TEMPE, Ariz. — Legal eagles and government regulation aficionados descended on The Phoenix Forum for a “Regulatory Basics” panel, enlightening attendees on the shockwaves that SESTA (H.R. 1865) is sending throughout the biz, not to mention the complexities of age verification (AV) laws and the compliance issues General Data Protection Regulation (GDPR) presents.
Moderated by Stewart Tongue, the panel featured luminaries such as CCBill’s risk and compliance pro Jeff Adams, VeriMe’s very own Rudd Apsey, Corey Silverstein of Silverstein Legal and the director of scientific and regulatory affairs for the Free Speech Coalition (FSC), Ian O’Brian.
Tongue kicked off the session by pointing out that unlike past panels, when there was a single hot button issue facing the industry, now, there is a slew of regulatory hurdles.
Referring to the passage of SESTA (aka SESTA-FOSTA), which purports to protect sex trafficking victims by making prostitution ads a federal crime, but instead endangers sex workers by driving them further into the shadows, Silverstein said, “Basically, we had a pretty rough week. I’ve been talking about this now for eight months and I hate to stand up here and tell you this was coming, but it’s here. We now have a vote and the President will probably sign it into law. I think it’s unconstitutional and it won’t survive a first amendment challenge.”
Despite his confidence in SESTA being challenged successfully, Silverstein cautioned, “If you’re involved with online dating, camming, escorting or anything like that, you guys need to keep your eyes wide open and take a strong look at how you’re doing things. I’ve been on the phone for the past 48 hours with clients, telling them the sky is not falling, but that it’s a serious concern.”
He noted that sex workers do not feel it helps their cause and that it serves as yet another weapon for the government, which will likely push those engaging in illegal acts into a black market. “It’s another terrible moment for us,” he solemnly noted. “Unfortunately, we sat around for way too long.”
Still, he is optimistic that common sense will prevail. “I love being a lawyer and I’ve spent my entire career fighting the government, and this is definitely one of those laws where they went too far. It’s hard for lawmakers to have a microphone stuck in their face and asked, ‘Wait, you don’t support protecting sex workers?’ So, this is the new reality.”
Adams chimed in then, asking if there are characteristics they can communicate to service providers that are being targeted, to which Silverstein replied, “Anything to do with escorting, hiring girls for the exchange of sexual services, anything that even insinuates it. Escort blogs too. Cams is going to be the big question mark. The law could put even cam sites at risk. The problem is, the only way we’re going to be able to fight back is to wait for them to come after someone.”
At this point, Tongue asked what would happen if a studio brings in a girl who is escorting on the side, shoots content with them, but has no knowledge about what they do on their own time. Silverstein bluntly pointed out, “They wanted a hammer to crush anyone they want, so while those kinds of situations won’t be the first on their list, you never know.”
The tricky part about it is what “knowingly” means from a legal standpoint, as far as whether a company knowingly facilitates such exchanges of sexual services in any capacity. Silverstein says “knowingly” ultimately refers to someone having intent. “But what’s scary is companies like billers or an ISP, who are not looking over what every single one of their customers is doing, are not knowingly allowing it," he said. "If you’re hosting a blog that happens to have escort ads, or an affiliate runs an escort site and sends you traffic based on escorting, that’s where you might be indirectly tied to it.”
Adams then asked, “What about jurisdiction? Visa policy specifically requires that services are legal in the jurisdiction. As a service provider, if we have an E.U. merchant, are we liable for that merchant?”
Arguably, Silverstein stated, “They could go after billers, but you’re low on the totem pole. We have to see where this goes. The government will use this, pick someone and whoever that is, will have the backing of the Electronic Frontier Foundation. They have a lot of support and money. Someone is going to challenge this. I see first amendment and 14th amendment issues.”
The panel soon shifted to age verification compliance, with Apsey offering, “In terms of the AV side of things, we’ve been on a long, long journey. I’m proud of my country, that they allowed the adult industry to talk with them. The way the British government was going to control adult, was to control the credit card. So one of our questions was, ‘What about free sites?’ And the regulators asked, ‘What free sites?’ We got to this watershed moment, and this is what was quite big. The principle was, in the U.K., the hardest material that you can acquire in an offline environment, was an R18 certified DVD.”
These DVDs, he explained, could only be sold through a licensed sex shop. But, DVDs could not contain anything to do with public sex, urination, scat or “any of that type of stuff.” However, Apsey elucidated, “We are now in a situation where the British government is not interested in what you look at, that’s up to you. The second thing is, anonymity. They don’t care who you are, as long as you’re of legal age. It’s been a long battle and the only thing I can say is, it’s far better to be in the tent, than outside. Don’t go outside their offices with banners. Don’t fight the system. Get in the system. Get them to understand what this world is about.”
Ultimately, AV laws are about “stumble upon,” he underlined, when kids accidentally stumble upon content they are not meant to see. Adams agreed that the motive behind AV “is to protect children from consuming porn.”
Moving the panel along, Tongue asked O’Brian to explain the ramifications of GDPR. “It’s really messy and big,” he answered, “and the biggest takeaway is, if you deal with data from E.U. citizens, talk to a lawyer. The regulation goes into effect May of this year, so you’ve got two months. Basically, the E.U. says that when it comes to companies collecting personally identifying data from users, there are five things to consider.”
The first of these, he delineated, is the “right to be forgotten,” and so advised companies to be prepared to stop collecting data if they are asked to do so by an E.U. citizen. Second, is “informed consent, being explicit, taking out the legalese and making sure people signing up know what data you’re collecting.” Thirdly, is the “right to access data.” More specifically, knowing who has access to data, and “what person you’re collecting data from.”
Then, there is the “right to transferability,” by which an E.U. citizen “can request data you collect on them be transferred to another entity.” Elaborating that there is some flexibility with this, he still recommended speaking with a lawyer. As for the fifth aspect, “the right to rectification,” O’Brain explained that this pertains to the “ability to collect accurate data on a person,” like when marketing profiles assume certain characteristics about a person. “So right now, if Google thinks I’m a 40-year-old lesbian, I can say, ‘Hey Google, stop sending me ads about home loans and in vitro fertilization.”
Expanding upon O’Brian’s summary, Tongue said, “This could be an issue for a site selling rebills, or girls that have content who no longer want their vids up, even if they’ve contractually agreed to have it there.”
Apsey added, “For those of us in the E.U., when you take an Ashley Madison data breach type of event, we have to tell an information commission about that. We can’t bury the fact that, for example, an IT member wandered off with a memory stick.”
Ultimately, no matter what regulations are affecting the present or coming fast on the horizon, panelists advised everyone in the adult biz to stay informed, consult with attorneys, err on the side of compliance and discern when it is wise to fight the government vs. partnering with them to educate lawmakers on the real issues. They all universally praised the FSC for its valiant efforts to raise awareness about SESTA and lobby the government on behalf of the adult biz, for despite the ups and downs of victories and defeats, everyone wins when stakeholders are deeply attuned to the seismic forces of regulations.