ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FirstAmendment.com

Protect Act Passed

The adult industry was sent reeling this month by the news that the federal PROTECT Act – presented to the electorate as an “Amber Alert” Bill – had been signed into law. S. 885. In fact, the Act goes far beyond assisting with the location of missing children, and is in reality a law largely aimed squarely at the adult entertainment industry. For example, the Act requires the Attorney General to appoint 25 additional trial attorneys to the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice who are required to focus on the investigation and prosecution of federal child pornography “and obscenity laws.” § 513. The Justice Department has received essentially a blank check for funding these new attorneys, since the Act states: “There are authorized to be appropriated to the Department of Justice such sums as may be necessary to carry out this subsection.” § 513(a)(2). Moreover, the Department of Justice must report in the next 9 months, and every 2 years thereafter on what it is doing to enforce child pornography offenses, along with certain obscenity offenses relating to children. § 513(b)(1). Apart from that, the Act demands a separate report in one year about § 2257 enforcement. § 511(b). The Act also includes new crimes relating to virtual child pornography and the use of misleading domain names covered in detail in last month’s Update.

Of significant concern to adult webmasters are the beefed up sentences required under the Act for child pornography and obscenity crimes. The “Feeney Amendment” to the Bill was designed to essentially eliminate the discretion of judges to depart downward from the sentencing guidelines in these cases. § 401. Of course, the judges still are free to give harsher sentences.

The penalties for violation of Section 2257 relating to records keeping have also been increased from two years up to five years incarceration. §511(a)(3)(B). Repeat offenders get up to ten years. Again, there are no downward departures for these crimes under the Feeney Amendment. Conforming amendments to the sentencing guidelines can be expected. Parenthetically, the scope of media covered by Section 2257 has also been expanded, or clarified, to include any “computer generated image, digital image, or picture.” § 511(a)(2). While the existing definitions contained in Section 2257 were probably broad enough to already include online erotica, the Legislature has now made it clear that webmasters will be on the hook for compliance with Section 2257. The Attorney General’s obligation to report to Congress regarding the number of inspections and/or prosecutions initiated under Section 2257 is nearly certain to trigger enforcement. Moreover, in the past the records that the adult industry was required to keep under Section 2257 could not be used against the individuals required to maintain them. That stood to reason, since the government should not require you to maintain certain records, and then use those records against you in a criminal prosecution. This implicates the right against self-incrimination. However, the PROTECT Act now allows the government to use such records as evidence in child pornography and – you guessed it – obscenity prosecutions.

It is hard to over-state the impact of this new legislation. This law was passed without any public input, much less protest, from the adult industry. Certainly, the presentation of this Bill as a “child protection act” focusing on recovery of missing children made it difficult to oppose for any lawmaker, however the add-on amendments bode ill for the adult industry and should have been challenged prior to passage. At this point, any affected parties must resort to the judicial system to obtain potential any relief.

Steganography Revisited

In November, 2001, this author alerted the adult Internet industry to the issue of “steganography” which involves the embedding of small digital images or messages in otherwise innocent online pictures, as a means of clandestine communication. At that time it was speculated that the 9-11 hijackers and other Al Qaeda operatives used steganography to communicate with each other by embedding messages in erotic images posted on the Internet. That speculation has now been confirmed with the discovery of coded erotica containing images of the Twin Towers, downloaded just days before the 9-11 attacks.¹ On September 4, 2001, pictures of the World Trade Center were saved as temporary files on one of the computers used by Abu Saleh, an Egyptian currently facing trial in abstentia in Milan on charges of international terrorism. The images had apparently been manipulated, with their colors modified, and mixed with various adult pictures, and sent back to the Web.² Law enforcement officials claim that, in this way, Al Qaeda cell members communicated back and forth without being detected. Although the digital evidence is still being analyzed, this discovery provides additional potential grounds on which to investigate adult Websites. The last thing the adult Internet industry needs is to be inadvertently linked with terrorism, which might be used as a basis for investigation of adult Websites under the Patriot Act. Speaking of which . . .

The End of the Patriot Act?

In a victory for civil liberties, Senate Republicans recently backed down from an effort to make the sweeping surveillance and investigative powers provided by the Patriot Act, permanent.³ Senator Orrin Hatch, Chairman of the Senate Judiciary Committee, abandoned his effort to extend the Patriot Act legislation which is scheduled to expire in 2005. However, the Senate did approve a measure expanding the government’s ability to use the super-secret surveillance tools provided by the Act even if it cannot link the terrorist suspects to a known terrorist group. As the law currently reads, United States officials must establish a link to a foreign terrorist group in order to invoke the surveillance powers. “There’s a delicate balance between liberty and security,” said Senator Charles E. Schumer, the lawmaker who authored the expanded powers. The attempt to make the Patriot Act permanent touched off a significant civil liberties debate from lawmakers concerned about the reach of “Big Government.”⁴ In a brave statement, a spokesman for Representative F. James Sensenbrenner, Jr., a Wisconsin Republican who chairs the House Judiciary Committee, said that extending the Patriot Act’s powers, “will happen over his dead body.”⁵ The American Civil Liberties Union called the defeat of the proposed extension “a major victory.”⁶

Judicial Update

In a major victory for peer-to-peer file swappers, a Los Angeles federal judge ruled last month that companies, such as Kazza, which provide software and assistance to enable file swapping amongst Internet users, are not liable for illegal copying of music and videos by those users.⁷ “It’s a vindication, we are not pirates,” said Wane Rosso, President of Grokster, one of the file swapping companies.⁸ A spokesman for the Recording Industry of America expressed disappointment at the ruling, which will likely be appealed. Notably, the rate of swapping of copyrighted adult video files is skyrocketing.

Spam, Spam, Spam, Spam, Spam

The Federal Trade Commission, (“FTC”) has gone on the offensive against “deceptively bland” spam, and has asked a federal judge to block unsolicited emails that use innocuous subject lines, false return addresses and empty “reply to” links.⁹ The FTC asked for a restraining order against Brian Westby, an alleged spammer based in St. Louis. The FTC cited such unassuming subject lines as “married but lonely” and “did you hear the news” as examples of the illegal deception.¹⁰ Also brought to the limelight was the issue of “spoofing,” where the sender of junk email makes it appear that the mail came from an innocent third party.¹¹ The FTC has become more active in pursuing spammers in recent years, and has announced hundreds of settlements.¹²

The State of Virginia has also gone on the offensive against spam by passing a new law criminalizing the transmission of unsolicited bulk electronic email.¹³ The law makes it a felony to transmit more than 10,000 unsolicited bulk emails in a 24 hour period, or more than 100,000 attempted recipients in any 30 day time period.¹⁴ Also included in the prohibitions are penalties for enabling the falsification of electronic mail transmission or other routing information.¹⁵

It is likely that spammers will be faced with many more such laws in the near future, as spam continues to clog our inboxes, and make email communication less and less efficient.

Wal-Mart Censorship

Magazines, which are considered relatively benign by most in the adult Internet industry, are being pulled from the shelves of Wal-Mart, and labeled “too racy” for Wal-Mart shoppers.¹⁶ Maxim, Stuff and FHM men’s magazines will no longer be carried by the nation’s largest retailer.¹⁷ While private companies are entitled to make business decisions as to what media is sold, any decision by this huge retailer greatly affects the availability of the censored product. During the formation of our country, when publishers used the printing press to communicate, the government was in the strongest position to influence the availability of a specific publication, through its censorship policies. However, in present times, decisions such as this by Wal-Mart have a greater impact, as de facto censorship, than the government could ever have by passing a law.

Wal-Mart’s attempt at taking the moral high-ground may be a bit hypocritical if reports from female employees in San Francisco are true. More than a hundred complaints have been filed by the women against the company, as part of a lawsuit against the retail chain, alleging that male managers at Wal-Mart stores required their female counterparts to attend meetings at strip clubs and Hooter’s.¹⁸ The plaintiffs’ attorney claims that “women are treated as second class employees at Wal-Marts from Florida to Alaska.”¹⁹ The workers are attempting to certify a class action against Wal-Mart based on discrimination against female employees.²⁰ At least those employees will not be forced to look at those racy men’s magazines any longer!

