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.

What’s In A Name?

Adult business operators often struggle with the legal complexities of trademarks, trade names, fictitious names, and corporate names. This is particularly true for amateur performers, producers, or distributors who have operated a small business under their own personal name but want to consider doing business under a corporate or brand name. Let’s try to sort through some of the confusion.

Personal Names

Anyone can operate a business individually, using their personal name and social security number as their taxpayer identification number. This is known as a sole proprietorship. This simple business format is user-friendly but provides no legal protection from claims against the business, and offers no anonymity for the owner. If a personal name is used as a business brand, it can be registered as a trademark. More about trademarks later. But actors, authors, sports figures, and other celebrities frequently register their personal names as trademarks, in the class of services for which the name is being used.

Fictitious Names

An individual can operate a business under a fictitious name, also known as a “d/b/a” which stands for “doing business as”. A fictitious name is also known as a “trade name”. Most states require a business to register a fictitious name before using it to engage in commerce. Registration can occur at the state or local level – sometimes both. In some states, it is a criminal offense to use a fictitious name without a registration. The idea is to protect the public by allowing people to look up the name of the actual owner of a fictitious business name. Registering a fictitious name does not provide any legal protection for the owner of the business and does not automatically grant any intellectual property rights to the name. In other words, someone else can use the same fictitious name for a separate business, and your registration will not give you any rights to stop them. Both individuals and companies can register fictitious names. Theoretically, any stage name or website name is a fictitious name of the individual or company behind the operation, and registration of these names should be considered as an element of basic legal compliance.

Corporate Names

Setting up a corporation or limited liability company (LLC) should be considered by any business, no matter how large or small. Conducting business through a corporate entity provides some protection against claims or debts of the company. Incorporation is often viewed as a form of cheap insurance. A corporation is considered a separate legal “person” from its owner(s) and has perpetual existence. A corporation can also obtain its own taxpayer identification number, and hold bank accounts or other property in its own name. The incorporation process is not complicated, but maintaining the corporate formalities can be challenging for small business operators who are not familiar with the process. All corporate entities should have a corporate book, records of ownership, and minutes of corporate meetings. Corporations should likewise have bylaws and shareholder agreements, while LLC’s should have operating agreements. These documents will describe how the owners are compensated, how shares are issued, and how disputes are resolved. The absence of a shareholder or operating agreement can result in significant problems, such as third parties claiming to be owners. In some instances, failure to observe the corporate formalities can also result in the individual owners becoming responsible for corporate debts or liabilities.

Corporations also provide some level of anonymity for the owners, since corporate ownership is typically not a matter of public record. The information necessary to set up a corporation varies from state to state, with some states requiring very little public information about those involved with the business. You can select any state for incorporation, regardless of the physical location of the business. Typically, however, a corporation must appoint a registered agent who is physically located in the state of incorporation.

Your corporate name need not be your business brand name. As noted above, a corporation can register a fictitious name that represents its brand. But in some circumstances, it can also register the name as a trademark.

Trademarks

Trademark registration is an important consideration for any business. If your brand name meets certain criteria and does not conflict with the rights of third parties, you may restrict others from using the same or similar brand for your business. Protecting your brand is essential, and a trademark can often become your most valuable business asset. In the event anyone infringes on your brand name, having a registered trademark can provide an expedited path toward resolution of the dispute. Importantly, not all brand names qualify for trademark registration. Brands which are generic, or merely descriptive of the business’s products or services, typically will not be accepted for registration as trademarks. In some cases, use of a descriptive brand for a sufficient period of time will allow for trademark registration, if the mark has acquired distinctiveness in the marketplace.

Trademarks can be registered at the state level, or at the federal level with the United States Patent and Trademark Office (USPTO). In order to qualify for federal registration, the brand must be used in some form of interstate commerce. Often, businesses will wait until they are actually using a brand before applying for registration. However, the USPTO allows business owners to file a trademark application if they have a bona fide intent to use the brand in the future. Filing the application sets your priority date and allows you to prevent others from using the same or confusingly similar brand in the future, so long as you ultimately receive a trademark registration.

Trademarks can be owned by corporations or individuals. The owner of the trademark will have the power to control the use of the brand name, and the power to license that brand for use by third parties. Sexually explicit trademarks have historically been refused registration by the USPTO, but that may change depending on a decision from the U.S. Supreme Court that is expected in the near future. Many adult business operators have sought registration of explicit brand names in the hopes that the Supreme Court will clear the way for registration soon.

Conclusions

Choosing the right name and structure for your business is an important decision for any adult business operator. Your brand name represents the reputation and goodwill of your business. Some brands may conflict with the trademark rights of other operators, so careful consideration should be paid when selecting your trade name, corporate name, or trademark. After some initial legwork, you can find the perfect brand name, and protect it from infringers for the life of your business.

Lawrence G. Walters heads up Walters Law Group, www.firstamendment.com. Nothing in this article is intended as legal advice.

Congress Considering Deep Fakes Law

The technological ability to create convincing “deep fakes” is getting some attention in Congress. The adult entertainment industry has already struggled with deep fake porn, and the unsettled intellectual property issues generated by this type of content. On the one hand, rights holders can assert trademark, copyright, and/or publicity rights claims against producers of deep fakes. Publishers, on the other hand, can argue “fair use”, Section 230 immunity, or First Amendment protections in certain circumstances. But the recent publication of a doctored depiction of Nancy Pelosi appearing to stammer through her words, has apparently caught the eyes of some politicians who are poised to take action.

In early June, 2019, Rep. Yvette D. Clarke [D-NY] introduced H.R. 3230, the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act of 2019, in the House of Representatives. The DEEP FAKES Accountability Act intends to “combat the spread of disinformation through restrictions on deep-fake video alteration technology.” If passed, the bill would create both criminal and civil penalties for failing to disclose a covered deep fake and for altering disclosures. The bill would also create a private right of action for those injured by covered deep fakes. The bill was referred to the House Committee on the Judiciary, Committee on Energy and Commerce, and Committee on Homeland Security. If the bill is passed, it will take effect one year after it is enacted.

