Posts Tagged ‘communications

07
May
13

Dangerous Intersections

Can a webcam model also be a paid escort and an active member of a “hookup” dating site?  Naturally, the answer is “yes,” but at what costs?  Blurring the lines between these adult-themed user categories creates an uncharted hybrid of legal exposure for both the individual model/escort and those operating the associated websites.  However, more and more frequently we’re seeing this sort of crossover in the live webcam, escort, and casual dating industries.  Historically, escort sites have operated on the legal assumption that their advertisers do not engage in sexual activity for hire, but simply offer paid companionship services.  Live webcam operators routinely engage in sexual activity on cam, but are typically prohibited from any “real world” meetings with users, so as to avoid concerns with prostitution and solicitation.  Finally, adult dating sites have avoided prostitution-related issues based on the fact that they merely serve as a forum for social interaction, and should any sexual activity occur between users, it is not in exchange for money or anything of value. However, when the same individual acts as a webcam performer, an escort, and a hookup site user, these important legal distinctions and assumptions can start to break down.

Importantly, no law prohibits an escort from having a normal, romantic dating life, complete with sexual activity.  Similarly, live webcam models are not legally prohibited from offering companionship escort services, or submitting profiles to casual dating sites in search of an occasional tryst.  The legal danger arises in the not-so-rare scenario, linking all of these activities together in some way. For example, escorts who provide sexually explicit performances via webcam must be careful to separate any discussion of escort activities or reference to online escort profiles, to avoid sending the wrong message to users.  Without clearly distinguishing between webcam and escorting activities, the government will likely argue that any explicit webcam activity is indicative of the services the model might provide when acting as a paid escort.  Whether such argument would be successful in a court of law is another matter, but the risk exists.  Escorts should be similarly cautious when linking to any dating site profiles that reference sexual activity, so as to avoid conveying any misconception regarding the limited, non-sexual nature of the activities that the escort is willing to engage in during a paid session.

While compelling legal arguments can be made in support of the legality of live webcam sites, escort sites, and hookup sites, those legal arguments can be negatively impacted by linking such activities together in some manner. In a perfect world, escorts would never engage in sexual activity, webcam models would never meet users offline, and adult dating site participants would never be compensated for anything having to do with erotic interaction.  Unfortunately, however, reality is messy.  Escorts and webcam models do have social lives, and are entitled to engage in healthy sex lives, just like anyone else.  But as the escort, webcam, and adult dating business models become more popular and profitable, site operators will be forced to make difficult but important decisions regarding the extent to which any co-mingling of activity will be permitted or referenced on the site.

In the immortal words of The Offspring: “You gotta keep ’em separated.”  But with many operators permitting posting of user generated content with limited or no pre-publication review, along with real-time social network feeds, the ability of a site operator to control the intersection of these three areas of online adult entertainment can be challenging.  That said, pre-publication review of user posts/profiles creates its own set of complications, and may negatively impact the legal protections afforded to online service providers under federal statutes like Section 230, the DMCA, and Section 2257.  Thus, actively attempting to control linkage of these various activities could impact the site operator’s legal defenses to claims arising from the publication of this third-party content. Coherent operating policies should be adopted in connection with the publication of any such material, taking into consideration all of the factors.  However, given the serious legal consequences attached to the promotion of sexual activity for hire in the United States, site operators, escorts, and performers should be forewarned regarding these dangerous intersections. 

Update: The passage of FOSTA in April, 2018 has significantly impacted the legal issues addressed in this post.

25
Jun
09

U.S. Representatives Demand Further Action from Craigslist Regarding Adult-Oriented Classified Ads

Members of the House of Representatives who helped push through the Wilberforce Trafficking Victims Protection Act have directed a letter to Craigslist.com, demanding accountability and information relating to the site’s “Adult Services” ads.

http://www.scribd.com/doc/16485198/Craigslist-Letter-06-10-091

Apparently, its decision to delete the entire Erotic Services section in response to pressure from state Attorneys General was not enough for these representatives, who demand to know how the site will be punished if any further ads for illegal services are published. They also demand a ‘sit down’ with Craigslist.com representatives, to hash out their concerns.

All of this demonstrates a fundamental misunderstanding about how federal law protects interactive computer service providers like Craigslist.com. In case anybody forgot, Craigslist.com does not create, review or approve the ads posted to the site. It merely provides an online venue for third party users to post classified ads of their choosing. If service providers like Craigslist.com were held responsible for the content of material posted by third parties, the Internet would cease to function. Hosts could never review and approve every page of every website they host, to ensure that no illegal or inappropriate material appeared thereon. Search engines could not effectively deliver search results if each result needed to be scrubbed for compliance with 50 different states’ laws (and federal law to boot). Recognizing this reality, Congress passed Section 230 to the Communications Decency Act, 47 U.S.C. §230, immunizing online service providers from liability based on the content of user submitted material.

This immunity is seemingly ignored with greater frequency, when it is politically popular to do so. This is a disturbing trend. While Craigslist.com buckled to the pressure from the state AG’s to remove the Erotic Services section, it drew the line with South Carolina’s request to block all pornographic material from the state. The site may have to draw the line again, in the latest Congressional attempt to impose liability for violence against women who post escort ads. While this is certainly a sympathetic, hot-button issue sure to garner votes from constituents, the threat of imposing liability against a service provider like Craigslist.com generates potentially disastrous impacts for online communications. Stand your ground, Craigslist!  The consequences of giving in are too important for the rest of us.