Producer Gone Wild

In a black eye for the adult industry, the owner and producer of the successful “Girls Gone Wild” video line is facing sex and drug charges in Panama City, Florida.²¹ Joe Francis, Chief Executive of Mantra Entertainment, was arrested in April on allegations that he told minors to lie about their age on camera.²² After a search of five locations and his private jet turned up corroborating videotapes and drugs, Francis was charged with drug trafficking and racketeering relating to prostitution.²³ Three of his employees also were charged. Francis has denied the charges but documents relating to the case have been sealed as part of an ongoing investigation.²⁴

Video Game Industry Under Fire

The State of Washington has proposed a Bill making it illegal for retail stores to provide violent video games to minors.²⁵ The measure passed in both the State House and Senate, and the Governor is expected to sign the Bill shortly. Store clerks and owners who violate the law could face fines up to $500 per instance. The Washington Chapter of the ACLU, the Media Coalition and the Interactive Entertainment Merchants Association have called on the Governor to veto the Bill on First Amendment grounds, calling it “an attack on Free Speech.”²⁶ The courts have issued conflicting decisions as to the constitutionality of similar laws, and the United States Supreme Court has yet to speak on the issue.

Oddities

Do we really live in a world where large groups of men and women masturbate in public at a “Masturbate-A-Thon?”²⁷ Or where investors snap up shares of a publicly-traded brothel?²⁸

Or where 87 passengers fly nude from Miami to Mexico on a commercial airline?²⁹ Yes we do. The times, they are a-changing.

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 much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. 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.FirstAmendment.com or AOL Screen Name: “Webattorney.”

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FirstAmendment.com

Swearing in the Enemy

Insiders recently revealed that President George W. Bush has tapped some of the adult industry’s sworn enemies for potential appointment as the nation’s “Porn Czar.” The prime suspect is Bruce A. Taylor, an infamous censor and President of the National Law Center for Children and Families, (“NLC”).¹ Others under consideration are Patrick Truman of the American Family Association and J. Robert Flores, also with the NLC.² These potential appointments should come as no surprise, as Bush took an aggressive stance against erotica during his campaign, saying, “Porn has no place in a decent society.”³ One source predicts that thirty or more companies will be targeted by the Justice Department in the short term.⁴ There is also widespread speculation that the content depicted in modern adult films will change, in reaction to the potential appointments. On the list of endangered scenes are food used as sex objects, urination, coffins, blindfolds, interracial and, of course, “the money shot.”⁵ Not all industry participants are ducking for cover, however. Rob Black of Extreme Associates was recently quoted as saying, “I’m not going to hide in the closed. I’m not going to stop anything.”⁶

War Drums

As the war drums continue to beat at home, one adult Website has begun offering free erotica for the troops abroad. DirectLink Media Group has created a Website offering 500 free videos and DVD products to military personnel “to make their time away from home a bit easier.”⁷ Directlink is one of the largest mail order and Internet companies in the world, and hopes to rally the troops out there fighting for our freedoms. “They deserve any kind of support we can give,” said Aaron Gordon, President of FreePornForOurTroops.com.⁸ That should help make it hard on our enemies. It should be interesting to see if this stuff makes it past Iraqi customs.

Perhaps our beloved Attorney General, John Ashcroft, accidentally got on the list for some free adult materials: A package was found addressed to General Ashcroft at a federal courthouse last month. The package was originally thought to be dangerous, but was later cleared by the bomb squad, who determined that the only material in the box was a collection of erotica. Rumor has it that Ashcroft still thought it was dangerous. Charges will be filed, according to law enforcement officials.⁹ The box was destroyed.

Obscenity Update

One down . . . none to go! The country’s only “Porn Czar” got the axe recently in light of Utah’s budget crisis. Paula Houston was appointed to the post two years ago, however the State Attorney General decided that Utah no longer had the “luxury” of affording the nation’s only Porn Czar.¹⁰ For her part, Houston said: “I certainly hope I never have to look at pornography again.”¹¹ Thankfully, she wont. The State’s Attorney General, concerned about the public perception of the termination cautioned, “We hope pornographers will not see this as a sign we’re giving up.”¹² Riiiiight!!

In another setback for the censors, a Clermont County, Ohio grand jury has declined to indict Red Roof Inn hotel owners for providing X-Rated movies to guests.¹³ The Citizens for Community Values, (“CCV”), a pro-censorship group, pressured Clermont County prosecutors to take the obscenity case involving the movie Lots of Filthy Sex to the grand jury in the hopes of obtaining an indictment. However, the film, depicting multiple sex acts by various individuals, was not found obscene by the grand jury.¹⁴ This was the first Ohio County to show one of the in-room hotel movies to a grand jury. While law enforcement officials vow to continue seeking indictments, the Red Roof Inn continues to offer adult fare to its patrons.¹⁵

While most of the obscenity law news was positive this month, one case did result in a conviction. A thirty year old former parochial school teacher plead guilty to downloading two pictures of adult women posing nude on the Internet, resulting in a conviction under the federal obscenity law, Title 18, U.S.C. Section 1462.¹⁶ The conviction will result in the government looking over the Defendant’s shoulder any time he surfs the Internet, to make sure his activity is appropriate.¹⁷ The government will also be allowed to attach software to monitor his online activity, and the Defendant must provide passwords to any member areas.¹⁸ According to Morality in Media, which has followed the case, only seven other prosecutions under any United States obscenity law occurred in year 2001.¹⁹ Seven too many!

The federal government may soon become much more active in its fight against online erotica if a bill introduced by Rep. Nick Lampson (D-Tx) is passed. The measure would authorize twenty million dollars over the next four years for the “Customs Cyber Smuggling Center,” which conducts undercover operations to catch individuals distributing contraband over the Internet.²⁰ This year, Congress earmarked $2.5 million for the program. The Clinton administration had not specifically funded the Center in previous years.²¹

Blocking Brouhaha

The State of Pennsylvania’s plan to require ISPs to block certain erotic Websites sparked controversy and outrage by prominent civil liberties activists last month. At least 423 Websites have been blocked so far under a highly unusual law passed last year requiring ISPs to block subscribers’ access to the sites.²² The law imposes a $5000 fine on companies providing Internet access to Websites with illegal content, but imposes no penalty on the pornographic Websites themselves.²³ The Pennsylvania Attorney General, Mike Fisher, allowed citizens to file an online complaint using a form on his Website. The law requires the ISPs to block subscribers from visiting thousands of Websites with completely unrelated content and ownership, that may be located on the same server as sites with illegal images.²⁴ The Center for Democracy in Technology has launched an investigation into the Attorney General’s actions, and is attempting to force him to disclose details about the unusual blocking efforts.²⁵ Only one ISP, WorldCom, Inc., disputed a request to block – resulting in a court order to comply. Under a common technique called “virtual hosting,” a number of Websites can share a single numeric Internet address. In one case, a single Website was reported to have shared its numerical address with 970,411 other sites.²⁶ The Pennsylvania law makes no allowance for such address sharing, and requires complete blocking of all sites residing on the same address or servers. Talk about overkill!

More Trouble for ISPs

In another action involving Internet Service Providers, a federal judge recently ordered Verizon Communications to disclose the identity of an alleged peer-to-peer user in a case brought by the music industry. The Recording Industry Association of America brought suit against Verizon under the Digital Millennium Copyright Act, (“DMCA”), forcing the ISP to reveal the name of a Kazaa subscriber who has allegedly shared hundreds of music recordings. United States District Judge John Bates ordered the release of the name in this case which is widely viewed as a “test case” for online privacy.²⁷ Various civil liberties groups have complained that the DMCA procedure allowing a turbocharged subpoena process to obtain copyright infringers’ names violates consumer privacy.²⁸ Verizon plans to mount an appeal, citing a concern that the decision could open the floodgates to copyright holders sending numerous subpoenas to ISPs seeking the identities of subscribers.²⁹ This case pits important civil liberties concerns against the rights of music and video producers. Numerous advocacy groups including the Electronic Frontier Foundation, Consumer Alert, the Electronic Privacy Information Center and the National Consumers League, filed briefs in the case as amici curiae. ISPs could be flooded with thousands of subpoena requests for user information if Verizon looses the appeal.

Disappearing Civil Liberties Act

You thought the Patriot Act was bad – get ready for Patriot Act II. The Bush administration is allegedly preparing a sweeping, comprehensive sequel to the United States Patriot Act which will ramp up the government’s intelligence-gathering powers, and allow increased surveillance and law enforcement prerogatives, while at the same time decreasing judicial review and the public’s right of access to information about the activities.³⁰ The bill has apparently been drafted by Attorney General John Ashcroft, and is entitled the “Domestic Security Enhancement Act of 2003.” Although it has not been officially released to the public, rumors have been circulating about the existence of the proposed bill for months. One university law professor who has reviewed the draft legislation claims that it “raises a lot of serious concerns.”³¹ Apparently, the law drastically expands law enforcement powers and authorizes secret arrests, new death penalties, the creation of a DNA database based on “suspicion,” and the ability to eliminate American citizenship from people who belong to or support disfavored political groups.³² Speculation has been circulating that Ashcroft has been waiting for the right time to introduce the legislation, such as when the war with Iraq has begun, or a another terrorist strike hits.

