Woodhull Panel – FOSTA & Internet Censorship

The Woodhull Freedom Foundation is the lead Plaintiff in the lawsuit challenging FOSTA. Its legal challenge started in the spring of 2018, when the organization began to struggle with its online promotion of events involving sex workers at its annual Sexual Freedom Summit. The law broadly prohibits the promotion or facilitation of consensual sex work using the Internet. Facilitation generally means; “to make easier.” Woodhull questioned how it could promote its 2018 Summit events involving sex worker advocacy and harm reduction, or publish the biographies of its sex worker presenters, without running afoul of the new law. Was it promoting sex work, or making sex work easier? FOSTA’s failure to define the words “promote” or “facilitate” or even “prostitution” made it difficult for any reasonable person to know where the line would be drawn. That struggle resulted in the lawsuit challenging FOSTA for violating the First and Fifth Amendments to the Constitution.

Since FOSTA was adopted, countless websites have gone dark and sexual content has been purged from large online platform providers. Sex workers now face increased danger, and law enforcement has lost its access to online information to prosecute traffickers. Woodhull, and the other Plaintiffs, have kept fighting. The appeal of the district court’s decision dismissing the case, based on lack of standing, was heard by the United States Circuit Court, D.C. Circuit, on September 20, 2019. AVN’s take on the Oral Argument can be found here.

Woodhull has continued to conduct its Summit, despite FOSTA. In 2019, it partnered with the Sex Workers Outreach Project (SWOP) in its efforts to support the sex worker community as Woodhull pursues its mission of affirming sexual freedom as a human right. The 2019 Summit included a panel specifically addressing the impacts of FOSTA – both on sex workers specifically, and Internet freedom generally. The panel included Emma Llansó, Director of the Center for Democracy and Technology’s (CDT) Free Expression Project, Ronald London, attorney with Davis Wright Tremaine, and the author, Lawrence Walters, of Walters Law Group.

The panelists are all involved in the fight against FOSTA in some form. CDT has been a staunch advocate for online freedom and helped sound the alarm bells when the FOSTA and SESTA bills were working their way through Congress. London, along with his partner Bob Corn-Revere, are counsel of record in the Woodhull v. United States, along with Walters and attorneys with the Electronic Frontier Foundation (EFF).

The FOSTA panel lasted over 90 minutes and provided a full update on how FOSTA has harmed sex workers, hampered law enforcement, and stifled online innovation. Llansó described how the FOSTA “monster” came to be, and how it dramatically changed existing federal law that provided immunity for interactive computer services which host third party content. Walters and London discussed the status of the lawsuit, and the potential outcomes. Ultimately, the case may be headed for a U.S. Supreme Court appeal.

The panel delved into the numerous myths that fueled the adoption of FOSTA, such as:

Criminalization of prostitution works
All prostitution is sexual slavery
Sex trafficking is fueled by a proliferation of pornography
Decriminalization is harmful

Each of these myths have been debunked by facts, studies, or experiences in other countries that have decriminalized prostitution. The more criminalized sex work is, the more violence and exploitation sex workers face – by police, customers, and others. Consensual sex work is very different activity from sex trafficking, and cannot be effectively treated by one-size-fits-all laws like FOSTA. As discussed during the panel, sex trafficking is not caused by pornography, despite persistent efforts to conflate the concepts. A similar strategy has been used by censors to link illegal child pornography with constitutionally-protected adult media. Jurisdictions that have decriminalized prostitution have seen fewer negative health and safety consequences for sex workers.

The damage already caused by FOSTA highlights the importance of Woodhull’s lawsuit. London pointed out how civil claimants are already arguing that FOSTA allows website operators to be sued for any state law violations that are consistent with FOSTA’s prohibitions. This greatly expands the potential legal exposure facing Internet platforms, and results in more censorship of erotic speech. Fortunately, Woodhull has many allies in its fight. Additional Plaintiffs in the suit include The Internet Archive; Alex Andrews / SWOP Orlando, Human Rights Watch, and Eric Koszyk (a licensed massage therapist who lost his opportunity to advertise on craigslist.org due to FOSTA). Numerous other groups have filed briefs in support of the challenge at the appellate level, including CDT, Reddit, the Free Speech Coalition, Decriminalize Sex Work, the Institute for Free Speech, and the National Coalition for Sexual Freedom. London pointed out that some groups also filed briefs in support of the Government, such as a coalition of individual states. However, their brief actually supported the Plaintiffs’ arguments since they illuminated the credible threat of prosecution by states anxiously awaiting the opportunity to broadly enforce FOSTA against website operators.

