I am gearing up for a new website, my current blog spot was put up temporarily until I had a classy new website to replace it. My menu is expanding (upon many requests) and I am now looking for an attorney who would be willing to help me with some legal verbiage for the new website. The climate is really changing with regard to escort sites and new laws have been in acted that involves escort sites and online advertising. My goal is to focus on pertinent legal verbiage that is current and up to date with the laws in place now.
I am willing to pay the legal fees/expense for having this put together.
If any of you are attorneys who handle online escort businesses and activity please let me know. Your knowledge and expertise has to be within the field.
You can pm me through this board or send me a direct email through this eccie site.
Thanks!
Sensia
- Sensia
- 08-10-2012, 08:59 AM
- Keystone70
- 08-10-2012, 01:19 PM
I've worked on a few adult websites and do some criminal work. I would be happy to take a look at what you got, however, I suggest that you find someone locally to work with because that is where your problems are going to come from. The one thing I can tell you and it is a general comment because most escort sites I see do not comply with this. It is the record keep rules and statement of such as required by 2257. Just Google 2257 and you will get an idea. If you like PM me for my thoughts on why you need a local criminal lawyer and not someone who knows about escort advertising.
- Sensia
- 08-11-2012, 05:37 AM
I am reading this on 2257, has something changed since the appeals court struck it down?
Quote:
Escort Advertising and Federal Law 2257
Important Note to Escorts: 18 U.S.C. § 2257 *Record Keeping Requirements* Have Been Struck Down!
On Tuesday, October 23rd, 2007, "A federal appeals court has struck down, on First Amendment grounds, a long-standing requirement forcing people who produce "sexually explicit" images to keep detailed records about their operations.
The 6th Circuit Court of Appeals ruled on Tuesday that the "2257" record-keeping requirements--which bedeviled the adult industry because they apply even to Web sites that "reproduce" sexually explicit material--are overly broad and violate Americans' free-speech rights."
Related Link: http://www.news.com/8301-13578_3-980...tml?tag=repblg
October 24, 2007 2:32 PM PDT
Appeals court overturns law targeting 'sexually explicit' photos
A federal appeals court has struck down, on First Amendment grounds, a long-standing requirement forcing people who produce "sexually explicit" images to keep detailed records about their operations.
The 6th Circuit Court of Appeals ruled on Tuesday (click for PDF) that the "2257" record-keeping requirements--which bedeviled the adult industry because they apply even to Web sites that "reproduce" sexually explicit material--are overly broad and violate Americans' free-speech rights.
Tuesday's ruling is a remarkable win for adult publishers and escort directories, not just because of the weighty nature of the regulations but also because the lawsuit has been going on for so long. The case was originally filed in September 1995, and this is likely going to be the last word unless the U.S. Supreme Court gets involved.
Although the Justice Department tried to downplay the impact of the record-keeping rules, the court reasonably noted that the regulations apply even to couples taking erotic photos for their own private use, and advertisers on escort directories and dating websites promoting themselves.
"This reach is extremely broad, and the most commonsense limitation, for which the statute and regulations provide some support, would be to limit the statute's reach to photographs taken for a commercial purpose, that is, photographs taken for the purpose of sale," the 6th Circuit said. But, the judges added, "the plain text and definitions of the terms used admit...no commercial limitation on who will be considered producers."
Translation: an adult couple taking a single erotic photo of themselves with a digital camera in their own bedroom was required to (a) inspect their own government-issued photo identification; (b) ascertain that they're at least 18 years old; (c) photocopy their own IDs; (d) photocopy the erotic image; (e) file this information in physical form; (g) display the date and a street address "prominently" in their files; (g) open these files to agents of the Justice Department without advance notice.
If they didn't take each of those steps, both members of the couple, according to the law, were subject to a federal felony--up to five years in prison, as well as fines. Yes, all of you CNET News.com readers who have, uh, creatively experimented with digital cameras are un-indicted felons too. So are all those stars of celebrity sex tapes.
Was it Unconstitutional? Probably. Was it Idiotic? Absolutely.
Fortunately, the 6th Circuit recognized this, and concluded: "The government has drawn a similarly over-inclusive line here by including all sexually explicit photographs, whether created for commercial purposes" or otherwise. (The lawsuit was filed by a swingers' magazine called Connection that allowed couples to send in explicit photographs of themselves.)
