In former generations, it was not unless you owned a broadcast station or printing press and a widespread distribution system that you could personally control the tools of mass communication. The Internet changed all that.

Every Webmaster’s Primer on Section 2257 Compliance, Part III

By Attorney J. D. Obenberger

Practical Advice for the Webmaster

In former generations, it was not unless you owned a broadcast station or printing press and a widespread distribution system that you could personally control the tools of mass communication. The Internet changed all that. As a Webmaster, you now stand as a publisher before a world-wide market of several hundred million. On a very small budget, you can look as impressive to a consumer with a fifteen inch monitor as the biggest corporation in the land. You can reach sailors at sea and troops in the field where Stars and Stripes could not reach just a decade ago; you can reach from Antarctica to Mongolia, from Tahiti to Taoromina, and all destinations of commerce between them. With that amazing opportunity comes risk, for as a publisher, the same laws will now apply to you that have always applied to publishers, laws concerning defamation, obscenity, invasion of privacy, copyright, and trademark, to name a few. Neither the risks nor the best solutions to them may be obvious or self-evident to the new cyberentrepreneur on the block. The prudent Webmaster will become aware of those legal risks and seek the best guidance practical to avoid the reefs and shoals lest he run aground. He will recognize the need for navigation around all risks, or at least for risk assessment if all risk cannot be avoided. Large commercial vessels use GPS satellite navigation systems and a series of redundant backup systems down to the time-tested sextant, chronometer, and Nautical Almanac to deal with the risks of maritime travel. Smaller vessels may not find it practical or economically possible to do all of this, but they do not and cannot disregard navigation. Neither should you. You should have a relationship with a lawyer who is knowledgeable about the risks of what you do, Internet publishing.

The Adult Webmaster cannot afford to pretend that the risks are not real, but many of them clearly do. A casual examination of a number of otherwise-impressive adult sites showcasing their own original content rapidly leaves the visitor with the impression that the webmasters concerned either don’t know about Section 2257, that they don’t understand it, or that they just don’t care. No names will be mentioned. But it cannot be assumed that the federal government will countenance that indifference indefinitely and the likely product of all of it will be more vigilant enforcement, more stringent regulatory laws, or both.

The producers of adult content video have been around for twenty years, long enough to remember what raids and arrests feel like, and they possess a knowledge base that many webmasters, new to adult entertainment, have yet to acquire. It is a knowledge base that gives reality to the word “risk”: It is the knock at the door, the arrival of a squad of agents to execute a warrant, it is the experience of witnessing them go though your home or studio or office rummaging for sometimes hours, and then carting off your computers and scanners

and discs and papers and records and server for further inspection at their leisure while your business, income, and expression goes straight to hell. While thus far there have been few obscenity prosecutions arising from the internet; it cannot be fairly assumed that obscenity prosecutions will not resume, and a reasonably cautious webmaster will make content decisions based on an assessment of how he would defend his site against allegations of obscenity where he is located and in all the jurisdictions where his content goes, using the community standards of each. Webmasters who go beyond soft-core have decided to assume some risk of this prosecution.

Similarly, there is no guarantee that “secondary producer” prosecutions will not commence against webmasters who purchase all of their content in bulk from providers, as is. Each court that has tackled the issue has concluded that the Attorney General’s concept of a “secondary producer” is invalid and outside the law, and I agree with those courts, but here is no guarantee that the exceptionally well-reasoned opinion of the Tenth Circuit and the consistent view of the District of Columbia Circuit will be followed by federal courts in the Midwest or in the South. Like the risks of obscenity prosecution, any webmaster who publishes explicit images to the internet without complying fully with all of the affirmative duties of Section 2257, just as though he had created the images, runs some risk of prosecution outside the Tenth Circuit for violation of the regulation, even though the clause which purports to make him a producer was held declared invalid in Sundance. An extremely cautious webmaster would himself ascertain the 2257 compliance of all of his contents and comply with the Regulations in question just as though he created the images himself, including

the indexing and maintenance of the performer information at his place of business together with retention of the identity documentation. The practical difficulty of this is difficult to ascertain, but it probably poses a formidable, if not impossible, task in the real world for a Webmaster.

The question is first whether the Webmaster who does not produce original content or contract for its production even has to try to comply with a law that does not seem to include him in its terms. The second question is whether he actually can comply.

