Rated Hot - Compliance Means Protection

Compliance Means Protection:
The Legal Update Roundtable at Internext
by Cynthia "Cyndalie" Fanshaw, Marketing VP - PSW Billing Solutions

The legal ramifications of running an adult site have become a reality for adult Webmasters now more than ever. Over the years the legal seminars at Internext have been viewed as important to attend, addressing issues we should all be aware of. However, most Webmasters never found a reason to go back and consult their own attorney or look into their own legal responsibilities in publishing adult material online.

These days the two biggest domestic threats of political concern are protecting children from harm (child molesters, violence, and pornography) and protecting the United States homeland from terrorism. From the Patriot Act to the Protect Act, new legislation has infiltrated and changed not only our rights to privacy, but also approaches the technicalities of the Internet and what is acceptable conduct and content.

The legal roundtable this year focused on reiterating how new legislation and precedence being set by the courts should be the top concern for anyone publishing adult material online. And although most Webmasters have heard the main points before, not until now did they realize just how much is at stake. The panel discussion revolved around several changes in legislation since 9/11 that now directly address and affect adult Webmasters, and where compliance is lacking, jail time could be just around the corner.

The panel was comprised of attorneys Joe D. Obenberger, Paul Cambria, Larry Walters, Robert Apgood, and Greg Piccionelli (complete information on speakers) and started off with brief introductions that lead right into questions from the audience. One of the most stressed topics was, once again, 2257 compliance. Only this time the panelists had some new points to stress that even many savvy Webmasters did not realize.

Title 18, Chapter 10, Section 2257 is the record keeping requirements LAW for anyone who produces any vehicle of transmission (Web page, email, magazine, video) that contains visual depictions of actual sexually explicit conduct, whether produced in whole or in part, and has been mailed, shipped, emailed, faxed, etc. in interstate or foreign commerce (the Internet). The law requires any such person to create and maintain individually identifiable records regarding each and every person contained in the visual depiction of such conduct.

This means that if you do not have a visible link to your 2257 statement on every page of your site where adult content appears (including the members’ area where content plug-ins appear, any emails that you send out containing content, TGP galleries you may create and use for marketing, etc.) you are out of compliance and could face 2-5 years in jail.

Section 2257 is one of the most directly applicable federal laws that can be used against Webmasters today, and as Joe said, since prosecution of obscenity is so difficult, the government is looking for a “guilty” plea by setting up these kinds of compliance requirements. Once you and your sites are under investigation the government will not only look for child porn and obscenity, but if they find anything on any computer they scrutinize they will add as many compounded charges on top of it such as “distribution” and “conspiracy.”

Larry reiterated this tone by talking about the Protect Act and stressed that dealing in federal courts is much different from municipal or superior courts where judges give first time offenders a “warning” sentence. “This industry has the eyeballs of a huge modern country,” he commented, and continued with the warning that as things get worse overseas, more pressure on home issues that they can control will surface.

The 2257 law continues to specify that each individual record must included date of birth, copy of photo I.D., any and all names used by the performer including real name, and other forms of I.D. possibly required by new regulations. This means that amateur girls and anyone engaging in adult content must make available public records that consist of their name, address, and information that any potential stalker or criminal can gain access to. When Joe met with the Deputy Attorney General and spoke of Section 2257 concerning this potential for harm to young women, the Attorney General stated, “What makes you think we care?” This statement should give Webmasters a clear picture of the government’s stance on the porn industry.

You see, 2257 compliance is the first line of defense regarding child porn and keeping kids away from adult material online and the point often repeated in past legal panels was mentioned again: Comply and make sure to protect yourself from an obscenity charge by providing “Serious, literary, or artistic content on your site” as justification for the content you publish. It will be your best defense against an obscenity charge.

Some of the Q & A that was addressed brought up some very interesting legal points for adult Webmasters. One gentleman asked about the risk of running an adult business out of a residence, where in the case of an investigation or seizure you may lose both your home and your business. The panel responded that legal counsel could provide the best solution for each different situation.

Another attendee asked, “Do AVS programs help your line of defense as far as keeping kids out and obscenity?” Larry responded with, “Any effort is good to keep kids out. Just the fact that you’re making some effort will give you some defense if you are targeted for obscenity.” The “click if you are over 18” entry page is now not enough, so they recommended an age script where the surfer enters his date of birth to get into the site. By showing an effort to keep kids out and clearly posting “Adults Only,” the question becomes “what can or cannot consenting adult choose to see” and raises freedom and rights issues that the government is not exactly looking to pursue.

Other warnings include that Webmaster affiliate programs can face a huge problem if they are not cautious that all their affiliates are over 18. By distributing content to affiliates that are potentially minors and having kids selling porn can become a HUGE problem this industry does not need to see. Take precautions. This includes message boards and community type activities online.

Although I cannot cover all the points covered in this hour and a half discussion, Joe made a very interesting short speech on how this country was created around the basis of right to privacy where the government is not involved in what goes on in your home (limited government involvement). But as times change, now what you do on the Internet is no longer “in your home” and as we broadcast to the world from our living rooms and offices it is important to keep all regulations in mind and understand how to use them for your own protection.

For example, did you know as an affiliate if you are using the content provided by your sponsor, you are also responsible for posting the appropriate 2257 link? The law is applicable “for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce (Internet).” Consider that marketing on public pic posts and peer-to-peer (P2P) networks means you are distributing adult content (“transfer”). You should talk to a lawyer to find the best ways to protect yourself if you use undefined vehicles of transmission that can be affected by 2257.

In this industry, now more than ever is the time to start treating the “porn” business as an “adult” business and grow up with the times. Increased responsibility on the part of all Webmasters will end up being a good thing, however ignorance is not bliss and you are responsible for what you publish, who you link with, and who you choose to do business with. The feds are only a click away.