Legal Update: June, 2004: 2

Larry Walters
In the conclusion of this month's Adult Industry Update, noted first amendment attorney Larry Walters takes a look at civil liberties, Internet wiretapping, video voyeurism, and other important issues facing adult Webmasters today...

Trading Rights for Security
After the 9-11 terrorist attacks, fear launched the government to take away civil liberties for national security purposes, and Americans appear to be willing to trade their rights for safety. American Enterprise Institute Polling expert Karlyn Bowman said, "Most people don't see a broader threat. People seem to be pretty comfortable with the general state of affairs regarding civil liberties." The average American does not appear to be troubled by civil liberty issues like prisoners rights, and tend to turn a blind eye when it does not involve their personal life. The question concerning how far is too far to intrude on Americans’ civil liberties has been compared to pornography, with the infamous “definition”: maybe you cannot define pornography, but you will know it when you see it. Ken Weinstein of the Hudson Institute said, "Americans react pretty quickly when they think their liberties are being curtailed to any serious degree. The policies of the Bush administration have been fairly well accepted because I don't think they've crossed that barrier where people say, 'Wait a second."'

Internet Wiretap Used in Prosecutions
Twenty-six year old Jason Heath Morgan’s Internet activity – email, photo images exchanged, and chat room conversations – were scrutinized by federal agents for more than three weeks, as Morgan became the first United States individual to have Internet usage monitored for a child pornography investigation under the PROTECT Act. Federal agents are now tracking approximately 1,700 e-mail and chat-room users Morgan contacted in connection with stopping a child-pornography ring. In the past, federal agents had limited ways to catch suspects such as Morgan, besides getting a search warrant. However, the PROTECT Act (“Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today”), which passed in April 2003, gives governmental authorities the ability to wiretap a suspect's computer in order to catch child abusers and Internet pornographers. The surveillance technology consists of a monitoring device attached to a suspect's phone line that tracks the suspects Internet use. Sacramento FBI Agent Ronald Wilczynski stated that with Internet wiretaps, "it doesn't matter who you're dealing with, we're standing over the top of you watching everything that's going on." Morgan pleaded not guilty to charges of child pornography and currently remains in federal custody. The extent to which the government is monitoring citizens’ online activities is not known, since evidence of such intrusive surveillance only comes out in the course of a criminal prosecution. It is fair to say that such electronic searches are sure to become more commonplace as the federal government takes a greater interest in prosecuting Internet-related crimes, such as obscenity violations.

Will Video Voyeurism Be Banned?
On May 19th, the House Judiciary Committee passed a federal ban on “upskirt” photography as well as other forms of video voyeurism such as filming by cellular telephone cameras and so-called mini-cameras. The Senate also has passed this Bill, which defines “improper image” as including the “naked or undergarment-clad genitals, pubic area, buttocks, or female breast,” if it “is depicted in the improper image under circumstances in which that individual has a reasonable expectation of privacy regarding such body part or parts,” in September 2003. If the Bill, written by Senators Mike DeWine (R-Ohio) and Charles Schumer (D-New York), passes the full House and is signed by President Bush, violators of the Bill may be fined and jailed for a year. A time frame for when the Bill will be brought in front of the full House is still unknown. Such public filming prohibitions have been criticized in the past as a potential infringement on freedom of the press or problematic from a security standpoint.

Sex News
Hitwise Inc., a California-based company that tracks Internet activity, says that adult entertainment websites get approximately three times more hits than the top search engines like Google. Additionally, other large categories spotted by Hitwise include "Adult" visited 18.8%, "Entertainment" at 8%, "Business and Finance" at 7.4%, and "Shopping and Classifieds" at 7%. Such statistics may well show up in the upcoming federal obscenity cases to help illustrate the changing community standards and widespread public acceptance of erotica.

