2013 in Review

2013's Legal Developments of Greatest Importance to the Adult Internet

By J. D. Obenberger and Associates
© MMIV J. D. Obenberger and Associates

The Section 2257 Challenge

For the first time ever, a constitutional challenge to Section 2257 finally got to trial this year. In previous cases, courts had upheld the statute (and in one case, struck down an administrative reg­ulation) without taking testimony or making any factual findings concerning the way the law ac­tually operates—on those fairly rare occasions when the government has taken steps to enforce it. Previous courts had rejected challenges to the law on motions in advance of hearing any actual testimony. Indeed, that is what Judge Baylson, of the United States District Court for the Eastern District of Pennsylvania had initially done. But the United States Court of Appeals for the Third Circuit reversed Judge Baylson’s dismissal of the challenge and remanded the matter to him for further proceedings. On remand, Judge Baylson rejected the Government’s second motion to dis­miss and then held a two-week trial. In his decision, Judge Baylson upheld Sections 2257 and 2257A against the First Amendment attacks and almost all foreseeable applications of the laws against Fourth Amendment challenges as well. But he did enjoin the Department of Justice from conducting unannounced inspections at residences. Neither side was entirely happy with Judge Baylson’s decision, and both sides appealed; although the Government has since withdrawn its notice of appeal. This means that Judge Baylson’s very limited restrictions on unannounced Section 2257 inspections will likely stand while the remaining constitutional challenges are back before the same Third Circuit appellate panel. This time, the record on appeal may allow the panel to reach and decide matters which it delayed considering on the first appeal. Briefing and oral argument will likely take all or most of 2014. Whatever the panel does, it is likely that one side or the other, or both, will seek to litigate further—either by pursuing en banc review in the Third Circuit or by seeking a writ of certiorari from the United States Supreme Court. 


Measure B

Advocates of mandatory condom use on porn sets found a way to accelerate the controversy which had been brewing toward a slow boil in California as a result of proposed legislation (so far, unsuccessful) and administrative action (a smattering of CalOSHA enforcement actions moving at a snail’s pace and some preliminary efforts at discussions over administrative rule-making). The AIDS Healthcare Foundation (AHF) decided to use California’s local referendum process to try to enact local ordinances effectively requiring condom use on porn sets in certain parts of California. After realizing that the precise way in which it had formulated the Los Ange­les City referendum (which was enacted as an ordinance by the City Council without a popular vote) sharply limited its effectiveness, AHF proposed different language for what became known as Los Angeles County-wide Measure B. It passed. Its effect is to apply CalOSHA’s blood-borne pathogen regulations to porn sets in Los Angeles County regardless of whether they would other­wise apply (that question involves matters such as whether performers are employees or indepen­dent contractors of the producers). A prominent adult entertainment production company and two performers filed suit seeking to invalidate measure B. The United States District Court for the Central District of California has so far ruled only on a preliminary injunction motion—though the legal determinations are unlikely to change, absent reversal on appeal. Although the court in­validated certain aspects of Measure B relating to inspections and permit revocations (First and Fourth Amendment matters), it upheld against constitutional attack the basic substantive require­ment that condoms be used on porn sets. So far, this means that the basic CalOSHA requirement has successfully been applied to porn production in Los Angeles County. Even on this central issue, however, there is more to be said—on both constitutional and state preemption grounds—and since federal court procedures permit appeals from preliminary injunction rulings, the matter seems headed for a comparatively early decision by the United States Court of Appeals for the Ninth Circuit. 



The very long policy debate over the benefits or harms of a .xxx top-level Internet domain name came to an end in early 2011, when the Internet Corporation for Assigned Names and Numbers (ICANN) reversed its earlier decision and approved ICM Registry’s application for that TLD. .XXX was to be a sponsored TLD, with a sponsoring community composed of certain adult en­tertainment producers and a governing organization, known as the International Foundation for Online Responsibility (IFFOR). In part because of the costs associated with a sponsored TLD, the rates for second-level domain names under the TLD were expected to be considerably higher than those under existing general TLDs such as .com. The entire plan also raised questions about coercive or defensive registrations: effectively forcing existing adult entertainment producers to pay ICM for second-level domain names which they were already using under .com. Neverthe­less, the roll-out of the new TLD started to proceed according to schedule. But as ICM Registry began implementing the .xxx sTLD, Manwin filed suit against it—alleging violations of U.S antitrust laws. After some legal sparring over important pretrial motions, the United State District Court for the Central District of California appeared to be prepared to permit Manwin’s central claims to proceed. But the parties then settled their differences, and the lawsuit was dismissed as moot. The settlement may make for rather different .xxx TLD than originally envisioned by ICM and approved by ICANN. Under the agreement, lower pricing was made available to all, and IFFOR is no longer the only body which will receive ICM funding to address issues concerning adult entertainment and the Internet. Indeed, after a couple of years under the .xxx regime, it is unclear what role IFFOR will ever play. There remain occasional suggestions, most recently in the UK, that all adult entertainment website be required to migrate to .xxx, but in light of the reduced profile of the TLD, those proposals do not seem a serious threat at this time.