Rather than imposing restrictions on all deep fakes, the bill would impose a watermark and disclosure requirement on all deep fakes which are “advanced technological false personation records” – meaning any deep fake that a reasonable person would believe accurately depicts a living or, in more limited instances, deceased person who did not consent to the production. The bill would apply only to those productions which appear to authentically depict the speech or conduct of a person by technical means. The bill would purposefully exclude productions that utilize the skills of another person capable of physically or verbally impersonating the falsely depicted living or deceased person. The bill would also provide an exception for parodies, historical reenactments, and fictionalized programming that a reasonable person would not mistake as depicting actual events.

All visual-only “advanced technological false personation records” must include an unobscured written statement at the bottom of the image for the duration of the visual element that the deep fake contains altered audio and visual elements and that explains the extent thereof. All audio-only “advanced technological false personation records” must likewise include at least one clearly articulated verbal statement at the beginning of the record that the deep fake contains altered audio and visual elements and explaining the extent thereof. This verbal statement requirement applies to every two minutes of audio. All audiovisual “advanced technological false personation records” must include both an unobscured written statement and at least one clearly articulated verbal statement. Finally, all “advanced technological false personation records” that include a moving visual element must contain a watermark clearly identifying the deep fake as containing altered audio or visual elements.

Software developers that reasonably believe their software may be used to produce deep fakes would be required to ensure that their software allows for the insertion of necessary watermarks and disclosures and includes terms of use that require the user to affirm their general awareness of their legal obligations under this bill.

If passed, an individual may be fined, imprisoned for up to 5 years, or both, for knowingly failing to include a required watermark or disclosure (1) with the intent to humiliate or harass by falsely, visually depicting a person engaging in sexual activity or in a state of nudity, (2) with the intent to cause violence or physical harm, incite armed or diplomatic conflict, or interfere in an official proceeding, and the deep fake did in fact pose a credible threat of doing so, (3) in the course of criminal conduct related to fraud, or (4) by a foreign power or agent, with the intent of influencing policy debates or elections.

The legislation also provides criminal penalties for knowingly altering the deep fake to remove or obscure the watermark or disclosure with the intent to distribute the altered deep fake and with one of the four prongs listed in the paragraph above. In addition to prison time, the proposed law allows for a civil penalty of up to $150,000 per deep fake as well as appropriate injunctive relief. An individual or affiliated business entity who is falsely exhibited in a deep fake would be able to seek damages and injunctive relief against anyone that violates the disclosure requirements of anti-alteration clauses of this bill. Damages would be the greater of actual damages or $50,000 per deep fake, except the limit would increase to $100,000 per deep fake that depicts extreme or outrageous conduct by the falsely depicted person and would increase to $150,000 per deep fake containing sexually explicit visual content intended to humiliate or harass the falsely depicted person. An individual would be able to file the private action under seal if there is a reasonable likelihood that the creation of public records would result in embarrassing or harmful publication of falsified material.

The bill would also create a process by which producers of deep fakes may seek an advisory opinion from the Attorney General about the legality of their proposed deep fakes within 30 days. The Attorney General would not be able to enforce this law against any producer of deep fakes that relies on an advisory opinion in good faith. The Attorney General would also be required to issue rules governing the technical specifications of the required watermarks within one year of enactment. The Attorney General would designate a coordinator in each United States Attorney’s Office to receive reports from the public regarding potential violations by foreign states and agents as well as any violations depicting acts of an intimate or sexual nature.

In the year after the bill is passed, the Attorney General would be required to publish a report containing a plan to enforce the law, a description of foreign efforts to use deep fake technology to impact election and policy debates in the U.S. and abroad, a description of the impact of sexual deep fakes on women and marginalized communities, and official guidance to Federal prosecutors. In addition, the bill would require the Secretary of Homeland Security to establish a “Deep Fakes Task Force” to combat the national security implications of deep fakes, research and develop technologies to detect, counter, and distinguish deep fakes from actual events, and work with the private sector on this issue.

The bill would not serve as a defense against, preempt, or limit any Federal, State, local, or territorial laws on deep fakes or related content. Producers will still be able to seek other legal remedies against those individuals that use their copyrighted content without authorization to create deep fakes. Those individuals falsely depicted in deep fakes would still be able to seek other legal remedies against those individuals that use their likeness in deep fakes including privacy, defamation, false light, and unauthorized use of likeness claims. Sites that host user generated content, potentially including deep fake material, would still be able to claim the defenses provided by Section 230 of the Communications Decency Act. However, some members of Congress have expressed their interest in amending Section 230 of the Communications Decency Act to more directly address liability for deep fakes.

Future regulation of deep fake technology is still uncertain, as Congress struggles to sort out the numerous legal and constitutional issues generated by this content. While the adult industry continues to wrestle with the problems caused by deep fake porn, politicians seem interested in nipping the issue in the bud, before a deep fake costs one of them an election.

This post was co-authored by Lawrence Walters and Bobby Desmond, of Walters Law Group. Nothing herein is intended as legal advice.

Texas Embraces FOSTA

Over a year ago, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”) and the Stop Enabling Sex Traffickers Act (“SESTA”) in a confused attempt at combatting sex trafficking, but instead endangered sex workers and censored private companies that were worried about newly-imposed civil and criminal liability. Now, states are getting in on the action by passing their own versions of the misguided law. These new laws will be used to come after platform operators for user-submitted content, to subject those platforms to the whims of state-level officials who are more often influenced by politics than the Department of Justice, and to put more pressure on those platforms to censor erotic media.

Texas Governor Greg Abbott recently signed a state version of FOSTAA hidden amongst four other bills related to reducing the backlog of thousands of untested rape kits in the state, criminalizing “stash houses” that facilitate human trafficking, and increasing resources available to sexual assault survivors. These bills will take effect on September 1, 2019.

