LEGAL BRIEFS

This is the political climate that adult webmasters are faced with today, and adult webmasters are fortunate to have an intelligent and feisty core of First Amendment and adult entertainment attorneys to help defend them.LEGAL BRIEFS

This is the political climate that adult webmasters are faced with today, and adult webmasters are fortunate to have an intelligent and feisty core of First Amendment and adult entertainment attorneys to help defend them. At several webmaster conventions, a group of lawyers have served as valuable fonts of information to educate adult webmasters. Since the Bush administration took over Pennsylvania Avenue, adult webmasters have started to really listen to what these attorneys have to say.

Such was the case at Las Vegas’ AdultDex/CyberNet, where on the legal panel sat Greg Picconelli, Larry Walters (www.freespeechlaw.com), Joe “J.D.” Obenberger (www.xxxlaw.net), and Susanne Whatley.

Despite the intense concentration on foreign policy by the Federal Government these days, the September attacks on America created a potential for broad obscenity sweeps, said Picconelli. He advised all webmasters to get an attorney to serve as “silent partner,” and said that the possibility of a round of obscenity charges would likely come more from the state and local level, as community standards are more likely to be examined and re-formulated.

A major threat to the civil liberties of the adult webmaster has recently been enacted by the Federal Government under the guise of the Uniting and Strengthening Act of America (see Larry Walters’ article for more info on this here: http://www.ynotnews.com/110801/page1.html). The passage of the Act poses a threat to First Amendment rights. While Internet porn was never on the minds of the framers of the Constitution, the right to have a cathartic sexual experience by consenting adults must be fought for.

The Act dramatically changes law enforcement procedures. Telephone and Internet communications may be intercepted, even those of the accountant, attorney and doctor. Law enforcement agents can search your property and you might not even know they conducted a search. Internet Service Providers (ISPs) are now required to cooperate with law enforcement agencies even with existing provisions of unaccountability.
(Before passing the microphone over to Larry Walters, Piconelli mentioned that as a molecular biologist — in addition to being a lawyer — he is torn by the Act because of the enormous threat of bioterrorism.)

Anti-terrorism has really altered the political climate, said Larry Walters. However, a couple of months after the infamous date of 9/11, “they haven’t gotten rid of us yet.” Larry waxed optimistically in the beginning of his talk, saying that the industry survived the moral crusades of the 1970s and ’80s, and it will likely survive this conservative political climate as well. This is true even at a time when expanded federal powers are not just used for anti-terrorism purposes and searches are granted 99 percent of the time.

There is a high-tech word that perhaps a large group of webmasters are not familiar with, which Walters introduced: Stegonography. Not to be confused with court reporting (stenography), stegonography is the imbedding of small images in graphics. If you are familiar with current events, perhaps you know where this is going: terrorism. Terrorists were believed to have used stegonography to transmit secret messages. And guess what kind of websites the terrorists supposedly used, according to Time magazine? You guessed it, porn sites.

This provides the perfect ammunition for Ashcroft to make a sweeping assault on the adult entertainment industry. Walters said that the Justice Department’s Child Exploitation and Obscenity division is better known as the God Squad. Make no mistake about it, said Walters, the God Squad has prosecuting adult entertainment on its agenda.

Webmasters need to be aware of the community standards. Community standards, incidentally, do not relate to a city or state, but rather to a localized court system. Obscenity charges vary from community to community, state to state. In some locales, obscenity is a misdemeanor, and in others, it’s a racketeering charge subject to a six-figure fine and a 30-year prison sentence.

Walters echoed some legal information that was mentioned at the last InterNext show this past June. Obscenity, said Walters, is not a black and white issue. As an adult webmaster, you won’t know if you’re guilty of obscenity or not until a jury decides so. And as Joe Obenberger mentioned later in the legal seminar, a jury member wouldn’t admit to watching even the raunchiest of porn. The adult webmaster is at the mercy of a fickle jury system.

Obscenity is harder to defend when a prosecutor can prove that the adult material in question is available to children. And don’t think that you will get a phone call from the government asking you to nicely remove some questionable content from your websites. Expect them to launch an unannounced raid on your house.

The adult webmaster can help avoid an obscenity investigation by complying with COPA regulations, maintaining proper records such as model release forms and USC §2257 documentation, posting educational content on adult websites, and by having a warning entry page. If by the unfortunate chance an adult webmaster gets arrested, Walters advised not to say anything to the police and ask for a lawyer.

Walters offered some detailed information that was not mentioned at InterNext. He suggested forming a relationship with local bailbondsmen, researching and documenting what is allowable by community standards, and if arrested, a webmaster should demand public records of the arrest such as radio communications leading up to the arrest, which will quickly disappear if not asked for immediately. Walters also suggested contacting the local ISPs to see what types of websites people are logging on to.

The destruction and erosion of liberties worsens with every new generation, said Obenberger. From communists to radicals to terrorists, the last several decades have challenged the fundamentals of the Bill of Rights. Obenberger passed up on the microphone and instead used his boisterous and engaging voice, walking around the entire seminar hall, making sure that his urgent message to webmasters sank in.

The American public unfortunately doesn’t seem to be too preoccupied with the erosion of the sanctity of the attorney-client relationship, said Obenberger. We have a President who believes he’s on a mission from God. That religious zeal, Obenberger argues, leads to a direct conflict with established civil liberties.

One reason that obscenity is so hard to define for adult webmasters is that statutes from a decade ago, before the explosion of online sex, are being used to define obscenity, including compliance issues associated with U.S. Code §2257. These archaic legal frameworks often do not mesh well with the advancement of the Internet.

These confusing codes favor the federal prosecutors, who Obenberger says, want the adult webmaster to fail.

Obenberger again sounded the civil liberties alarm, saying that one act (9/11) can erode the freedoms that have prevailed for the last 226 years. What about the 600,000 dead veterans that fought for these freedoms, Obenberger asked? Further, government actions that are unfavorable to adult webmasters, are often deemed popular by the general public because teachers don’t teach in schools what it really means to be free, argued Obenberger.

Public domain is an often-misconstrued topic in the adult industry. Susanne Whatley informed adult webmasters that public domain cannot be used as a valid defense in the online adult entertainment business. Government works are public domain, said Whatley; not TGPs or newsgroups. The exception to the public domain rule is the Fair Use principle, which applies with parodies or news-worthy articles.

Copyright protection should be applied within 90 days of the content’s publication. If it comes down to a court battle with a scenario where the adult webmaster hasn’t copyrighted the content, that webmaster loses out on statutory damages and other actual fiscal compensations.

As more and more people decide to make money independently via online adult entertainment, it’s necessary for attorneys like Picconelli, Walters, Obenberger, Whatley, et al to inform newbies at every convention of the critical importance of code §2257, COPA compliance, copyright protection and the current state of civil liberties. This legal panel continued the trend of high-profile attorneys offering valuable free legal advice to the adult webmaster community. The November CyberNet legal panel also offered detailed information that wasn’t discussed at previous conventions.

LEGAL BRIEFS

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