July 2004 Adult Industry Legal Update: Part One

[LadyGardenSnake]

Everyone is talking about Ashhahahahaha's proposed new amendments to 2257, which would, among other things, require all American adult Webmasters with sexually explicit content to act as records custodians and collect copies of model IDs. Attorney Larry Walters explains what?s at stake and what you need to know when it comes to the new 2257 regulations. Also this month, you may now be required to post a privacy policy on your Web site thanks to a new California law, and the battle against spam continues to rage in America. All this and more in Part One of this month?s Legal Update.

PRIVACY POLICIES MAY NOW BE REQUIRED

California's new Online Privacy Protection Act is effective starting this month The Act requires all commercial Internet businesses doing business in California to conspicuously post privacy policies in one of the following three ways: (1) post the full privacy policy on the home page or on the first significant Web page after entering the site; (2) post an icon on those pages, containing the word ?privacy,? that must contrast with the color on the Web page; or (3) post the privacy policy on another Web page that is linked to the home page or first significant page by hypertext.

The Act requires that the privacy policy text or icon must be bigger than its surroundings. The Act also requires sites to disclose what personal identification information they collect, use, and share. Third parties and those who offer managing services are exempted from the Act. The type of consumer information that is protected, as defined under Section 22577 of California?s Business and Professions Code, is as follows: (1) first and last name; (2) home or other physical address; (3) e-mail address; (4) telephone number; (5) social security number; (6) identifiers that allow a person to be contacted; and (7) any information used in combination with 1-6 above. Additionally, personally identifying information when combined with cookies, profiles and preference combined with 1-6 appear to be protected. An operator of a Web site will receive notice if his or her site is not in compliance, and will have 30 days to post a compliant Privacy Policy after he or she receives notice. Since most Web sites will do business at some point with users or members located in California, all sites should become compliant with this new law.

NEW SECTION 2257 REGULATIONS

As noted in last month?s Update, a new set of regulations were introduced by Attorney General John Ashhahahahaha, substantially amending and clarifying the records keeping obligations of content producers and distributors of adult-oriented materials. The proposed regulations, located at http://www.regulations.gov/freddocs/04-13792.htm, are not final yet, but may take effect on or after August 24, 2004, when the period for public comment closes.

The most significant change is the requirement that all secondary producers (now including Webmasters who do not themselves produce content) must obtain copies of age-verification records and I.D.?s required by Section 2257, and maintain them in accordance with the law, in the same manner as primary content producers. §75.1(2). Compliance with the new regulations also means that any performers residing in countries outside of the United States must now produce a passport as the only means of identification, assuming that the regulations are approved as proposed. International or foreign driver?s licenses or country I.D. cards will not be acceptable for foreign models. Additionally, the required age records must be maintained and cross indexed in such a way that they are alphabetically and numerically (whatever that means) retrievable.

The other significant change is the updated requirement for the location of the Disclosure pertaining to the Custodian of Records. Under the proposed regulations, the Disclosure must be contained on the Web site?s ?home page? or ?main URL.? §75.8(d). The Disclosure must be in typeface not smaller that 11 points and must be displayed in black type, on a white, untinted background. §75.6(e). Moreover, under the proposed regulations, the Disclosure must be displayed in the same typeface as the names of the performer, director, producer, or owner, whichever is largest, and shall be no smaller in size than the largest of the names of the performers, director, producer, or owner.

There are a couple of other miscellaneous changes worth mentioning. First, Section 2257 obligations now apparently apply to any content produced on or before November 1, 1990. Given that the universally recognized effective date for the law was June 30, 1995, Webmasters will now need to determine which date to use, in consultation with their attorneys. Also, as alluded to above, those individuals required to keep records must maintain those records for a period of seven (7) years, unless the producer goes out of business, in which case the retention period is five (5) years. §75.4. In regards to Section 2257 inspections, inspections can only occur between the hours of 8 a.m. and 6 p.m. ? every day of the year, including weekends and holidays! §75.5(c)(1). Generally there can be no more than one inspection every four months of a particular individual?s records, unless there is reason to believe that continued violations are occurring. §75.5(d). Inspectors must produce valid credentials showing that they have the right to inspect the records, and they must explain the purpose of the inspection. §75.5(2). The Records Custodian may provide additional information to the inspectors bearing on any concerns identified during the inspections. §75.5(4). Finally, Section 2257 Records must be kept separate from all other business records. §75.2(e). Now, more than ever, is the time to make ensure that all Web site content complies with Section 2257, and begin preparing for the ultimate adoption of the new regulations.

KENTUCKY?S OBSCENITY LAWS

Jeree Mills, owner of Dreamworld, an adult shop in Knox County, Kentucky, and employee Belinda Brown, were arrested and charged with a misdemeanor for violating Kentucky state law against distributing obscene material. Leanna Philpot, manager of the store, stated that after the arrests, Dreamworld closed for just over three weeks, but reopened shortly after. The sheriff's office does not anticipate more arrests until the courts decide whether or not Dreamworld?s products are obscene under the law Both entered a plea of not guilty.

COMBATTING SPAM

Time Warner Inc.'s America Online, Yahoo Inc., EarthLink Inc., Microsoft Corp., Comcast Corp., and BT Group Plc have developed a proposal with voluntary guidelines that would allow Internet providers to unplug users who allow their computers to forward unwanted spam emails. The proposal was developed due to the fact that spam accounts for approximately 83 percent of e-mail traffic, and costs large Internet providers billions of dollars each year because of the wasted bandwidth, legal bills and additional customer service. The group?s main recommendations relate to stopping channels that allow spammers to cover their identity, like making sure the Internet company?s equipment is properly secured so messages cannot be routed through it by spammers. The plan also sets out that the amount of email user?s are allowed to send out should be limited, and that consumers should be held accountable if their computers are infiltrated by spammers.

SPAM PROSECUTIONS

Twenty-four year old Jason Smathers, an AOL software engineer in AOL?s Virginia office, was arrested for stealing AOL's entire subscriber list consisting of 92 million screen names and selling the list to Sean Dunaway, a spammer in Las Vegas. The list was used by Dunaway in promoting his online gambling site and he also resold the list to other spammers for a price of $52,000. The complaint also alleges that Smathers sold an updated list with 18 million screen names for $100,000 to Dunaway. A spammer who purchased the lists from Dunaway helped the Secret Service?s probe in order to be granted leniency in the alleged conspiracy. Smathers and Dunaway are charged with conspiracy, which has a five year maximum prison sentence.

[Ice]

[Preacher]

you are on a serious copy and paste rampage today , eh? ;)

[Marcus Aurelius]

Originally posted by iceicebaby

I could not have said it better myself. I mean im all for freedom of speech, but only if it's not annoying.