“I’m here to sign legislation that keeps Texas a national leader in cracking down on human trafficking, making Texas a hostile place for human traffickers, and providing protection to the victims of this heinous crime,” Gov. Abbott claimed. “It doesn’t matter what your politics are. It just matters what your commitment is. We are proud to make Texas synonymous with the word justice.”

Despite the Governor’s pronouncements, the Texas FOSTA law will not be effective at reducing sex trafficking or protecting victims. Instead, it will have the opposite effect. Like FOSTA, which caused huge amounts of erotic content to be removed from the internet, the law will encourage continued censorship of protected online expression. In addition, it will eliminate the crucial digital evidence often provided to law enforcement by online advertising networks used by traffickers. More of these platforms will shut down or move overseas – outside the reach of U.S. investigators. But worse still, the law will create increased danger for sex workers who will no longer have access to digital screening and security protections such as “bad date” lists and safety tips. The human cost imposed by FOSTA was recently detailed in an article published in Fordham Law Review, which concludes that the law “confines commercial sex to its most dangerous model.” This is particularly devastating for the estimated 79,000 young sex trafficking victims in Texas, many of whom are Latino or African American, according to estimates provided by the state’s Attorney General’s Office and a recent study by the University of Texas. Women of color are disproportionately arrested and prosecuted for sex work and forcing the activity back to the street will naturally increase the victimization.

Like the federal FOSTA/SESTA bills, the Texas version titled Senate Bill 20 creates criminal and civil liability by stripping online platforms and content providers of an over 20-year-old protection that effectively fostered innovation and guarded freedom of expression on the internet. Now, in addition to federal criminal and civil liability levied by FOSTA, online platforms and content providers will be exposed to potentially debilitating criminal and civil liability for prostitution and sex trafficking claims at the state level in Texas, unless they take onerous measures to find and remove users involved in this criminal activity. While such measures are hard to successfully implement for even the largest sites, startups and smaller platforms will have a particularly tough time complying with Senate Bill 20, as fledgling businesses do not have the financial resources necessary to employ costly artificial intelligence tools and/or a large team of moderators trained to hunt down anything vaguely resembling sex trafficking or prostitution on their platforms.

Importantly, Texas Senate Bill 20 targets not only illegal sex trafficking, but consensual sex work as well. Now, online platforms and content providers can be sued or prosecuted in state court in Texas, if their services were used by third parties to promote or facilitate prostitution. Consensual sex workers will be pushed away from the protections the internet provides and toward potentially violent and dangerous people on the streets. They face increased risk in customer interactions, now that their harm reduction tools have been removed from the internet in reaction to FOSTA. Such risks are now more prevalent. For example, there was a 170% spike in sex trafficking incidents reported in San Francisco as a result of FOSTA. Additionally, such risks are often more serious, and may include death. In fact, before FOSTA, Craigslist’s erotic services section helped reduce the female homicide rate by 17%, according to a recent study. More FOSTA-like prohibitions at the state level will exacerbate the damage already done by the federal law.

Similar to FOSTA, Article 3 of Senate Bill 20 regulates the “Online Promotion of Prostitution” by making it a criminal offense to own, manage, or operate an interactive computer service or information content provider with the intent to promote or facilitate prostitution. Also, like FOSTA, the law broadly-defines these terms, but also adds new categories of targeted online intermediaries. An “interactive computer service” is any information service, system, or access software provider that provides or enables access to a computer server by multiple users, including a service or system that provides access to the Internet or a system operated or service offered by a library or educational institution. An “access software provider” is any provider of software or enabling tools that (1) filter, screen, allow, or disallow content, (2) select, analyze, or digest content, or (3) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. An “information content provider” is any person or entity that is responsible for creating or developing information provided through the internet or any other interactive computer service. Essentially, just about any online service or content provider may be charged if its users promote or facilitate prostitution.

Article 3 of Senate Bill 20 creates new trafficking offenses such that a conviction may be obtained when a person knowingly:

Traffics another person with the intent that the trafficked person engage in forced labor or services;
Traffics another person and – through force, fraud, or coercion – causes the person to engage in prostitution, promotion of prostitution, or compelling prostitution;
Traffics a child with the intent that the trafficked child engage in forced labor or services;
Traffics a child and causes the child to engage in continuous sexual abuse, indecency, sexual assault, prostitution, promotion of prostitution, compelling prostitution, sexual performance, harmful employment, or possession or promotion of child pornography; or
Receives a benefit from participating in a venture that involves any of the above.

Article 3 of Senate Bill 20 also creates civil liability for damages arising from compelled prostitution when a defendant (1) compels prostitution of the victim, (2) knowingly or intentionally engages in promotion of prostitution, on or off line, that results in compelled prostitution of the victim, or (3) purchases an advertisement that the defendant knows or reasonably should know constitutes promotion of prostitution, and which results in compelled prostitution of the victim.

Other portions of the law will require the state to collect data on trafficking cases, implement a “media awareness campaign,” and develop recommendations to decrease demand. Significantly, the law also requires an examination of the presumed connections between trafficking and sexually-oriented businesses.

States like Texas have been anxious to pass laws like this; holding online intermediaries responsible for illegal activities of their users. However, until the passage of FOSTA, they faced an insurmountable hurdle in the form of Section 230 to the Communications Decency Act. FOSTA removed that hurdle, and effectively invited states to adopt legislation like the Texas bill. Now, the states need not wait for the Department of Justice to pursue websites that are believed to promote or facilitate consensual sex work. The floodgates of liability have been opened in Texas, and there is no longer any gatekeeper. Any state prosecutor looking to leverage the sex trafficking panic can use a law like the one passed by Texas to target online platforms. This will predictably result in a chilling effect on speech and continued censorship of erotic media, as platforms react by exterminating any content that may be considered risky.

