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A View From Capitol Hill

Stephen Yagielowicz
On Jan. 19, the Senate Commerce Committee took a look at the issue of Internet pornography in a session titled "Protecting Children on the Internet." Chairman Ted Stevens, R-Alaska, and co-Chairman Daniel Inouye, D-Hawaii, along with witnesses from the FBI, the Justice Department, America Online and the adult entertainment industry, among others, participated in the discussion.

I watched the televised session on C-SPAN, hoping for a rare insight into the current thought processes of our nation's legislators — as well as insight into what is being fed to them by so-called "experts" whose impartiality may be rightfully seen as suspect.

As expected, witnesses who are critical of the industry made no distinction between the legitimate players in online adult entertainment and the criminal producers of illegal images depicting child sexual abuse, or with the depraved acts of pedophiles and online predators. In the closed, impassioned minds of our enemies, we are all one and the same — make no mistake about it.

While Arkansas Democrat Sen. Blanche Lincoln acknowledged that parents are the frontline defense in preventing children from accessing adult or other potentially harmful materials online, she emphasized that parents can't do it alone, especially when so-called "typo-squatters" and other malicious users market adult materials through misspellings of legitimate domain names; or in the examples Lincoln cited, use "Whitehouse.com" as a porn site.

Lincoln also cited a report claiming that 12- to 17-year-olds are the largest group of Internet porn consumers, using this "evidence" to call for responsible vendors to implement age verification controls and to take steps to improve filtering technology.

In this regard, Lincoln is right about the need to curtail those who use child-centric or purposefully misleading marketing for adult materials, and while I support improvements in filtering technology and the use of age-verification systems, I question the validity of the "12- to 17-year-olds" claim — surely those children aren't allowed to have credit cards.

Of course, all of those kids could have been surfing free porn on a TGP, so they wouldn't have needed a credit card. And therein lies the rub: Even on our best days, there's more than enough abuse of good taste and common sense in the ways in which this industry markets itself that ordinary Americans — not just ideologically driven zealots on a mission - have valid reasons to say "enough is enough."

Bill Margold had it right, when in a recent XBiz article he was quoted as saying, "I think that society is sick and tired of what we are vomiting upon them, and I think they would like us to tone it down, so to speak." And make no mistake about it: Congress hears what society has to say.

A 25% Online Porn Tax
Falsely equating legitimate adult entertainment providers to criminal child pornographers, and demanding that "those who profit from porn pay for the negative repercussions of it," Lincoln briefly outlined her plan for an "Internet Safety and Child Protection Trust Fund" — a fund to be financed by a 25 percent online porn tax.

Such a tax scheme is equivalent to imposing a 25 percent surcharge on bottled water distributors in order to offset Hurricane Katrina relief expenses – after all, if you profit from water, you should "pay for the negative repercussions of it" – or so Lincoln's sense of logic would dictate. Sadly, Lincoln's proposal seems to enjoy widespread support.

New Jersey Democrat Sen. Frank Lautenberg decried statistics indicating that there are some 260 million porn sites on the Internet, exclaiming, "[that's] almost one for every person in the country," before pointing to an estimated 100,000 sites devoted to illegal child pornography.

In the face of such staggering — and uncontested — numbers alone, it is easy for opponents of adult entertainment to demonstrate the "need" for congressional regulatory action, including the mandatory filtering of public computers and the aggressive prosecution of obscenity and Can-Spam violations.

Florida Democrat Bill Nelson questioned the reasons for the apparent ineffectiveness of filtering systems and commented that porn's bad effects are multiplied by the spam and spyware widely used to market it, calling these unsolicited advertising methods "evil and insidious attacks on our children."

Arkansas Democrat Sen. Mark Pryor agreed, suggesting that "Congress needs to do something about this to make the Internet a safer place."

Republican Sen. George Allen of Virginia added that "spyware and spam mixed with pornography spoil our enjoyment of the Internet," and he focused on positive solutions to these problems, discussing how the filters his family had installed worked well and calling for adult publishers to make use of existing technologies such as ICRA tags to prevent minors from accessing potentially harmful materials. Allen also suggested that one powerful solution to the problem of illegal child pornography is to directly attack the providers who facilitate payments for these operations.

If you look at what lawmakers are now focused on — obscenity, spam, spyware and minors either accessing or involved in the production of pornography — you can easily see what needs to be done to mitigate the calls for legislation, as well as the likelihood of prosecution: Keep the kids out, don't spam or use spyware, and don't publish obscene material on a website. That's a short list that leaves plenty of opportunities, limited only by the imagination.

Don't wait for "an industry response," however, take personal action across all of the websites you control — and by doing your part you can help ensure your ongoing ability to do business without the burden of additional restrictive legislation.

