June 2002 Update


By: Lawrence G. Walters, Esq.


The House Judiciary Committee sprang into action this month by approving a bill designed to address the Supreme Court’s recent decision striking down the virtual child pornography law, Ashcroft v. Free Speech Coalition.1 The Committee approved a bill that would outlaw computer images that were indistinguishable from actual photographs or movies.2 The bill would also ban any images of prepubescent children engaged in sexual activity, whether virtual or not.3 The bill shifts the burden of proof to the defendant to show that the images in question were entirely computer-generated and not an actual depiction of actual events.4 Some lawmakers disagreed with the newest attempt to regulate virtual child pornography: “I think this bill is the newest in a series of attempts to do what the Supreme Court has said we repeatedly cannot do,” said New York Democrat Jerry Nadler.5 A similar bill was recently introduced in the Senate by Sen. Jean Carnahan, D – MO.6

The House Judiciary Committee also took up the controversial issue of online gambling this month. The bill, introduced by Rep. Bob Goodlatte (R-VA), is entitled the “Combating Illegal Gambling Reform and Modernization Act.” After various stalled attempts by Congress to outlaw Internet gambling by United States citizens using offshore casino Websites, it now appears that Congress is ready to act on the issue through Rep. Goodlatte’s bill. The House Judiciary Committee approved several amendments to the bill, which would expand the prohibitions to include bingo, games of chance and selling lottery tickets online. The amendments even went so far as to eliminate exceptions for charitable organizations. The bill now goes to the full House for further action. Adult Webmasters who utilize online casino affiliate programs should closely follow this legislation since it may empower the government to prohibit certain promotions such as banner ads for offshore casinos.

Score another one for the good guys! Based on First Amendment grounds, a United States District Court panel of three judges in Philadelphia struck down the Children’s Internet Protection Act (“CIPA”).7 This law represents the third attempt by Congress to control online erotica, all of which have suffered defeats in the courts. CIPA would have prevented public libraries from receiving federal funds for technology unless the libraries installed filtering devices to prevent access to adult materials. Filtering technology has been roundly criticized as ineffective by Free Speech advocates. The judicial panel found that significant portions of the CIPA law were “facially invalid under the First Amendment to the United States Constitution.8 On June 20, 2002, the Government appealed to the United States Supreme Court for review of the decision. How many defeats will it take before the government gives up on its attempts to censor the Internet?

In a throwback to the McCarthy Era, the FBI will now be allowed to investigate and conduct surveillance on innocent civilians, including their online activities. The Bureau has canned the so-called “Levy guidelines,” which were drafted in the 60s and generally prevented the FBI from spying on political and religious groups in the absence of reasonable suspicion of criminal activity. Using the War on Terrorism as a justification, however, Attorney General John Ashcroft announced that FBI Agents will now be encouraged to visit public places and conduct online surveillance of individuals and groups without any evidence of criminal activity as a “preventative measure.” Internet privacy advocates have become alarmed by the new broad surveillance powers seized by the FBI, and are concerned that cyberspying will explode to new levels.9 Of great concern is the so-called “Magic Lantern,” believed to be the FBI’s latest and most guarded program designed to let agents track Web browsing activity, including email and password access, without detection.10 “It allows them to bug a computer in ways that in the past they were not able to do,” said David Sobel, an analyst for the Electronic Privacy Information Center.11 For the record, the FBI refuses to confirm or deny whether Magic Lantern exists.12 However, according to Sobel: “It’s not someone’s paranoid fantasy, there is the existence of such a thing.”13

Escort Websites have been the target of some recent prosecutions in Florida. Officials with the Metropolitan Bureau of Investigation arrested Charles S. Kelly, of Tampa, and Steve E. Lipson, of Boca Raton on various counts of racketeering, deriving support from prostitution, and promotion prostitution. Law enforcement officials set up a fake Website to be included within the Defendants’ promotional portal. As soon as the fake site was included, it received thousands of hits, according to the Hillsborough County Sheriff’s Office.14 “The wave of the future is really to do prostitution this way,” said Assistant Statewide Prosecutor Christopher Brown. The site had over fifty thousand users, and advertised dates with porn stars for as much as $17,000 a night.15 The owner of another Central Florida-based website, www.bestadultclub.com, was also arrested on racketeering and prostitution charges earlier this month. The website advertised a long-standing gentlemen’s club in Cocoa, Florida. Based in part on information contained on the site, law enforcement officials arrested the owner along with numerous employees, and froze all the club’s assets. The owner has retained the author’s firm to assist in defending the charges and to investigate potential civil rights abuses committed during the investigation and arrest. Given the recent proliferation of escort sites, Webmasters should closely consult with their counsel regarding the legality and method of operation of any such Website.

Jerry Falwell just can’t seem to catch a break in the legal system. After the highly publicized loss to Larry Flynt and Hustler magazine in the United States Supreme Court, you would think that Falwell would have given up on the courts. However, Falwell decided to file a claim against a Website that pokes fun at him and uses his name without consent. Falwell filed the complaint with the World Intellectual Property Organization, (“WIPO”), seeking a transfer of the subject Website, www.JerryFalwell.com, based on alleged trademark and other intellectual property violations.16 The three-member panel of WIPO ruled that protections should be limited to personal names that have been commercially exploited. No such commercial exploitation of Falwell’s name occurred, and the panel rejected Falwell’s claim that he has a common law trademark on his name. For his part, Falwell plans to appeal to federal court.17

On the lighter side, it seems that adult Websites are the home page of choice for public officials in Chile. Government officials have admitted that a civil servant’s addiction to online erotica has caused all of the government’s computers to crash.18 The computer failure lasted for two days and essentially ground government operations to a halt.19 The Chilean government has now installed filtering software and the responsible government official was sacked.20

Finally, it appears that another photographer has been arrested for taking pictures of young girls. Kenneth O’Brien, from Oklahoma City, a graphic designer for fourteen years, allegedly took illicit photographs of a fourteen-year-old girl.21 Instead of child pornography, O’Brien has been accused of distributing obscene material. And so it begins…

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FreeSpeechLaw.com or AOL Screen Name: “Webattorney”.

1 122 S.Ct. 1389 (2002)

2 A.Sullivan, “House Panel Okays Rewritten ‘Virtual’ Child-Porn Ban,” Reuters.com, (June 20, 2002).

3 Id.

4 Id.

5 Id.

6 Id.

7 D.Morgan, “Judicial Panel Overturns Internet Porn Law,” Reuters.com (May 31, 2002).

8 Id.

9 K.B. Vlahos, “FBI Powers May Feed Cyberspying,” Fox News.com (June 14, 2002).

10 Id.

11 Id.

12 Id.

13 Id.

14 A. Rippel, “Police: 3 are online hookers,” Orlando Sentinel.com (June 19, 2002).

15 Id.

16 “Internet domain group rules in Falwell case that personal names must be commercially exploited to gain exclusive protection,” News-Journal Wire Services (June 8, 2002).

17 Id.

18 “Employees porn habit causes crash,” Ananova.com (June 16, 2002).

19 Id.

20 Id.

21 “Accused Photographer Facing New Charges,” ChannelOklahoma.com (May 30, 2002).