While Texas may be the first state to enact its own version of FOSTA, it is unlikely that it will be the last to do so. Publishers and consumers of adult-oriented media will pay a price as online access becomes more burdensome. The real price will be paid by sex workers who will face increased hostility and violence now that their harm reduction tools have been criminalized. Other states considering these “mini-FOSTA” laws are encouraged to look carefully at the devastation caused by the federal version before making the same mistake.

This post was co-authored by Lawrence G. Walters, Esq., and Bobby Desmond, Esq., of Walters Law Group. Nothing in this post is intended as legal advice.

A Year with FOSTA

Are we having fun yet? FOSTA/SESTA (“FOSTA”) has been around for a full year now and has managed to wreak significant havoc on the Internet. Sold to Congress as a law to combat “sex trafficking,” FOSTA has instead endangered sex workers and forced massive online censorship by private companies fearing enhanced civil and criminal liability. Unless the law is struck down by the courts, things will get worse.

Early versions of the bill focused exclusively on amending Section 230 immunity, which broadly protects interactive computer services from claims based on user content. Congress decided that online intermediaries enjoyed too much protection when it came to sex trafficking, so it began looking at ways to carve out sex trafficking claims from the scope of the immunity. The proposed change was supposedly necessary to allow the government to take down Backpage.com, which had fended off claims by asserting Section 230 defenses for years. The idea of tinkering with Section 230 immunity was bad enough on its own, since it exposed online platforms to expansive liability for sex trafficking claims if they did not take sufficient action to root out users involved with this criminal activity. Eliminating this important legal protection creates significant problems for smaller platforms or startups, which cannot afford expensive artificial intelligence tools and an army of human moderators looking for anything that might resemble sex trafficking on their servers. The level of proof that might be required to hold an Internet intermediary responsible for sex trafficking offenses is not clear under FOSTA, so companies braced for potential exposure based on the slightest hint of abusive user posts.

But Congress was not content to focus solely on illegal sex trafficking. While they were at it, lawmakers figured they would tackle consensual sex work as well. This proposed addition to the bill was opposed by free speech groups, trafficking survivors, and the DOJ, itself. Nevertheless, in late February 2018, the House Judiciary Committee approved an amendment to FOSTA which created a new federal prohibition on using an interactive computer service to promote or facilitate prostitution. The amendment did not bother to define the terms “promote” or “facilitate” or even “prostitution.” The bill, including the amendment dealing with consensual sex work, was pushed through the legislative process and signed into law on April 11, 2018. Now, online platforms could be sued or prosecuted in state or federal court, if their services were used by third parties to promote or facilitate prostitution. Congress had officially broken the Internet. Notably, however, Backpage.com was taken down by federal authorities in the weeks before FOSTA was signed, raising the obvious question whether the law was necessary in the first place.

In the immediate aftermath of FOSTA, Craigslist.org killed its entire personals section, given the uncertain risks it now faced. Dozens of other websites went dark, including numerous sites that provided harm reduction information and “bad date” lists that sex workers used to keep themselves safe from abuse. Banks, payment processors, hosts, and other service providers began cancelling accounts of customers whose sites might be used to promote or facilitate prostitution. The undefined prohibitions included in FOSTA, along with the draconian prison sentences for violations, forced online service providers to steer far clear of any content or speech that may be related to prostitution. It is not hard to imagine the difficulty facing large Internet platforms who were suddenly forced to determine with certainty whether adult content posted by users might be associated with some definition of prostitution, in some geographic jurisdiction. The legal exposure and uncertainty proved to be too much for many companies to bear, resulting in a huge swath of protected speech being wiped from the Internet. Instead of directly prohibiting adult content, itself, the government incentivized online platform providers to do the dirty work.

Fast forward to Spring of 2019: Tumblr has removed all adult content, and Facebook prohibits virtually all discussion of sexual activity. Instagram demotes any sexually suggestive content, on the grounds it may be “inappropriate.” Countless smaller sites have disappeared, and many startups cancelled their plans due to the increased legal risks. Consensual sex workers are facing increased violence, as they are driven from the Internet onto the streets, and into the hands of dangerous people. Their online safety and harm reduction tools have been taken away by FOSTA, so they accept more risk in their customer interactions. A recent study showed that use of Craigslist’s erotic services section by sex workers resulted in a 17% decrease in female homicide rate – attributed primarily to the (previous) ability of sex workers to vet their clients and take their business indoors. Police tasked with the job of fighting actual sex trafficking have found their jobs much harder after the closure of sites like Backpage.com, which historically provided a treasure trove of information for trafficking investigations when subpoenaed. Ironically, San Francisco has reported a 170% spike in sex trafficking incidents as a result of FOSTA. This is to be expected, as even the DOJ said that FOSTA would make their job of prosecuting traffickers more difficult. A non-profit sex worker clinic noted that the law suddenly re-empowered a whole underclass of pimps and exploiters. In sum, FOSTA has sanitized the Internet of erotic speech, has increased trafficking, and has created a dangerous climate for sex workers.

Some lawmakers are even calling for new exemptions to Section 230, in response to alleged abuse of the protected status by online intermediaries. Representative Nancy Pelosi, Senator Ron Wyden, and Senator Joe Manchin have all warned that Section 230 may be amended again, or eliminated, given the mounting political pressures in Congress. As a result, FOSTA may be only the beginning of a dangerous trend.

Despite this adversity, there have been some encouraging developments. The sex worker community has found its voice and become mobilized. Decriminalization of sex work is now part of the national debate. Democratic presidential candidates are being pressed to defend their views on FOSTA and sex work while campaigning. States are passing laws designed to protect underage trafficking victims from being charged as prostitutes. The media is finally discussing the negative impacts that can result from overly aggressive sex trafficking laws and investigations.

