Posts Tagged ‘prostitution

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.”

19
Mar
12

The Sunshine State: A Ray of Hope for Content Producers

I. Mandatory Condom Law Spurs Potential Exodus from L.A. Area
In late January, 2012, the city of Los Angles passed a landmark law requiring all adult content producers to mandate the use of condoms by performers as a condition for obtaining a filming permit. This first-of-its-kind, mandatory condom law sent shock waves through the adult industry, and represented a huge victory for the AIDS Healthcare Foundation (“AHF”), which pushed for passage of the law by gathering a sufficient number of signatures to force the City to hold a special election on the issue. Instead of spending four million dollars on a special election, the City Council decided to pass the law on its own.
This concern may not be limited to the City of Los Angeles much longer. The AHF has already launched a similar petition drive, attempting to mandate condom use throughout Los Angeles County as a whole, in the hopes of getting the issue on the ballot for the November, 2012 general election. It is certainly possible that L.A. County could react the same way as the City, and simply pass the condom measure on its own without putting the issue to the electorate; effectively disregarding constituent input in its entirety.
Reacting to the rumors that the adult industry will move its operations elsewhere, the neighboring Simi Valley City Council reportedly plans to follow suit with its own mandatory condom ordinance. “We are not going to accept the pornographic purveyors from Los Angeles County,” Simi Valley Mayor, Bob Huber said when asked to comment on the issue. With the ordinance expected to be introduced in the very near future, Simi’s City Council is currently considering a slightly modified version of the L.A. measure. Under the potential Simi Valley law, content producers would be required to present proof of on-set health care professionals monitoring condom usage, as a prerequisite to receiving a permit to film within the city’s limits. As an additional precaution, the content producer would have a specific time period after completion of each project to submit an unedited copy of the content to the Simi Valley Police Department for confirmation of compliance.

