LAS VEGAS—The Internext Expo offered its primary legal panel on Thursday, “Law & Order: Understanding the Biggest Legal Issues Facing Adult Entertainment,” and the panel, which consisted of four prominent attorneys serving the adult industry, told the SRO audience what it will need to help it survive over the coming year.
Leading the panel was Lawrence G. Walters, the Florida-based attorney who noted that he’s been on such panels at Internext for the past 20 years. Also taking the stage were D. Gill Sperlein, former in-house counsel for Titan Media, who does a lot of trademark/copyright work but who also helped a group of San Francisco sex workers challenge the state’s prostitution laws; Corey Silverstein, a Michigan-based attorney whose clientele have included hosting companies, affiliate programs, content producers, processing companies, website owners and performers; and Robert Corn-Revere, who’s been involved in some of the biggest First Amendment cases of the past 30 years, representing companies and individuals both in and out of the adult industry.
Walters began the discussion with the recently passed FOSTA “anti-sex trafficking” legislation, which he noted, “created the brand-new crime of ‘facilitating or promoting’ prostitution online,” and also removed immunities that the online platforms used to have for things like involvement in sex trafficking, use of a platform for sex trafficking or prostitution, and facilitating or promoting prostitution, which he said “had a tremendous cascading effect on the internet.”
Walters noted that after the law’s passage, Craigslist eliminated all of its personal ads, and that dozens of websites that had anything to do with escort advertising or anything close to it went dark immediately.
“More recently we’ve seen Tumblr and Facebook enforce community guidelines, eliminating all references to adult content, adult entertainment, so it’s had an enormous impact on the adult industry even though you guys aren’t involved in sex trafficking, aren’t involved in solicitation or promotion of prostitution,” Walters stated, “but the companies that are involved in offering these platforms are concerned about the scope and the breadth of the law, which was written in such a way that it’s ambiguous; doesn’t define things like ‘promotion,’ or ‘facilitation’ or even ‘prostitution,’ so these companies are worried about how it could be interpreted, so they’re drawing the line in a much different place than where the law draws the line, and eliminating all references to sexuality and erotic media to take care of their own risks.”
Walters, Corn-Revere and other attorneys are leading the charge against FOSTA, suing to have the law overturned. Their clients include the Woodhull Freedom Foundation, the Electronic Frontier Foundation (EFF), the Internet Archive, Human Rights Watch, and two individual plaintiffs. The case was dismissed last summer, with the District Court for the District of Columbia ruling that none of the plaintiffs had standing to challenge the law. The plaintiffs filed an appeal in October, which will be heard by a three-judge panel of the D.C. Appeals Court.
“We’re arguing over the legal issue of standing as to whether the plaintiffs in the case have sufficient dog in the fight to be able to challenge the law,” Walters noted, with Corn-Revere going on to explain that anyone who could be affected by the law has the legal right—”standing”—to challenge it.
“Unfortunately, the way this law was written, and until and hopefully we get some action from the federal courts, it really impacts everyone,” Silverstein added. “It goes all the way from billing companies to hosting providers—everybody has to look at this. We’ve seen, in the advertising business, people who were selling or trading ads relating to escort sites or what-have-you—they weren’t in the actual escort game, they weren’t actually doing any escort sites or anything of that nature themselves; they were simply doing advertisements for them. They had to stop doing that. … Processors have made it clear they will not process them. It is just so fuckin’ dumb.”
Silverstein also made it clear that the law does almost the exact opposite of its stated intention.
“The people who wrote these laws have absolutely no understanding of the sex work industry, they have no understanding of the adult entertainment industry, because every single sex worker, every single business that I have actually spoken to has told me that not only has this actually made things worse but their reported incidences of models being harassed, models being assaulted, it is getting worse,” he explained. “This is not getting better. This is a law that didn’t actually do any good, and in fact, if these wonderful senators or whoever would like to come here and debate this with me, I would be more than happy to line up a roomful of sex workers who would be more than happy to let them know that they’re thrilled that they have to go back to their pimps and the back of Metro Times magazine where there was absolutely no ability to communicate with a potential customer beforehand. It was ill-thought-out, it was stupid and the big hope here is that the legal challenge will be successful. I believe it will, but it’ll be a long fight.”
Continuing in that vein, Corn-Revere noted, “To ‘facilitate’ simply means to make something easier, so all of those resources are at risk and our clients are trying to get some of the ability back to conduct some of these resources. It has even made prosecution of actual trafficking more difficult because, particularly when all of my classified site clients were operating and taking credit card information, we could make out subpoenas for actual trafficked girls at risk, and they would respond to them and law enforcement could use that as a way of actually going after trafficking. That has dried up since FOSTA was adopted.”
The sense of the panel was that Congress will not repeal the law, no matter how counterproductive it can be shown to be, and that none of the big social media platforms such as Facebook, Tumblr and the like are likely to challenge it in court because, in Walters’ words, “they have responsibilities [to their shareholders] to reduce their risks to a maximum amount possible, and they also have governmental relations to worry about.” Hence, it will be up to the adult entertainment industry and its allies to push the courts to overturn the law.
