Under the Amber Alert (nationwide system of addressing child kidnapping), the United States Congress earlier this year, as signed by President Bush, enacted S. 151, also known as the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003” (PROTECT Act).Amber is loosely defined as a yellow or yellowish-brown color. One associates the colors of yellow or amber as a cautionary measure.

Under the Amber Alert (nationwide system of addressing child kidnapping), the United States Congress earlier this year, as signed by President Bush, enacted S. 151, also known as the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003” (PROTECT Act). Many people in the adult industry, including several of my colleagues, have fixated on §513 of Title V of the bill, which is the upcoming appointment of twenty five Assistant United States Attorneys (AUSA) to the Child Exploitation and Obscenity Section of the Criminal Division of the U.S. Department of Justice, whose primary focus shall be the investigation and prosecution of Federal child pornography and obscenity laws.1

Twenty five more prosecutors do not mean a thing nor are they / should they be a concern of this industry, except for scare purposes, UNLESS you are stupid (yes, stupid) enough to violate the law, especially this one!

While this article will not provide a guarantee to avoid a visit from an AUSA (or the FBI), it should give the reader at least some working knowledge of this latest attempt to legislate morality.

Every website owner / Webmaster should clearly put on its site, prominently displayed at the beginning of the site, that it abhors child pornography and there is no such involvement on their respective site. Now, while the government wants to mix the concept of “obscenity”, as defined in Miller vs. California,2 and the concept of “child pornography”, as defined in New York vs. Ferber,3 the clear discussion in three pages of findings with the Bill involves the concept of child pornography.

Congress, for example, found that:

“The Government thus has a compelling interest in ensuring that the criminal prohibitions against child pornography remain enforceable and effective. The most expeditious, if not the only practical method of enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising or otherwise promoting the product.”4

As Congress concluded:

“The Supreme Court’s 1982 Ferber vs. New York decision holding that child pornography was not protected drove child pornography off the shelves of adult bookstores. Congressional action is necessary how to ensure that open and notorious trafficking in such materials does not reappear, and even increase, on the Internet.”5

Now, one might feel protected by simply determining not to violate the law by refusing to place pictures of minors engaging in sexually explicit conduct on one’s site, but one would be completely wrong as to that assessment to avoid the PROTECT ACT. Congress has seen fit to eliminate such distinction by creating the doctrine of virtual child pornography, which is defined as a “visual depiction as a digital image, computer image or computer generated image that is, or is indistinguishable from that of a minor engaging in sexually explicit conduct.”6 Sexually explicit conduct has been defined as actual or simulated intercourse (any form conceivable between persons of the same or opposite sex), bestiality, masturbation and abuse or showing / exhibiting male or female genitalia.7 It is in this series of definitions where one can actually be caught by trying to skirt the concept of “indistinguishable” by following the definition of such. Such definition itself exempts pictures that are drawings, cartoons, sculptures or paintings depicting minors or adults.8 However, as will be discussed below, reliance on that exemption is also at the industry’s peril!

A provision, known as §504 of the PROTECT Act, completely and totally contradicts the exemption of “indistinguishable” which would exempt certain items from being considered child pornography as discussed above. Buried in a totally different area of the U.S. Code than all of the other issues governed by this portion of the PROTECT Act, Congress has created a new category known as “obscene visual representation of the sexual abuse of children.”9 Congress defines this new category as “any person who, places such in any communication including by computer, knowingly produces, distributes, receives or possesses with intent to distribute a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that depicts a minor engaging in sexually explicit conduct and is obscene or depicts a sexual act (as discussed above, except masturbation) and lacks serious literary, artistic, political or scientific value.”10

Strangely enough, it is not a required element to violate §504 that the “minor” depicted actually exists in human form. Visual depiction includes undeveloped film / videotape, data stored on a computer and is created under any means, including computer generated.11 Any genitalia / pubic area visible / observed in any part at any time during the depiction is defined as graphic for purposes of this Section.12

The defense to §504 is severely narrow: (1) lack of knowledge of that image on the computer; (2) lack of intent to distribute at all to anyone; (3) possession of less than three visual depictions; and prompt notification to a law enforcement agency, affording said agency access or the reasonable attempt to destroy each such visual depiction without allowing others to view/retain such images – extremely narrow since lack of knowledge / intent are significantly difficult to prove.13

Therefore, anyone who has a delusion that pictures as described above or that incest is acceptable or art / cartoons of a humorous nature is immune, please be advised that you are sorely mistaken. Not only is the “typical” definition of child pornography prohibited, but any incest / bestiality / art / humor / cartoon sites which depict the acts of “minors” in any forms need be aware that any images on their sites subject them to investigation and prosecution under this new law. That is why CAUTION is the word of the day and negligence is the key!

Last, but not least, we come to § 521 of the Act, under the general concept of truth in domain names, a new section entitled “Misleading domain names on the Internet”.14 This section comes in several parts with several definitions; here are the highlights:

(1) A misleading domain name on the Internet with intent to deceive a person into viewing material constituting obscenity – fine/imprisonment of not more than two years or both;

(2) Doing the same to deceive minors into viewing materials harmful to minors on the Internet – fine / imprisonment of not more than 4 years or both;

(3) Using the words “sex” or “porn” or other words indicating the sexual content to the site is not misleading.

(4) Congress has defined “material that is harmful to minors” as any communication, whether nudity, sex or excretion that taken as a whole (a) predominantly appeals to the prurient interest of minors [which can be a wide range of subjects – author’s note]; (b) is potently offensive to prevailing standards in the adult community as a whole with what is suitable for minors; and, (c) lacks serious literary, artistic, political or scientific value for minors.15

Even the definition of sex is exceptionally broad and encompasses the whole range of possibilities from actual intercourse to masturbation to sexual stimulation or arousal. In some respects, §521 can present even more problems than any other provision of the PROTECT Act.

On the whole, as was set forth throughout this article, the main issues of the Act involve not the hiring of twenty-five AUSAs, but the overall concerns as to sexual matters on the Internet, especially that of minors. There is a relatively simple way to avoid your concerns with AUSAs – follow the provisions found herein and avoid or attempt to avoid any violations of the ACT – it is just that simple!

1 S. 151, §513

2 415 U.S. 15 (1973)

3 458 U.S. 745, 757 (1982)

4 S. 151, §501

5 Id.

6 18 USC §2256 (8)(B)

7 USC §2256 (2)(A)

8 18 USC §2252A (C)

9 18 USC §1466A

10 Id.

11 Id.

12 Id.

13 Id.

14 18 USC §2252B

15 Id.

Eric M. Bernstein, Esq. is the partner in the law firm of Eric M. Bernstein & Associates, L.L.C. (www.embalaw.com) in Warren, New Jersey. Mr. Bernstein, and members of the firm, represent clients on all aspects of Internet law, including but not limited to, site content issues, employment issues, First Amendment issues, civil rights issues and other legal matters concerning the Internet industry on a nationwide basis. All of the statements / comments represent the opinions of the author only and do not constitute specific legal advice. Please consult your own individual legal counsel on specific legal matters. You can contact Eric M. Bernstein, Esq. at embernstein@embalaw.com or info@embalaw.com.