In other news, police in Dallas are posting on the Dallas Police Department’s Website pictures of people caught allegedly soliciting acts of prostitution. The Website, which contains these images on the “indecency related offenses” Web page, also posts the hometowns and birth dates of these individuals. The Website got more than 4,100 hits in the first 24 hours the site was active.

Another attempt to stifle sexual activity through public humiliation was made by Pastor Jim Norwood, who started out on a mission to close down local sex shops by photographing customer’s license plates and sending them postcards to attend church, and it turned into him being voted into office as the mayor of Kennedale. Now that he is mayor, Norwood will continue fighting adult oriented businesses through increased regulation. The owners of sexually oriented businesses in Kennedale believe they are being unfairly singled out in the community. Regardless, Norwood will continue his fight against the businesses. As Norwood said, "The battle is not mine. It's the Lord's, and I'm confident that I'm not going to be sued."

Come Visit California – for A Lawsuit
In the recent case of Io Group, Inc. v. Pivotal, Inc., Chief Judge of the United States District Court for the Northern District of California Marilyn Patel ruled that individuals who steal images or movies from producers based in California may be required to defend their activities in California’s courts. The judge held that the intentional tort of copyright infringement can be a basis for determining jurisdiction, especially since the adult industry is mainly located there. In this case, brought a lawsuit against Pivotal, Inc., who was allegedly stealing images from to generate traffic and also allegedly redirecting the images in order to earn affiliate commissions at other websites. Pivotal, in a motion to dismiss, argued that since it was a corporation in North Carolina with no connection to California the California courts did not have jurisdiction over the case. Judge Patel did not agree and stated that “adequately demonstrated that defendants published images belonging to a California company, affecting an industry primarily centered in California, knowing that harm would likely be felt in that state. Construing these facts in a light most favorable to the plaintiff, [Titan] has made a prima facie case that defendants are subject to the personal jurisdiction of this court.” This ruling could mean that infringers across the country are subject to suit in the Golden State of California, as the birthplace of erotica. The parties ultimately settled this case out of court.

Wireless Message Users Beware
Text messagers, e-mail users and Internet instant message users beware, because these wireless messages may be saved on computer servers and used in criminal prosecutions. A spokesman for the Cellular Telecommunications and Internet Association, Travis Larson, said text messaging information such as the sender, the recipient, the content, and the sender’s location may be stored for billing purposes, even after the user has deleted the messages. Now, text messages sent only a few hours after the woman who alleges that Kobe Bryant raped her may help determine whether the sex was consensual or whether Bryant is guilty of rape as charged. This case seems to be the first high-profile United States criminal case where text messages sent between cell phones could be entered into evidence. Many criminal cases in Europe and Asia have been determined on text messaging conversations. Jeff Kagan, an independent telecommunications analyst in Atlanta, said, "I think in these days of corporate fraud and in these days of terrorism we're seeing more and more reason to store forever. Don't ever say anything on e-mail or text messaging that you don't want to come back and bite you."

Say What?
Shaukat Ali Afsar, a cab driver in England, was fined for illegally picking up two undercover police officers in his private car for hire car and showing them hardcore pornography on his in-cab DVD player. The cab driver did not know they were undercover police officers on a sting operation to stop private hire cars from picking up passengers at a rail station.

The policemen thought they had caught the driver for illegally picking up passengers, but were stunned to see pornography on their ride. The cabbie pleaded guilty to showing indecent material, driving while being distracted by a television screen, picking up passengers at an illegal area, and driving with invalid insurance.

One final news item of interest: LL Media, a Danish IT business, as a perk gives its employees free subscriptions to Internet pornography websites. The company initiated this policy in order to stop workers from looking at pornography while at work. Levi Nielson, director of LL Media, stated, "We know that 80 per cent of all hits on the Internet are on porn sites. And we can see that people also surf porn pages during work." Nielsen hopes this perk makes employees more efficient and relaxed while at work.

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, or AOL Screen Name: "Webattorney."

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