In a last-ditch effort to save what’s left of our civil liberties, the ACLU has mounted an unprecedented appeal to the United States Supreme Court from a decision of the super-secret Foreign Intelligence Surveillance Act (“FISA”) Appeals Court. (That last line sounds like something straight out of Orwell’s 1984.) This court’s recent ruling reversed a trial court decision which had initially invalidated some of the Justice Department’s new surveillance procedures allowed by the USA Patriot Act.³³ The appeals court had never met before, largely because the trial court almost always grants the surveillance request, and there is no opposing party in these proceedings.³⁴ The appeals court reversed the strongly worded trial court decision, originally condemning the FBI for misleading the FISA court in 75 separate instances.³⁵ The appellate court decision granted the Justice Department wide leverage to expand the use of secret surveillance for domestic law enforcement purposes. While there is no established procedure for allowing the ACLU to intervene in these proceedings, it is hoping that the United States Supreme Court will hear the appeal. Here’s hoping for the long shot to come in.

Larry Flintsky

The Russian equivalent to Larry Flynt has insisted that his country’s adult Internet industry needs to be cleaned up. Sergei Pryanishnikov has demanded that the Russian Parliament establish a clear definition of pornography to determine what is and what is not legal, so that he can conduct his business without having to pay bribes.³⁶ The lack of clarity in Russia’s pornography definitions invites the intervention of law enforcement, who frequently take a cut, according to the story. Article 242 of the Russian Penal Code outlaws “illegal” creation of pornography, but implicitly allows it when it is “legal.”³⁷ Pryanishnikov wants a clarification “so as to put an end to police corruption.” We could use the same thing here in the States.

Yahoo! is Kosher

Former Yahoo! President, Timothy Koogle, must have been on pins and needles awaiting the outcome of his criminal trial in a French court last month. Koogle faced up to five years in jail and a fine of almost $50,000 if convicted on charges brought by French authorities as a result of the sale of various Nazi memorabilia on Yahoo.com. Ultimately, however, the French court acquitted the former executive, finding that Yahoo! did not condone or praise Nazism, nor did it shed favorable light on the policies of Adolph Hitler by selling collectible items from the Third Reich.³⁸ The ruling was hailed as a victory for campaigners for Free Speech on the Internet. In November 2002, a French court ordered Yahoo! to block French access to certain Websites offering the material for sale, however a United States judge later ruled that Yahoo! was not bound to tailor its Websites to French laws given the importance of First Amendment rights in the United States. Although Yahoo! prevailed in both the United States and French court proceedings, it still banned the sale of most Nazi memorabilia.³⁹ The “chilling effect” works even from abroad.

Talk My Picture

The new breed of cell phones with built-in digital cameras are the new tool used by voyeurs to take unauthorized photos of people for adult Websites, according to recent reports.⁴⁰ These readily disguisable cameras have been taken inside gyms, health clubs and bathrooms to capture individuals in compromising positions across Central Florida.⁴¹ Images can then be quickly emailed and posted on adult Websites. Several individuals have already been prosecuted under Florida’s anti-voyeurism law. For their part, cell phone manufacturers claim that phones are not meant for illegal use. Attractive females are being warned to look around before picking up the soap in the shower at the local gym.

Woman Must Give Up Her Toys

A Haynesville, Texas woman charged with promotion of “obscene devices” as a result of her possession of a trunk load of sex toys has agreed to surrender the erotic items in exchange for dismissal of the obscenity charges.⁴² Such devices are illegal only in Texas and a handful of the southern states. Cathy Grubbs was pulled over for drunk driving last month and law enforcement discovered a box containing seventeen items described by law enforcement as “obscene devices.” Such devices are illegal only in Texas and a handful of the southern states. As part of the plea agreement, Grubbs will also admit to a drunk driving charge. The allegation that sexually explicit devices are illegal came as a surprise to the company distributing the items, Slumber Party, Inc.⁴³ That news may come as a surprise to a good percentage of the United States population, given recent statistics showing that the sex toy industry is a multi billion dollar business.

New Virtual Child Porn Law

The feds are at it again, trying to fix the broken “virtual child porn” law declared unconstitutional by the United States Supreme Court last year. The new bill is called the “Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003” (PROTECT Act). It has passed the Senate, and was referred to the House Committee on the Judiciary on February 25, 2003. The bill raises a whole host of issues potentially affecting the adult Internet industry, including enhanced penalties for Records Keeping violations, which will be addressed in future Updates if and when the bill passes.

Update Finally Has A Home

One final note, this Adult Industry Update is now available on its own Website: www.AdultIndustryUpdate.com. On the site, users will be able to access the current issue, along with all back issues, dating back to October 1998. Users can also sign up to receive the Update along with breaking news stories affecting the adult industry by email. Check it out now at: www.AdultIndustryUpdate.com.

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 much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. 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.FirstAmendment.com or AOL Screen Name: “Webattorney.”

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FirstAmendment.com

The Aftermath Of The Elections

On Election Day last month, the American public handed over control of the federal government to the enemies of online erotica. That is not to say that every republican wants to eliminate adult entertainment, or that every Democrat is on our side. For the most part, however, social conservatives have tended to be Republican. Those conservatives run on a platform of enforcing morality and, accordingly, the Republicans have largely embraced the so-called “moral majority” – which, by the way, is neither.

Unfortunately, the adult webmaster community has failed to use its tremendous powers of persuasion to influence the outcomes of federal elections. Few, if any, political messages can be found on adult Websites. It is essential that the adult Internet community use its resources to its full advantage to assist in electing those who take a more compassionate, and enlightened, view of human sexuality. Failure to do so could be the industry’s undoing. We can survive two years: but can we survive six? Campaigning for the 2004 elections has already started; have you?

Pornography Awareness Week

The weeks leading up the election coincided, perhaps by design, with “Pornography Awareness Week,” (“PAW”), sponsored by Morality in Media. A recently retired FBI agent, speaking during one of these PAW events, compared pornography on the Internet to “intercontinental ballistic missiles with multiple warheads that explode all over the United States.”¹

The Concerned Women for America, (“CWA”), also participated in PAW by issuing a report criticizing a number of Fortune 500 companies who profit from the adult industry, calling them “white collar smut peddlers,”² Some of the companies identified in the report as having ties to the adult industry include: AT&T, MCI, Time Warner, Comcast, Echo Star Communications, DirecTV, Hilton, Marriott, Sheraton, Radisson and VISA.³ VISA, in particular, was accused of accepting $420 million in processing fees from online erotica purchases. CWA has demanded that each of these corporations discontinue “trafficking in pornography.”⁴ This may shed some light on the new restrictions imposed by Visa on processing transactions for adult websites.

Nevertheless, all of this negative hype has not caused a reduction in the adult Website business. According to recent research, over 1500 formerly mainstream Websites have switched to providing adult content.⁵ “Our research has shown that expired domain names change ownership daily and can often be recreated as porn sites,” says Harold Kester, the Chief Technology Officer for WebSense. A recent investigation has confirmed that the Morality in Media Website has failed to make the switch, thus far.

Too Much Security?

The Republican takeover of Congress, buttressed by a Republican president, has caused some civil libertarians to express concern over how the USA Patriot Act might be used, or more appropriately, misused. The Patriot Act authorizes the FBI to obtain court orders to monitor anyone that the government thinks might have information relevant to anti-terrorism investigation, including American citizens, who are not themselves suspected of criminal activity. The Act also authorizes issuance of subpoenas directed to bookstores, for customer information. Some booksellers have successfully resisted the subpoenas, however others may not have a chance depending on how the court orders are fashioned.⁶ Some orders are requiring that customer information be immediately turned over to the government, and including a gag provision preventing the booksellers from alerting anyone to the fact that the order has been issued or served.⁷ It is therefore impossible to determine whether this new power is being abused. The American Booksellers Foundation for Free Expression has issued an alert, warning United States citizens that these anti-terrorist measures pose a serious threat to Free Speech.⁸

Depending on how and if the Homeland Security Act legislation is amended before passage, it may pose an equal or greater threat to civil liberties as the Patriot Act. Every purchase you make with a credit card, every magazine subscription you buy, prescription you fill, Website you visit, email you send or receive, grade you receive, deposit you make, trip you book, or event you attend would go into a “virtual centralized grand database,” according to the Department of Defense.⁹ That is what John Poindexter, the head of the “Information Awareness Office,” is hoping for.¹⁰ In the name of fighting terrorism, Poindexter is advocating this “data mining,” or power to snoop on every public and private act of every American. Under the Patriot Act, at least the courts oversaw this sort of governmental eavesdropping. The Homeland Security Act threatens to eliminate that oversight.¹¹ By the way, the motto above Poindexter’s Pentagon office reads “Scientia Est Potentia” – Knowledge Is Power. Indeed!

