Posts Tagged ‘sex

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.”

21
Jun
11

Reading the Tea Leaves  Discerning the Ultimate Fate of Section 2257

Adult content producers and webmasters have become increasingly resigned to the fact that Section 2257 compliance is here to stay. Renowned industry attorney Greg Piccionelli, Esq., has recently written a detailed set of articles reminding producers of their complicated obligations necessary to achieve 100% compliance with 2257. The increased focus on records keeping obligations is the result of a confluence of events, such as; the district court’s dismissal of the Free Speech Coalition’s (FSC) most recent legal challenge to the statute and associated regulations; the historical trend in the courts in previous 2257 challenges; and the potential for a Republican president in 2013, complete with a newly-appointed conservative Attorney General.

So, is this reluctant acceptance of 2257 as a fact of life warranted? Or is there still a possibility that these burdensome obligations will be lifted – potentially in favor of a more realistic and constitutional system of performer age verification? The answer to these questions requires that we delve into the history of the challenges to Section 2257, and recap the current status of the law.

Initially, the Free Speech Coalition should be congratulated for continuing to fight the good fight against Section 2257. They’ve litigated hard in several courts in the attempt to beat back these sweeping regulations. J. Michael Murray, Esq., whose firm was hired to mount the most recent
challenge, which is currently pending in the Third Circuit Court of Appeals – is one of the best First Amendment lawyers in the biz. But given the history of previous legal challenges to the statute and the way the wind is blowing in the current case, adult webmasters and content producers may need to come to grips with the fact that 2257 will be upheld, therefore, enforcement by the FBI may resume at any time.

The previous attempts to invalidate 2257 have spanned over two decades since its inception in 1988. The original law was struck down as unconstitutional on First Amendment grounds shortly after its passage. American Library Ass’n. v. Thornburgh, 713 F. Supp. 469 (D.D.C. 1989). After the Thornburgh challenge, Congress amended the statute to no longer utilize a rebuttable presumption that the performer in question was a minor, but to directly impose criminal sanctions for noncompliance. The ALA challenged 2257 again challenged, but this time the First Amendment didn’t come out on top. In American Library Ass’n. v. Reno, 33 F.3d 78 (D.C. Cir. 1994), the amended version of 2257 was upheld, as the court rejected the ALA’s argument that the record-keeping provisions were content-based restrictions. In doing so, the Reno court agreed with the feds that record-keeping requirements are necessary to prevent the exploitation of children and a commercial market for child pornography. Further, the district court tailored the scope of the record-keeping provisions by narrowing the definition of “secondary producers” and eliminating the indefinite temporal requirement for maintaining records.

All was calm on the 2257-front for a few years until Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), when the Tenth Circuit decided to shake things up a bit and take the DOJ down a peg. The Sundance court invalidated the regulations that imposed records keeping obligations on “secondary producers;” a broad category of ‘producers’ that was created purely by agency regulation and not referenced in the actual 2257 statute. The industry as a whole generally relied on the Sundance decision as the correct interpretation of the law. In the real world that meant that only original producers of adult content kept records, and webmasters that were uninvolved with content production maintained no records of their own, but simply identified the ‘primary producer’s’ records custodian on their website, in order to discharge their perceived obligations under the statute. The DOJ disagreed with the Sundance interpretation of the law, but the statute went unenforced for several years after the Sundance case, so the industry became complacent with the status quo.

That all changed in 2005, when the DOJ passed new regulations which re-ignited the “secondary producer” debate, by imposing records-keeping requirements on all producers including webmasters that published material on a website. The Code of Federal Regulations issued in June of 2005 defined a secondary producer as one who “inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct.” Overnight, hundreds of thousands of websites became illegal given the lack of 2257 records to back up the content appearing on those sites.

In response to these amended regulations, and the tremendous panic in the industry, the FSC filed suit in Colorado, which happens to be within the realm of the Tenth Circuit, and was therefore bound to follow the Sundance case as precedent. wordFree Speech Coalition v. Gonzales, 406 F. Supp. 2d 1196 (D. Colo. 2005). On December 28, 2005, the FSC received a late Christmas present when the district court, following Sundance, preliminarily enjoined enforcement of the new requirements for all secondary producers who were members of the FSC at the time. As the Attorney General commenced the appeals process in Gonzales, Congress was taking matters into its own hands by passing the Adam Walsh Child Protection & Safety Act, which officially amended 2257 by adding “secondary producers” to the list of those responsible for the record keeping obligations. This essentially ‘fixed’ the main problem identified in the Gonzales case. In the wake of the Adam Walsh Act passage, the Gonzalez court granted a partial summary judgment against the FSC in the case, finding that the Sundance decision no longer applied to 2257 as amended. Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007). On May 1, 2007, based on an agreement by both the DOJ and the FSC, the Gonzales court dismissed the case, likely as a result of the legislative resolution of the main legal challenge raised in the litigation.