The panelists fielded many questions from the audience on how they should operate in a post-FOSTA world, and the potential results of the litigation. Some wanted to know more details about the lawsuit or potential additional challenges to FOSTA. Some were curious about new threats to banking relationships or mandatory age verification. The panelists warned that other bills, modeled after FOSTA, are currently pending which would take away even more protection for online service providers and inhibit speech in other areas. Overall, the well-attended panel offered a realistic assessment of how FOSTA changed the internet for anyone operating in the adult or sex worker industries and provided a beacon of hope for change through the courts.

The full session can be viewed here: https://youtu.be/bJ-j9KJNr0M

Lawrence G. Walters heads up Walters Law Group, www.firstamendment.com. The firm represents clients involved in all aspects of the adult industry. Nothing in this article is intended as legal advice.

Close Up the Internet and Repeal the First Amendment

You know elections are upon us when politicians start talking about wanting to “close up” the Internet, or censor Twitter and Facebook. Throw in a couple terrorist attacks and you have the perfect storm for loss of cherished First Amendment rights.

Donald Trump’s suggestion that America should consider “closing up the Internet in some way to fight Islamic State terrorists in cyberspace” illustrates the danger lurking around the corner for any disfavored speech. In the early days of the Internet, the U.S. government took the lead in attempting to censor ‘indecent’ online communications, by passing the “Communications Decency Act (“CDA”).” Deemed the “Great Internet Sex Panic of 1995,” politicians in that time saw adult websites as a threat to the foundations of society, so they attempted to “close up” that part of the Internet. What remains of the CDA is now often cited as a protection of free speech (i.e., “Section 230”), but the bulk of the legislation, which prohibited indecent Internet content, was struck down by a unanimous Supreme Court in 1997. The Court could spot that blatant censorship attempt a mile away.

Now the Senate is considering legislation that would force social media companies to monitor posts, and report any “terrorist activity” to the government. Sen. Diane Feinstein did some investigating and found that while sites like Facebook, YouTube, and Twitter take down content in response to valid abuse reports, they do not proactively monitor their networks, or report suspected violations to the government. “I think they should,” she said at a recent Judiciary Committee hearing. Of course, the entire legal premise on which most online service providers operate is that they are not required to monitor the content of third party posts, or scour their networks for references to potentially unlawful activity. Imposing that kind of burden could easily bring Internet traffic to a screeching halt, given the manpower, expense, and legal risks associated with operating an online service under those conditions.

However, the government has been busy laying the groundwork for imposing the burden of monitoring and censoring online speech in numerous ways; beginning with the startling life sentence handed down against the operator of SilkRoad.com, the passage of the SAVE Act, the criminal prosecution of escort advertising networks, and the intimidation of credit card processors associated with Backpage.com (later found to be unconstitutional). Each of these actions represents an attempt to hold an online service provider responsible for third party posts or advertisements.

Some of those calling for the proverbial heads of social network operators for permitting uncensored use of their networks rely on a provision of the USA Patriot Act, which prohibits anyone from providing “material support” to a terrorist organization. If this action is prohibited, how can Twitter get away with providing a network for distribution of jihadist propaganda? Or so the argument goes. Despite Supreme Court Justices expressing some “grave concerns” with the constitutionality of that prohibition under the First Amendment, the law was upheld in 2010. Thus began the gradual chipping away at what used to be a clear prohibition on criminalizing political speech.

Others who are upset with an open marketplace of ideas cite to legal obligations imposed on Internet service providers to remove and report child pornography, or take down reportedly infringing material under the DMCA, as evidence the government already has the tools it needs to create a valid, online censorship regime. Each of these instances can be distinguished from the wholesale prohibition of online communications envisioned by those desperate to find a quick fix for the complicated threat of terrorism facing today’s world populace. Child pornography falls into one of the rare, historically unprotected categories of speech, given its unique, horrific nature – and the fact that it records the criminal act of child abuse. DMCA takedowns do not involve censoring speech by the government, but the civil enforcement of intellectual property rights by copyright holders. The targeted material may still be protected by the First Amendment, but owned by someone with superior rights to control its distribution. Mixing all these potential ‘options’ into a big, convoluted soup encourages the talking heads and politicians to conclude that there “must be a way” to close up the Internet, and keep us safe.