Walters noted that briefing for the appeal is due by February 13, and will seek an injunction to prevent the law from being used, with the government’s reply due a month later, after which the court will set a date for argument.
Walters then turned the panel’s attention to the European Union’s General Data Protection Regulation, better known simply as GDPR, noting that it is “an issue that affects every webmaster operating in the United States and has any users or European traffic.”
“GDPR is a set of EU regulations that ties together individual data protection, individual data privacy,” Silverstein further explained. “Europe is ahead of North America when it comes to data privacy; they’ve made it abundantly clear that they’re no longer willing to tolerate the status quo. We got here after data breach after data breach after data breach after data breach. … Now we have an enforcement arm, and in Europe, what they’re doing with the GDPR, a very, very complex set of compliance laws, they’ve created a set of laws where they can nail you for up to 40 million Euros or up to four percent of your annual turnover.
“We’ve been waiting to see the GDPR in effect,” he continued, “and so Google was first. It was the French government and the French authorities who decided to go after Google, so Google got hit with a 50 million Euro fine. … What the French regulation authorities found was that that process where Google is putting those ads up in front of you without getting your consent first is unlawful, and this is why Google got nailed. Here’s why this is huge, because almost every company in the adult entertainment industry, in terms of traffic trading, targeted ads, targeted models for the cam sites, uses this particular technology.”
Indeed; actor/content producer Chad White told the audience, “What I’ve done is moved all of my websites over to Iceland and tried to make it so everything is completely blind, hidden from everyone because Iceland’s got the most internet protection rights of any country in the world, and I restructured all my business here in Nevada so I have the tightest protection for my business and that way, I don’t have to actually show where my business is located.”
“Google said they’re appealing it, so they’re going to fight this, so it’s going to go up to the next level,” Silverstein informed, “but the bottom line is that we need to see what’s going to happen and how seriously they’re going to take it, and when the regulators are done with the Googles the LinkedIns, the Facebooks of the world, then they’ll become more interested in the smaller guys, and history has taught us time and time again the adult industry are easy targets… If you’re in the e-commerce game, you’ve got to get serious; you have to take a look at what you’re doing with personal information, how you’re protecting user information and you’ve got to keep in mind that now personal information is not just a name. By definition, under GDPR, ‘personally identifiable information’ can be whether you’re male or female, it could be the month you were born in, it could be a partial ID address. It doesn’t have to be specific. Bottom line: This is big, but you have an opportunity to look at your businesses now and make sure you’re compliant [but] the federal government is working on its own [GDPR] package.”
Walters then turned the panel’s attention to an important recent trademark issue: The attempt to register the trademark “FUCT” for a line of clothing—an attempt that was rejected by the U.S. Patent and Trademark Office (USPTO).
To explain the situation, Sperlein read portions of the existing trademark law, which holds that a mark can be rejected “if it consists of or comprises immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute.” He then referenced the 2017 case of Matal v. Tam, where the Asian-American band The Slants tried to trademark their name, but were denied a mark because it allegedly “disparaged” those of Asian ancestry—even though the band’s stated purpose was to “take back” the slur and be proud of it.
The current case, which has been appealed to the Supreme Court, is In Re Brunetti, with the USPTO having denied registration for FUCT as “immoral.”
“The Federal Circuit said it’s a free speech violation and it’s going up to the Supreme Court,” Sperlein said, and noting the Tam victory, predicted that the high court will probably allow this mark as well and strike “immoral” from the code. In Tam, the justices voted unanimously to allow the mark, but split 4-4 on concurring opinions, though all favored eliminating “disparaging” from the code.
“The upshot of it is, if you all have a bunch of trademarks that you’ve been wanting to register, you probably have a much better chance today than you did a couple of years ago,” Sperlein suggested, with Walters noting that the USPTO is taking applications for such marks and putting them on hold pending the outcome of Brunetti.
Finally, the panel gave an update on the fight to get rid of the federal record-keeping and labeling requirements, known as “2257,” and Walters reported that although Judge Michael Baylson issued a very favorable ruling on the case last August, the government has appealed that ruling to the Third Circuit Court of Appeals, though briefing in the case had been delayed on account of the government shutdown. A detailed examination of Judge Baylson’s ruling can be found here and here, but in sum, the court struck down the requirement for secondary producers to keep records; found tht only content creators have to keep records and verify the ages of models; the labeling requirement for the record-keeper is no longer required, nor is cross-referencing records—and in a stunning decision, the judge ruled that his restrictions on the scope of 2257 would apply not ony to the plaintiffs in the case, but to all content producers in the country. However, all the attorneys warned that any or all of Judge Baylson’s rulings could be overturned on appeal, and recommended that producers keep collecting such records until a final appellate ruling is put in place.
Walters then threw the forum open to questions from the audience, and as a result, two important points were made: 1) Producers are advised to record intro and exit interviews of talent and keep them in their files, and 2) that the idea of sex robots and sex robot brothels will present some challenging legal issues.
All in all, it was one fact- and fun-filled hour—and one that, surprisingly, was attended by famous entertainer Penn Gillette of Penn & Teller.