Another Turn of the Screw (part4)
 

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"And if the sites don´t comply with that criteria," Piccionelli continued, "it will be because the criteria is content oriented. In other words, it will have something to do with the nature of the content on the sites. Now, the government can´t do that, because it would be content-based restriction, but VISA can as long as they´re not doing it on behalf of the government. And look how nicely VISA has insulated itself from it; they´ve now gotten the third-party processors to do it. And of course, when the processors are finished with this process, they´ll go down too.
"These are the most ominous signs that there have been yet that the war is coming," he said, "because reading between the lines, this is what´s going on: One, the aggregators are going to become the parties that accumulate the information that will probably through some means be passed on to the government for evaluation for prosecution. If the aggregators say [to a Webmaster], ´We´re not going to process for you anymore,´ they may not even give a reason why, because if they do, such as, ´Well, we´ve been told that the kind of material you have on your site could subject you to criminal liability, and therefore us to criminal liability,´ that would basically be an admission that they know that they´ve been processing for somebody that could have criminal liability. So they probably won´t say that, but if, seemingly for no reason, the third party processors just say, ´We´ve done an evaluation, and we´ve decided not to take your business anymore,´ start sweating bullets, because that probably means that that information about your site has now been turned over, either directly or indirectly, to somebody else."
The next piece of the Piccionelli puzzle has to do with the new geographic restrictions. "The territoriality thing is really a little bit brilliant," he said, "because it takes the argument that if you tighten the noose too much in the United States they´re just going to go offshore, and turns it all on its head; which actually may be the government´s intent. I think the whole idea is to shut down the adult entertainment business online in the United States; actually get it offshore, because then they can say to the conservatives, ´Look, we cleaned [the Internet] up to the extent that we could, and it will be up to some future Republican administration to come up with some sort of treaty,´ and they´ll just blame it on the Europeans, and everyone will just go, ´Well, of course, the Europeans.´"
To Piccionelli, one big nail in the adult industry´s coffin is the fact that data is being requested by VISA down to the individual URL. "I think this should be a tremendous shot across the bow for the industry," he said, "because [typically] you bomb the enemy before you send in troops, and the equivalent of that here is that you do an investigation, you acquire all the information you need, and then you get indictments. And what we have here is that, Website by Website, they´re going to know what´s going on. Now, you have to understand that knowing what´s going on Website by Website should be immaterial, because if you were going to take a look at the recurring billing situation of, say, a gym, would VISA and MasterCard care how many chargebacks come from the Westlake Village branch of 24 Hour Fitness versus the Van Nuys branch? No, they don´t care. They just say it´s one corporation and want to know what the chargebacks are for the corporation. So why would they be interested in chargebacks Website by Website? Well, because for criminal prosecutions based on content, it´s Website by Website."
But that´s not the only motive, according to Piccionelli. "[Another] reason why they [VISA] want [to receive data] Website by Website is because then they can say, ´New rule: Since the way that these sites acquire the customers that generate these chargebacks is through an affiliate program, we want to know who the affiliates are that are sending the traffic to that site.´ Then they will say that if you are a merchant that affiliates with one of these people that have been known to send traffic that generates high chargebacks, they´re going to terminate you. That´s the 2003 turn of the screw, where all member sites that are in the crosshairs [will be faced with] the decision: Are we going to turn over to the IPSP our list of affiliates?
"In fact, I predict it´ll go one more step down," continued Piccionelli, "and one day one of these IPSPs will knock on the door of one of the [sponsors] and say, ´We´ve been told by VISA that we have to terminate you, but they did give us an alternative. If you could clean up your act and try to identify where the traffic is coming from that produced the chargebacks, they´ll give you three months to try and fix the situation.´ And of course, some of these guys will say, ´No thank you; I´ve got processing offshore.´ But others will [give them] the list, and those guys, when they´re dealing with their IPSPs, will think, ´Great; saved again, thank you very much.´ They won´t know that when the three months elapse and they´ve given away all the information, the map, that they´re doomed, along with their affiliates.
"By the way," added Piccionelli, "you should also notice that the merchants will now be called Sponsored Merchants. [What that means] is that if you are one of these new IPSPs, VISA can now say to you, ´If you want to stay in business you have to do it this way; you have to sponsor the merchant, which means that you are going to be responsible for these guys, and we´re going to hold you accountable.´ Now, what if ´hold you accountable´ means that VISA lets these guys know that there are all these criminal laws out there, but ´we´re not going to evaluate the sites that you´re sponsoring, but maybe you should?´
"Now that you have a nice tight system where you know the affiliates of each one of the people who actually have the money," said Piccionelli, bringing the scheme full circle, "that´s when you start going to the affiliates and saying, ´You have this harmful matter and all this obscene material on your site. We´re going to prosecute you unless you go out of business and admit that you´ve been getting it from this [sponsor] and that they knew perfectly well [what was on your site], despite their terms and conditions.´ After they do five, six, or 10 of these people, now they have all they need for a RICO action against the [sponsor], and then they go after them. And remember, it has to happen relatively quickly, because they´ve got to get [the Internet] cleaned up for the 2004 election."
In such a scenario, where an unsupervised para-governmental entity can potentially stage-manage the exile of an entire industry, one has to wonder why any company would allow itself to be manipulated toward its own banishment, not to mention to turn over on members of its own community. "Because the affiliate program Webmasters [sponsors] have made so much money they´ll do anything to stay in business," explained Piccionelli, "just like these aggregators will also do anything to stay in business."
Lawrence Walters
Larry Walters is a Florida-based partner with the bi-coastal law firm Weston, Garrou & DeWitt, who specializes in obscenity and Internet law and has a longtime devotion in First Amendment issues. He sent AVN Online the following comments on the day of the announcement: