in intimate contact with fans on camera, as a promotional tool. The popularity of this type of interactive sex and performer/fan dynamic was even the focus of HBO’s premiere of SEX/NOW; the network’s reboot of Real Sex.
So what does this mean for the performer now turned producer of his or her own material? Most importantly, all of the legal obligations that used to be handled by the producer, photographer, talent agent or other intermediary now fall squarely on the performer. These legal concerns include Section 2257 records keeping compliance, content clearance, licensing of rights, copyright registration, fair use concerns and trademark issues. Can I show that painting in the background of my cam shot? Will the RIAA come after me if I play music during my cam show? Just because technology allows a seamless transition from performer to producer, does not necessarily mean that the law does the same.
Most cam performers are unaccustomed to dealing with these technical issues and mundane legal obligations – particularly if they have relied on professional producers to handle such matters in the past. In some ways, we’re all in the same boat. Anyone who posts a comment on Facebook, or a review on Amazon, is a worldwide publisher. Anyone who uploads a picture to a blog or forum is a media producer. That power triggers significant legal obligations. Issues like defamation, fair use, and commercial exploitation used to be the exclusive province of powerful media stakeholders like the New York Times or NBC. Now, these issues impact anyone with a smart phone or social networking account. Add on the additional layer of legal regulation imposed on erotic content, and performers can often become overwhelmed with compliance issues. With industry-specific devices and applications expressly designed to simplify the process of production and publication, technology can help ease the burden, but only to an extent. Autonomy requires proactive measures. If performers wish to capitalize on self-production trends and continue forging virtual relationships with their fan base, the keys to success are education and preventative solutions. The performer turned producer must learn to recognize the legal issues before they become legal problems.
Lawrence G. Walters heads up Walters Law Group which has advocated for the adult entertainment industry and Free Speech issues for 25 years. Nothing contained in this post is intended as legal advice.
Unspoken Words: The Chilling Effect of NSA Surveillance Abuses
In early 2012 when the news first went mainstream that the NSA was building its “Spy Center” in Utah, public reaction was much closer to Area 51-esque skepticism than the warranted level of alarm. However, recent events show that we can barely go a week without another accusation of the National Security Agency abusing its mass surveillance powers. Critics are blaming the Feds. The Feds are blaming the realities of the Digital Age. Me? Well, I’m blaming all of us.
‘Mass surveillance’ is the legitimized monitoring and data mining of people, governments, and businesses across the globe by the United States federal government. Ostensibly, its purposes range from furthering domestic intelligence and ensuring national security, to essentially whatever reason the NSA provides on any given day. So when it comes right down to it, mass surveillance means spying. Nothing new, right? Government agencies all over the world have used clandestine surveillance efforts to gather data for decades. So why the hysteria? Two words: the Internet. Per usual, the federal government is exploiting the lag between law and technology to further an allegedly altruistic agenda, while sacrificing basic civil liberties.
A quick and dirty breakdown of pre-Internet, U.S. surveillance policies: Regularly conducted by the FBI and/or CIA, domestic surveillance was typically subject to Fourth Amendment standards requiring a valid warrant. In contrast, overseas surveillance maneuvers were usually performed by the NSA and had very few restrictions. The veritable free-for-all of foreign intelligence operations was likely a result of the extremely covert nature of the surveillance, nonetheless, the NSA’s tactics weren’t questioned. Cut to the new millennium, where that distinct line separating foreign and domestic surveillance policies has been blurred into obscurity by the evolution of electronic communication and transactions. Intelligence data shows that millions of foreign citizens access American-based online services on the regular basis. The intermingling of foreign actors and U.S. citizens is unavoidable as the Internet is globally accessible. Taking advantage of this inevitability, the NSA is trying to have its cake and eat it too. Despite the potential for gross infringement of domestic privacy rights, the NSA maintained that flexibility was a key element in effective mass surveillance, but that Americans’ privacy was not at stake.
As much as we wanted to believe the NSA’s scout’s honor claiming to preserve domestic privacy rights, any benefit of the doubt was obliterated this past June when whistleblower, Edward Snowden became a household name. Snowden, a former NSA employee, took to the press and leaked classified information pertaining to the government’s mass surveillance operations. Snowden’s disclosures detailed the NSA’s tendency towards playing fast and loose with the U.S. Constitution, with certain intelligence programs teetering dangerously close the edge of legality. Within weeks of Snowden’s exposé, dozens of news stories surfaced alleging even more egregious abuses by the NSA’s analysts, ranging from allegedly inadvertent administrative oversights to willful violations for personal gain. As expected, the NSA came to the plate trashing Snowden and pledged to “review” the other allegations for intentional abuses, all the while guaranteeing that “most of the cases didn’t involve communications of Americans.” Suddenly I’m much more hesitant to take their word on that. How about you?