The Section 2259 Challenge

An issue which has largely escaped the attention of the adult entertainment community concerns the extent to which those convicted of child pornography offenses may be held liable to pay money damages to the child victims for the personal injuries they suffered as a result of the pro­duction and distribution of the child pornography depicting them. The precise issue is whether one convicted of a child pornography offense is liable only for damages caused by the defen­dant’s own misconduct or for all of the damages suffered by the victim as a result of everyone’s misconduct. Largely as a result of a poorly-written statute, that issue has divided the federal ap­pellate courts and has now reached the United States Supreme Court, which will very likely de­cide the matter by mid-2014. Currently, the question is restricted to the child pornography con­text, but if broad liability is permitted here, some anti-porn activists might well be tempted to try to revive a narrower version of the so-called Dworkin-MacKinnon ordinance (restricted, perhaps, to legal obscenity instead of relying upon the broader “pornography” definition which did the previous ordinances in) providing for money damages to the “victims” (i.e. performers) of adult pornography (at least if it turns out to be legally obscene). For now, the question turns on the cur­rent language of Section 2259(b)(3) which does not expressly limit the available damages. So far, though, most intermediate appellate courts have held that a child pornography convict is re­sponsible to pay money damages only for the harm covered by his or her own crimes. But the en banc United State Court of Appeals for the Fifth Circuit recently broke ranks, and upheld a much broader liability. The bulk of the U.S. Supreme Court’s work consists of resolving these so-called circuit splits; and this is what the Court will likely do here. Briefing on the merits is complete, and the matter is scheduled for oral argument on January 22, 2014. A decision is likely by the end of June.


Crush Video Litigation

In this age of ubiquitous video on the Internet and on DVD, an obscure controversial video genre led to an important United States Supreme Court decision a few terms ago. Concerned by reports of so-called “crush” videos (depicting the abuse and killing of small, furry animals, supposedly in a sexual context), Congress first enacted a statute banning the video depiction of animal cruel­ty. Despite a defense of that law closely based on the child pornography decisions, the United States Supreme Court invalidated that first federal statute in 2010. The Court refused to recog­nize animal cruelty videos as another category of so-called unprotected expression (such as child pornography, legal obscenity, defamation, true threats, fighting words, etc.). But Congress tried again, this time restricting the crush video legislation to that which depicts specified animal cru­elty “and...is obscene.” Since obscenity is already considered an unprotected category of expres­sion, Congress evidently reasoned that requiring proof of obscenity would remove any First Amendment problem. Not so, says a federal district court judge. The problem is that obscenity necessarily involves sex, and the category cannot be extended to cover violence, as the Supreme Court recently made clear in invalidating restrictions against violent (but not explicitly sexual) video games. Except possibly for bestiality videos, the categories of crush video and obscenity do not intersect. This was enough, for the federal judge, to invalidate the new statute on its face. There are, perhaps, other ways of dealing with this constitutional problem. Perhaps the statute is valid, but only against a very narrow set of legally obscene bestiality videos—much less than Congress was aiming at. This first lower court opinion is hardly the last word on the matter—the case now moves to the federal appeals court sitting in New Orleans—but for the long haul it re­mains clear that so long as the Justice Department keeps trying to extend obscenity to reach vio­lent but nonsexual expression, it is fighting a steep uphill battle.


