The PROTECT IP Act – Warning: This Bill May Cause Seizures

If a lawmaker were to mix the overzealous propaganda of the USA Patriot Act with the overreaching executive authority of COICA, the new PROTECT IP Act would probably be the result. This new version of COICA, chock full o’ censorship issues, but with a shiny new name was recently introduced to Congress. Say hello to the “Preventing Real Online Threats to Economic Creativity & Theft of Intellectual Property” (PROTECT IP) Act.
Had it not stalled after its committee approval last year, COICA would have allowed federal authorities to seize domain names of sites using infringing content and require ISPs to cut off user access to the rogue sites. Well, the PROTECT IP Act raises the stakes a bit. The Act seeks to set up as system whereby the government, or private parties, can file suit against domain names that are tied to websites allegedly dedicated to infringing activity, get a preliminary court order based on one-sided evidence, and use that court order to force third party service providers like hosts, registrars, payment processors and others, to effectively shut down the site.
This means that any entity providing services to an allegedly infringing site can be dragged into the suit; even “internet location tools.” That’s right, search engines. Under the proposed legislation, these third parties have every incentive to do the government’s bidding, and even police their customers’ activities, since the Act provides an immunity from claims resulting from actions taken by a service provider against a site where the provider has a “good faith belief” that the site is “dedicated to infringing activities.” Host and billing companies beware; ‘you’re either with us or you’re against us’ in this Bill.
Just like they did last year with COICA, supporters of the Act cite to its “safeguards” in defense of the anticipated backlash. These purported safeguards include the ability of an affected site to “petition the court to suspend or vacate the order” in question. As you might guess, the “safeguards” are implemented after the feds get the ball rolling and the involved service providers have already been forced to discontinue services or access to the site. In other words, censor first, ask questions later…
Equally disturbing is the Act’s “private right of action” provided to IP owners. Rights holders, along with the government, will have the ability to pursue legal action against websites that are allegedly infringing on their IP rights and other affiliated third party intermediaries such as a payment processor or “online advertising network.” The import of this provision cannot be understated. The obligations imposed on service providers could change dramatically if they face being dragged into private lawsuits based on their customers’ activities. As the Electronic Frontier Foundation accurately pointed out, “Consider whether Viacom would have bothered to bring a copyright infringement action against YouTube—with the attendant challenges of arguing around the DMCA safe harbors—had it had this cause of action in its arsenal. The act includes language that says it’s not intended to ‘enlarge or diminish’ the DMCA’s safe harbor limitations on liability, but make no mistake: rights holders will argue that safe harbor qualification is simply immaterial if a site is deemed to be dedicated to infringement.”
The one benefit offered by the PROTECT IP Act is a new, narrower definition of proscribed websites characterized with the infamous phrase of “dedicated to infringing activities.” The previous definition used in COICA was overly vague to the extent that it would have likely put legitimate websites at risk of violation. That definition, although admittedly much more lenient than its predecessor, is only a slight concession in the grand scheme of things.
Of greatest concern, from a First Amendment perspective, is the increased likelihood of pretrial seizure of domain names that are alleged to be in violation of the Act. Registrars, or even registries, are likely included in the category of service providers subject to the new Bill. Shutting down an entire venue of communication based on a preliminary finding that it is dedicated to infringing activities, before a trial or other judicial determination on the merits, runs counter to all Free Speech principles. That’s why the government cannot shut down a bookstore just because a clerk gets arrested for selling an allegedly obscene book. However, the concept of the government seizing domain names, the same domains that are home to constitutionally protected speech, and that seizure occurring before any defenses are heard, reeks suspiciously of what we constitutional lawyers call “prior restraint.” That, simply, is not allowed.
This disturbing trend of seizing domain names made headlines just a few weeks ago in what has come to be known in online gaming circles as ”Black Friday.” On April 15, 2011, the United States DOJ issued an indictment, and filed a civil suit against the three largest online poker sites in the world; Poker Stars, Full Tilt Poker and Absolute Poker. As a result, the .com domain names for each of the sites were seized for ultimate forfeiture to the government, as alleged instrumentalities of the “crime.” What crime? Well, since Internet poker is technically not against any federal law, the DOJ dug up some New York misdemeanor statutes which generally prohibit gambling and related promotional activities as the purported basis for the gambling charges, and the multimillion dollar seizures of domain names and bank accounts. But the applicability of this state statute to licensed foreign gaming activities is questionable at best. Regrettably, however, due to some accompanying bank fraud charges, it is unclear whether or not this case will determine once and for if online poker illegal. Regardless of the ultimate outcome, the DOJ has made clear that it will seize any domain name – at the registry level – that it deems to be used in the violation of U.S. law – even if operated from overseas, in full compliance with the host country’s laws.