Renowned enemy of the First Amendment, Eric Posner, uses the threat posed by ISIS to promote “new thinking about the limits on freedom of speech.” His latest attack on one of civilization’s most sacred values proposes a law that would criminalize access to websites that glorify or provide encouragement for ISIS. Aside from the fact that true jihadists would likely use encrypted communications to evade detection, and investigators would lose the ability to monitor and track threatening communications, censorship never works and often backfires. Typically such laws call more attention to the censored speech or inadvertently silence opposition views as well. History proves that the cure for bad speech is more speech, not censorship. While recent calls to clamp down on free speech rights have been effectively mocked by civil libertarians, the proposals are becoming too frequent for comfort. Should one of these proposals gain traction, be prepared for a demand to block some type of erotic speech that a legislator decides is too extreme for his or her tastes. That’s exactly what happened when Iraq started blocking terrorist’s speech earlier this year – the ban on pornography soon followed.

In any other time, the author would conclude this article with a calming observation that the First Amendment protects offensive and even hateful speech, and that would be the end of it. The calls for censorship would eventually be quelled by cooler heads that were well-grounded in constitutional restraint on governmental power. But we live in a time when Yale University students are perfectly willing to sign a petition to repeal their First Amendment rights (including the right to petition). We also exist in a world of trigger warnings, safe spaces, and abundant micro-aggressions, where university professors call for some “muscle” to kick journalists out of public protests.

The First Amendment was once held sacred – particularly when it came to online communications. The Internet was everyone’s soap box, where the speaker didn’t need big media money to get a message out. The courts acted quickly to strike down laws that conflicted with free expression rights. However, in a time when 34% of poll respondents say the First Amendment goes too far, and the same percentage have no idea what rights the First Amendment protects, the bedrock principles that have formed the basic protections for online speech are on shaky ground. Let’s hope they survive another election cycle.

More of the Same from Polk County’s Thought Police

Sheriff Grady Judd and his crew is at it again. Now they’ve turned their sites on some hapless gas station owner in Dundee, Florida, for allegedly selling some girly videos. Little did she know that the all powerful local government knew better than her what kind of entertainment the delicate citizenry of Polk County could tolerate. So now Minakashiben Patel sits in jail, apparently on a no-bond status, facing charges of obscenity. This isn’t the first time that this Central Florida jurisdiction has tried to enforce its version of “decency” on its citizens. The following article gives a pretty good history of Sheriff Judd’s efforts to promote Christian values in Polk County government: http://orlandoweekly.com/news/church-and-state-1.1109454. The First Amendment never stopped a skilled politician like Grady Judd, however. He takes pandering to a new level, and destroys lives in the process. Fortunately, the First Amendment protects the New York Times the same way as a small gas station owner, when it comes to dissemination of free speech. We shall see how this case plays out, but their random obscenity prosecutions are certainly a threat to civil liberty, and the whole effort demonstrates a fundamental misunderstanding of the changing societal mores in this country. Just look at how fast 50 Shades of Grey flew off the shelves. In year 2013, I think we can tolerate the sale of a few adult films sold in a local gas station.

Feminism or Fascism: Iceland’s Stunning Ban on Pornography May Be Spreading

Iceland recently made headlines with the latest project on its allegedly progressive agenda: a nation-wide ban on pornography. No stranger to proscribing activities related to commercializing sex, Iceland has already passed laws banning printed pornography, prostitution and stripping, and has done so all in the name of feminism. Rattling off the standard laundry list of the evils of porn, the Icelandic Parliament noticeably lingered on the “damaging effects” adult material has on the children who view it and the women who participate in it. Iceland’s Office of the Interior Minister defended the ban by stating that Icelandic citizens deserve to live and develop in a non-violent environment, therefore, the resulting law is “not anti-sex, but anti-violence.” What’s potentially more concerning is that this feminist backlash against commercial sexualization is gaining serious momentum throughout Europe, as evidenced by the European Union’s recent parliamentary vote on a blanket pornography ban. Taking a page from the Nordic view on feminism, the EU claims the ban will foster gender equality and combat sexual stereotypes by sanctioning individuals and businesses “promoting the sexualization of girls.” With Parliament disclosing very little about the potential ban, most Europeans are looking to the recent path blazed by Iceland for some guidance on what’s to come.* So what is the likelihood of Iceland being the first democratic state to successfully ban pornography? The answer to that question probably depends on your definition of success…