Sibling Censors

This month saw more nonsense by the anti-porn crusaders, with two sisters campaigning against “R” rated video titles at local video stores. Jenny E. Tonks and Patricia L. Barrett are campaigning against local video stores in Ruxburg, Idaho, seeking to convince retailers to remove all “pornographic films in our community, even the so-called ‘soft porn’ with an R rating.”¹² These siblings probably wouldn’t be happy with the new “BMX XXX” video game, which uses the tag line “Keep it Dirty.” Major retailers such as Wal-Mart, Toys R Us and KB Toys have refused to carry the title, because of its content. “We’re not going to carry any software with any vulgarity or nudity – we’re just not going to do it,” says Wal-Mart spokesman T. Williams.¹³ Umm…It’s just a game.

Obscenity Update

More troubles for an Oxford, Alabama video store that has been the subject of regular raids for selling obscene materials. The District Attorney for Calhoun County, Alabama, obtained a court order temporarily prohibiting the store from distribution of materials portraying graphic sexual conduct, “in a like manner as” those tapes that were the subject of previous raids.¹⁴ In one of the raids, law enforcement seized $200,000 worth of adult movies from the business.¹⁵ The video store owner is grateful for all of the attention: “I couldn’t buy this kind of advertisement,” said Larry Amerson.¹⁶ This is but one of a string of recent obscenity cases that may help identify the community standards for what kind of adult fare crosses the line from protected speech to illegal obscenity, at least in Anniston, Alabama.

Another obscenity case was resolved with a freedom fighter sentenced to prison. Jennifer Dute, an amateur movie maker in Cincinnati, Ohio, was sentenced to a year in prison for selling video tapes of her having intercourse with black men.¹⁷ Her attorney, H. Louis Sirkin, observed, “I mean, it is simply unbelievable!” Dute is appealing.¹⁸

Court Briefing

There is some interesting news out of the courts this month as well. The big news is that the United States Supreme Court has accepted jurisdiction over the Child Internet Protection Act, (“CIPA”), case.¹⁹ A federal court out of Philadelphia previously ruled, in a stinging decision against the government, that the legislation chilled free expression and thereby violated the First Amendment by suppressing a substantial amount of constitutionally protected speech.²⁰ It was found that the filters used by the libraries in the attempt to comply with the law blocked out certain words, or parts of words, such as “breast” in a search for “breast cancer” making many mainstream sites inaccessible.²¹ The Supreme Court is now expected to hear oral argument regarding the validity of the law early next year, and a decision is expected by July.²² Ten percent of all regular Internet users rely on access at a public library.²³ Given the unique emphasis the current court has placed on First Amendment rights, a reversal in favor of the government may be a long shot, but time will tell.

Another Internet censorship law is also back in the courts this month, the Child Online Protection Act, (“COPA”). You would have to be living under a rock to not know about COPA. For those who enjoy cave-dwelling, COPA is the federal legislation requiring some sort of age verification in order to provide commercial access to adult Websites. The United States Supreme Court ruled last may that it was not ready to render a decision on the merits until the Third Circuit Court of Appeal considered all of the constitutional arguments relating to the validity of the law. Accordingly, the Third Circuit heard arguments for a second time, during the last week of October, 2002. Ann Beeson, the ACLU staff attorney who is arguing the case on behalf of various Internet publishers said, “We thought the arguments went very well, and we’re confident that the judges will keep the preliminary injunction against COPA in place.”²⁴ Critically important in this case is the applicability of so-called local community standards to a global medium such as the Internet. The first time around, the Third Circuit Court of Appeal ruled that the law was overly broad since it required Web publishers serving numerous communities to develop a system that shielded material that the most puritan of communities might deem to be harmful. The United States Supreme Court is expected to address the constitutionality of the law again, after the Third Circuit issues its ruling.

On the positive side, a federal court ruled that Alabama’s sexual devices law was unconstitutional.²⁵ The law outlawed sale of such popular devises as vibrators. United States District Judge Lynood Smith Jr. stated, in his opinion: “The ultimate result is that plaintiffs have shown that the fundamental right of privacy, long recognized by the Supreme Court as inherent among our constitutional protections, incorporates a right to sexual privacy.”²⁶ Rumor has it that Alabama is buzzing with excitement.

In other good judicial news, a federal judge from Virginia ruled that law enforcement officials went too far when they tried to use evidence gathered by a known hacker to convict someone of possessing child pornography.²⁷ Under the ruling, the use of a private individual to hack into an Internet connected home PC without a warrant violates the Fourth Amendment.²⁸ The hacker uploaded a file containing the SubSeven Virus, which the hacker used to remotely search various individuals’ computers for illegal images.²⁹ The decision is likely to be appealed, but should serve as a word of caution to federal agencies seeking to use hackers as an arm of law enforcement.

One court struck a blow to anonymous speech on the Internet, by ruling against America Online, who sought to protect the identity of one of its subscribers.³⁰ The Virginia Supreme Court sided with the Plaintiff in connection with a request to subpoena the identity of the AOL user as part of an unfair business practice claim. The court ordered disclosure of the information. The very unsettled law in this area is currently being written by the courts.³¹

Bush Update

President Bush was on the anti-child pornography bandwagon again, urging a ban on “morphed” child pornography. “Every day, millions of children log on to the Internet, and every day we learn more about the evil of the world that has crept into it,” said Bush during a recent speech.³² The United States House of Representatives passed a bill that would outlaw computer-generated sexually explicit images of anyone under 18 years old, even if no actual minor was involved. A similar bill is under consideration in the Senate, which has not yet addressed the issue. In April, the United States Supreme Court struck down a similar law banning morphed images where no child was actually used. Bush also endorsed mandatory library filtering, stating that “pornography and smut” should not be available in public places.³³

Dirty Dancing Doomed?

Some brief notes from the adult dancing industry: The Oregon Court of Appeals, one of the more liberal courts, rendered a stunning ruling deciding that nude dancing does not constitute Free Expression under the Oregon Constitution, opening the floodgates for enactment of restrictions on the adult entertainment industry that had been traditionally off limits in that state.³⁴ The decision almost certainly will be reviewed by the Oregon Supreme Court.

An icon in the adult dancing industry in Florida, Michael J. Peter, was cleared of racketeering by the Eleventh Circuit Court of Appeals, who agreed that Peter had not violated racketeering laws by failing to disclose the fact that members of the New York Gambino crime family owned part of his businesses.³⁵ Peters is now entitled to reapply for liquor licenses, which he was prevented from doing as a result of the felony convictions. Welcome back, Mike.

Foreign Policies

United States Internet users still have more freedom than those in totalitarian-governed countries like China or Spain. A Chinese province has required Internet café users to buy access cards that identify them to the police in order to allow tightened official monitoring of Internet users and their activities.³⁶ China has 45 million regular internet users. However the country blocks access to gambling, pornography and extremist websites. In Spain, any Website that engages in commerce must register with the government under a new law that took effect on October 12. This law has prompted over 300 Website owners to take their sites offline in protest.³⁷ Spain now joins such enlightened countries as Saudi Arabia and China, which also require Website registration. This kind of stuff almost makes VISA sound reasonable.

One final note: Don’t miss the sequel to “Bumfights,” which the producers announced last month.³⁸ Part one showed homeless men fighting and performing various stunts such as setting their hair on fire.³⁹ More than 300,000 copies of the first video had been sold online. The producers face felony charges for staging fights without a license for that one.

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.FirstAmendment.com or AOL Screen Name: “Webattorney.”