The Prenda Anti-Piracy Litigation

One more federal-law matter of interest made considerable news in 2013. Intellectual property—covering matters such as copyrights, trademarks, and patents—is now largely a matter of federal law. Copyright infringement actions must be brought in the federal, as opposed to state, courts. Internet copyright piracy poses substantial technical obstacles to copyright holders who try to bring such federal court cases. Actions against ISPs, search engines, web-hosts, and the like who may facilitate the piracy of others run into substantial limits on the liability which can be impos­ed on them because pirates misuse their facilities on the Internet—for the same reason that the phone company is not responsible for harassing telephone calls made by others over the phone. And copyright holders face substantial practical problems even when they try to pursue the indi­vidual pirates directly. Merely discovering their actual identity, for instance, remains challenging because of the way most courts have interpreted the subpoena provisions of the Digital Millen­nium Copyright Act. Nevertheless, several adult entertainment producers have tried to pursue in­dividual pirates (mostly those who use bit torrent or similar technologies) in federal court. One law firm—not previously associated with adult entertainment—which positioned itself to litigate such cases has now run into serious difficulties in the federal courts. Beginning mid-year, courts began concluding that the Prenda law firm, and some lawyers associated with it, misused court procedures and worse. A Los Angeles federal judge first accused the lawyers of hiding their per­sonal stake in cases, which he concluded were brought with insufficient investigation and only to coerce settlements from defendants in the face of embarrassment (concerning any connection with porn) and of very substantial potential litigation costs (which the judge concluded were es­sentially bluffs). He sanctioned the lawyers for specific misrepresentations made in cases before him—but those misrepresentations had also been made in other cases throughout the country. That unleashed a veritable avalanche of hearings, sanctions, referrals for professional discipline, and even requests for criminal investigation. At year’s end, the saga continues; but it is clear that the Prenda lawyers’ hopes to develop and implement an efficient mass-litigation, quick settle­ment solution to widespread Internet piracy has run dangerously off of its tracks.


Escort Advertising - Measures to Protect Potentially Underage Persons

Recent years have seen several state legislative attempts to combat child prostitution by restric­ting the advertising which may run on websites. In particular, several states have considered—and a few have passed—statutory language seriously criminalizing the act of publishing an ad for any commercial sex act if that ad also contains the image of a minor. It is not a defense that the person who published the ad did not know that the depicted person was a minor nor even that the publisher merely ran an ad composed by another. The only defense available to the operator of an internet classified advertising website or other user-generated content site is that the operator checked the imaged person’s ID before publishing and kept a copy of that ID on file. Such a re­quirement is plainly unrealistic—so much so that it suggests that the real legislative motive is to chill adult services advertising out of existence altogether. Whatever the underlying motivation, these efforts have run into legal obstacles, primarily because of federal law provisions which shield the web hosts and the operators of interactive computer services from the (even illegal) use to which customers may put their services. At least two states, Washington and Tennessee, learned this lesson in 2012; but this past year, New Jersey joined the fray. Its legislature included in a much broader human trafficking statute an advertising prohibition virtually identical to those which were struck down in Washington and Tennessee. And the very prompt result was also identical. On a challenge by Backpage.com and the Internet Archive, a federal judge entered a preliminary injunction preventing the state from enforcing the advertising provision. Like two federal judge before him him, the New Jersey federal judge found numerous legal problems with the provision. In various ways, said the court, the advertising provision a) is preempted by Sec­tion 230—the important federal law providing a certain immunity to online hosts—b) impermis­sibly interferes with interstate commerce (in this case, the Internet itself) and c) violates the First Amendment by imposing strict liability and other burdens upon publishers. States may continue to press for provisions such as these, but a clear trend has now developed indicating that legal restrictions aimed at online advertisers of adult services will continue to encounter rough going in the courts.


Upskirt Photography

Another recurring state-law issue concerns so-called “up-skirt” photography. The proposition that one ought to be able to photograph whatever one can see has never really commanded com­plete assent. For a long time now, laws have commonly barred unconsented photography and video recording in places, such as locker rooms, where people are likely to expose their ‘private parts’ even though the areas are somewhat public in the sense that perfect strangers casually see what is ordinarily concealed or exposed only intimate or special settings. Given that the courts have recognized constitutional interests in privacy and repose as well as in expression, it seems likely that a narrowly drafted statute could prohibit unconsented photography of body parts or underclothes commonly intended to be concealed by outer clothing even when the person photo­graphed is in an unquestionably public place. A legislature’s determination that a woman wearing a skirt has done enough to protect her underwear or pubic area from public view when she stands on a public sidewalk will probably be accorded controlling constitutional weight. But some states do not have such carefully drafted statutes; and this year saw two appellate court cases question­ing the application of less specific statutes to upskirt or similar photography. Most recently, the Massachusetts Supreme Judicial Court heard arguments—but has not yet decided—whether a state law prohibiting photography of nude or partially nude persons in circumstances suggesting a measure of privacy can apply to someone who took upskirt photos of fully clothed women in a subway station. And earlier this year, an intermediate Texas appellate court rejected an attempt to apply an “improper photography” statute to a photographer who took photographs of children swimming at a beach. Depending on the focus of the images taken, the photographer might have been chargeable with much more serious child pornography offenses. But the bathing photos may well have fallen far short of that, and the Texas court seemed on solid ground is rejecting the statute in questions not as applied but as facially overbroad. In other words, whether or not a nar­rowly drawn statute could validly apply to that particular photographer and the images he made, a statute broadly prohibiting all unconsented photography intended to arouse sexual desire poten­tially applies to too much constitutionally protected activity to be allowed to stand as written.


