Legal Bondage

The InterNext 2002 Legalities Seminar offered a plethora of information and advice to help keep adult webmasters in business in the coming years.  Learn what it all means and find out ways to break out of the legal bondage and exercise your rights to profit from Internet porn.

Well, InterNext January 2002 went off without a hitch.  Although I was mildly disappointed at the lack of female webmasters representing at the show, the abundance of booth bunnies, penthouse pets, and role-playing models provided plenty of pleasant eye candy to go around. One company even put on B&D shows the entire expo, and although I never saw the name of the company, their logo sure has been branded into my mind.  One helluva marketing approach if you ask me.

Beneath all the ‘glamour’ and glitter, behind all the ‘pimps’ and photographers, there was a strong underlying tone throughout the trade show.  The adult Internet industry has matured folks.  We have grown to be responsible, professional, and aware of our conduct as well as how our livelihood affects the world around us.

I had originally intended to cover what I had heard to be the one seminar you must not miss this InterNext.  "Legalities: An Outline of Legal Topics Crucial to Adult Webmasters" featured 4 distinguished adult entertainment attorneys Larry Walters, Gordon Einstein of Einstein Law Group, J.D. Obenberger, and Rick Chapo. The per se coverage of this seminar by the editors at YnotNews and in the email follow up "Seven Circles of Internet Content Hell" by J.D. Obenberger has been so thorough (and impressive), I felt it a waste to attempt to reiterate what was said and rather, approach what it all means for webmasters in 2002.

Erotic Experiments
Here is a brief overview in case you missed it.   We are all legal guinea pigs.  That’s right, if you are an adult webmaster welcome to the governments’ legal testing zone where a new, more patriotic America will attempt to inject you with globalized community standards (ha!) and accusations of obscenity while disarming you of your engorged paychecks provided by porn.  Maybe they’re all just jealous, but that’s the wrong kind of green for empowered politicians and bureaucrats.

Once you got used to the scare tactics many of the attorneys were throwing at the audience, the overall tone was not to be afraid, but to be informed.  Don’t bail; brace and be ready.  Much of the anticipated government action the industry is preparing for still lacks the precedence necessary for criminal prosecution.  More realistically, many laws and statutes have already been passed and the first major "test cases" are upon us.  So beyond any speculation, the 3 words to describe this seminar would be: "Cover Your Ass".

What You Need to be Aware Of
"Governments are like a glacier. It takes a long time to move but when it moves it is an unstoppable force".  Expect Federal, State, and Local government regulations of the Internet in the coming years.

There are currently many PENDING Supreme Court decisions that will change the reality of the Internet.  This includes the ruling due in June 2002 regarding COPA (Child Online Protection Act), which, if the Act is upheld as constitutional, adult site with even questionable material will be prosecuted or taken down. 

The easiest violation for law officials to enforce is non compliance of Section 2257.  If you do not know what compliance of Section 2257 entails or what "custodian of records" is and you publish adult content on the Internet, READ THIS ARTICLE by J.D. Obenberger and contact one of several adult industry attorneys to have your site reviewed and pulled into compliance.  What’s the penalty for non compliance of Title 18 USC Section 2257? Try felony upon the first conviction, punishable by up to two years confinement and a fine, and two to five years and a fine on a second conviction.  Sorry guys, judges won’t accept a plea of "ignorance".  

Now what can be more patriotic than taking away the constitutional rights of all Americans?  The Patriotic Act! And that is exactly what it does.  Now the FBI and other government agencies no longer require a search warrant to tap your phones, lollygag through your computer and monitor your email without your prior consent or knowledge.  J.D. Obenberger (XXXLaw.net) made a fantastic analogy comparing these times to the book 1984 by George Orwell.  1984 describes "a world where privacy does not exist" and is the origin of the ever watchful Big Brother.  The FBI has recently been allotted $379 million dollars to purchase new computers, software, and technology to make this a reality. Scary.

