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ADULT
INDUSTRY UPDATE ™
May
2003
By:
Lawrence G. Walters, Esq.
www.FirstAmendment.com
PROTECT ACT PASSED
The
adult industry was sent reeling this month by the news that the federal PROTECT
Act
– presented to the electorate as an “Amber Alert” Bill – had been signed
into law. S. 885. In fact, the Act goes far beyond assisting with the location
of missing children, and is in reality a law largely aimed squarely at the adult
entertainment industry. For example, the Act requires the Attorney General to
appoint 25 additional trial attorneys to the Child Exploitation and Obscenity
Section of the Criminal Division of the Department of Justice who are required
to focus on the investigation and prosecution of federal child pornography
“and obscenity laws.” § 513. The Justice Department has received
essentially a blank check for funding these new attorneys, since
the
Act states: “There are authorized to be appropriated to the Department of
Justice such sums as may be necessary to carry out this subsection.” §
513(a)(2). Moreover, the Department of Justice must report in the next 9 months,
and every 2 years thereafter on what it is doing to enforce child pornography
offenses, along with certain obscenity offenses relating to children. §
513(b)(1). Apart from that, the Act demands a separate report in one year about
§ 2257 enforcement. § 511(b). The Act also includes new crimes relating to
virtual child pornography and the use of misleading domain names covered in
detail in last month’s Update.
Of significant concern to adult webmasters are the beefed up
sentences required under the Act for child pornography and obscenity crimes. The
“Feeney Amendment” to the Bill was designed to essentially eliminate the
discretion of judges to depart downward from the sentencing guidelines in these
cases. § 401. Of course, the judges still are free to give harsher sentences.
The penalties for violation of Section 2257 relating to records
keeping have also been increased from two years up to five years incarceration.
§511(a)(3)(B). Repeat offenders get up to ten years. Again, there are no
downward departures for these crimes under the Feeney Amendment. Conforming
amendments to the sentencing guidelines can be expected. Parenthetically, the
scope of media covered by Section 2257 has also been expanded, or clarified, to
include any “computer generated image, digital image, or picture.” §
511(a)(2). While the existing definitions contained in Section 2257 were
probably broad enough to already include online erotica, the Legislature has now
made it clear that webmasters will be on the hook for compliance with Section
2257. The Attorney General’s obligation to report to Congress regarding the
number of inspections and/or prosecutions initiated under Section 2257 is nearly
certain to trigger enforcement. Moreover, in the past the records that the adult
industry was required to keep under Section 2257 could not be used against the
individuals required to maintain them. That stood to reason, since the
government should not require you to maintain certain records, and then use
those records against you in a criminal prosecution. This implicates
the
right against self-incrimination. However, the PROTECT Act now allows the
government to use such records as evidence in child pornography and – you
guessed it – obscenity prosecutions.
It
is hard to over-state the impact of this new legislation. This law was passed
without any public input, much less protest, from the adult industry. Certainly,
the presentation of this Bill as a “child protection act” focusing on
recovery of missing children made it difficult to oppose for any lawmaker,
however the add-on amendments bode ill for the adult industry and should have
been challenged prior to passage. At this point, any affected parties must
resort to the judicial system to obtain potential any relief.
STEGANOGRAPHY REVISITED
In November, 2001, this author alerted the adult Internet
industry to the issue of
“steganography”
which involves the embedding of small digital images or messages in otherwise
innocent online pictures, as a means of clandestine communication. At that time
it was speculated that the 9-11 hijackers and other Al Qaeda operatives used
steganography to communicate with each other by embedding messages in erotic
images posted on the Internet. That speculation has now been confirmed with the
discovery of coded erotica containing images of the Twin Towers, downloaded just
days before the 9-11 attacks.1 On
September 4, 2001, pictures of the World Trade Center were saved as temporary
files on one of the computers used by Abu Saleh, an Egyptian currently facing
trial in abstentia in Milan on charges of international
terrorism. The images had apparently been manipulated, with their colors
modified, and mixed with various adult pictures, and sent back to the Web.2
Law
enforcement officials claim that, in this way, Al Qaeda cell members
communicated back and forth without being detected. Although the digital
evidence is still being analyzed, this discovery provides additional potential
grounds
on which to investigate adult Websites. The last thing the adult Internet
industry needs is to be inadvertently linked with terrorism, which might be used
as a basis for investigation of adult Websites under the Patriot Act. Speaking
of which . . .
