This month's legal update by attorney Lawrence G. Walters, Esq., examines several recent concerns over the legal issues surrounding adult sites. Here's Part 2 of the latest information that you need to know in order to protect yourself and your business...
Federal lawmakers are continuing to wrestle with the Spam issue. The House is currently debating a bill being called "Reduction and Distribution of Spam Act," authored by Representative Richard Burr (R–NC), which may have the best chance of being passed by the full House in light of its political support. Violators could spend up to two years in prison, and ISPs would be allowed to sue for $10 per each email sent to an opted-out recipient, with a cap of $500,000. However, critics are calling the bill "weak," claiming that it would do more to protect mass email advertising than to combat spam. "If I thought that everything that was legal under this bill would end up in my mailbox, I’d jump off the Capitol building," said one Internet industry participant.
Lobbyists representing several direct marketing groups attended some of the meetings relating to the proposed legislation, which may have contributed to the weakening of the bill. Some state Attorneys General claim that the bill is riddled with loopholes, which may prevent the states from enforcing their own, tougher anti-spam laws. For example, the draft bill would provide any company with a "preexisting relationship" with customers the right to send email for up to three years. Anti-spam groups have also criticized the bill. "This is yet another bill . . . attempting to get rid of the porn and the scams, but really clearing the way for legitimate companies to spam," said Joe Mozena, co-founder of the Coalition Against Unsolicited Commercial Email, or CAUSE. It is currently estimated that spam comprises over 40% of all email.
One spammer felt the wrath of Earthlink’s disdain for the practice this month. Howard Carmack, identified as a ringleader of spammers, was hit with a $16.4 million judgment and a permanent injunction in federal court, in a lawsuit brought by Earthlink. A number of similar federal lawsuits are pending against other notorious spammers in an effort to cut down on junk email.
Eye in the Sky
Smile for the camera: Big brother is watching you – without a warrant. High definition satellite imagery is currently available to the government, and anybody else with a credit card. Under existing technology, high resolution images of virtually any coordinates on earth can be obtained through powerful satellite cameras. However, the widespread availability of these images is raising significant privacy concerns. "Do we really want the ability to track everybody all the time, without any suspicion, or without probable cause?" asked Attorney Doug Klunder, in a recent interview. These issues were recently the subject of a Washington Supreme Court case on whether a warrant should be required to track a person’s movements using satellite devices.
A previous United States Supreme Court opinion, authored by conservative Justice Antonin Scalia, indicated that a warrant would be required to observe heat signatures emanating from a home, in connection with a marijuana growing investigation. In the home "all details are intimate details, because the entire area is held safe from prying government eyes," Scalia said in the opinion. Maybe this will create a new niche for adult Websites: SatelliteVoyeurism.com?
In a brave move, the small town of Arcata, California, made it a crime to comply with the USA Patriot Act. The city ordinance would impose a fine of $57 on any City department head who voluntarily complies with investigations or arrests under the Patriot Act. Town officials acknowledge that the law is mostly symbolic, since federal law would trump any local ordinance; however the move has put the small town in the limelight. Critics of the patriot Act claim that it violates civil liberties, however supporters claim that it helps fight terrorism. Perhaps Arcata will start a trend. On the other hand, the Commissioners may just end up in a CIA holding cell for all eternity.
The highly publicized case against James Grady ended in an acquittal recently. Grady was initially arrested on 886 counts of sexually exploiting children through child modeling sites operated in Arapahoe County, Colorado. However, when the trial started, the number was reduced to 39. The jury acquitted Grady of all 39 counts. The charges involved photographs of young girls, some 13 years old, in provocative poses with suggestive clothing, which prosecutors claimed constituted sexual exploitation of a minor. However, Grady had received written permission from the parents of the teens to post the pictures on his Website, trueteenbabes.com. The case is largely seen as precedent-setting for the child modeling industry.
Score One for Acacia
The adult Internet industry is closely following the patent suit brought by Acacia Media over its claimed right to control the use of common video downloading technology over the Internet. Recently, Acacia won the right to use the term "adult entertainment" in describing the alleged infringers. Homegrown Video and New Destiny Media filed a motion asking the judge to remove all references to "adult entertainment," which the movants sought to strike based on fears of prejudice. The judge allowed the descriptions to stand. Several adult Internet companies have come together to fight the patent claims. The group contends that the patent cannot be enforced since the technology had already existed and was being used at the time that the patents were awarded to Acacia.
Censorship Battles Down Under
"Plain silly:" That’s what an adult industry crusader in Australia called Queensland’s pornography laws. The statement was made in Brisbane District Court in a case involving the selling of some banned X-rated films and magazines by a company known as "Good Vibrations." The company was found not guilty of selling the items, but the Office of Fair Trading appealed. The legal arguments focused on the interpretation of the Australian Constitution, as it applies to adult materials. In describing the prohibition on sale of adult materials in certain parts of Australia, the company’s lawyer claimed, "that’s not just unconstitutional, it’s just plain silly." This case may set precedent for another 100 prosecutions, also pending in Queensland. See, the United States is not the only source of "silly" anti-porn laws.
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”