Notwithstanding some impassioned advocacy against the new law, Congress is not likely to repeal FOSTA. Just as most politicians found it impossible to oppose a law branded as “anti-sex trafficking,” they will find it equally impossible to support a repeal. Amendments to the law are theoretically possible, but significant damage has already been done. Speech has been silenced, and FOSTA actively chills online communication on the topic of human sexuality. However, some are fighting FOSTA in the courts. The Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, and others have mounted a constitutional challenge in Washington, D.C. The suit argues that FOSTA violates the First and Fifth Amendments to the Constitution, since it is overbroad, vague, and applies to conduct that occurred even before the law was passed. The case is currently on appeal to the D.C. Circuit, after an initial ruling that the plaintiffs did not have legal standing to raise the constitutional issues. The plaintiffs have been supported by numerous advocacy groups such as Reddit, the Center for Democracy and Technology, and the Institute for Free Speech, as amici curiae in the appeal. The parties are hopeful, but the damage FOSTA has caused to the First Amendment is undeniable. The ethos of the Internet has changed in the course of a year. However, the courts have the power to fix this.

In 1996, Congress passed an equally dangerous law (the Communications Decency Act) which prohibited all “indecent” content on the Internet. Online freedom fighters quickly mobilized to fight that law under the iconic “Blue Ribbon Campaign.” The U.S. Supreme Court unanimously held that such a broad prohibition on erotic speech violated the First Amendment, despite its purported goal in protecting children from viewing adult materials. Some 20 years later, Congress made the same mistake, but dressed up this censorship effort as a law to combat sex trafficking. Censorship of protected speech is not a price that Americans should be willing to pay to achieve politically attractive goals. The government did not need FOSTA to seize Backpage.com, or to prosecute numerous other websites alleged to be directly involved with promoting prostitution. Existing federal law already supports those efforts. Over the last year, FOSTA has proved to be unnecessary, dangerous to sex workers, a hindrance to law enforcement, and an impediment to free speech.

Ultimately, FOSTA’s constitutionality will be tested in the courts – whether in the current legal challenge or some future case. For now, we must endure an Internet burdened by FOSTA while remaining hopeful that the law does not live to see its second birthday.

30 Years of Defending Free Speech

30 years ago today, I received my license to practice law. I devoted the next 3 decades to defending constitutional rights – especially the right to freedom of speech. It has been an honor and a privilege to advocate for clients seeking to express themselves in some way that the government disliked. This practice has included defending protesters, video stores, street performers, raves, website operators, non-profit associations, fortunetellers, artists, and politicians. Each was threatened with censorship based on their protected expression. The First Amendment is the building block of our Constitution, and allows the breathing space for all other rights to exist. I have been fortunate to build a career around my passion, and am thankful for the chance to work with some of the legends in this field.

In the late ’80s, I began representing “mom and pop” video stores that had an 18+ room in the back that rented adult tapes. With the support of my first law firm employer, I began defending these folks against obscenity charges leveled at them by a conservative state attorney who vowed to “clean up” Daytona Beach. We launched a grass-roots anti-censorship campaign that took hold. All the owners were either acquitted, or the charges were dismissed. The community rejected the government’s efforts to dictate what movies adults could watch in their own homes. Eventually, the state attorney was voted out of office – then re-elected, after a promise not to file any more obscenity charges.

With the advent of the Internet in the early 90’s, and my love of all things tech, I began to focus on representing website operators on First Amendment issues. After grabbing firstamendment.com in the early days of the web, a new practice area was born. I was able to devote the rest of my career to defending online freedom.

First Amendment rights are under attack right now in a way that I have not seen since graduating law school. Political correctness, porn panic, fear of surveillance, sex trafficking hysteria, and social media censorship are threatening bedrock free speech principles. Comedians cannot tell jokes, websites are routinely seized, protesters are being silenced, and lives are destroyed based on a single “inappropriate” comment. Regrettably, the public’s knowledge and appreciation of their First Amendment rights is dwindling. Many are willing to sacrifice free speech rights in order to avoid being offended. These are dangerous times, and many battles loom on the horizon.

Fortunately, there are freedom fighters in every generation. The disputes will be different, but the core principles remain the same. Citizens of a free country are allowed to speak their mind. The government is not permitted to dictate what we read, watch, or create in the realm of free expression. This social contract comes with a price. Sometimes we will be exposed to viewpoints and ideas that are controversial, offensive, or even vile. But living in a constitutional republic requires that we all have a reasonably thick skin. The marketplace of ideas will sort it out. The remedy for bad speech is more speech, not censorship. These are not mere platitudes. Our country sacrificed precious blood and treasure to preserve these freedoms. It is critical that we remember this when considering any sacrifice of free expression or tolerance of government censorship.

I remain thankful for the many years that I have had an opportunity to represent clients who stand for the First Amendment. As we face the future full of threats to free expression, I remain optimistic as our history has proven that freedom is not easily vanquished, and often overcomes great odds.

Filming Sex in Public

I. Introduction

Increasingly, our law firm is asked about the legality of filming nudity or explicit sex scenes in public. Recent obscenity charges filed against amateur adult content producers in Arkansas and Louisiana have re-ignited discussions about this type of content. Before that, it was the public indecency charges against webcam model “Library Girl,” a/k/a Kendra Sunderland. There is something intriguing about the possibility of getting caught that perks interest in some viewers. Sex scenes filmed in public – even with (purported) members of the public watching – have now become commonplace online. Given the interest in this topic, this article will explore the various legal issues triggered by public sex content.

To start, the mere fact that explicit sex scenes are shot in public does not make the content automatically illegal. To strip erotic media of presumptive First Amendment protection, the content must be deemed obscene by a judge or jury. The issue of obscenity is determined by application of the Miller Test, with which most readers are already familiar. Part of that test includes an evaluation of “contemporary community standards.” Using this test, the so-called trier of fact (judge or jury) will consider whether the content is acceptable in the community, under its standards relating to erotic fare. The “community” can be a county, a metropolitan area, a state, or even the nation as a whole, depending on the legal precedent in a particular jurisdiction. Presumably, the fact that the filming occurred in public could be considered in the overall obscenity determination, in connection with the evaluation of community standards. Some jurors might be more offended by the fact that the sex acts occurred in public, and thus more likely to conclude that the content is not consistent with the community’s standards. A skilled defense attorney may be able to parse legal arguments about judging only the content, not the underlying activity, but the public nature of the material could enter into the analysis.