II. Content Producers Consider Their Alternatives
Although the adult industry has been historically centered in the Los Angeles area, the recent, precedent-setting legislation has adult content producers considering a mass exodus to friendlier jurisdictions – even some outside of California entirely. Steven Hirsch, founder of Vivid Entertainment Group, stated that his company would simply move out of the city or the state and film elsewhere, as a likely alternative to complying with the mandatory condom law. Regardless of whether using condoms during erotic video production is a good idea or not, consumers seemingly prefer ‘bareback’ or condom-free content. Many adult performers also view condom usage as a personal choice that they should be allowed to make as opposed to something that should be mandated by the government. As far as the risk of disease, the current industry standard is for performers to be tested for STD’s at least every thirty days while they are working. One adult film star observed that people are more likely to catch a STD from someone outside of the adult industry, given the frequency of STD testing for adult performers. Thus, condom-free films will likely be made somewhere – even if prohibited in the Los Angeles area.
Since the adult industry generates an annual revenue stream of eight billion dollars, and 90% of U.S. adult films are currently produced in Los Angeles, the stakes are high. Local and state authorities stand to lose substantial tax revenue should the industry depart from California. However, since it appears that such departure is imminent, production companies are considering their options. Naturally, areas like Nevada or Arizona are under consideration, given their close proximity to California. However, upon getting wind of a possible migration to Arizona, state officials pushed back, and warned that adult content production may be deemed prostitution under state law. Therefore, the state of Florida stands to provide a viable opportunity for those considering a move to greener pastures.
III. The Climate in Florida
While Florida politics and law enforcement priorities are inconsistent throughout the state, certain areas of Central and South Florida have been a long-time home to some of the industry’s largest content producers. Several years ago, a Jacksonville newspaper reported on the growing popularity of both professional and amateur adult content production in the state of Florida. The story, which identified several local content producers, noted that Girls Gone Wild regularly visits Florida to capture the company’s world-renowned exhibitionist material. Another company referenced in the article, JacksVids, allowed customers to pay to have sex with a performer on tape, after which the video was uploaded to a site and sold to members. With local law enforcement recognizing that the monetary exchange was for filming, not sex, Sheriff’s deputies had difficulty identifying any actionable criminal conduct. “[T]here are so many constitutional protections, it’s extremely difficult to prosecute. It really has to go way outside society’s norms to come up to the level of criminal,” observed a sheriff’s deputy from the Jacksonville – notably one of the State’s most conservative areas.
In other locations, such as South Florida, adult content producers have been prospering for years. For over a decade, Miami-Dade County has been home to some of the largest adult content producers and website operators in the business. Also notable is that the high profile (and still controversial) .XXX registry operator, ICM Registry, Inc., calls Palm Beach Gardens, Florida, home.
Again, law enforcement in South Florida appears to have come to terms with the existence and legality of the adult industry. In fall of 2004, a local television network conducted an undercover “investigation” exploring the vast world of Miami’s adult content production, probing the amateur “gonzo” niche in particular. When asked to comment for the story, local police conceded that despite the raw, “uncut” nature of gonzo erotica, its production was not illegal. Perhaps the indifference to adult content production can also be partially attributed to Florida’s acceptance of nudity in general, exemplified by the State’s numerous clothing-optional beaches, resorts, and festivals. Offering a safe-haven for those looking to shirk traditional inhibitions, one Florida county has even been dubbed the “North American Capital of Nudism.” Florida is quickly becoming a seminal location for the naturist movement; a reputation that could easily benefit adult content producers. This, along with society’s increasing acceptance of the adult industry and erotica in general, bode well for content producers or webmasters considering Florida as a base of operations.
That’s not to say that all areas of the state are completely safe for adult industry producers to set up shop. Polk County, Florida for example, is notorious for its routine prosecution of obscenity cases against anyone involved with producing erotic content within its jurisdiction. Polk County Sheriff, Grady Judd, has even gone to the lengths of extraditing an individual from Colorado to face obscenity charges based on sending a book relating to pedophilia to the Polk County jurisdiction. The author has defended at least a dozen obscenity cases emanating from Polk County. Florida’s panhandle, spanning from Pensacola to Tallahassee, has also developed a reputation as a risky area in terms of obscenity prosecutions. In 2006, Pensacola-based webmaster, Clinton McCowen a/k/a “Ray Guhn,” was prosecuted by the State Attorney in that jurisdiction based on his alleged involvement with producing adult website material focusing on group sex themes. However, the obscenity, racketeering, and prostitution charges premised on content production were ultimately dismissed, in exchange for the defendant’s guilty plea to financial crimes. Aside from select areas of the State like the Panhandle and Polk County, Florida has generally adopted a ‘live and let live’ approach to the adult entertainment industry in recent times.
IV. Historical Basis for Locating in California