Given that Iceland is expected to implement similar blocking filters to those used in China and Iran, it stands to reason that Iceland would enjoy comparable success in restricting online content. However, the environmental and temporal differences between Iceland’s efforts and that of middle and far east authoritarian regimes, shouldn’t be so easily dismissed. Countries like China and North Korea limited citizens’ access to online content, but such restrictions have been in effect practically since the Internet’s inception. Any armchair psychologist will tell you – and any parent of a toddler will confirm – it’s human nature to want what you can’t have. And if whatever you can’t have, is something that was in your possession but was taken from you, well that ups the ante even more. Like most citizens across the globe, Iceland’s people have had unfettered access to online adult material. To put it bluntly, it doesn’t matter how inherently progressive a country is, when you confiscate a piece of personal autonomy, there’s bound to be consequences.

Even if the Icelandic government seamlessly weathers whatever discontent that’s thrown its way, there’s still the matter of enforcement. Logistically speaking, Iceland will employ filters barring citizens from accessing flagged websites, and fire walls prohibiting Icelandic credit cards from purchasing adult content. But what about the tangible transport of digital pornography? Streaming, downloading and cloud access aren’t the only ways to retrieve digital content. What’s stopping someone located in another jurisdiction from entering Iceland’s borders with a pornographic DVD? With so many vehicles capable of transporting digital content, common sense says that it would be impossible to inspect each and every tablet, flash drive, laptop, and Smartphone that crosses Iceland’s borders. As long as there’s been contraband, people have been smuggling contraband – the digitization of such contraband has only made it that much easier.

The ability to control infiltration of the banned content leads directly to the next hurdle – the black market. We live in the Internet Age; every technological restriction is met with a response circumventing that restriction. Whether it’s a scrubbing tool used to mask IP address identification or software that scrambles collected geo-location location, there are countless techniques enabling the average Internet user to evade government-imposed limitations.

Without getting too high up on the First Amendment soap-box, this type of regulation tends to invoke the constitutional scholar in all of us. If Iceland wants to completely ban pornography, exactly what kind of material is considered “pornography”? Without careful and meticulous drafting, any such law will inevitably encompass content as innocuous as the mere display of genitals. Some reports say that the ban would only include “violent or degrading content.” As admirable as that is, we’re still left with the subjectivity surrounding the definitions of “violent” or “degrading.” Another variable to throw into the mix in determining what would constitute pornography is the intended purpose of the material in question. Specifically, was the content created for private consumption or commercial use? If Iceland’s chief concern is to prevent the commercialized sexualization of women and children, logically, only material disseminated commercially would violate the ban and any application of the law beyond that specific scope would be a flagrant infringement on privacy rights. Given the widespread creation and sharing of private erotica, a substantial amount of pornographic material would presumably be unaffected by the legislation.

In a very short time, Iceland will undoubtedly find itself at the age-old prohibition impasse, asking which holds more clout: a government imposed ban or the tenacity of those looking to circumvent that ban? As shown with most government-sanctioned goods or services, a black market develops; those participating eventually monopolize the marketplace; a consistent profit is generated; and ultimately standard supply and demand principles are used to exploit and perpetuate a marketplace devoid of legislative supervision. Government-imposed prohibitions might change behavior, but a behavioral change does not prove that the problem was solved; only that it has been forced underground. On that note, one must question whether the “problem” existed in the first place. One person’s degrading porn, is another’s…you know the rest. Ultimately, Iceland is unlikely to become a porn free zone irrespective of the pending legislation. If history has taught us anything, it’s if there’s a will, there’s a way.

*As this post went to press, the EU Parliament voted against the anti-porn proposal due to censorship concerns: “Language that would ban online pornography has been dropped from a report approved by the European Parliament.”

2012 in Review: Internet Censorship & the Acronyms We Love to Hate

With the new year upon us, two things become painfully apparent in concluding 2012 sans post-apocalyptic bedlam: 1) the Mayans seem to have preferred tequila breaks over finishing their calendaring duties, and 2) there are no more excuses justifying willful blindness to any of the damage done during the last twelve months. No, we’re not talking about the 10 lbs. you packed on since Thanksgiving, but more along the lines of extremist legislative proposals by lawmakers across the globe, particularly in the area of Internet regulation.