While obscenity charges have become increasingly rare in the last decade, the recent spate of cases illustrates how public filming can call attention to content that might otherwise remain off the radar. Members of the public, themselves, might witness the public sex display, and decide to report the activity to law enforcement. Alternatively, investigators might notice that explicit content is being filmed in public, and then decide to track down and charge producers or distributors in a perceived effort to protect the public from future exposure to the activity. In sum, the public aspect of the filming increases the potential for a challenge to the legality of the content.

II. Public Indecency

While obscenity is always a possibility, more commonly creating public sex content can result in “public indecency,” “lewdness,” or “indecent exposure” charges. These laws typically prohibit some sort of lewd exhibition of the human body. Engaging in a sex act in public can result in a conviction under this type of statute. Photographers could be charged as accomplices. What if the sex act is part of a bona fide film production or performance? Lewdness and indecency laws have routinely been used against nude dancers who cross the line from performing a dance routine to performing a sex act. Efforts to raise First Amendment defenses to charges involving public sex acts have generally been unsuccessful. However, the line is not crystal clear. If Miley Cyrus rubs her crotch during a singing performance, this might qualify as lewd under some statutes, but also potentially protected by the First Amendment. While free speech arguments could theoretically be raised, filming explicit sex acts in public is likely within the scope of what is prohibited by most indecency and lewdness laws.

III. Nudity Ordinances

If the content at issue involves only nudity, but not sex, the activity may not violate indecency or lewdness laws. Simple nudity (without intent to arouse or offend) is not prohibited at the state level, in many states. However, numerous county or municipal ordinances do prohibit various degrees of public nudity. These ordinances are often directed at topless dancing clubs, but they generally apply to any nudity in public. To avoid constitutional challenges, these local ordinances routinely include exemptions for expressive activity that is protected under the First Amendment. Therefore, the production of erotic content in public might fall within such an exemption. However, the courts have ruled that in order for expressive conduct to be protected, it must be designed to convey a particular message, and there must be a great likelihood that the message would be understood by the viewers. The legal protection afforded to filming of public nudity will thus turn on the type of content being filmed. The mere act of being nude is generally not deemed to be sufficiently expressive to warrant First Amendment protection. However, nude dancing can convey a “message of eroticism” which carries constitutional protection. Again, consideration must also be paid to whether those who view the activity being filmed will understand whatever message is being conveyed by the performers. While filming nude performers may generate some degree of constitutional protection, law enforcement may well arrest first and deal with the constitutional nuances later if the filming occurs in public view.

The presence of minors during any public sex filming can result in disastrous consequences. Many of the complaints about filming nude or explicit content in public arise from the potential that minors might be exposed to the activity. Adult content producers should ensure that no minors are in the vicinity of any productions, to avoid substantial legal danger. Most states prohibit exposing minors to “harmful” material, including pornography. Even more serious are statutes which prohibit exposing one’s genitals to a minor, or engaging in a sex act in front of a minor. These laws typically carry sex offender penalties upon conviction, in addition to the usual fines and imprisonment. Filming in any public place where minors might gather carries risks that a minor will happen by at the wrong time.

IV. Civil Claims

In addition to potential criminal charges, filming explicit content in public may result in a variety of civil claims by members of the public, local governments, or even intellectual property holders. Initially, an individual who is exposed to the activity could theoretically assert a claim for intentional infliction of emotional distress. The contours of these claims vary from state to state, but they typically require some outrageous activity that results in mental pain and anguish. A particularly sensitive individual might decide to pursue such a claim. Members of the public who happen to be captured on film can also assert claims of their own. Generally, there is no expectation of privacy when someone appears in public, but people have a certain right to control publication of their image and likeness. Filming a person, and using that footage in a commercial adult video can therefore trigger claims for violation of publicity rights. If a producer used a location to repeatedly film public sex acts, the local authorities could file a “nuisance” action, asking the court to shut down the activity. Cities have also been known to object to filming near recognizable landmarks. Finally, adult content producers have faced claims involving trademark infringement when a famous brand or logo appears in an adult film. Any number of protected trademarks could be captured when filming in public. For example, we’ve defended claims brought by a fraternity when its Greek symbols briefly appeared in an adult film, and claims from a well-known hotel, whose brand was captured during taping. Often, trademark holders object to their brands being even remotely associated with adult content. Potentially viable trademark dilution claims could therefore be asserted in such instances.

V. Conclusion

Filming sex scenes in public view remains taboo, but generates niche interest. As shown above, a wide variety of claims could result from producing or distributing this type of content. As always, the legal risks should be weighed.

The Slants Case – What it Means for Sexually-Explicit Trademarks

On June 19, 2017, SCOTUS decided Matal v. Tam, which could open the floodgates for registration of previously-rejected, sexually-explicit trademarks. The Tam case dealt with the attempt to register THE SLANTS as a trademark with the USPTO. The USPTO rejected the application, so Tam sued on behalf of his Asian band, which had co-opted and embraced the derogatory term. The case worked its way up to the U.S. Supreme Court, which decisively ruled that the First Amendment will not give way to political correctness. Accordingly, the USPTO must register THE SLANTS.

Many in the adult entertainment industry have been awaiting this decision, which could finally force the USPTO to begin accepting registrations for sexually-charged brand names including explicit or profane words. For decades, any effort to seek a trademark registration containing an immoral or offensive term would be routinely rejected by the USPTO under Section 2(a) of the Lanham Act, which prohibits such registrations. That means, any brand names that include words like “Fuck” or “Cock” or “Pussy” would be routinely denied – particularly when the association with adult products or services was obvious.