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FreeSpeechLaw.com

Visa Clamps Down

The most shocking news this month came from the private sector in the form of dramatic new regulations for those webmasters using third party payment processors, such as iBill, CC Bill and Epoch. Each Webmaster will now be required to pay an initial registration fee of $750 and thereafter an annual fee of $375 to become a “sponsored merchant.”¹ Moreover, the processors must now maintain records, by IP address, of each sponsored merchant’s chargeback ratios. This information can be reviewed by Visa, and used to terminate the sponsored merchant’s account, at Visa’s discretion. Most significant for the foreign Webmasters, is the new requirement that each company using a third party processor (now called an IPSP) must have a “presence” in the country where the processor is doing business. According to one source, a “presence” means the existence of staff employees in the host country. Given the large number of foreign webmasters processing memberships through United States billing companies, such as those listed above, this new “presence” requirement will likely cause a significant shake-out in the industry, with the smaller players seeking refuge under new business arrangements with domestic webmasters. Other webmasters will establish United States offices or corporations in attempted compliance. Speculation abounds as to the underlying rationale for these sudden policy changes. Rumors ranged the gamut from clandestine cooperation between Visa and the government to simple gouging of a presumptively profitable industry. Regardless of the actual reason for these changes, the small amateur market will be particularly hard hit by the annual fees and individual charge back analysis. More discussions and clarifications concerning this issue are inevitable in the coming weeks.

Election Time

As election time nears, the adult industry braces for its regular political onslaught, given its unenviable position as a favorite target of social conservatives. A video store in Oxford, Alabama may be one of the first victims in this election season’s political witch-hunt. Deputies seized over 5,000 VHS tapes and more than 900 DVD movies from Perfect Touch & Lingerie early this month.² Nobody was arrested in the raid, and the merchandise was seized based on the District Attorney’s “opinion” that it was obscene.³ Perhaps the store owner’s mistake was that he placed a political sign in his front yard supporting the challenger in the local Sheriff’s race. The store was raided by the current Sheriff eight days later.⁴ The store had been in operation for over 2 ½ years, and is the largest adult store in Alabama.⁵ Investigators claimed that material crossed the line into obscene pornography since it showed actual sexual intercourse. Using that standard, just about every adult video could qualify as obscene in Oxford, Alabama.

Another video store owner accuses the Metropolitan Bureau of Investigation in Orlando, Florida, of waging a dirty political war against his operation.⁶ Undercover law enforcement agents have been sent into the store to purchase various adult video titles from Video Exposé, and have made a total of ten arrests at the store, charging clerks and managers with selling adult material without a license. While law enforcement officials claim that he simply needs to get a license, the owner says that the City will not issue one to him. Every time he attempts to comply with City ordinances, they change the laws on him, the owner said in a recent interview.⁷ The store’s attorney believes that the arrests are in retaliation for a legal challenge made to the County’s Adult Bookstore Ordinance, which was settled under terms allowing him to remain open with several changes to the store.⁸ The harassment has forced the owner to consider selling his store.⁹

More Problems For WorldCom

The Pennsylvania Attorney General, not to be outdone by the Michigan Attorney General, obtained a court order from a Pennsylvania judge instructing WorldCom to block access to five Websites containing purported child pornography.¹⁰ One of the sites was hosted by Spain’s largest Internet portal, and a divisions of Terra Lycos.¹¹ The judge relied on a recently enacted Pennsylvania law that requires ISPs to block any Website containing child pornography within five business days after being notified by the Attorney General.¹² Criminal sanctions are available against ISPs who fail to comply.¹³ For its part, WorldCom expressed concern over the breadth of the decision.¹⁴ Not coincidentally, both the Michigan and Pennsylvania Attorney Generals are running for Governor.

Web Escort Service Update

In another politically charged prosecution, Central Florida law enforcement officials are turning up the heat on Websites advertising escort services. The Metropolitan Bureau of Investigation, (MBI), in a desperate attempt to justify their existence (and budget) have initiated prosecutions against several Florida-based escort Websites – some even outside their Orlando-area jurisdiction. Shortly after the raid and arrest of the Website’s operators, a judge ordered the Website closed.¹⁵ The operators refused to shut down however, and are challenging the order in court.¹⁶ “They’ve just thumbed their nose at it [the court order], commented an assistant to the Florida Attorney General.” The operators have argued that mere discussion and information regarding escort services on a Website constitutes protected speech. Therefore, any court order forcing a shutdown of the Website constitutes a prior restraint in violation of the First Amendment.¹⁷ Should the Florida Attorney General be successful in this case, the decision would set a disturbing precedent potentially authorizing the forced closure of any Website operated by an individual who happens to be involved in criminal activity. Further updates on this one will be sure to follow.

Politically Motivated?

These recent actions by various Attorney Generals have even caused the mainstream press to question whether state politicians are going public with their campaigns against online erotica, to coincide perfectly with election time.¹⁸ Similar actions were seen four years ago when, exactly one week before election day, the New York State Attorney General’s Office raided an ISP in Buffalo, New York, confiscating its news server.¹⁹ The ISP, BuffNet, was charged with providing access to newsgroups where child pornography could be found. Unfortunately for that Attorney General, the ploy didn’t work and he lost to a Democratic challenger by a razor-thin margin.²⁰

Obscenity Report

Two more obscenity cases bit the dust this month: John Cornetta, owner of the Love Shack in Gwinnett County, Georgia, took the “godfather deal” in the obscenity case against Shane’s World 20. Charges were dropped against all employees, and the corporation plead guilty of distribution of obscene material.²¹ “The First Amendment got a little bruised, but it’s alive and well,” said Cornetta about the plea deal.²²

The other case is the closely watched trial against Max Hardcore involving Max Extreme 4: Extreme Team, Vols. 18, 19, 21 and 24 ended in a hung jury and a mistrial.²³ Hardcore could be retried, unless prosecutors decide to drop the case. Significantly, even Extreme Associates, who had been called upon for assistance in demonstrating acceptability of the material in California, stonewalled the defense, refusing to cooperate by producing business records relating to sales statistics of similar erotic material.²⁴ The defense served the company with a Subpoena Duces Tecum to produce a compilation of statistics or sales figures in California relating to the sale of comparable material to the tapes at issue. In response to the Subpoena, a representative submitted an Affidavit stating that the company had no such records.²⁵ “That’s bullshit,” said a former Extreme employee who saw the Affidavit.²⁶ This goes to show that one quickly learns who one’s friends are when faced with defending an obscenity prosecution. To its credit, Legend Video fully cooperated in the case. Of course, nobody wants to get involved with helping the current target of government persecution for fear of being next on the hit list. Fortunately for Hardcore, and the industry, this case ended in a mistrial and not a conviction.²⁷

Bumfights Busted

Last month also saw the beginning of the end of the “Bumfights” odyssey. This disturbing content, featuring actual street fight scenes, was promoted on several adult Websites. This short-lived craze died a sudden death after the arrest of the producers of the video by the La Mesa, California, Police Department. Police say that the producers convinced homeless people to fight for the camera in exchange for cash.²⁸ Police also alleged that one person broke his leg during a taping session, and that producers threatened witnesses. The producers were charged with conspiracy, solicitation of a felony crime and illegally paying people to engage in fighting.²⁹ Shortly after the bust, one of the major distributors of Bumfights pulled the content from the Net.³⁰

Hotel Campaign Goes National

As a follow up to their recent successes in eliminating adult movies from various Cincinnati-area hotels, the Citizens for Community Values met recently in Washington D.C. to urge Attorney General John Ashcroft and the Justice Department to conduct a nationwide crackdown on hotel erotica.³¹ In response, the Justice Department claimed that it is “committed to enforcing federal obscenity laws.”³² Apparently, the craze has caught on: The American Family Association of Michigan, another pro-censorship group, is attempting to convince prosecutors in that state to prosecute local hotels offering similar fare.³³

Prisoners & Privates

What do prisoners and military personnel have in common? Neither one can enjoy adult material under a court decision and new law; both effective in September, 2002. The Ninth Circuit Court of Appeals rendered its decision upholding the Military Honor and Decency Act on September 13, 2002. The court found that the Act did not violate the First Amendment and was a reasonable regulation of speech.³⁴ Just three days earlier, the California Corrections Department imposed a ban on adult materials in prisons, because of complaints from female guards that the material prompted inappropriate behavior.³⁵ This is one way to keep our military men on edge – but do we really want that for our prisoners?

Child Modeling Update

The federal child modeling prohibition is currently winding its way through the House Judiciary Committee. United States Representative Mark Foley (R-Fla.) called teen modeling Websites a “fix for pedophiles” and noted that the number of images are growing “at an unabated pace.”³⁶ The National Coalition Against Censorship (NCAC) claims that the legislation is “doomed from the start” as an unconstitutional infringement of Free Expression.³⁷ The bill would impose prison terms of up to ten years for exploitative child modeling, defined as “marketing the child himself or herself in lascivious positions and acts, rather than actually marketing products.”³⁸ Apparently those sites that also sell panties are in the clear.

