Posts Tagged ‘Internet regulations

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.

18
Mar
13

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.”

02
Jan
13

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 ACTASOPA, 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.