For years, the adult entertainment industry accepted this fate, and used mainstream, non-offensive brand names for its products and services when it wanted to obtain trademark protection. However, as the Tam case worked its way up the courts, far-sighted industry executives started to realize that the long-standing prohibition on immoral and scandalous trademarks may be on the verge of collapse. Thus, a search of the USPTO database shows dozens of applications for brand names that include the words “Fuck” and/or “Pussy.” However, most of them were submitted only within the last year or so, and almost all remain in the pending stage. The USPTO decided to put a hold on any applications that include immoral or scandalous words, until the litigation played out. Well, that litigation is finally playing out. The same reasoning that led SCOTUS to conclude that disparaging trademarks cannot be refused, should ultimately lead the USPTO, or other courts, to the same conclusion with regard to immoral/scandalous marks. All these prohibitions are bound up in the same Section 2(a) of the Lanham Act, and all constitute viewpoint-based or content-based discrimination against the applicant. After the decision in Tam, the First Amendment cannot abide such discrimination.

The question is: How long will this take? The USPTO could potentially decide any time to give up the fight, and allow immoral / scandalous applications to proceed. Given Tam, it will have to start processing “disparaging” applications in the very near future. USPTO attorneys have already acknowledged that the same arguments supporting registration of disparaging marks apply to immoral/scandalous marks. As they should. Continued defense of this censorship scheme is frivolous, and a waste of federal dollars – not to mention a violation of the First Amendment. If the USPTO does not rectify this error on its own, the case of In Re Brunetti, pending in the Federal Circuit, will hopefully be the death knell for the prohibition on immoral/scandalous marks. That case will directly address whether immoral/scandalous marks may be prohibited, however it has been sitting on hold pending the decision in Tam. Now that SCOTUS has laid down the law, the Federal Circuit is clear to render a (hopefully) similar ruling, shutting down one of the longest running censorship rackets in U.S. history.

The marketplace of ideas will not crumble if some company decides to use a “dirty word” in their trademarked brand. Consumers will either accept or reject their products or services. That is how the marketplace is designed. For years, the USPTO artificially put its thumb on the scale of morality, and decided which brands it liked, and which it did not. The day is coming where trademark owners will no longer be corralled into a homogeneous, milquetoast pit of the mundane. Instead, the gates of creativity may soon be opened, where businessmen can decide for themselves whether their brand name should be salty or sweet.

For those interested in exploring new boundaries, the USPTO is open for business. It will accept applications for sexually-explicit trademarks, but will put the applications on hold until it decides whether to give up the ghost in this fight for expressive rights. The decision not only benefits adult entertainment companies or adult website operators, but was important to the Washington Redskins NFL Football team. The USPTO sought to cancel the “Redskins” trademark since the name was allegedly disparaging to Native Americans. The team’s owner said he was “thrilled” with the Supreme Court’s decision.

Don’t Lose Your Designated DMCA Agent

On December 1, 2016, the U.S. Copyright Office went live with its new DMCA Agent database, and revamped the procedures for designating an agent for receipt of copyright infringement notices. For any reader who does not know about the benefits of designating a DMCA Agent, or which sites should take advantage of this procedure, the author’s previous article covering those topics can be found here: http://www.firstamendment.com/dmca-agent/. This article focuses on the recent changes to the procedures and the consequences of failing to comply with the new requirements for designating a DMCA Agent.

First, and most importantly, all website operators or online service providers (“Service Providers”) who might want to claim DMCA safe harbor defenses relating to user-generated content must designate a DMCA Agent using the new automated filing system (“New System”) by December 31, 2017. This includes anyone who has already designated a DMCA Agent in the old, manual filing system (“Old System”) which ceased accepting new filings as of December 1, 2016. Failure to designate an agent in the New System by the deadline (even if you already filed a Designation in the Old System) means your business is left without a DMCA Agent, and without any legal basis for claiming safe harbor protection in response to a copyright infringement claim. Instructions about how to use the New System, and the phasing out of the Old System, can be found here: https://www.copyright.gov/dmca-directory/

Why are they doing this? Supposedly, it comes down to efficiency and accuracy of the database records. The new automated, online agent designation system is superior to the Old System, since submission of the DMCA Agent information to the Copyright Office, and payment of the fee, now take place electronically – and rather quickly. Requiring updated information and renewals will keep the information contained in the Designations more current and accurate – more about that later.

With the Old System, anyone seeking to designate an agent would need to fill out a .pdf form containing all the contact information and associated domain names, which would be sent to the Copyright Office – along with a paper check – and then scanned into the database by a human being who would then manually associate the Service Provider’s corporate name with any and all domains, mobile applications, or other “alternative names” used by the Service Provider in business. That information would be uploaded into an antiquated database with limited search capabilities.

Filing a Designation in the Old System would often take weeks, and the online database was littered with errors given its reliance on human data input. Domains would often be misspelled, overlooked, and/or duplicated. Each posting would need to be carefully reviewed by the Service Provider (or its attorney) for quality control, and errors would often take weeks (or months) to fix. In fairness to the governmental employee previously responsible for overseeing the Old System, she was given a virtually impossible task, with outdated technology and minimal support staff. That person is no longer with the U.S. Copyright Office, and given the automated nature of the New System, it appears that no individual will be responsible for overseeing it.

The Old System was actually being phased out months before the New System went online in December, 2016. Widespread reports have indicated that Designations of Agent sent to the U.S. Copyright Office in the months leading up to the launch of the New System have been uniformly ignored, and not posted in any database. Notably, the filing fee checks were cashed by the government, but many Designations have not been processed or posted online. This may result in some dramatic consequences for any Service Providers who believe they have submitted valid Designations during this ‘doughnut hole’ between the end of the Old System, and the launch of the New System. If you recently filed a Designation in the Old System database, but it does not appear in this database: https://www.copyright.gov/onlinesp/list/a_agents.html, it may be gone for good. The best solution is to immediately file a fresh Designation in the New System, and confirm that the information is posted here; https://dmca.copyright.gov/osp/search.html?key=exposedonth.net&action=search. Any Designation submitted to the Old System will become invalid anyway, as of December 31, 2017, so a new Designation submitted in the automated system will be required by the end of the year for all Service Providers. Instead of wasting time trying to track down the status of a Designation filed in the Old System, simply file one in the New System and move on.