Recently, the United Nations’ International Telecommunications Union (“ITU”) culminated its World Conference on International Telecommunications (“WCIT”) in Dubai. The WCIT, comprised of almost 200 nations, was called for sole purpose of ratifying the ITU’s Telecommunications Regulations, which were drafted in 1988 to address interconnection between international telephone/telegraph networks. This year’s update, however, went off the rails a bit when some world leaders viewed the conference as an opportunity to gain government control over Internet operations. Countries like China, Russia and Middle Eastern nations lobbied for proposals that would allow member countries to regulate a broad range of Internet governance options that are currently under the authority of international third party NGO’s. One proposal went so far as to call for all signatory governments to have “equal rights to manage the Internet,” ranging from technical operations to actual content review. The U.S., along with Canada and the U.K., argued that greater government involvement in overseeing the Web would inevitably act as a gateway for countries already censoring the Internet within their respective borders to justify even more restrictions and invasive monitoring. Standing firm against the WCIT’s potential chilling effect on the world’s largest communication medium, the U.S. and its backers staged a walkout during the final vote on the WCIT’s revised Internet treaty.

Almost 90 countries signed the newly ratified regulation which, among other things, gives participants the unilateral and unrestrained ability to access private telecommunications services and block allegedly harmful commercial communication transmissions. Those countries that refused to sign the revised treaty are under no obligation to abide by it, and will only be bound by the language of the original 1988 agreement. As you can see, the situation still fosters a global epidemic of confusion, as about half the countries involved in the summit are now playing by an entirely new set of self-serving regulations with a colossal potential for abuse.

Whether or not we have a digital Cold War ahead of us remains to be seen. That said, before we start congratulating each other on the staunch free speech principles of our esteemed U.S. ambassadors in Dubai, we might want to make sure those ideologies still hold true in our own backyards. The U.S.’s rejection of the ITU telecom proposal was a critical step in the right direction. However, that effort doesn’t negate, or even lessen, the blow felt from similar regulations proposed by U.S. lawmakers just a few short months ago.

Under the guises of such noble causes as consumer protection, reducing unemployment and even battling terrorism, the U.S. government allowed censorship to rear its ugly head in 2012 with the likes of SOPA, PIPA, CISPA, and ACTA. SOPA, the bill thought to have had the most momentum out of the lot, would have given the U.S. government almost total control in blocking access to foreign websites – sans due process – exhibiting the slightest hint of infringing activity. Fortunately, the public fought back with a world-wide Internet blackout campaign, wherein hundreds of service providers – ranging from Google to Wikipedia – went dark or posted “CENSORED” messages on their sites. After January’s historic public backlash, SOPA (and its sister bill, PIPA) were removed from the House and Senate calendars indefinitely, but hopefully for good. This prior attempt at overzealous domestic regulation doesn’t quite resolve with the U.S.’s current position as the WCIT’s problem child. Such contradictory actions beg the question: How is the U.S. government any different from the countries it chastised at the WCIT? And even more so: How can we as Americans look at Chinese officials with disgust or Russian citizens with pity, when the U.S. Legislature ambushed its people with similar Draconian directives on domestic soil?

So often we hear the war-cry of grass roots movements, reminding us that all citizens have a voice; activism starts at home. The unfortunate reality is that although it’s true that activism starts at home, so does sanctimonious complacency. Given the series of disturbing events in the U.S. over the last few months, we’re seeing the relatively ‘kumbaya’ American disposition that often appears in the wake of national tragedies and natural disasters. As important as solidarity is in times of tribulation, it’s easy to forget that the legislative machine doesn’t stop rolling. If anything, such devastating events act as the shiny objects diverting citizens from yesterday’s cause. In today’s over-stimulated Information Age, the inadvertent label of ‘old news’ would be the kiss of death for any anti-censorship movement. If the ‘out of sight, out of mind’ adage has proven true with anything, it’s with the American people and the activity of their lawmakers. Legislative Internet censorship is a very real concept; a concept, that if dismissed by citizens, will undoubtedly find itself buried within the folds of yet another massive bill aimed at pulling on heart strings – whether in the form of protecting children, or giving hope to the unemployed via economically-friendly rhetoric.