Online Gaming Faces Another Battle

The online gambling industry is battling yet another demon; this time in the form of a proposed bill known as the “Internet Gambling Funding Prohibition Act,” introduced by Rep. James Leach (R-Iowa). The House of Representatives passed the bill on October 2, 2002, shortly after the General Accounting Office issued a report accusing the Internet gambling industry of involvement in money laundering.

Geo-Targeting

Geographic location equipment is soon to become a reality for Webmasters. The Online Gaming Systems company has created a product known as “Geopoint” which claims to achieve a level of data aggregation and accuracy that is unrivaled in the industry, according to its spokesperson, Lawrence Tombari.³⁹ The legal and business implications of such geo-locator products for the adult Internet industry are both significant and obvious. Webmasters may soon be able to accurately block certain communities from accessing particularly explicit or unconventional content. The widespread availability of such technology may also be a detriment to the industry, which may be called upon to implement such technology if it is available and accurate.

FTC Gears Up Against Fraud

The Federal Trade Commission has again turned its attentions to e-commerce and online fraud; this time with a global twist. The FTC recently announced an international effort to combat online fraud through initiatives with international law enforcement agencies designed to root out cross border fraud in e-commerce transactions.⁴⁰ Foreign Webmasters beware: Have your promotional material, Terms & Conditions and overall business practices reviewed American attorneys.

Conclusion

Perhaps once the political season dies down, both the industry and politicians can get back to business as usual. In these times, even that may be a scary concept.

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.”

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FreeSpeechLaw.com

Michigan Throws The First Punch

The Michigan Attorney General, Jennifer M. Granholm, has appointed herself as the official “locomotive” for the slow motion train wreck predicted in last month’s Update. As most readers already know, the Attorney General issued notice letters to the industry’s largest third party billing processors, instructing these companies to immediately disable services to numerous sites that “may” contain child pornography, and further disable all “similar” Websites.¹ The billing companies reacted in a variety of ways, including immediate termination of services to the named sites, requests for further information, or no response at all.² While some Webmasters in the industry reacted with indifference or support for the Attorney General’s actions, given the universal disdain for child pornography, others realized the dangerous precedent that will be set if her actions are successful.

When this author first learned of the warning letters, he was hearkened back to the earlier days of his practice, in the 1980’s, when the State Attorney in Daytona Beach, Florida, delivered similar warning letters to the Mom & Pop video stores, demanding that various “unsuitable,” “immoral” and possibly obscene videotapes immediately be removed from the shelves; unless the owners wanted to be the target of a Grand Jury investigation. One of the tapes identified was Pink Floyd’s The Wall.

There is nothing new about this procedure: Some of the elder (and past) partners in the author’s firm have been through this battle, in various incarnations, even dating back to the Nixon Administration. It happened again in the Regan years, starring the infamous Attorney General Edwin Meese.

Throughout history, censors have been acutely aware of the efficiency of the so-called “chilling effect.”³ When protected speech is involved, the threat of prosecution can have a devastating effect on other individuals, who are not targets of the investigation. Such threats encourage self-censorship out of fear of potential prosecution in the future. Thus, government has learned that it need only threaten a small number of individuals to realize substantial, immediate results from the chilling effect. That is precisely what is going on with the Michigan Attorney General’s Office. It becomes irrelevant whether a particular billing company actually complies with the AG’s demands, since many Webmasters have already run for cover, and the third party processors likely will be much more conservative in their policies and criteria concerning client Website content. Yes, Virginia, censorship works.

However, not all targets have consistently buckled under the threat of government censorship. Over the years, many adult media freedom fighters have challenged this unconstitutional form of censorship, which threatens prosecution in the absence of any judicial determination of the legality of the content. Those challenges have not been in vain. The courts have generally taken a dim view of this type of governmental action, and have often concluded that threats of prosecution that are designed to result in self-censorship constitute an illegal prior restraint on protected speech.⁴ So, it will be interesting to see what the adult Internet industry does about the fact that the first punch has been thrown by the Michigan Attorney Genera. Will it wait to see if the next one is worse, or if more Webmasters are affected next time? Perhaps the industry will erroneously conclude that this is an isolated incident, and that none of the other 49 Attorney Generals across the country are watching and waiting in the wings.

Now is the time when the adult Internet industry must ban together and assist those unfortunate souls who happen to be in the government’s cross hairs this week. Solidarity is critical at this juncture, particularly given the fact that the Michigan Attorney General has played the child porn card, attempting the smear the targets with a despicable label, in the hopes that the industry will step aside and clear the way for unhampered intimidation.

Virtually everyone in the legitimate adult Internet industry will agree that processing memberships for sites involved in actual child pornography is unacceptable, and should be terminated. However, what should concern this industry more is the perceived ability for a state government to allege that certain Web site content is illegal, without any specific proof or judicial determination that it is, and demand that access to the material cease. In this country, speech is presumed to be protected unless and until a judicial determination to the contrary has been made. This author recommends that each and every concerned webmaster express his or her concern with the actions of the Michigan Attorney General by sending an email to her office, which can be found here: miag@michigan.gov, Further, these actions illustrate the need to join organizations such as the Internet Freedom Association the Free Speech Coalition. If a small percentage of Webmasters joined or took an active role in these organizations, the membership numbers, resources, and negotiating strength of this industry could be overwhelming.

Good News From Ohio

Although overshadowed by the news from Michigan, other events of interest to adult webmasters occurred throughout the world this month. Yet another victory was realized for First Amendment principles through a decision by District Judge Walter Herbert Rice, in Dayton, Ohio, who permanently prohibited the state government from enforcing its new Internet pornography law, designed to prohibit distribution of harmful materials to juveniles.⁵ The law prohibited communications portraying or describing sex acts, repeated use of foul language, lurid details of violence, and the glorifying of criminal activity, over the Internet and elsewhere.⁶ Like similar laws that have been struck down on First Amendment and Commerce Clause grounds, the Ohio law was broad enough to criminalize Websites that answered sexual health questions or which depicted images of indigenous women naked from the waist up, such as are commonly found in National Geographic.⁷ The Judge noted that the law’s prohibitions on extreme violence could even prohibit teaching about the Holocaust.⁸

Online Gambling Losses

The online gambling industry also took some hits this month, with the withdrawal of major payment processors such as Pay Pal, Citibank and Bank of America, along with a written opinion from the Department of Justice concluding that online gambling violates the Wire Act if United States betters are involved.⁹ Financial analysts, who once predicted that Internet gambling would become a 6.2 billion dollar annual enterprise by next year, have now reduced their prediction to 4.2 billion.¹⁰ That is less than half of what the Nevada casinos take in.¹¹

Cleaning Up Brothel Websites

Webmasters in the United States will no doubt find it amusing that houses of prostitution in Victoria, Australia, can no longer include nudity on the businesses’ Websites under regulations that took effect on September 2, 2002.¹² Oddly, such a restriction on Website content would likely be illegal in the United States, although regulations completely banning prostitution are universally upheld. Conversely, it appears that the folks down under will tolerate censorship of the Internet, but allow prostitution services to operate openly.

WalMart Erotica

This month also saw the censors crawl out of the woodwork and into the WalMart, which bore the brunt of a national campaign by The Timothy Plan, the nation’s leading mutual fund group offering funds based on moral responsibility.¹³ The Group accused WalMart of “anti-family promotion of pornography.” All of this was over WalMart’s refusal to either remove or partially cover the covers of Cosmopolitan Magazine, which the plan’s president describes as one of the most “blatantly aggressive soft core pornographic magazines in America.”¹⁴ That probably answers your question if you’re wondering whether any erotic Website would ever be acceptable to the “family values groups.”

Obscene Performance

Even comedy performances were on the censorship chopping block this month, with Steve-o (star of MTV’s Jackass), being charged with felony obscenity for misusing a staple gun on himself in ways too graphic to describe here.¹⁵ Steve-o is facing obscenity charges in the notably progressive part of the country known as Terrebonne Parish, Louisiana. His original bond was $1.12 million, until his attorney successfully convinced the court that the Comedian was not a flight risk, resulting in bond reduction to $35,000.¹⁶ Interestingly, a Terrebonne Parish Corrections Officer was disciplined for “participating” in the performance.¹⁷ Apparently the masochist fetish has not yet taken hold in Terrebonne Parish.

