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The Feds They Are A' Coming...

The Feds They Are A' Coming...
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May 8, 2004 2:45 PM PDT    Text size: 
At the legal seminar held as part of Webmaster Access' Atlanta 2004 show, noted first amendment attorney J.D. Obenberger entertained, educated -- and sometimes alarmed -- the audience with his outline of the past, and possible future direction, of obscenity prosecutions in America:

J.D., an experienced and charismatic orator, began his monologue by saying "The adult Web is vastly hated -- and loved -- by the vast majority of America..." and then continued to build upon his theme of how the public's, and prosecutor's, views of porn, are "Two worlds in conflict..."

Using the Department of Justice's recent hiring of veteran obscenity prosecutor Bruce Taylor (possibly as a recruiter of like-minded prosecutors and investigators) as an example of this conflict, Obenberger cited Taylor's view of adult material as simply "crimes that have not yet been prosecuted," and contrasted it with the American public's view, by noting "Porn's popularity is not evidence of a crime being committed, but of community tolerance," as evidenced by the plethora of programming available via print, cable, and satellite outlets, as well as through the World Wide Web.

J.D. backtracked with a brief history of obscenity prosecution under the Clinton administration, and Janet Reno's tenure as head of the Department of Justice, and compared that climate to the current (and very different one) in place under the Bush administration, with John Ashcroft at the helm of the DOJ. Ashcroft, seen as a "true believer" determined to impose his conservative Christian morality on all types of media, is under pressure both from an administration seeking election year support, and from several "grass roots efforts" by organizations such as obscenitycrimes.org -- a Website developed to facilitate reporting of "obscene material" to federal authorities, and determined to follow up on reported sites to ensure their operator's prosecution. Congress is also squeezing the Attorney General by demanding a report on the number of 18 USC 2257 inspections and prosecutions.

Despite this pressure -- and the certain wave of prosecutions headed our way -- Obenberger contends that "We've already won, and they just don't know it yet..." After outlining many of the factors that led him to this conclusion (and acknowledging that some will lose their money, and others, their freedom, before this fight is over), J.D. went on to say that "the real enemy isn't John Ashcroft, it's the guy sitting in the chair next to you..." especially if he's a spammer.

"Spammers urinate in the well we all drink from!" J.D. exclaimed, describing the ways in which adult Webmasters themselves, can be the industry's own worst enemy.

The issue of 2257 compliance was discussed on many levels, with the attorney expressing his views on the various nuances of the legislation, as well as the practical mechanics of compliance, including the wisdom of maintaining multiple copies of all required documents in separate, off-site locations to ensure continued compliance in the event of an investigative seizure of the originals. The audience was then asked to join hands and recite "The Obenberger Pledge" which states "We will not buy or otherwise acquire content without full paper records."

While bemoaning a lack of "bright line rules," J.D. also discussed the March, 2004 US Attorney's Bulletin which features an outline of ways in which prosecutors may pursue cases. The upshot of J.D.'s complex explanation of DOJ thinking is that Websites which also ship videos are at a greatly increased risk due to an attempted Justice Department end-run around a "national community standards debate" along with the potentially unfavorable precedent that such a case might set.

In the end, the message was clear: these are increasingly dangerous times to be an adult Webmaster, but careful operators can still abide by the rules (as they exist) and run legitimate -- and safe -- businesses.

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