Legal Update Pinpoints Issues

Gretchen Gallen
LAS VEGAS, Nevada – Nearing the finale of Internext, the ‘Legal Update’ seminar delivered a straight and sobering message to the crowd of attendees. However, unlike previous years when the room was packed with webmasters eager to learn of new and old laws threatening their industry, the seminar was only filled to around 60 percent capacity.

The panel featured four of the most prominent and prolific attorneys in the adult industry, including the venerable Clyde DeWitt, of Weston, Garrou & DeWitt; J.D Obenberger, a defense specialist in obscenity and child pornography cases; Greg Piccionelli, an intellectual property and entertainment lawyer; Roger W. Wilcox, of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria; and moderator Frederick Lane, author, legal advisor, and one of the founders of SexBiz Legal Seminars.

Greg Piccionelli opened the seminar by stating that one of the big hurdles facing the online adult world is prosecution.

“Unlike all other periods of prosecution, adult prosecution will be considerably easier because it is easier to track,” said Piccionelli, referring to a site called Archive.org where just about any online paper trail can be accessed by an outsider, the federal government, or any entity trying to access private information on adult companies.

Piccionelli named Acacia, spam wars, and 2257 compliance as some of the hottest issues facing webmasters. Additionally, the issue of contributory and vicarious liability is another hot topic on Piccionelli’s hit list for adult webmasters, given the amount of cross-traffic that occurs through affiliate programs.

Piccionelli stated that if a webmaster knowingly facilitates trademark infringement, hacking, spamming, defamation, child porn, and the list goes on, they can be held liable for how and why they connect to sites that are breaking the law.

“If the government is going to throw a wide net over the adult industry, it will be through affiliations between adult sites,” Piccionelli said, adding that webmasters should make haste to determine if they are liable in any way and consult an attorney.

“You guys have been beat about the ears for years now,” said Roger Wilcox. “And year after year, nothing happens.” But according to Wilcox, with the Protect Act in full force there has never been more incentive for adult webmasters to be as meticulous as possible in their business dealings, the content they feature, and the content they share with other sites.

According to Wilcox, under the shield of the Protect Act, the U.S. Government has never had a more powerful tool to put pornographers, in particular child pornographers, out of business. In addition to the Protect Act, the government has never had more task forces and likeminded organizations at its disposal, including Internet Crimes Against Children Task Force, the U.S. Customs Service, the Department of Justice Child Exploitation and Obscenity Unit, and Homeland Security, which can be summoned in cases of child pornography.

Wilcox also added that Attorney General John Ashcroft and a potential second presidential term for George Bush will not bode well for the online adult industry. A second term for Bush could mean an increasingly aggressive crackdown on pornographers and a significant rise in the number of prosecutions, due in part to the recent hiring of 20 additional prosecutors trained specifically in Internet law.

“There is an aim afoot to take down the adult Internet industry a piece at a time,” said J.D. Obenberger, who urged webmasters to avoid featuring explicit material on the homepage of their websites, which will only make certain sites easy targets for potential investigation and prosecution.

According to Wilcox, the Protect Act has increased the penalty for child pornographers and changed the law that pertains to sexual imagery on the Internet in cases that use underage adults or children in visual, digital, or computer-generated images of masturbation, bestiality, or sexually explicit conduct.

“One of the things that constantly bothers me and that I repeatedly see are sites with explicit content on their homepage,” Wilcox said, “Or they have underage models.”

Obenberger started his speech to adult webmasters by asking how many of them had seen the inside of a federal correctional facility.

“It’s my job to keep you out of an orange jumpsuit,” Obenberger said with a touch of humor.

Obenberger’s warning to adult webmasters was to not take for granted that obscenity prosecution against companies like Extreme Associates won’t happen on a more widespread level.

“Don’t marginalize any of this,” Obenberger warned. “Because it could all come to bear for the entire industry.”

Obenberger equated the current state of the adult online industry to a Titantic analogy in which all lawyers representing the adult world see the iceberg approaching with alarming certainty, but fail to issue a warning that prevents an imminent disaster from happening.

The legal sentiment from Clyde DeWitt, a 23-year industry veteran, was a step back from his colleagues insofar as he did not predict that the legal threat for online adult is as immediate and threatening as it might seem, although he warned that Visa could eventually remove itself entirely from the adult entertainment space under the auspice that it cannot sufficiently provide proof of age for adult websites.

Dewitt also predicted that more cases like Extreme Associates will begin to emerge, and lastly that the Can Spam Act will officially spell the end to all companies that continue to use spam as a source of marketing porn.

“No one should walk away from here today expressing any optimism if you are not taking protective measures,” said Wilcox. “How much time do you think Ashcroft will spend on a website that says out front that none of its models are underage and that its 2257 paperwork is all on record? There are a ton of people out there who are not doing that.”