Expert Testimony
Once the senators finished their opening remarks, a panel of invited guests was called to deliver expert testimony on a variety of related issues.

First up was FBI Deputy Assistant Director of the Criminal Investigative Division James Burrus, who discussed how the bureau is targeting child pornographers but also aggressively pursuing adult obscenity prosecutions, having opened 52 such cases when the task force was launched in 2004.

Burrus, clearly not a fan of adult expression, passionately described the related horrors of Internet pornography, online predators and the criminal sexual abuse of children, telling the story of a 13-year-old girl who was lured from a chat room by a pedophile who turned her into "a sex slave" — posting nude images of the girl on the Internet chained to a bed and wearing a dog collar.

This testimony showed a single-minded belief that whether you're a name-brand adult production or media company, a working guy submitting galleries on the weekend or a guy in a trench coat hanging around the playground, there's no room in society for you — and we're all perceived as being the same: no "good" guys, only bad ones.

Deputy Assistant Attorney General for the Criminal Division Laura Parsky gave a more realistic assessment of the problem, saying that "child pornography" doesn't effectively convey what's going on; "images of child sexual abuse" is more accurate."

I thought her distinction was valuable. But since "child pornography" is much easier to say (and more headline-friendly) than "images of child sexual abuse," the legitimate players in the "pornography" trade will always be referred to, if not seen, in the same tainted light as the criminals involved in child abuse.

Parsky also discussed the Hi-Tech Investigative Unit (HTIU), a division of CEOS that is actively pursuing investigations, the 445 percent increase of CEOs, cases initiated over the past four years and the Obscenity Prosecution Task Force, established last year, which is now examining non-child pornography (read: "mainstream adult") websites in context of the Miller test in order to identify potential targets for obscenity prosecutions.

When asked if current legislation was adequate to address today's child pornography and obscenity issues, Burrus commented that the FBI had enough tools to fight it, as well as solid international support in tracking down overseas sources of illegal materials. Parsky, however, wants more tools to fight regular obscenity, opining that 18 USC 2257 needs strengthening, particularly in requiring secondary producers (read: "webmasters") to be responsible for the material they publish.

Stricter Standards?
Parsky's comments show that regardless of any outcome in the current 2257 battle between the Free Speech Coalition and Justice, the feds are after stricter standards and enforcement tools to be used against "legitimate" adult website operators.

Montana Republican Sen. Conrad Burns commended authorities for monitoring teen chat rooms and pursuing predators — areas that deserve government involvement. He also likened cyberspace to the real world, saying, "The Internet is like a great big town; there's places to go and places not to go." Citing the need for parental responsibility, Burns added that the solution to preventing minors from accessing adult materials is "not just about legislation, it's about raising public awareness."

Pryor asked, almost rhetorically, why, when liquor and tobacco sites use age verification, don't porn sites? Pryor then went on to wonder if the proposed .XXX top-level domain would be "a good thing," or if it would just make it easier for kids to find porn?

"The devil is in the details ..." Parsky responded.

Addressing ways to prevent minors from accessing adult materials, Burrus stated that "prevention is the key," describing the "Parents Guide to Internet Safety" brochure and highly effective community presentations designed to educate parents about the dangers of unsupervised online activities. Once again, there's no substitution for good parenting.

James Weaver, a communications and psychology professor at Virginia Tech, commented that there's no one solution to the problem. He characterized the negative impression on youngsters that erotic expression has, saying that "these distorted images are what our teens draw upon" in areas such as self-image and even in sex education.

Weaver also opined that since materials like spam and spyware are used to generate sales of pornography, they should be considered commercial speech and therefore not entitled to 1st Amendment protections — an argument that may extend prosecutorial options. The enormous amount of free porn readily available on the Internet is also of major concern to Weaver, who claimed that free porn encourages the "habit" of porn addiction.

I got the distinct impression from Weaver's demeanor and testimony that he is not a fan of adult entertainment. His references to the pseudo-scientific study of the hypothesis of sexual addiction illustrated the many levels on which our enemies attack our products, as well as the campaign of misinformation widely in use to promote the concept that a normal and healthy enjoyment of sex is somehow a compulsive addiction.

With a focus on the actual people at stake in these issues — children and families — AOL Chief Trust Officer and Senior Vice President Tatiana Platt described the company's 'Parental Controls' and how they help parents to take control of the material their children are exposed to online.

"Kids need special protections in this ever-evolving medium," Platt said. "No law, no technology, no corporate initiative can take the place of an informed and responsible parent. There is no substitute for parental involvement."