Historically, most adult film production has occurred in California as a result of a ruling from the Supreme Court of California holding that prostitution and “pandering” laws do not apply to the production of adult content in that state. This Court decision gave adult content producers a sufficient level of comfort to enable production of erotic material without fear of arrest for prostitution or “pandering” based on claims that they were paying individuals to engage in sexual activity. Since then, only one other state has been the beneficiary of a similar decision: In 2008, the Supreme Court of New Hampshire likewise held that its state prostitution statute cannot be legally applied to criminalize adult content production, under New Hampshire’s state constitution. While adult content producers did not go flocking to New Hampshire after that decision was rendered, the ruling might have given pause to prosecutors in other states who might have otherwise considered bringing charges against adult content producers under similar prostitution laws. No prosecutor wants to be responsible for bringing the landmark case resulting in their state becoming the latest safe-haven for adult content production. A state attorney who lets that happen on his (or her) watch can kiss any political or judicial aspirations “goodbye.” Therefore, a quiet detent has existed in the other forty-eight states (including Florida), where the applicability of prostitution laws to adult content production remains unsettled, with law enforcement generally looking the other way when it comes to such issues.
V. Why Florida?
Turning back to Florida, the adult industry has continued to grow and thrive in the Sunshine State since the early days of the Internet. Some of the reasons for this include the generally progressive community standards in South Florida, the warm climate, and the lack of any state income tax. The cosmopolitan makeup of Miami-Dade County, along with a strong presence from the fashion and modeling industries, results in ready access to many beautiful young women and men who are often willing to perform in erotic-themed material. Also an international travel hub, Miami fosters easy access to a constant supply of fresh faces seeking fame and fortune in the entertainment industry. Florida’s steady climb to the top of the list of locations piquing content producers interests has not gone unnoticed, as evidenced by the decision to hold the 2012 XBIZ Summit in Miami, Florida.
Few, if any, obscenity cases have been initiated in South Florida since the embarrassing loss suffered by former Fort Lauderdale Sheriff, Nick Navarro, who attempted to prosecute the producers of 2 Live Crew’s rap album, As Nasty As They Wanna Be, for violation of Florida’s obscenity laws. In that case, the Eleventh Circuit Court of Appeal ruled that the record, while sexually explicit, was not obscene as a matter of law. Other law enforcement officials in the area lost their stomach for obscenity cases after that high profile failure.
Similar censorship efforts, dating back almost twenty years, have failed from Tallahassee down to Daytona Beach, Florida as well. The unanimous acquittal of a video store owner brought up on obscenity charges in Tallahassee caused the prosecutor in that case to predict that the area would become a “porn haven.” In Marion County, Florida, prosecutors failed in their attempts to prosecute three separate store clerks from a local video store, based on their involvement with the sale or rental of allegedly obscene material. Several years later, in the same jurisdiction, jurors acquitted a man for wearing an allegedly “obscene” T-shirt depicting a nun masturbating. Another controversial state attorney was branded as having “skewed priorities” after losing several obscenity cases in both civil and criminal courts against local video store owners offering sexually explicit material. This failed “porn crusade” ultimately cost the “grandstanding” State Attorney his job, after he was voted out of office largely in reaction to concerns over censorship by the electorate.
While it is notable that Paul Little, a/k/a Max Hardcore, was prosecuted in Tampa, and convicted of federal obscenity violations (due to the presence of hosting servers containing the subject material in that jurisdiction), few other federal obscenity cases have been brought in Florida in the last two decades. Further, despite Little’s prosecution, the adult entertainment industry continues to thrive in the Tampa area, which reportedly has the most adult businesses of any metropolitan area in the country, and has been dubbed the “lap dance capital of the world.” Even in Orlando, Florida – home of Disney World – adult entertainment companies have prospered and generally been left alone by law enforcement after some unsuccessful attempts to censor adult video stores in the early Nineties. Perceived as the geographic happy-medium between South Florida’s overt sexual freedom and the Panhandle’s more conservative approach towards erotic material, Orlando adult content producers capitalize on what one local newspaper referred to as, “[…] the Florida lifestyle: sunny skies, sandy beaches, palm trees and tan girls in skimpy bikinis.”
Aside from a friendlier local political climate, Florida tends to afford content producers more bang for their buck – no pun intended – thanks to significantly lower operating costs compared to their West Coast brethren. “Our original plan was to go to California, but it would have been costly so we decided to set up shop here in Florida,” observed Leon Bryan of the Orlando-based Demon Seed Pictures. Industry veteran and publisher of AVN Online, M.J. McMahon, accredited Florida’s “large and willing talent base” for its ongoing adult content production success.
Moreover, Florida authorities have not targeted adult content producers for workplace safety violations as has CAL-OSHA in California. The well-publicized raids on West Coast adult content studios have threatened the “independent contractor” relationship that most producers have tried to maintain with their performers. There is no “FL-OSHA.” That said, in June of 2010, the Florida Department of Health initiated an investigation requested (not surprisingly) by the AIDS Healthcare Foundation, regarding the failure to use condoms in Florida’s “fast growing” adult film industry. The investigation was based on broad health regulations prohibiting the creation of a “sanitary nuisance.” Four Florida production companies were named in the investigation; however, the scrutiny appears to have run its course as no further action has been taken since the announcement of the investigation over a year and a half ago, and no new investigations have commenced. Notably, no city or county in Florida has considered any ordinance requiring mandatory condom use by adult content producers.
VI. Conclusion
While Florida may not have the established case law protecting content producers from prostitution charges, like California or New Hampshire, it certainly offers many other attractions: Beautiful models, dynamic cities, temperate climate and perhaps most importantly – no mandatory condom laws. As the Los Angeles area becomes less and less friendly to the adult entertainment industry, production companies are considering their alternatives. Some may discover a bright new future in the Sunshine State.

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.