This left 2257 in a state of presumed validity until a breathtaking win followed quickly by a heartbreaking loss in the case of Connection Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009) (en banc), cert. denied 2009 U.S. LEXIS 6926 (Oct. 5, 2009). In fall 2007, a panel of three judges on the Sixth Circuit Court of Appeals found the record-keeping requirements set forth in 2257 imposed an overbroad burden on protected speech. Shortly after the opinion was issued, the government successfully petitioned the entire Sixth Circuit for “en banc” review of the panel decision. Ultimately, the en banc court rendered a devastating blow to the adult industry by vacating the well-reasoned panel decision, and upholding 2257 in the face of numerous constitutional challenges.

In 2008, the DOJ passed another set of regulations, clarifying its position on records keeping compliance by both primary and secondary producers (along with many other issues). Those regulations became effective in March, 2009, and are what the industry lives by today.

Ultimately, the FSC mounted its most recent challenge the statute and related regulations by filing FSC v. Holder, 2010. U.S. Dist. LEXIS 75471 (E.D. PA July 27, 2010), in Pennsylvania. However, the district court rejected the FSC’s challenges last summer, and dismissed the case (alternatively) on the grounds of collateral estoppel/res judicata, which means that the prior losses suffered by the FSC in the Gonzalez case prevented the organization from re-litigating those issues in the Holder case. Id; see Memorandum Opinion dated July 27, 2010, at p. 45. This doctrine of ‘claims preclusion’ essentially means that the same party can’t keep suing over and over again, asking different courts (or the same court) for the same relief. The FSC has appealed the dismissal of its most recent case to the Third Circuit, in the hopes of reviving the legal challenge and obtaining some relief on behalf of the industry.

While the author wishes the FSC all the success in the world in its pending appeal, the chances of success in striking down 2257 are looking somewhat slim. As is evident from the above, the majority of court decisions have rejected challenges to 2257, and the FSC has been a party to a couple of these cases already, which negatively impacts its chances of prevailing, given the issues of claims preclusion referenced above. While all the previous court decisions may be wrong, from an academic perspective, a brief gaze into the crystal ball provides a pretty good idea what will happen with the current challenge in the Third Circuit. As a general rule of thumb recognized in the legal community, the chances of prevailing in any appeal are less than 25%. When you factor in things like the fact that the case is being backed by the adult industry, the previous losses by the FSC, and the government’s claim that the challenged regulations are designed to “protect the children” from exposure to sexual activity, the chances of a win on appeal tend to grow even slimmer. Anyone who’s been involved in litigation before will tell you to expect the unexpected, but truth be told; the FSC is fighting an uphill battle.

Certainly this information will be tough to swallow for those closely involved with the case, who undoubtedly remain hopeful for a positive outcome. But as a practical matter, any producers who are counting on invalidation of 2257 as their records-keeping strategy need to wake up and read the tea leaves – to mix a metaphor. All producers of 2257-triggering content should be in full compliance by now, in preparation for another potential loss on appeal, and eventual enforcement of the statute. Moreover, given Congress’s track record lately and waning public approval of the current Administration, a rigorous enforcement plan could be very likely if there is a Republican to answer to in 2013.

At this point in the game, the only realistic hope for invalidating 2257 is for a party with substantial funding and completely separated from the FSC, to initiate a new challenge using a different legal strategy than that which has been employed thus far. Unfortunately for the FSC, as a party plaintiff in the previous cases, it is burdened with these ‘res judicata’ and ‘collateral estoppel’ defenses based on its previous losses in court. Any new 2257 challenge would need to come from a new entity, which may need to carefully avoid association with the FSC or its members, given how courts determine (based on “privity”) which parties are barred by claims preclusion defense. Additionally, for any realistic shot at a successful claim, any new challenge would need to be based on different legal arguments and theories. Admittedly, the arguments made in the litigation thus far have been viable and should have carried the day with any intellectually-honest judge. But that’s not always the reality when one steps into court – particularly when the adult industry is behind the challenge. Other potential claims remain available to be litigated, but it is uncertain whether they will ever be raised, and who would raise them. Naturally, funding is always an issue, and constitutional litigation against the federal government is nothing if not costly.

For the foreseeable future, the industry needs to take a second look at its records keeping and labeling compliance status. This includes so-called user generated content sites which have taken liberal advantage of the 2257 exemptions, even in some cases where the content is not truly user-generated, or does not fall into the recognized exemptions. It’s time to dot the I’s and cross the T’s with your 2257 records, because the writing may be on the wall, for those who choose to see. But for the time being, the only true constant for 2257 is the phrase, ‘to be continued…’