Underscoring the fact that Internet dangers are not limited to chat rooms and web pages, Platt said that "email is the No. 1 tool that pornographers use to spread their filth." Again, Platt's use of the word "filth" demonstrates a personal bias in her testimony.

As for setting any bright-line definition of what "pornography" is, Executive Director of the Internet Education Foundation Tim Lordan offered that, "A parent doesn't care: whatever they think is objectionable is 'pornography' to them." Lordan also noted a sharp increase in parents using filters and becoming savvy about Internet technology.

Cambria, Senators
In a precedent-setting appearance, adult entertainment representative and noted attorney Paul Cambria, general counsel of the Adult Freedom Foundation, addressed the senators, telling them that "lawful adult expression is accepted by mainstream America."

Cambria then cited several statistics surrounding the size of the multi-billion-dollar adult industry and the fact that a large percentage of American hotel rooms as well as cable and satellite systems all offer adult entertainment — and do so because of an overwhelming public demand for this material.

Cambria also suggested that an industry self-rating system could dovetail with filtering processes to block adult materials without unlawfully censoring the flow of information to adults who want this material.

Congress, however, has heard enough testimony of the efficacy of filtering systems to realize that they are at best an imperfect solution. Sen. Stevens addressed Cambria on the issue of the adult industry self-rating its content, saying "Advise your clients to do it now, because if they don't, we'll mandate that they do."

In my opinion, this is where Cambria dropped the ball. A more conciliatory approach, mentioning the voluntary use of ICRA rating tags by responsible adult website operators and the willingness of many players to "do their part" would have made a much more favorable impression on those senators who are willing to give the industry a chance to clean itself up than did the "Fuck you, we have the 1st Amendment" message that I felt Cambria sometimes delivered — no matter how nicely he put it.

Of course, the noted attorney has experience in these matters and better understands the realities of the last-minute politicking that led to his invitation. Still, I'm damn glad that, finally, someone from our side got to speak, and I'm grateful to the senators for allowing it to happen. It's true — the right of free speech doesn't only extend to "polite society."

Turning back to the subject of filtering and parental involvement, Stevens summed up the challenges by stating that "90 percent of kids in the sixth grade are computer-literate and their parent's aren't." His words underscored the need for more than parental discipline.

"We need to treat this as a public health crisis," Weaver offered, emphasizing the need to get the word out that "using pornography, like smoking or drinking and driving, is not a socially acceptable behavior."

Again, using the word "using" in context of pornography is a means of reinforcing the myth of "sexual addiction" and attempting to turn the pursuit of pleasure into a pandemic requiring public policy.

Weaver also called into question the effectiveness of any efforts at organizing industry self-regulation, using the metaphor of "moonshiners" as an example, which he illustrated by saying that while you might have legitimate companies that sell licensed liquors, pay taxes and obey the law, you will always — especially in times of prohibition — have those companies that don't feel the need to operate within the law or that operate outside of the jurisdiction of the law, a point underscored by Lordan who quoted a recent statistic showing that 75 percent of free pornography originates from outside of the U.S.

The .XXX vs. .kids debate also received some attention, with Allen stating that .kids has no support despite being a better strategy than .XXX. Cambria added that .XXX wouldn't work because the U.S. could not impose it on the rest of the world.

Cambria also countered Weaver's earlier assertion that some forms of adult expression could be considered commercial and thus not entitled to 1st Amendment protections, saying that this was only the case if the expressions were fraudulent.

Pryor admonished Cambria – and through him, the online adult industry as a whole – by sternly saying, "If you don't clean up your act, we will!" And with this scolding came a message loud and clear: "Time's up." Things are going to change whether we like it or not, but we have an opportunity to influence what changes and how, if we're smart enough to take it — and doing so will require that we learn how to "herd cats."

Reality Break
Inouye summed up the many challenges facing lawmakers who do not want to be forced into taking action to regulate online content by citing the results of a recent poll that revealed that while 70 percent of parents are concerned about pornography, that same 70 percent of respondents did not want the government involved.

And this is where you need to pay attention: Politicians know what the people want — and the people want their porn. Having said that, politicians are not blind to the organized and vocal opposition to pornography as well as the increasing demand that something be done "to protect the kids." As such, if they have a way out, we have a way out, and the only way that will work is personal responsibility and industry self-regulation.

While a description of the actions that responsible webmasters should take — and those that they should avoid — is well beyond the scope of this article, the value of these actions should not be discounted. Doing your part to protect yourself personally, as well as to protect your livelihood, is not only good business, it's also the right thing to do.

Over the course of this hearing, the senators heard — and echoed — the clear message that something needs to be done about obscenity, spam, spyware, children's access to adult material and their involvement in its creation. The only thing that remains to be seen is who will do something about these issues and what that something will be.

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