Earlier this year anti-censorship activists rallied in an exhibition of civil unrest, the likes of which never seen by the so called “Internet Generation.” One would think that with the U.S. drawing a line in the sand on a global scale, additional censorship regulations disguised by muddying acronyms in the coming year would be highly unlikely. One would think… That said, the WCIT is just one battle in the constant war between government regulation and the free exchange of ideas. The U.S. has taken a significant global position on Internet freedom, but before our free speech piety gets the best of us, let’s make sure our government maintains that position in leading its own people first.

The Ends of the Earth – How Far Can U.S. Content producers pursue foreign infringers?

I. Introduction.

We all witnessed the uproar over PIPA and SOPA at the beginning of the year. Internet free speech advocates took to cyberspace in a call for action against these proposed laws. Advocating for the broad principle of intellectual property protection, lobbyists for the mainstream film industry argued for the enhanced ability to go after foreign “rogue” websites involved in infringing activity. While the underlying motivations for enacting PIPA/SOPA may have been well-intentioned, they impacted personal freedoms to the point that made many Americans uncomfortable, and the legislation soon stalled in response to the public pressure. A major concern with PIPA/SOPA was that the bills granted the U.S government legal authority over any website domain, wherever hosted or operated, even in the absence of a domestic jurisdictional connection. While the legislative efforts continue, the courts have recently expressed concern, through a series of legal decisions, with enforcement of intellectual property rights against foreign website operators. These decisions may have a substantial impact on the ability of U.S. content producers to pursue foreign websites for copyright and trademark infringement.

U.S. courts primarily gain personal jurisdiction over the parties by the physical presence of the defendants in the location where the lawsuit was filed. However, when the defendant is a foreign entity or individual operating a website, U.S. courts have been increasingly hesitant to find the existence of jurisdiction, merely based on web presence. A U.S. district court can exercise personal jurisdiction over a defendant if the party is “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed.R.Civ.P. 4(k)(1)(A). This means that personal jurisdiction over a non-resident defendant may be acquired by: (a) the defendant’s physical presence in the subject state; or (b) the state’s long-arm statute. A “long-arm” statute allows a court to assert jurisdiction over an out-of-state (or foreign) defendant based on injury suffered by the plaintiff in the state, or some other activity creating a relevant connection. Most long-arm statutes permit this type of extraterritorial jurisdiction so long as doing so constitutes ‘fair play,’ and otherwise comports with Due Process notions.

II. Recent Judicial Decisions.

In the earlier days of the Internet, U.S. courts seem to have had no qualms about imposing American law on websites maintaining any form of customer base within the U.S., regardless of where the site was operated. However, in recent times, as the world has gotten smaller and foreign online presence more established, judges are starting to realize that the U.S. may have previously attempted to exert a little too much control over the Internet. With seemingly endless cyberspace growth fostering a more “global marketplace,” U.S. courts may be starting to pay more heed to other countries’ laws and sovereignty. Concerns such as diplomacy and comity have come to the forefront, as all nations compete for a seat at the Internet table.

This struggle has played out in the attempt to enforce U.S. copyright and trademark law abroad. Over the last few months, several courts have addressed the issue of whether foreign websites can be held liable for intellectual property violations asserted by U.S. plaintiffs. These courts have all dismissed the cases for lack of jurisdiction. In Fraserside IP L.L.C. v. Hammy Media, Ltd., 2012 WL 124378 (N.D. Iowa Jan. 17, 2012), a federal judge found that the adult entertainment power house, Private Media Group (through its IP holding company), could not establish personal jurisdiction to sue operators of the adult tube site, xHamster.com, in the state of Iowa. Finding that the Cyprus-based tube site lacked sufficient minimum contacts in Iowa, the court rattled off a laundry list of reasons for its decision: “xHamster has no offices in Iowa, no employees in Iowa, no telephone number in Iowa, and no agent for service of process in Iowa. xHamster does not advertise in Iowa. No xHamster officer or director has ever visited Iowa. xHamster does not maintain any of its servers within Iowa. All of xHamster’s servers are located outside of the United States.” This ruling is consistent with the general principle that the mere availability of a website in the U.S. will not be sufficient to establish personal jurisdiction over the site operators. The same ruling occurred with Private’s case in Iowa against another foreign tube site, DrTuber.com. Fraserside v. Moniker, et al., Case No.: 11-cv-03040 (N.D. Iowa 2012).