Revenge Porn

A relatively new subject of state—and potentially even federal—law concerns so-called “revenge pornography.” Much of it may not even be pornographic, as many people use that term. But it is characterized—indeed, defined—by some revenge element. Revealing images (ranging from the sexually explicit to the mildly embarrassing to the merely intimate) were taken consensually but privately when a couple was romantically involved, but they are now posted publicly by one of the former partners after a breakup. As any first year law student learns, one thing that can turn a simple fence into a serious lawsuit is spite. Same here, perhaps—on top of the lack of consent which is very likely required (under the so-called right of publicity) if someone is commercially exploiting the images. And existing tort or even contract law may even provide remedies where posted images are unreasonably embarrassing or where there was some sort of agreement about intimate images remaining private. But several legislatures are not content to leave the matter to existing law. They have promulgated statutes specifically addressing the matter. The statutes typ­ically require that two basic elements coalesce: a certain level of embarrassment (such as nude images or those exposing genitals) and—the revenge element—a purpose to inflict some sort of non-trivial emotional distress. As of this writing, no court court has yet ruled definitively on these statutes; but New Jersey and California have enacted such legislation, and, according to reports, Florida, Maryland, New York, Texas, Virginia, and Wisconsin all have bills in the legis­lative hopper. So too may Congress in the near future (which raises questions about the so-called Section 230 immunity for web hosts and ISPs, because that immunity does not preempt federal criminal statutes). Constitutional challenges are all but inevitable when these criminal (generally misdemeanor) statutes are actually applied in the future. Each case is likely to turn on its own facts. While some fringe applications may be unconstitutional and some statutes may have prob­lematic quirks, and while the intent requirement might limit application to web hosts and ISPs, it is likely that the courts will ultimately permit restrictions on quintessential revenge porn.


File Sharing Privacy

At year’s end, Internet privacy remains a burning controversy, perhaps one of the primary issues in our contemporary public debate. As the current debate over NSA recording of communications “metadata” (for possible later analysis) indicates, the U.S. law of search and seizure expressly focuses on the expectation of privacy. Even though the phone company could listen in on a tele­phone conversation, the law recognizes that the parties to such conversations have a reasonable expectation of privacy. Hence warrantless wiretaps are generally held unconstitutional. The rule is different, though, for a telephone number used to connect such a call since, in the Supreme Court’s view, the calling party voluntarily reveals that number to the telephone company in order to connect the call. And that makes it public enough to permit law enforcement collection with­out a warrant. All of this has been settled search and seizure law for nearly half a century. In the meantime, the widespread use of the Internet has required the application of old principles to new technologies. A case decided by the federal appellate court in Cincinnati last spring repre­sents one such application. An Ohio man had been convicted and sentenced to 30 years in prison on five child pornography counts. He had come to the attention of law enforcement because of his use of a peer-to-peer file sharing protocol. On appeal, he claimed that he had a legitimate ex­pectation of privacy (under Fourth Amendment law, the expectation must be both subjectively sincere and objectively reasonable) in the files stored on his computer. True enough, said the court, of digital files such a emails exchanged between two (or a few) known parties. Like snail mail letters, the contents of these emails may well be private. But the very essence of a distribu­ted, peer-to-peer file-sharing protocol permits anyone connected to the Internet and using soft­ware following the protocol to upload a file which another user has sitting in a share folder on his or her own computer. There is thus no real expectation of privacy at all in the contents of this share folder. Because this this the essence of this sort of protocol, people who use such protocols to download files usually—at least unless they take deliberate steps to avoid it—permit others to examine and upload those files from their computers. And this is precisely what a law enforce­ment officer did in this case—with no warrant, probable cause, or particularized suspicion. Not only did the court reject the argument that the officer’s conduct amounted to an unconstitutional search, but the court also held that knowing use of the protocol amounted to knowing distribu­tion of the files sitting in the share folder; and this justified enhancement of the sentence under the federal sentencing guidelines.


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This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net.