THE END OF THE PATRIOT ACT?
In a victory for civil liberties, Senate Republicans recently
backed down from an effort to make the sweeping surveillance and investigative
powers provided by the Patriot Act, (1 A.
Salomon, “Porn – Concealed Terror,” ABCNews.com
(May 2003). 2 Id.) permanent.3 Senator
Orrin Hatch, Chairman of the Senate Judiciary Committee, abandoned his effort to
extend the Patriot Act legislation which is scheduled to expire in 2005.
However, the
Senate
did approve a measure expanding the government’s ability to use the
super-secret
surveillance
tools provided by the Act even if it cannot link the terrorist suspects to a
known terrorist group. As the law currently reads, United States officials must
establish a link to a foreign terrorist group in order to invoke the
surveillance powers. “There’s a delicate balance between liberty and
security,” said Senator Charles E. Schumer, the lawmaker who authored the
expanded powers. The attempt to make the Patriot Act permanent touched off a
significant civil liberties debate from lawmakers concerned about the reach of
“Big Government.”4
In
a brave statement, a spokesman for Representative F. James Sensenbrenner, Jr., a
Wisconsin Republican who chairs the House Judiciary Committee, said that
extending the Patriot Act’s powers, “will
happen
over his dead body.”5 The American Civil Liberties Union called
the defeat of the
proposed
extension “a major victory.”6
JUDICIAL UPDATE
In
a major victory for peer-to-peer file swappers, a Los Angeles federal judge
ruled last month that companies, such as Kazza, which provide software and
assistance to enable file swapping amongst Internet users, are not liable for
illegal copying of music and videos by those users.7 “It’s
a vindication, we are not pirates,” said Wane Rosso, President of Grokster,
one of the file swapping companies.8 A
spokesman for the Recording Industry of America expressed disappointment at the
ruling, which will likely be appealed. Notably, the rate of swapping of
copyrighted adult video files is skyrocketing (3 E.
Lichtbalu, “Senate Deal Kills Effort to Extend Anti-terror Act,” NewYorkTImes.com (May 9,
2003). 4 Id.
5 Id. 6
Id., quoting Timothy
Edgar, Legislative Counsel for the ACLU. 7 “Court
Rejects Music Industry Suit Against Web File Swappers,” Associated Press (April 25,
2003). 8 Id.)
.SPAM,
SPAM,
SPAM,
SPAM,
SPAM
The Federal Trade Commission, (“FTC”) has gone on the
offensive against “deceptively bland” spam, and has asked a federal judge to
block unsolicited emails that use innocuous subject lines, false return
addresses and empty “reply to” links.9 The FTC asked for a restraining order
against Brian Westby, an alleged spammer based in St. Louis. The FTC cited such
unassuming subject lines as “married but lonely” and “did you hear the
news” as examples of the illegal deception.10 Also
brought to the limelight was the issue of “spoofing,” where the sender of
junk email makes it appear that the mail came from an innocent third party.11
The
FTC has become more active in pursuing spammers in recent years, and has
announced hundreds of settlements.12
The State of Virginia has also gone on the offensive against spam
by passing a new law criminalizing the transmission of unsolicited bulk
electronic email.13 The law makes it a felony to transmit more
than 10,000 unsolicited bulk emails in a 24 hour period, or more than 100,000
attempted recipients in any 30 day time period.14 Also
included in the prohibitions are penalties for enabling the falsification of
electronic mail transmission or other routing information.15
It is likely that spammers will be faced with many more such laws
in the near future, as spam continues to clog our inboxes, and make email
communication less and less efficient. (9 “Judge
Asked to Quash ‘Deceptively Bland’ Spam,” Reuters
(April 17, 2003) 10 Id. 11 Id. 12 Id. 13 Ch.
987, HBNO 2290. 14 Id.