A few months after the xHamster.com decision, a California district court protected another adult entertainment website by denying the plaintiff’s motion for a default judgment in the “faceporn.com case,” Facebook v. Pedersen, 10-Cv-04673 (N.D. Cal. March 2, 2012). Relying on a relatively broad jurisdictional argument, Facebook claimed that the defendant intended to compete directly with Facebook and given Facebook’s global notoriety, anyone infringing on Facebook’s intellectual property would know such infringement is harming a California entity. According to the district court ruling, plaintiff’s argument failed two-fold as Facebook lacked any evidence that the defendant purposefully directed its activities at California and further, was unable to prove that the defendant’s conduct successfully redirected traffic away from Facebook. Notably, the court essentially made the arguments for faceporn.com, since the decision was based on a motion for default judgment.

Coming out of Nevada just over a week later, another off-shore website dodged the jurisdictional bullet in the case of Stevo Design, Inc. v. SBR Marketing, Ltd., 2:11-CV-0304 (D. Nev. March 13, 2012). The Nevada district court ignored any potential personal jurisdiction issues, instead dismissing the case based on lack of “subject matter” jurisdiction – an issue that had not even been argued by the defendant. Subject matter jurisdiction involves the underlying authority of the court to consider the case, in the first instance. Often seen as a relatively simple hurdle, U.S. law gives the federal courts subject matter jurisdiction in when the suit is based on a violation of a federal statute, or when the resident of one state sues a defendant of a different state (or another country). Claiming that several of its sports betting reports were unlawfully uploaded and published via the defendant’s website, SBRforum.com, plaintiff’s sued forum site for various violations arising under the Lanham Act and the U.S. Copyright Act. The court noted that all of the alleged infringement occurred entirely on SBRforum.com. Because the defendant’s website was operated in Costa Rica, the court found that it lacked subject matter jurisdiction to even consider the case since federal statutes provide no relief for infringement that occurs solely in a foreign nation.

III. Conclusion.

What may have been taken as a ‘given’ in the past is now being questioned by this new line of cases, imposing what appears to be a higher burden on those seeking to hold foreign website operators responsible for U.S. intellectual property violations. The mere fact that the site is globally available and happens to maintain a U.S. customer-base may no longer be sufficient as a basis for bringing foreign defendants into U.S. courts, under recent judicial rulings. Whether these rulings are a brief respite for foreign website operators, or the beginning of a new judicial trend, remains to be seen. But adult content producers become more aggressive in pursuing theft of their content by foreign website operators, these legal issues are sure to gain significant attention in the coming months.

The Politics of Porn – 2012

By the close of 2011, the Republican presidential hopefuls had their work cut out for them. It was starting to look like the people had gotten their fill of Michele Bachmann’s eccentricities. Such a sentiment was confirmed at the Iowa Caucuses, when the Tea Party Chair, receiving only 5% of the votes, placed sixth among the other candidates, ultimately resulting in Bachmann’s withdrawal on January 4, 2012. Despite consistent double-digit polling numbers since early fall, January claimed another candidate in former Utah Governor, Jon Huntsman. Withdrawing from the race on January 16, the former ambassador pledged to ”stay relevant” in the race, and has kept that promise by actively supporting Mitt Romney. Then, of course, there’s Herman Cain – once his luck ran out with the ladies, the voters soon followed. Despite suspending his candidacy back in December amidst allegations of sexual misconduct, Cain has done his best to remain in the spotlight, still lobbying for his 9-9-9 Plan and has yet to formally endorse one of his former competitors. And we can’t forget 2012’s latest casualty, Texas Governor, Rick Perry. After his promises to end “Obama’s war on religion” evolved into concerns of Perry’s War on the Establishment Clause, steam behind Team Perry was waning towards the end of 2011, and finally came to an end on January 19.

At this point, it’s almost mid-February and oh how the tides have turned. Deemed a misfit for most of his political career, Ron Paul has ridden the ‘rebel, nonconformist’ wave all the way to its peak. With that success, comes mainstream popularity and partial loss of Paul’s famous underdog status. Struggling to reconcile the Congressman’s political identities, voter support seems to be reaching a plateau, although not necessarily declining. The likely result: Paul is applauded for his valiant effort, but ultimately directed by the GOP powers-that-be to graciously keep the rebel rousing within the confines of the Texas state line.

Former Speaker of the House, Newt Gingrich, was thought to be down and out this past summer after a series of questionable spending excursions and the infamous mass exodus of several high-ranking campaign officials. But ever the true politician, Newt has overcome the instability of his early campaign and gained enough momentum to be considered a genuine presidential hopeful.