The one piece of good news in all of this chaos is that the filing fee for submitting Designations has gone down from a minimum fee of $135 to a flat fee of $6. That’s a substantial drop, but reflects the lack of any real human involvement in the process. The bad news is that Designations are no longer permanent like they were in the Old System. Again, all Old System Designations will expire on December 31, 2017. All New System Designations must be renewed every 3 years by filing a renewed Designation. If you amend a Designation on file in the New System, the 3 year renewal period starts over. Apparently, the U.S. Copyright Office will send out reminders of any impending renewal deadline to the email address of record, but separate calendaring of this filing deadline by the Service Provider (or its attorney) is highly recommended. It is difficult to predict how the system will work in 3 years.

One other change in the procedures is the requirement that Service Providers submit a telephone number and email address when submitting a Designation. Previously, that information was not required. Notably, the telephone number and email address will not be posted in the database, but will be maintained in the internal records of the Copyright Office.
Some practical problems are bound to arise from this transition. As noted above, some Service Providers will understandably believe that they have a current Designation on file, but that Designation may never be posted if it was submitted in the latter part of 2016. Individuals trying to locate a Service Provider’s DMCA Agent may not understand the obligation to check two independent DMCA Agent databases – either of which could have relevant information about a Service Provider’s agent. Some Service Providers will have conflicting Designations filed in each database directory. Filing a Designation in the New System may not override or cancel out the Designations filed in the Old System. Some websites may have more than one Service Provider associated with them, according to one or the other databases. Some domains may be overlooked and not included in the new Designations, and will thus lose any safe harbor protection.

Ultimately, the confusion and inconsistencies will be corrected due to the passage of time, and the elimination of the Old System at the end of 2017. For now, it is essential for Service Providers to carefully review their Designations for accuracy and continued validity. Multiple calendaring systems should be implemented to ensure that renewal Designations are filed on a timely basis. Given the importance of correctly filing and maintaining a DMCA Agent Designation, many Service Providers chose to have an attorney act as their DMCA Agent, and oversee the process. While filing the Designation of Agent in the New System is not rocket science, attorneys tend to be meticulous with filing procedures and deadlines. Moreover, since a website’s DMCA contact form or email address is often used by third parties for a wide variety of legal notices, claims, subpoenas, search warrants, and preservation notices, a licensed attorney will be able to quickly escalate any non-routine legal correspondence, and ensure timely compliance with legal obligations. Regardless of your choice of DMCA Agent, it is essential to remain up to date on the changing legal requirements for filing and renewal of DMCA Agent Designations with the U.S. Copyright Office.

VISA Cracking Down on Shell Billing Companies with New Restrictions

There was a time not so long ago when adult website operators created “billing companies” in favorable jurisdictions, whose sole purpose was to bill customers for services provided by the operator, and remit the settled funds to the operator. The customer was typically indifferent to the identity and location of the billing company, so long as the payment went through and the products or services were delivered. However, credit card associations have become increasingly insistent that Merchants have a physical location, and be organized where business is actually conducted. Concerns with consumer protection, fraud, and money laundering have now resulted in tighter restrictions on the identification and location of Merchants’ operating companies.

In August, 2016, VISA issued a “Clarification” of its Core Rules regarding the location of Merchant Outlets. Effective in October, 2016, any Merchant Outlet involved in Electronic Commerce is required to have a Permanent Establishment through which transactions are completed. If only digital goods are sold, the Merchant must use the country where the principles of the company actually work. The Merchant must also hold a valid business license, maintain a local address, and pay applicable sales taxes. The Merchant’s address for cardholder correspondence must be clearly displayed on the checkout screen, along with various shipping and refund / cancellation policies.

Presumably, these rules prohibit website operators from simply incorporating a billing company in a jurisdiction like the United States, if the principles work in other locations. Moreover, “shell” corporations with no business license or physical address would be prohibited from serving as a Merchant’s operating company.

More recently, based on information from multiple sources inside the payment processing industry, VISA EU intends to implement new rules that are scheduled to take effect on January 31, 2017. These rules carry potentially heavy burdens for affected Merchants and Sub-merchants, as they will require companies to show a presence in their country of incorporation and to also retain at least some of their processing funds there rather than settle all those funds to another jurisdiction.

Non-compliance with these restrictions can be crippling. A first violation carries a €50,000 fine, albeit suspended until the end date of the cure period. A second violation within 12 months of the first is €100,000, with a monthly increase thereafter of €150,000 above the prior month’s accumulated penalties (e.g., at month 3; €300,000 and so forth).

The new rules can be summarized as follows:

The Merchant’s country of incorporation must be within the Acquirer’s Territory;
A majority of the Merchant’s directors must be in the Acquirer’s Territory;
The Merchant must have a valid address in its country of incorporation, within the Acquirer’s Territory; the incorporation agent’s addresses cannot be used;
The Merchant must pay corporate tax, sales tax or VAT as required by its country of incorporation (within the Acquirer’s Territory);
The Merchant must have a bank account to be used for settlement purposes in a country within the Acquirer’s Territory;
The domain name must be owned by the Merchant or a parent, sister or subsidiary of Merchant;
The Merchant must disclose its location before the customer completes the card transaction, either on the checkout screen or on a screen in the checkout sequence;
The Terms and Conditions must clearly state that the services are provided to the customer by the Merchant, and by no one else, and that all inquiries or complaints be directed to the Merchant; and
Merchants that are not compliant by January 31, 2017 can be subject to fines (see above for the fine schedule).

The increased scrutiny of cross-border transactions, along with the new VISA restrictions, may require substantial business restructuring by some website operators. Given the relatively brief window before these rules take effect, affected operators should consult with their business, accounting, and legal professionals promptly to begin compliance planning.