Granted, the online gaming industry is no stranger to cyber seizures; Kentucky v. 141 Internet Domain Names has been making its way through the court system for almost three years. In this case, the state of Kentucky demanded that various registrars surrender domain names of sites acting as “gambling devices.” There, the state obtained a pretrial seizure order for the domain names, and emailed the order to the sites’ registrars. Some of the domestic registrars complied, but most of the foreign registrars ignored the court order, as coming from an improper jurisdiction. The key distinction between the Kentucky case, and the recent federal online poker domain seizures, is the level at which the domains were seized. On Black Friday the feds double jumped over the registrars, which were all outside the U.S., and went right to the .com registry to enforce its pretrial seizure order. And since all .com domain names are controlled by a U.S.-based registry, there was no jurisdictional issue to worry about.
A few domains have already been seized, under existing intellectual property laws. In November of 2010, the feds seized a number of domain names on grounds of copyright infringement and counterfeiting. As this post goes to publication, it appears that the DOJ has seized another handful of online gambling domains. The government even created its own undercover payment processor to get the sites to sign up. So the trend shows no sign of letting up.
There is no denying the detrimental impact that piracy is having on the adult industry. Copyright infringement should be punished, consistent with due process principles. But the idea of allowing the government to shut down websites by seizing their .com domain names, based on one-sided hearings and allegations of infringement or counterfeiting – without consideration of the merits or defenses, sets a dangerous constitutional precedent. Simply substitute “obscene” for “infringing” and you get the picture.

She Was How Old? – The Current Dangers of Accidental Involvement of Minors in Erotic Imagery

Protecting minors from involvement in adult entertainment is a common theme in politics and law. Each year we see numerous new bills introduced at the state and federal levels, creating stricter punishments for any form of child pornography. Of course, those in the adult industry do have varying degrees of responsibility when it comes to minors – at least legally. But where does it end? When is enough, enough? More specifically, what can content producers do to make sure they don’t wake up one day facing charges involving sexual exploitation of a minor? Unfortunately, the answer to that question is becoming more complicated.
Accidentally involving minors in adult material is a very real and serious threat to content producers. Given the increasing incidence of identity theft, the possibility of a producer being presented with fake licenses, birth certificates and even social security numbers is more prevalent than ever before. User generated content, without any associated 2257 records, is circulating around adult websites at a rampant pace. The age of some of these ‘models’ is simply unknown. Some of this material may depict some random guy’s underage ex-girlfriend. Such content is a ticking time bomb waiting to explode.
So what is a legitimate adult content producer to do? Obviously, the more thorough and structured your age verification procedure, the better – but the most in-depth background check won’t necessarily get you out of hot water. Even following systematic 2257 age verification protocol may not avoid criminal charges, or ensure victory if criminal charges result from underage material. You won’t get anywhere with defenses like ‘consent’ or ‘misrepresentation’ – when a minor is involved in adult content, welcome to the land of strict liability. And even if you can surpass the threat of criminal prosecution unscathed, there’s still the prospect of getting hit where it really hurts – your wallet.
Federal law defines ”child pornography” as the “visual depiction of a minor engaged in sexually explicit conduct.” And for those who believe they might be flying under the radar because their content is deemed ‘soft core,’ think again. The statute can apply even to the images depicting clothed genitals, in a lascivious manner. If you want to know what ‘lascivious’ means, take a look at the “Dost Factors.” There have been numerous cases of pedophiles being prosecuted under child pornography laws for taking pictures of young girls in skirts at parades, or in tight bathing suits at water parks. Title 18 U.S.C. §§ 2251, 2252 and 2252A make it illegal to produce, sell, traffic in, or possess, child pornographic materials in a way that affects interstate commerce (which includes the Internet). All these crimes carry a hefty prison sentence for anyone found in violation. Despite the severity of their penalties, the sexual exploitation statutes do not specifically require that the prosecution prove the defendant’s knowledge of the minor’s age; effectually making the violation a strict liability offense, regardless of consent or misrepresentation by the minor.
