LEGAL BRIEFS

When it comes to the legal issues that affect adult Webmasters, too often it’s convenient for online adult industry professionals to close their eyes and cover their ears.LEGAL BRIEFS

When it comes to the legal issues that affect adult Webmasters, too often it’s convenient for online adult industry professionals to close their eyes and cover their ears. The duck and cover approach is unfortunately a popular alternative to hiring expensive legal counsel. Yet not all adult industry professionals are in denial. At the recent winter Internet, the rather large meeting room which served as the venue for the legal seminar was mostly full – a sign that many people are still concerned with reducing any legal risks that go hand-in-hand with the adult entertainment business.

There are certain things that one comes to expect from these seminars, and many of these expectations were met once again in 2003. Familiar faces such as attorneys Greg Picconelli, Fred Lane and Clyde DeWitt were on hand to speak about the legal climate. Even the title of the seminar, with references to “Halloween” and imminent legal dangers, fit critics’ claims that these seminars are designed to frighten industry professionals (some say unnecessarily) into hiring lawyers. Yet despite the familiar faces and the ominous-sounding seminar title, the tone of the presentation was sharply different from legal seminars of previous years.

As mentioned previously, attorneys Greg Picconelli and Clyde DeWitt participated in the seminar as guest panel speakers, and attorney Fred Lane moderated the panel. Other panel speakers that might be less familiar to adult Webmasters included attorneys Reed Lee (recently elected to the Board of Directors of The Free Speech Coalition) and Roger Wilcox. Where past legal seminars inevitably would focus on issues relating to obscenity laws – one of the more frightening legal dangers faced by adult industry professionals – this year the focus was more towards civil liability issues, with less talk about John Ashcroft and possible looming obscenity prosecutions.

The first speaker to take the podium was attorney Greg Picconelli, who immediately started by calling attention to some of his past predictions – the successful ones. His presentation then turned to explaining a rather hectic recent thirty-six hour period at his law firm in which a rash of events hit seemingly all at the same time. This thirty-six hour period included civil suits filed against some of his clients (including a copyright suit initiated by Perfect 10 Magazine), another client who lost his merchant accounts, and a sexual harassment claim against yet another client. The examples were meant to illustrate some of the various legal risks that adult industry professionals face on a regular basis – and that those legal risks are not limited to obscenity prosecutions and model record keeping requirements. Offering yet another example of a scenario that could affect adult Webmasters, Picconelli suggested the possibility that the IRS could target some online adult businesses for tax evasion. He also pointed out the dangers of sending unsolicited email advertisements, and commented that there are several firms who make a living off of suing Internet “spam” marketers.

Picconelli’s presentation next turned to new technologies that threaten personal and business privacy, including cell phone tracking and email monitoring. His point was clearly that Americans are increasingly coming under government surveillance, which only adds to the importance of properly following the letter of the law and avoiding unnecessary legal risks. For Webmasters looking to lower their legal liabilities, Picconelli recommended that they add political content to their Web sites – political commentary can increase the perceived “value” of an adult site while also helping to promote the cherished principles of Free Speech.

The second panelist to speak was attorney Reed Lee, who was one of the newer faces to make a public appearance at Internext. Lee continued the theme of political activism, encouraging Webmasters to get involved in the political process. His presentation then turned to the multi-jurisdictional nature of the Internet, and the challenges that this fact presents to pro-censorship factions in government. For example, does a state have the authority to regulate content that is in interstate commerce? Lee suggested that this is only one of the issues that the adult industry should keep a careful watch on as it is debated and resolved in the coming months or years. Lee also pointed out that federal efforts to censor the Internet have thus far proven largely unsuccessful – the Child Online Protection Act (COPA), for example, has yet to go into effect as it is still being fought in the nation’s courts.

Elaborating on the status of COPA, Lee explained that the constitutionality of COPA has yet to be resolved. A recent high-profile Supreme Court decision involving COPA ruled only on whether the law could be invalidated for its reference to “contemporary community standards.” The Supreme Court ruled that this reference in and of itself does not invalidate COPA, and the case was returned to the lower courts to decide if COPA was unconstitutional for any other reason. Lee pointed out that it is important to monitor the opinions of the Supreme Court Justices, and that the opinions offered by the Justices in the COPA decision provide good insight as to the mindset of the Court regarding the community standards issue. Since only three of the nine Justices spoke in favor of local community standards being applied to the Internet, it is unlikely that any federal obscenity prosecutions relying on local community standards would ultimately stick. National community standards, however, might be a whole different matter.

The third speaker was another newer face in our industry – attorney Roger Wilcox, who opened by stressing the importance of complying with 18 U.S.C. Section 2257, which outlines model record-keeping requirements for adult content producers. Wilcox, like Lee, also pointed to the multi-jurisdictional nature of the Internet and the problems this creates for prosecutors. If a crime occurs on the Internet, where does that crime take place? Where the server is located? Where the accused criminal is accessing the Internet? Or does the crime take place out of the physical world and in cyberspace? Echoing the theme of government surveillance started by Picconelli, Wilcox also warned of increased government monitoring of its citizens – a trend that he says is happening not just in America, but all over the world.

The final speaker was the ever-charismatic Clyde DeWitt, who offered this advice to anyone who distributes adult content via any medium: get a model release and copies of the model’s identification whether required by law or otherwise. His point was that the stakes are simply too high for adult industry professionals to put their fate in the hands of a content producer – if a model turns out to be seventeen, the distributor can go to jail even if he or she honestly believed the model to be eighteen. Copies of model records provide piece of mind and the only realistic defense should an underage model slip through the cracks.

DeWitt’s presentation went on to discuss the problems that technology has created for both government censors and the traditional adult film industry – something he had been predicting since the 1980’s. As for his latest prediction, DeWitt argued that government censors will look to the money source when combating online erotica. To develop this argument, DeWitt compared the online pornography business to a swarm of bees and the traditional video business to a dragon. His point was that the weapons one might use in an attempt to slay a dragon – such as a lance or a cannon – would be absurdly ineffective and overkill against a swarm of bees. In other words, government censors will have to develop new weapons when targeting online porn – weapons that can act more in line with bug spray by making numerous kills with one swipe. Obscenity prosecutions – while there may be some in store for select companies – are more appropriate for fighting dragons. When it comes to online erotica, the third party credit card processors are the Achilles’ Heel of the online adult industry. DeWitt also pointed out that credit card companies such as Visa and Mastercard have a lot to gain by working with the government – most notably, bankruptcy law reforms, which credit card companies have been pursuing for years.

DeWitt closed by continuing the panel’s plea for adult Webmasters to get involved in the political process, and he made reference to political organizations such as The Free Speech Coalition (http://www.freespeechcoalition.org) and The Internet Freedom Association (http://www.i-freedom.org) as good starting points for concerned Webmasters who want to make a difference.

There was no denying the panel’s concerted effort to tone down the frightening talk about possible federal obscenity prosecutions. What was not certain was why the change in tone occurred. One possibility is that the political climate is changing. Another possibility is that panelists have grown sensitive to the criticisms of adult industry professionals who claim that obscenity talk is used by First Amendment lawyers to frighten people into hiring legal counsel. Whatever the reason, the latest Internext legal seminar succeeded in opening eyes to a larger picture – in the modern world there are all kinds of ways that entrepreneurs can find themselves in sticky legal situations, and not all of them require the presence of a conservative Attorney General or far-right lobbyists for censorship.

Connor is the Editor-in-Chief at The Adult Webmaster and can be reached at connor@theadultwebmaster.com.

LEGAL BRIEFS

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