15 Id.)
WAL-MART CENSORSHIP
Magazines, which are considered relatively benign by most in the
adult Internet industry, are being pulled from the shelves of Wal-Mart, and
labeled “too racy” for Wal-Mart shoppers.16 Maxim,
Stuff and FHM men’s
magazines will no longer be carried by the nation’s largest retailer.17
While
private companies are entitled to make business decisions as to what media is
sold, any decision by this huge retailer greatly affects the availability of the
censored product. During the formation of our country, when publishers used the
printing press to communicate, the government was in the strongest position to
influence the availability of a specific publication, through its censorship
policies. However, in present times, decisions such as this by Wal-Mart have a
greater impact, as de facto censorship,
than the government could ever have by passing a law.
Wal-Mart’s attempt at taking the moral high-ground may be a bit
hypocritical if reports from female employees in San Francisco are true. More
than a hundred complaints have been filed by the women against the company, as
part of a lawsuit against the retail chain, alleging that male managers at
Wal-Mart stores required their female counterparts to attend meetings at strip
clubs and Hooter’s.18 The plaintiffs’ attorney claims that
“women are treated as second class employees at Wal-Marts from Florida to
Alaska.”19
The
workers are attempting to certify a class action against Wal-Mart based on
discrimination against female employees.20 At
least
those
employees will not be forced to look at those racy men’s magazines any longer!
(16
D. Carr & C. Hayes, “3 Racy Men’s Magazines Banned by
Wal-Mart,” NewYorkTimes.com (May
6, 2003). 17 Id.
18 “Female Wal-Mart Workers: Meeting Held at
Strip Clubs,” USAToday.com (April
29, 2003). 19 Id.,
quoting Brad Seligman. 20
Id.)
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PRODUCER GONE WILD
In a black eye for the adult industry, the owner and producer of
the successful “Girls Gone Wild” video line is facing sex and drug charges
in Panama City, Florida.21 Joe Francis, Chief Executive of Mantra
Entertainment, was arrested in April on allegations that he told minors to lie
about their age on camera.22 After a search of five locations and his
private jet turned up corroborating videotapes and drugs, Francis was charged
with drug trafficking and racketeering relating to prostitution.23
Three
of his employees also were charged. Francis has denied the charges but documents
relating to the case have been
sealed as part of an ongoing investigation.24
VIDEO GAME INDUSTRY UNDER
FIRE
The
State of Washington has proposed a Bill making it illegal for retail stores to
provide violent video games to minors.25 The
measure passed in both the State House and Senate, and the Governor is expected
to sign the Bill shortly. Store clerks and owners who violate the law could face
fines up to $500 per instance. The Washington Chapter of the ACLU, the Media
Coalition and the Interactive Entertainment Merchants Association have called on
the Governor to veto the Bill on First Amendment grounds, calling it “an
attack on Free Speech.”26 The
courts have issued conflicting decisions as to the constitutionality of similar
laws, and the United States Supreme Court has yet to speak on the issue. (21
“Maker of ‘Girls Gone Wild’ Videos Faces Sex, Drug
Charges,” Associated Press (April 11,
2003). 22 Id.
23 Id. 24
Id. 25
M.Frishberg, “Video Game Merchants Under Fire,” WiredNews.com (May 2, 2003). 26
Id.)
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ODDITIES
Do we really live in a world where large groups of men and women
masturbate in public at a “Masturbate-A-Thon?”27 Or
where investors snap up shares of a publicly-traded brothel?28
Or
where 87 passengers fly nude from Miami to Mexico on a commercial airline?29
Yes
we do. The times, they are a-changing
Lawrence
G. Walters, Esquire is a partner with the law firm of Weston, Garrou &
DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters
represents clients involved in all aspects of adult media. The firm handles
First Amendment cases nationwide, and has been involved in much of the
significant Free Speech litigation before the United States Supreme Court over
the last 40 years. All statements made in the above article are matters of
opinion only, and should not be considered legal advice. Please consult your own
attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com
, www.FirstAmendment.com
or
AOL Screen Name: “Webattorney.”
(27 “San Francisco
Hosts ‘Masturbate-A-Thon,’” Reuters.com
(May 5, 2003). 28 “Investors
Pounce on Brothel Shares,” Reuters.com
(May 1, 2003). 29 “Passengers
Take it Off at Takeoff,” CNN.com(May
7, 2003).
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