Some good news: The decision in the Supreme Court case US. v. Excitement Video, 513 U.S. 64 (1994), suggests that those who are not directly involved in the production of the adult content may have a defense if they did not know that the model was underage. The defendant in X-Citement, a video store owner, was charged with violating the Protection of Children Against Sexual Exploitation Act after selling and shipping pornographic videos containing an underage adult film star, although he maintained that he had no ‘scienter,’ or knowledge, of the materials containing underage pornographic acts. The Supreme Court determined that the Act’s requirement that the defendant “knowingly” commit a sexual exploitation violation did not violate the First Amendment. The Court decided that since the law could be interpreted in a way that makes it constitutional, that interpretation must be used, therefore finding that the word “knowingly” extended to the age of the model involved in the production. In effect, the Court’s decision instructs that knowledge as to a model’s age is required for most child pornography offenses, even if such a requirement is not specifically written into the relevant law – at least when we’re dealing with so-called ‘secondary producers’ and distributors, as opposed to original producers. This component of scienter is required by the First Amendment since these sexual exploitation statutes separate constitutionally protected images from criminal contraband. The knowledge element, therefore, makes all the difference to secondary producers (e.g. – webmasters) but doesn’t do much to assist the content producers on the front lines (e.g. – photographers, videographers). However, depending on the skill of your lawyer, and your company’s age verification protocols, you may be able to convince a jury to ‘pardon’ your violation through an acquittal, even if a technical offense has occurred.
Scenario: You’re an adult entertainment photographer. You create images that are purchased by and distributed to various adult websites. You have a robust age verification system in place for all of your models and implement that practice to a tee, but one of the models slips through the system with fake identification and turns out to be underage. For argument’s sake, let’s say the stars are aligned, you get the best defense attorney money can buy, the most compassionate prosecutor known to man, a jury that takes note of the inequities in the law, and you make it through the ordeal without federal child pornography charges ruining your name or your business. Sorry, you’re not out of the woods quite yet.
In 2006, 18 U.S.C. § 2255, also known as “Masha’s Law,” was created to provide a civil remedy for a minor to recover damages resulting from his or her injury as a victim of child pornography. The statute allows the minor to bring a cause of action against any person who possessed, distributed, or produced the unlawful material. Notably, bringing a suit under § 2255 does not require that the defendant be criminally convicted of any child pornography violation.
Many states have closely paralleled their ‘harmful to minors’ statutes to the federal laws, and in recent years have taken to amending those statutes to address various levels of civil liability as well. One of the most burdensome sets of child pornography civil liability laws come out of the State of Florida. Section 847.01357 Fla. Stat. (2010), requires a plaintiff to prove that: (1) the minor plaintiff was a victim of a sexual abuse crime; (2) a portion of the sexual abuse crime was used in the production of child pornography; and (3) the plaintiff suffered personal or psychological injury as a result of the production, promotion, or possession of such materials. Given the tremendous degree of subjectivity encompassed within the realm of a “personal or psychological injury,” it often proves difficult for a defendant to dispute the applicability of this statute. If a Florida court believes that a minor has participated in the creation of adult materials, regardless of his or her willful misrepresentation of age, the act is considered “child pornography.” Therefore, a § 847.01357 violation is likely imminent, as “child exploitation” is purportedly a strict liability crime and lack of knowledge of the victim’s age is not recognized as a defense. Many state courts are protective of minors and tend to ‘throw the book’ at adults who engage in sexual activity with minors, even if the minor consents or produces a fake ID. Juries don’t like child pornographers much either – regardless of the circumstances. It is this type of ‘compelling interest’ in defending children from sexual activity and exploitation that fosters the protective mentality that warrants a court finding injury to a minor based on his or her involvement in adult content, despite consent or intentional misrepresentation of age, since the minor is deemed too young or immature to know any better.
One recommendation for websites operating as ‘service providers’ such as escort directories, forums, and other user generated content sites: Consider registering as an online service provider under the child pornography reporting laws. Title 18 U.S.C. 2258A outlines the process and the requirements for reporting and registration. While not a bulletproof shield against liability, it does help show that you are trying to cooperate in the effort to stem the distribution of child pornography, and may trigger certain legal immunities enjoyed by service providers.
The heightened attention on child pornography production in recent years, coupled with several states passing aforementioned civil liability statutes, makes continued litigation in this arena a virtual certainty. Minors eventually become adults, and learn that they may be able to financially benefit from any involvement they may have had in erotic imagery, when they were underage. Several content producers have recently learned the hard way about the unforgiving nature of these civil liability statutes. The current legal environment warrants an intensive re-evaluation of any adult company’s age verification procedures, in consultation with their attorney. Given the serious criminal and civil consequences resulting from producing any underage material, adult content producers are cautioned to be vigilant in every sense when it comes to age verification, as this is definitely a case where ignorance is not bliss.