Mobile Erotica

Count High Point, North Carolina, out on the voyeurism fetish as well: Four men were charged with obscenity violations after a local police officer observed them watching an adult film in a large SUV.¹⁸ One of the men argued that the charges were inappropriate because the film was being shown in the privacy of their personal car and was just “a bit of getting it on.”¹⁹ They face up to six months in prison if convicted. There’s nothing like getting your erotica fix on the run.

Ashcroft On Our Side?

Webmasters who wish that Attorney General John Ashcroft would turn his attention away from adult materials and to protecting Web sites from copyright theft might be in good company.²⁰ Some 19 lawmakers from both sides of the isle asked Ashcroft to begin prosecuting “peer to peer” networks like Kaaza and Morpheus and their users, who swap digital songs, video clips and other files without permission from artists or their record labels.²¹ One can only wonder whether Ashcroft will maintain a sufficient level of commitment to the project once somebody lets the cat out of the bag that the majority of these file swaps involve erotic images or movies.

Video Games Not To Blame

One voice of reason has stood out this month amongst the clamor of censorship: The Sixth Circuit Court of Appeals issued a decision which upheld the dismissal of the $33 million lawsuit which sought to blame video game makers, a pornographic Website and a movie studio, for a deadly 1997 school shooting massacre at Heath High School.²² Judge Danny Boggs, writing for the three judge panel, summed it up in the court’s written decision: “We find that it is simply too far a leap from shooting characters on a video screen (an activity undertaken by millions) to shooting people in a classroom (an activity undertaken by a handful, at most).”²³ The suit was one of several filed against the lucrative video game industry seeking to hold interactive software developers responsible for the actions of consumers. All such suits have been uniformly rejected by the courts.

“Send Me Your SPAM”

California Attorney General, Bill Lockyer, surprised many in the online community this month by asking for SPAM email.²⁴ The request was actually a part of an investigation by the California AG’s Office into the legality of unsolicited emails. California law imposes stringent requirements upon unsolicited emails directed at California residents. For example, the subject line of each message must include the letters “ADV.” SPAM advertising for adult materials must also include the designation “ADLT.”²⁵ The adult industry is carefully watching the California AG’s actions because of the level of marketing it does using unsolicited email. Some industry leaders are concerned that California will go after the adult industry first, even though other industries such as the online gambling industry, make more frequent use of SPAM.²⁶ Currently, only sixteen states have anti-SPAM legislation. At the federal level, Congress has been toying with anti-SPAM legislation for some time now, but with no results.

Clean Up Your (Hotel) Room

Hotels buckled under pressure from family values groups by removing adult film viewing options from their entertainment packages. The Citizens for Community Values (“CCV”) helped convince Warren County, Cincinnati prosecutors pressure Cincinnati hotel chains to stop offering pay-per-view adult movies to guests.²⁷ The Marriott chain was the first to remove the option, with Comfort Inn and others quickly following suit. The decision was made after Warren County prosecutors threatened that obscenity charges could be brought against the hotel chains.²⁸ “I’m very pleased with the Marriott and their response,” said Bill Burress, the president of the CCV. “We’re ecstatic,” he added.²⁹ The ACLU of Ohio, on the other hand, referred to the group as “fundamentalist wackos,” calling the actions a “pressure tactic and anti-First Amendment.”³⁰ The CCV promises to expand its efforts, despite the criticism.³¹

Feds: Dirty Laundry Violates Federal Law

The bizarre story this moth comes from Anderson, South Carolina, where a woman has been charged with “mailing indecent and filthy substances” for selling her dirty panties to customers over the Internet.³² The common practice for amateur adult Websites can result in penalties ranging up to five years in prison and/or a $250,000 fine, according to federal law.³³ South Carolina U.S. Attorney Srom Thurman, Jr., filed the charges against the women under the rarely used federal statute. What’s next? Panty raids by the Department of Justice?

First Amendment Second To Security

Even the general public may not be as supportive of the First Amendment as they were before 9-11. A recent poll indicates that half of us think that the First Amendment goes too far and protects too much speech.³⁴ That is up from only 39% at this time last year.³⁵ This is particularly discouraging when you consider that these same people will ultimately decide the fate of any Webmaster prosecuted based on content appearing on the Website. Polls like these highlight the critical importance of educating the general public about the policies underlying First Amendment protections. While many Americans support the government’s right to fight the war on terrorism using covert information kept from the press, those same individuals react poorly when told what they can or can’t read, write or view.³⁶

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.”

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FreeSpeechLaw.com

Train Wreck

As the reports begin to surface about the training session conducted for United States Attorneys, to teach them how to prosecute adult Webmasters for obscenity violations, one is reminded of the metaphoric train wreck in slow motion. We know it’s coming, but there’s nothing we can do to stop it. Well – almost nothing.

The federal obscenity law is currently the subject of a debatable, but certainly well intentioned legal challenge pending in the Southern District of New York.¹ Webmasters have finally organized a trade group, the Internet Freedom Association (“IFA”) to advocate for their interests in the political and legal processes. Also, many Webmasters have finally taken the hint and eliminated explicit material from their free tours, while having their hardcore content reviewed by First Amendment counsel. But none of these efforts are likely to derail the Department of Justice from initiating an all-out assault on the adult Website industry in the United States. Attorney General John Ashcroft has even motivated his soldiers by making outlandish claims about adult Webmasters’ ties to organized crime.²

Times like these separate the men from the boys (and the women from the girls). There is more to being an adult industry participant than generating revenue, one would hope. The adult entertainment industry has produced a long line of freedom fighters, dedicated to preserving the right to Free Expression and beating back government aggression at every turn. The free ride enjoyed by many during the last ten years has produced much complacency, but the tough times ahead will produce many heroes. If the First Amendment could speak, it would reassure those many heroes about to be born, and let them know that she will offer solace and support during times of uncertainty and persecution. Many in the adult Webmaster community will cash in their chips and seek to avoid any risk. Others will publicly challenge the government, offering to take the first hit. But most will continue their day-to-day operations, hoping to fly under radar and watch someone else go down first. It is this latter group that is at greatest risk. Change is inevitable, and the change in the political winds must result in some retooling in the adult Internet industry. Legal compliance simply must become the number one concern – even more important than the bottom line. Business debts can be paid off, written off or discharged in bankruptcy. However criminal punishment must be avoided in the first instance.

Final Warning

Take a moment to review a few practical tips for surviving in the Ashcroft era:

1. Clean up your free tours. Providing hardcore images to children in this political climate means you have a death wish.

2. Pay an attorney to review your site. Even if you retained counsel several years ago and have not made substantial changes since, the enforcement policy has changed and so has the law. Legal advice in this industry can quickly go stale. Ask your lawyer to take a second look at your content for compliance with current law.

3. Tighten up your § 2257 compliance. Remember, over ninety percent of adult Websites do not fully comply with the Records Keeping and Labeling law requirements. In fact, full compliance is extremely difficult for a Website, particularly one that purchases the rights to display images from various different content producers. Gone are the days when one can feel safe by simply listing a name or an email address of a records custodian to contact for more information about the required records. Each image must be tied separately to a records custodian, and a physical address (not a post office box) must be provided. If you act as your own records custodian, you must consult with an attorney regarding the proper manner of maintaining and cross-referencing the records you compile.

4. Treat your customers and employees right. Experience teaches that oftentimes it is not the content that catches the attention of law enforcement; it is the complaint by an unhappy customer or a disgruntled employee who feels cheated. Running a clean ship and acting with business integrity is not only the right thing to do; it’s in your best interests. If you are paying individuals to perform services, you might need an employment law checkup.

5. Pick the right spot. An adult Website can be operated from virtually anywhere in the world. Why take chances in a particularly conservative or puritanical location when you can set up shop in a more tolerant area? Check the laws of your local jurisdiction or have your attorney do so. Get a feel for the politics of your region and its history of hostility or tolerance for adult businesses. Research the court records to determine if any obscenity prosecutions have occurred within the last ten to fifteen years. And, perhaps most importantly, keep abreast of the local news. Often, an upcoming assault on the adult industry will be telegraphed in speeches, workshops, public meetings, or threats by law enforcement and local fundamentalists.