Honestly, I’ve always employed a healthy dose of skepticism when approaching statements and policies issued by the Feds. But all conspiracy theorist tendencies aside, all three branches of the federal government have repeatedly forgone the privacy rights of U.S. citizens in the name of mass surveillance. What’s even more unsettling is that such destructive tactics have obviously been occurring long before Snowden blew the proverbial whistle. For over a decade, federal agencies have executed a slow and steady expansion of their surveillance authority thanks to that legislative gift that keeps on giving: the PATRIOT Act. Each presidential administration since 2001 has exploited the notoriously controversial law to serve their respective political agendas, all under the auspices of ‘If you aren’t doing anything wrong, then don’t worry about it.” Overly invasive NSA surveillance programs like PRISM and XKeyscore undermine the fabric of public discourse, but were the inevitable progeny of knee-jerk reaction legislation like the PATRIOT Act.
The NSA continuing such expansive surveillance on its own people – especially with its current lack of legitimate oversight and public accountability – will undoubtedly result in a self-censorship backlash never experienced in the Information Age. Edward Snowden fled the U.S. as a fugitive and was forced to seek asylum in Russia. Journalists and publications involved in exposing the NSA’s compliance indiscretions are feeling the effects of intimidation tactics by law enforcement across the globe. The chilling effect of simply knowing that the NSA may be logging every key stroke, monitoring every email, and storing every credit card transaction, cannot be understated. Blogs shutting down, social media tightening the leash on user posts, etc. The true victims of NSA overreach are the unwritten books, the discarded film productions, the deleted blog posts. How many words will not be spoken, now that the world is aware of this behemoth information gathering machine? How is the average U.S. citizen supposed to reconcile fundamental American notions of freedom of press and speech with this Orwellian climate of fear? The chilling effect is even more pronounced when erotic speech is at issue, which has lived in the shadow of government censorship since its inception.
What seems to be happening all too frequently lately is the call to the public to rally against censorship at the hands of a supposedly democratic government. We saw it on January 18, 2012 (Internet Freedom Day) during the mass blackout of websites across the Internet in protest of proposed U.S. laws expected to harm online freedom. Will American citizens speak out against NSA spying abuses, and demand real accountability? Stopwatching.Us is a nonpartisan public coalition comprised of dozens of public advocacy organizations, gathered together for the purpose of stopping the chilling effect on free speech occurring at the hands of the NSA. On October 26, the twelve year anniversary of the signing of the PATRIOT Act, the Rally Against Mass Surveillance will occur in Washington D.C. The Stopwatching.Us coalition having already issued a letter to Congress voicing its concerns, is using the rally to call on the federal government to hold the NSA accountable for its questionable surveillance operations and just as importantly, reform the laws that supposedly permit such operations. With over half a million signatures on its petition reflecting the same demands, I’m cautiously optimistic that the anti-censorship lightning might strike twice thanks to the lobbying efforts of Internet freedom advocates like the EFF, ACLU, Public Knowledge, CDT, and many others. That said, a federal agency like the NSA is a force to be reckoned with, but that permanent role as Goliath in a fight to preserve domestic privacy does not place them above the law.
Government operations regulating communication in the Digital Age will always require that delicate balance between privacy, security and freedom. The NSA’s current surveillance operations forego the other two pieces of the puzzle in the name of national security. Sacrificing privacy and freedom, regardless of the reason in doing so, inevitably leads to censorship. The threat of “terrorism” pales in comparison to the threat of a government that has abandoned fundamental principles of due process, privacy, and free expression. The government of the people must decide how much privacy we are willing to sacrifice. The world is watching as Americans decide whether we will remain the home of the brave, or become the government shelter of the weak.
Criminalizing Online Innovation: State Attorneys General Seek to Amend Section 230
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.
Florida Sheriff Continues ‘War on Porn’ and Sets Sights on Backpage
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.
Feminism or Fascism: Iceland’s Stunning Ban on Pornography May Be Spreading
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.”