Probably the biggest candidate surprise of the campaign thus far is former Pennsylvania Senator, Rick Santorum. Battling disheartening numbers since the day he threw his hat into the ring only to surge ahead in 2012 by winning four of the eight presidential primaries thus far, Santorum is the very definition of a ”comeback kid.” Making no apologies for his socially conservative politics, Santorum ready and willing to squeeze out the very last bit of libertarian influence that might be left in the GOP, and based on recent numbers, he might just be able to do that.

The one constant since the beginning of the campaign trail is Mitt Romney’s title as the election’s front-runner. Romney is currently blowing everyone out of the water with ninety-five pledged delegates; that’s more than the other three candidates combined. Maybe the American people think a business consultant as President is the only way to completely pull out of this economic tailspin, or maybe we all harbor deep-seeded respect for Mormon’s with good politician hair – either way, Mitt Romney isn’t going anywhere any time soon.

So what do the Republican Presidential candidates have to say about adult entertainment issues? Not that the Obama Administration has been the champion of personal freedoms that was originally hoped for, but at least the DOJ’s decision to focus on child pornography instead of filing any new obscenity cases allowed the industry a bit of momentary relief. However, it’s safe to say that if a Republican takes over the presidential seat, it’s going to be a different ballgame all together.

According to Morality in Media’s (“MIM”) President, and former DOJ official, Patrick Trueman, “Vigorous prosecution of those who violate our nation’s obscenity laws is critical now. Our nation is suffering a pandemic of harm from pornography that is readily available – even to children on the Internet and in other venues.” Trueman has targeted Santorum, Romney and Gingrich for months, requesting that the candidates take a public stand in favor of his anti-porn efforts.

Heading straight for the newbie, Trueman successfully got Santorum to sign the Family Leader Pledge (made famous by former candidate Bachmann’s ”ban on porn”) all the way back in July of 2011. The pledge requires Santorum to uphold, among other things, the “Humane protection of women and the innocent fruit of conjugal intimacy — our next generation of American children — from human trafficking, sexual slavery, seduction into promiscuity, and all forms of pornography and prostitution, infanticide, abortion and other types of coercion or stolen innocence.”

Nothing if not persistent, Trueman continued MIM’s crusade this past October by demanding that the 2012 presidential candidates publicly disclose “their respective views on the enforcement of obscenity laws.” MIM officials eventually obtained statements by all three of the frontrunners after calling on MIM followers to continue the crusade through emails, calls, and meetings with the candidates urging them to respond to MIM’s request for disclosure.

In his response to MIM, Santorum wrote: “Federal obscenity laws should be vigorously enforced. If elected President, I will appoint an Attorney General who will do so.”

In a one-on-one interview with MIM staffers, Gingrich was asked if he will enforce existing laws that make distribution of hard-core adult pornography illegal, he responded:”Yes, I will appoint an Attorney General who will enforce these laws.”

The only candidate to reference online content in his written reply to the MIM demand, Romney stated: “It is imperative that we cultivate the promotion of fundamental family values. This can be accomplished with increased parental involvement and enhanced supervision of our children. It includes strict enforcement of our nation’s obscenity laws, as well as the promotion of parental software controls that guard our children from Internet pornography.” Although, Mitt’s status as one of MIM’s golden boys of piety may have hit some rough terrain as it was revealed that everyone’s favorite squeaky-clean Mormon accepted a maximum amount campaign donation from Daniel Staton, chairman of the board of the company that owns Penthouse. While this may not be tantamount to accepting a donation from Max Hardcore or Extreme Associates, this minor campaign faux pas is going to raise more than a few eyebrows.

With MIM sparking GOP discussions of a resurrection of strict enforcement of obscenity laws, notions of MIM President’s Trueman staging a re-entry into politics seem unsettlingly attainable. So is the country in imminent danger of the DOJ turning into the “Trueman Show” come January, 2013? Hopefully not, but with polling data saying one thing, schizophrenic primary numbers saying another, and public opinion exhibiting an extreme of the two on any given day, it truly is anyone’s race. The stakes are high for the country and our Constitutional freedoms. And with the top three presidential candidates pledging to reinvigorate the ‘War on Porn,’ one can’t help but hope that the adult industry won’t be one of the losers in 2012.