In The News

With those caveats in mind, it is time to turn to the recent happenings in the industry. Add Vermont to the list of states that have passed legislation seeking to restrict minors’ access to the Internet, only to have the law declared unconstitutional by a federal court.³ In that case, various Free Speech groups challenged a Vermont statute criminalizing the transfer of sexually explicit materials to minors. The court held that just like numerous other similar statutes, this law violated the First Amendment rights of Internet Website operators displaying or offering links to sites displaying materials that might be regulated by the statute. The government argued that it had an interest in deterring the “grooming” of minors to become participants in sexual activities later in life. While the court accepts that such may be a valid governmental interest, it held that the statute was not narrowly tailored to meet this goal. In addition, the statute had a chilling effect on the dissemination of indecent but constitutional speech to adults due to the inability to ascertain the age of Internet users.⁴

While online erotica featuring adults seems to be catching a break in the courts, the same cannot be said for operators of “teen” model sites. Law enforcement is turning up the heat against several Internet sites featuring preteen and teen models. At the same time, a Bill is pending at the federal level which would make it a criminal offense to operate such a site.⁵ At least three cases have been brought across the country against such sites: The first involves a “mom and pop” site run by an Arkansas couple that featured their twelve-year-old daughter. They have been charged with the state law felony of “engaging children in sexually explicit conduct for use in visual or print medium,” and face a maximum of ten years in prison or a $10,000 fine. Their children have been placed in protective custody pending the outcome of the trial.⁶ Earlier this year, a federal grand jury in Missouri indicted one if its residents on federal child pornography charges, based on allegations that he operated at least one preteen “model” site and enticed a minor to engage in sexually explicit conduct.⁷ The third case involves the highly publicized charges against the owner of trueteenbabes.com.⁸ The accused entered a not-guilty plea to 886 felony counts involving a state statute against sexual exploitation of children and remains in jail on a half million-dollar bond.⁹ He could face life in prison if convicted at trial which is set to begin on October 3, 2002. All of those cases involve the volatile issue of “erotic nudity,” in the absence of sexual activity. While the legal landscape surrounding this issue is unclear at best, there can be no doubt that operators of any underage model sites are at risk of prosecution under currently-existing or soon-to-be-enacted legislation. At least one case has held that erotic photography, even of fully clothed children, violated federal child pornography laws.¹⁰

On the copyright front, the Electronic Frontier Foundation, (“EFF”), recently announced that it would not seek United States Supreme Court review of the case involving 2600 magazine, wherein it argued that a prohibition on the dissemination of information about a DVD copying program violated the First Amendment.¹¹ In December 1999, eight major motion picture studios sued 2600 magazine for publishing an article containing the DeCss Computer Software allowing the DVD copying. 2600 magazine lost at both the District Court and the Second Circuit Court of Appeals which both held that the program could be used to infringe on the copyrights of major motion picture studios. Interestingly, an appellate court in California came to the opposite conclusion and held that an injunction prohibiting the dissemination of this information violated First Amendment rights. That case is currently on appeal at the California Supreme Court level. Those copyright cases raise a fascinating legal issue regarding the relationship between the court process and the First Amendment. Ordinarily, actions by private parties do not implicate First Amendment rights, since the constitution only prohibits the government from abridging Free Speech or expression. However, when a private party uses the court process to restrict otherwise protected communications, the courts are grappling with the question of whether the First Amendment is implicated or potentially violated. These cases may have significant precedential value concerning any attempt to restrict the free flow of information online. Some of these issues may be resolved in yet another suit challenging the constitutionality of the Digital Millennium Copyright Act (DMCA), filed on July 25, 2002 by the ACLU.¹² The Plaintiff in the case is Ben Edelman, who claims that the DMCA prevents him from evaluating Web filtering software. Edelman was one of the experts who testified at the court hearings in the case challenging the Child Internet Protection Act (CIPA) the federal law recently struck down that required libraries to install internet filtering devices or risk loss of federal funding.¹³ The ACLU remains hopeful that this case will produce better results than previous challenges to the DMCA.¹⁴

Adult search engines beware: The FTC has issued a warning to search engines about “paid placement ads,” where companies pay a fee determined by the search engine to have their product or name displayed at the top of the search result list. Such business model has become commonplace on the Web, but consumer groups have become fed up with the increasing use of such “paid inclusion” ads.¹⁵ The FTC sent letters to AltaVista, AOL Time Warner, Direct Hit Technologies, iWon, LookSmart, Microsoft and Terra Lycos, warning that the intermingling of non-paid Websites with paid inclusion Websites in the search database may cause consumer confusion and mislead consumers.¹⁶ Given the prevalence of such paid inclusion ads in the adult Internet industry, operators should take heed of this warning and consult with their counsel if any concern is identified.

Maybe Ashcroft is turning the heat up on adult Websites in the attempt to deflect criticism from his traditional backers over his power grab fueled by the War on Terrorism. Many religious conservatives who were instrumental in impressing President Bush to appoint Ashcroft as Attorney General, now are rumored to have become deeply dissatisfied by his actions.¹⁷ “His religious base is now quite troubled by what he’s done,” says Grover Norquist, President of the Americans for Tax Reform.¹⁸ Specifically, the groups have been complaining that Ashcroft has been overstating the evidence of terrorist threats and using such threats to extend the federal government’s power, which conservatives instinctively oppose.¹⁹ Even some city governments have refused to cooperate with Ashcroft, quietly staging revolts against the USA Patriot Act.²⁰ Over the last several months, Cambridge, North Hampton, Amherst and Leveret, Massachusetts, have all passed resolutions that called the USA Patriot Act a threat to civil rights of the residents of their communities.²¹ Those cities joined Berkley, California and Ann Arbor, Michigan in rejecting the way the Bush Administration has decided to address the War on Terror within the homeland. Portland, Oregon broke ranks with the Justice Department even before the USA Patriot Act was passed, refusing to cooperate with FBI investigations of Middle Eastern students within the city. Boulder, Colorado is considering similar resolution to those passed in Massachusetts, and Denver has already passed a resolution expressing concerns about the threat to civil liberties. Councilwoman Kathleen Mackenzie of Denver said: “We were concerned about the abridgement of Free Speech because of national security concerns.”²² “Giving up the right to dissent was to high a price to pay,” she added.²³

Perhaps adult Websites will prove to be an easier target than Muslim extremists. Then again, if history repeats itself, perhaps not.

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”.

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FreeSpeechLaw.com

As reports begin to surface about the training session conducted for United States Attorneys to teach them how to prosecute adult Webmasters for obscenity violations, one is reminded of the metaphoric train wreck in slow motion. We know its coming, and there’s nothing we can do to stop it. Well – almost nothing. The federal obscenity law is the subject of an incomplete, but well-intentioned legal challenge pending in the Southern District of New York. Webmasters have finally organized a trade group, the Internet Freedom Association (“IFA”) to advocate for their interests in the political and legal processes. And many Webmasters have finally taken the hint and eliminated explicit material from their free tours while having their hardcore content reviewed by competent counsel. But none of these efforts are likely to stop the Department of Justice from initiating an all-out assault on the adult Website industry int eh United States. Attorney General John Ashcroft has motivated his soldiers by making outlandish claims about adult Webmasters’ ties to organized crime.¹

Times like these separate the men from the boys (and the women from the girls). There’s more to being an adult industry participant than generating revenue, one would hope. The adult industry has produced a long line of freedom fighters dedicated to preserving the right to Free Expression and beating back government aggression at every turn. The easy times of the last ten years have produced much complacency, however the tough times ahead will produce many heroes. If the First Amendment could speak, it would reassure those many heroes about to be born, and let them know that she will offer solace and support during times of uncertainty and repression. Many in the adult Webmaster community will cash in their chips and seek to avoid any risk. Others will publicly challenge the government, offering to take the first hit. But most will continue their day-to-day operations, hoping to fly under radar and watch someone else take the heat. It is this latter group that is at greatest risk. Change is inevitable, and the change in the political lens must result in some retooling in the adult Internet industry. Legal compliance simply must become the number one concern – even more important than the bottom line. Business debts can be paid off, written off or discharged in bankruptcy. However criminal punishment must be avoided in the first instance. Take a moment to review a few practical tips for surviving in the Ashcroft era:

1. Clean up your free tours. Providing hardcore images to children in this political climate means you have a death wish.

2. Pay an attorney to review your site. Even if you retained counsel several years ago and have not made substantial changes since, the enforcement policy has changed and so has the law. Legal advice in this industry can quickly go stale. Ask your lawyer to take a second look at your content for compliance with applicable law.

3. Tighten up your §2257 compliance.

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”.

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters, Esq.

www.FreeSpeechLaw.com

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”.