Speaker Larry Walters, Esq. (FreeSpeechLaw.com) provided some tips for keeping off the "watch" list.  The first was to not send emails that you do not want read in court.  He says to keep information regarding accounting, hosting, legal inquiries, and confidential data out of email.  Be aware of whom you do business with and with whom you advertise on your site.  These little legal quirks called "conspiracy" and "aiding and abetting" have the potential to cause an awful lot of trouble if the possibility of a legal "domino effect" ever becomes a reality.  You are just as responsible as those you do business with in regard to legal compliance, so get warranties and Intellectual Property insurance.  Also, Walters said to be careful of the "Rights of Publicity" statutes which prosecute celebrity type sites that use look-alikes or pictures of a celebrity as a marketing vessel, as well as modifying images of celebrities and even mocking mannerisms.

Many webmasters still have not realized that spamming is illegal and criminally punishable.  Over 20 states have their own versions of anti-spamming laws and 6 Federal laws are on the table for consideration.  The penalty?  1 year in jail for misleading email headers (spoofing To and From lines as well as routing information) and a fine of $5-50 per unsolicited message. 

How can you be sure to stay out of trouble when using email solicitations? That’s easy, don’t spam.  But opt-in email lists are often regarded as spam so here are some pointers that were provided to help you stay out of the heat:  Provide a toll free number in the initial body of your message on how they can be removed.  If you receive a complaint or remove request, remove and exclude the address and do not send them any more mail.  Something that is becoming more common place is to put acronyms in the beginning of the subject line describing the type of mail it is.  For example, an advertisement email would begin with "ADV:" in the subject.  Good advice for adult related emails is to have "ADLT:" for adult in the subject line.

Common Sense Advice
Do not register or Cybersquat on domains containing trademarked terms or misspelled versions of trademarked names.   Not sure if a name is trademarked or copyrighted?  Search NameProtect.com to find out.  Einstein and Chapo advise that you know what kind of corporation will provide the best protection for your business and to be willing to allow it to grow and change as you become more successful.  Chapo (Adult Internet Law) also advises that you not name your business something haphazard like "Animal Porn, Inc" unless you are asking for trouble.  Also, NEVER promote your content using illegal or stolen images.  Be able to provide documentation of models and content licenses if requested.  Be careful when promoting in "free content farms" such as newsgroups that often attract illegal or underage content.  And try to stay away from using words like "Lolita" or "youngest teens" in your promotions, anything that even LOOKS underage will capture scrutiny from law enforcement officials. 

A U.S. Justice once said "I can’t define pornography.  I just know it when I see it".  Keep in mind that obscene is most commonly defined as "Seriously lacking artistic, social importance, political, scientific, or social value" so it is a good idea to research what the local community standards of obscenity is in your Region or State.  And finally, BE AWARE.  Stay informed of the Federal and State legislative changes that may affect the type of sites you own.  Be ready and willing to make any changes required to stay within the law. 

Protect Your Assets
Many independent webmasters feel that "they’re never going bother with a little guy like me" and choose to ignore or deny the possibility that they could be indicted for violations involving Internet porn.  It would be very unfortunate if these types of webmasters were the first to be made an example of.  Although you may run a small operation, no one is immune from the law.  In the same respect, remember that the more successful you are, the easier of a target you will become, and the more you will be at risk of losing. 

I must have heard "consult your lawyer or legal council" 15 times during this hour long seminar.  Ah, it could have been in part "shameless plugs" (even lawyer’s need to generate more business) but overall it seems most important to at the least have your site reviewed by an adult entertainment lawyer. This simple step is very affordable and can save you up to 15 years of your life in an "orange jumpsuit".  When in doubt, consult your attorney.  The best time to find the right attorney is now.  Get to know the industry professionals that are dedicated to keeping you in business, because if the Feds come knocking at your door with shiny new laptops, you may find yourself short on time to interview a lawyer. 

Patriotic Acts
Overall this seminar was worth sitting in on (even if it was on the floor, as the room was jam packed) and closed with an overall positive vibe.  Accepting and building on the challenges that the future brings is what makes this such an enjoyable and successful industry to be a part of.  With so many amazing resource centers and people dedicated to helping and informing webmasters, "We will not waver, we will not tire. We will not falter and we will not fail."

Additional Information & Resources:

XXXLaw.net : Seven Circles of Internet Content Hell
Free Speech Law
Adult Internet Law
National Coalition for Sexual Freedom
Free Speech Coalition

Originally Published: AdultChamber.com, January 2002

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