Since the inception of the World Wide Web, the Supreme Court has issued a number of rulings that have been surprisingly protective of erotic speech rights in cyberspace. For example, it has now twice affirmed the injunction restraining the enforcement of COPA. Before that, it struck down the indecency provisions of the Communication Decency Act (CDA).
It is, however, very important to note that both COPA and the CDA before it, were designed to prohibit and criminalize the distribution of sexual materials on the basis of their content. The laws were designed to prohibit distribution of “indecent” material to minors in the case of the CDA, and matter that is “harmful” to minors in the case of COPA. Enforcement of either law, would, therefore, require an evaluation of the content at issue (i.e., whether it is “indecent” or “harmful”). Also, with respect to COPA, the issue of illegality of distribution to a minor is also tied to the question of whether the content at issue is outside the community standards of a particular community.
Enforcement of obscenity laws also requires such a community standards analysis. In fact, the test for compliance with community standards in obscenity and harmful matter cases, the Miller Test, also includes a test of whether the material, when taken as a whole, has any serious scientific, literary, or artistic value.
For over 30 years, the Miller Test has functioned as a legal safety net for first amendment freedoms in the area of erotic speech. It is important to understand that the freedom-protecting provisions of the Miller Test and its analog built into COPA, have presented serious obstacles to anti-porn zealots and like-minded prosecutors. The Miller Test and other protective features of the First Amendment have allowed free speech advocates to raise a number of winning issues such as “what constitutes ‘indecent’ speech?” and “isn’t the use of filtering software a less censorious way to keep adult content from kids than criminalizing the content outright?” Moreover, because both COPA and the obscenity laws contain the “community standards” test, federal prosecutors know they will face long and protracted battles on the issue of the relevant community when distribution of allegedly obscene material is via the Web.
Similarly, when it comes to distribution of adult content in the Internet age, prosecutors also know e-distribution of content is not exactly the same as mailing a magazine or a VHS tape. For example, in previous obscenity prosecutions involving the distribution of hard goods, such as tapes, what constituted the “work” to be “taken as a whole” for application of the Miller test was fairly straightforward. But when the distribution of content is accomplished via vast and sprawling mega-Websites, or via Websites linked to Websites linked to Websites, etc., what now constitutes the specific “work” to be taken as a whole?
Given the government’s repeated failures to generate constitutional laws to regulate the type of sexual content that can be distributed on the Web (e.g, the CDA, Child Pornography Prevention Act, COPA, etc.), it is not hard to imagine that Attorney General Ashcroft and the current DOJ would very much like a new weapon that won’t raise as many constitutional questions and won’t be vulnerable to so many potentially effective defenses – say, a law that an online adult entertainment entrepreneur could violate by simply failing to have proper records, or by failing to properly label his site; a law that does not require the government to show that any particular material lacks serious value; a law that eliminates the need to convince a court, especially the Supreme Court, that the world-wide nature of distribution of content on the Web should be ignored, and that there is nothing wrong with sending people to jail for years or even decades because someone downloaded a couple of depictions of love-making into an unusually regressive and reactionary community purposely selected by a religiously-motivated prosecutor precisely because of that community’s unusual intolerance.
Yes, the DOJ would probably like such a law, very much.
Well, on June 24, 2004, in the middle of the beginning of the Third World War, our esteemed Attorney General found enough time to both prosecute the home front of the war and publish 26 pages of modifications of the 2257 regulations designed to give the DOJ just such anti-porn dream legislation.
If the modification of the 2257 regulations go into effect as proposed, the law would theoretically subject a Webmaster to a prison term of up to five years for simply failing to have a copy of a proper identification document for each depiction of actual sexual conduct on his site. Similarly, failure to have a properly prepared and properly posted 2257 notice on the site also could subject a Webmaster to up to five years incarceration. Subsequent convictions can get a Webmaster two- to ten-year prison terms. In fact, the disturbingly large number of ways to easily violate the proposed regulations seem to point to the regulatory regime’s likely true purpose: to assist a DOJ bent on dramatically contracting the size of the online adult entertainment business by providing a near ideal capability to cost-effectively prosecute large numbers of online adult entertainment entrepreneurs. A close look at a few relevant facts inescapably leads to the conclusion that the government’s motivations could hardly be otherwise.