There is nothing on the market known to the author which achieves compliance for the Webmaster with all of the terms of the controversial regulation. Let me say that again, more directly. The Statute and Regulation in question, taken together, require that records, when they must to be maintained, be maintained on a content producer’s premises. No product, system, or program marketed commercially that I know of provides for that kind of compliance for webmasters, nor could any, unless copies of the identity documents in full and all other required information were kept on the premises of the webmaster and were retrievable by work and performer as set forth in the Regulation. The Regulations also require that the required custodian or exemption disclosure, if it is required, is to be as prominent to the viewer as one appearing on the front cover or copyright page of a printed work and as prominent as one which appears on a videotape before the first scene, or in closing credits, for a period long enough to be read. An invisibly coded watermark in an image, leading to information stored elsewhere, just does not rise to this level of prominence for the viewer. Were any product marketed, promising or implying full compliance with the Regulations in question, but actually fails to do so, it can fairly be said that the advertising would be less than accurate and straightforward. To the extent that it might promote itself by fear of law enforcement investigation, to offer protection from adverse enforcement action, and then fail to deliver a product that could survive such scrutiny and deliver protection, the promotion would be more than a bit misleading. Further, keep in mind that if you become the target of an official visit concerning your website, Section 2257 is likely to be only one of a number of issues that will be the focus of the visit: Even your full personal compliance with the terms of the Section 2257 will not divert an interest in such issues as obscenity. There are no magic bullets, amulets or potions against risk in the territory in which you make your living and you should prudently assess the proposition of anyone offering the appearance or simulation of such.

Because the penalty for knowing publication of child pornography starts at fifteen years imprisonment on the first offense, and because even the successful defense of such a charge is likely to have absolutely catastrophic effects on any webmaster, legal, economic, and emotional, the webmaster should firmly, aggressively, and resolutely take every reasonable step to ensure that his site does not depict persons under the age of eighteen in any manner that is arguably suggestive or erotic. It is simply the sign of a death wish to use images of unknown provenance. It is for far more than copyright infringement reasons that the smart webmaster will not use images plucked from the Usenet: Because he has no knowledge at all as to the origin of the images, it is comparatively more difficult and perhaps impossibly unavailing to protect himself from child pornography prosecutions by arguing that he reasonably believed the performer to be of age. Is such a belief reasonable when it is based on no information or pedigree at all, in an era where strict government regulation is designed to avert the possibility of such images being used in commerce? Perhaps not. It is far more prudent for the Webmaster to use images of known origin, images he knows to have been created by a reputable photographer known to him, or known well in the trade, who does comply with Section 2257. It is smart to deal with established content businesses that also must take risk of criminal prosecution under American law into account when they sell you images. The best practice is to know the source, to ask questions, and to take positive steps to ascertain that your web content is legal by asking questions and eliminating doubt.

Finally, you should educate yourself to the maximum extent possible about the law relating to what you do. The YNOT Network, including YNOTMasters and YNOTNews and the other sites developed for the support of Adult Webmasters contain abundant information of a helpful nature. Fred Lane has just recently written a wonderful and enlightening book of the first rank about American Adult entertainment, focusing closely on the Adult Internet, its history, growth, practices, technology, economic patterns, and the historical background to the legal issues which now confront it. It contains a very good overview of the history of obscenity law, the recent history of obscenity prosecutions, and the

state of obscenity law today. Its pages are full of fascinating detail concerning the people who have created adult magazines, phone sex, the Adult Internet and its technologies. Obscene Profits may be the best book ever written about adult entertainment in the United States, I strongly urge every Adult Webmaster to read it cover to cover and then to read it again, and finally to keep it at arm’s reach for ready reference: Obscene Profits, The Entrepreneurs of Pornography in the Cyber Age, Frederick S. Lane III, Routledge Publishers, ISBN 0-415-92096-5.

This article is written only to generally inform the public at large, and this article establishes no attorney-client relationship. As webmaster, you should have an attorney available for consultation who knows the issues which confront you: You should have an attorney knowledgeable in this area review your site and business operations for Section 2257 issues and for all other matters of risk: It is better to have the fire department conduct a safety inspection before the fire starts. Certainly, if you have a legal question or a case, get in touch with an attorney and retain him. Or her. If you are arrested, do so at once and say nothing and consent to nothing until you have consulted with him.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution. His firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the “real world”. His practice extends to First Amendment cases, municipal zoning and licensing, the law of privacy, criminal law and civil rights. He can be reached in the office at 312 558-6420 or paged at 312 250-4118, at any time, in any emergency. His e-mail address is xxxlaw@execpc.com

In former generations, it was not unless you owned a broadcast station or printing press and a widespread distribution system that you could personally control the tools of mass communication. The Internet changed all that.

Every Webmaster’s Primer on Section 2257 Compliance, Part III

By Attorney J. D. Obenberger

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