Sure Thing
The DOJ’s stated need for the proposed changes is the “urgency of protecting children against sexual exploitation and, consequently, the need for more specific and clear regulations detailing the records and inspection process for sexually explicit materials to assure the accurate identity and age of performers.” It would seem unlikely that this is the DOJ’s actual, or at least exclusive, motivation. First, the government’s “urgent” need for new regulations begs the question of how the DOJ would even know the current regulations aren’t satisfactory? The answer is that the DOJ simply can’t know because to date they have never even tried to enforce the regulations. Ever. Not even after Congress, as a part of the PROTECT Act, specifically ordered the DOJ to commence enforcement of 2257 within a year. More than a year has passed since Congress issued that mandate and the DOJ has yet to bring a single enforcement action under the statute or the regulations the DOJ itself drafted. Instead, they propose more rules.
Moreover, the government’s claim of some kind of new urgency mandating the changes is, well, ridiculous. The online adult industry has been very large for a very long time. There were estimates of multiples of millions of adult Websites in the United States as far back as 1998. Consequently, it is hard to imagine what “urgency” there now is, if there truly is one, that has not existed for many years.
The Attorney General’s stated justification for enacting new and more onerous regulations is simply the same kind of disingenuous bureaucratic ends-justify-the-means rhetoric that convinced the President to take this country into war over apparently non-existent weapons of mass destruction. Here the rationale thinly covers what I suspect is the DOJ’s likely objective: promulgation of regulations intentionally designed to make it easy to indict a lot of people to effectuate a massive chilling of erotic speech online through the threat of long incarcerations for even minor failures to comply with a complex and burdensome record-keeping and labeling regime. A regime that has no parallel anywhere in the world. A regime that no other nation, be it democracy or dictatorship, has seen fit to create.
Further evidence of what I suspect is the true motivation behind the proposed changes can be gleaned from the fact that enforcement of the proposed 2257 regulations would be a much more certain, cost-effective, and efficient means of prosecuting online adult entertainment businesses than by obscenity or harmful matter prosecutions. For example, before the DOJ can determine whether a Website would be a good obscenity prosecution target, investigators must establish distribution of content to or from a specific community in which the matter would likely violate that community’s standard. They would also have to evaluate whether the material lacks serious value when taken as a whole. This is a time-consuming task that must be performed for each potential prosecution target. Moreover, in obscenity and harmful matter prosecutions, the government always runs the risk that the jury will apply the flexible Miller Test and conclude that the material is within their community’s standards.
On the other hand, the very nature of the proposed labeling requirements for Websites will allow the DOJ to create and use an almost automated initial investigatory mechanism. I have been informed that the DOJ will likely use Internet spidering and Web crawling technologies to identify sites that are not in compliance with the statute’s labeling provisions. For example, the DOJ could easily employ such spiders to automatically search Websites listed in adult content-filtering programs for the presence or absence of key terms required by the proposed regulations. In a matter of hours, the government could identify thousands of potential prosecution targets that do not have a proper notice on their site.
Act Now
While the enemies of sexual expression are clearly developing an adult Website weapon of mass destruction, it is possible that we may yet prevail. The proposed modifications to the 2257 regulations are not yet law. The DOJ has invited comments until August 24, 2004. Our firm, like other first amendment firms representing affected clients, will provide comments. If 2257 applies to your business, you may also want to provide comments and I encourage you to do so, provided that you first consult your attorney. Nevertheless, regardless of all of our efforts, I think that it is likely that most, if not all, the new regulations will be adopted and go into effect later this year. At that point, a court challenge will certainly follow. Hopefully, like COPA, enforcement of the new regulations will be enjoined pending the outcome of the lawsuit. If not, the industry will indeed be in very serious jeopardy as one industry attorney has estimated that less than 5 percent of adult web sites would currently be in compliance with the new regulations.
Regardless of what happens, it is important to understand that the statute and associated regulations are complex, even without the proposed changes. For those Web businesses that have procrastinated the seeking of legal counsel, time’s up. Get a lawyer. For those who have already hired a competent attorney, its time to have your sites and operations reviewed and for you to re-familiarize yourself with all the criminal laws pertaining to your business, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), the Protect Act (the deceptive domain law), and the obscenity and harmful matter laws. You should also clearly understand how other persons you deal with, such as affiliate marketing programs, affiliates in your marketing programs, and content providers could all expose you to their criminal liability for violations of 2257 or any other criminal laws pertaining to adult content.
One way or another, it appears that the era of 2257 enforcement is about to begin. The new regulations might turn out to be only a parting shot for an Administration that failed to obtain re-election. But then again they might also be the first salvo of a long second Bush-term siege. Either way, its time to get serious.
Gregory A. Piccionelli is a senior partner and co-founder of Brull Piccionelli Sarno & Braun, a Los Angeles intellectual property law firm specializing in e-business, adult entertainment, traditional entertainment, and new media matters. His firm also specializes in high technology matters such as software development, digital actor technology, biotechnology, and nanotechnology. He can be reached at [email protected] or through his Website, www.gregpiccionelli.com.