There's another point worth noting:
Misleading justification: Under both the Clinton and Bush administrations, the Justice Department has claimed that this law, known as 2257 because of its location in the U.S. Code, was necessary to protect children. But even possessing child pornography was a separate crime, which was already on the books with criminal penalties severe enough to induce paranoia in the adult industry. A better explanation for why this law exists is that Congress was trying to put law-abiding porn producers out of business by weighing them down with more and more realistically "unattainable" regulations--backed with mandatory prison time for non-compliance.
I will send you a pm.
Thanks again!
Quote:
Escort Advertising and Federal Law 2257
Important Note to Escorts: 18 U.S.C. § 2257 *Record Keeping Requirements* Have Been Struck Down!
On Tuesday, October 23rd, 2007, "A federal appeals court has struck down, on First Amendment grounds, a long-standing requirement forcing people who produce "sexually explicit" images to keep detailed records about their operations.
The 6th Circuit Court of Appeals ruled on Tuesday that the "2257" record-keeping requirements--which bedeviled the adult industry because they apply even to Web sites that "reproduce" sexually explicit material--are overly broad and violate Americans' free-speech rights."
Related Link: http://www.news.com/8301-13578_3-980...tml?tag=repblg
October 24, 2007 2:32 PM PDT
Appeals court overturns law targeting 'sexually explicit' photos
A federal appeals court has struck down, on First Amendment grounds, a long-standing requirement forcing people who produce "sexually explicit" images to keep detailed records about their operations.
The 6th Circuit Court of Appeals ruled on Tuesday (click for PDF) that the "2257" record-keeping requirements--which bedeviled the adult industry because they apply even to Web sites that "reproduce" sexually explicit material--are overly broad and violate Americans' free-speech rights.
Tuesday's ruling is a remarkable win for adult publishers and escort directories, not just because of the weighty nature of the regulations but also because the lawsuit has been going on for so long. The case was originally filed in September 1995, and this is likely going to be the last word unless the U.S. Supreme Court gets involved.
Although the Justice Department tried to downplay the impact of the record-keeping rules, the court reasonably noted that the regulations apply even to couples taking erotic photos for their own private use, and advertisers on escort directories and dating websites promoting themselves.
"This reach is extremely broad, and the most commonsense limitation, for which the statute and regulations provide some support, would be to limit the statute's reach to photographs taken for a commercial purpose, that is, photographs taken for the purpose of sale," the 6th Circuit said. But, the judges added, "the plain text and definitions of the terms used admit...no commercial limitation on who will be considered producers."
Translation: an adult couple taking a single erotic photo of themselves with a digital camera in their own bedroom was required to (a) inspect their own government-issued photo identification; (b) ascertain that they're at least 18 years old; (c) photocopy their own IDs; (d) photocopy the erotic image; (e) file this information in physical form; (g) display the date and a street address "prominently" in their files; (g) open these files to agents of the Justice Department without advance notice.
If they didn't take each of those steps, both members of the couple, according to the law, were subject to a federal felony--up to five years in prison, as well as fines. Yes, all of you CNET News.com readers who have, uh, creatively experimented with digital cameras are un-indicted felons too. So are all those stars of celebrity sex tapes.
Was it Unconstitutional? Probably. Was it Idiotic? Absolutely.
Fortunately, the 6th Circuit recognized this, and concluded: "The government has drawn a similarly over-inclusive line here by including all sexually explicit photographs, whether created for commercial purposes" or otherwise. (The lawsuit was filed by a swingers' magazine called Connection that allowed couples to send in explicit photographs of themselves.)
There's another point worth noting:
Misleading justification: Under both the Clinton and Bush administrations, the Justice Department has claimed that this law, known as 2257 because of its location in the U.S. Code, was necessary to protect children. But even possessing child pornography was a separate crime, which was already on the books with criminal penalties severe enough to induce paranoia in the adult industry. A better explanation for why this law exists is that Congress was trying to put law-abiding porn producers out of business by weighing them down with more and more realistically "unattainable" regulations--backed with mandatory prison time for non-compliance.
I will send you a pm.
Thanks again!
- Bigh1955
- 08-11-2012, 07:32 AM
Despite the ruling, 2257 regulations remain the industry standard for those producing any type of erotic images because the law continues to be enforced regarding the model's age. (The model's age is unimportant...its simply how they enforce the law) As a professional photographer I shoot a lot of boudoir for brides to be, wives wanting that special present for an upcoming anniverssary, escorts wanting to update their portfolios, etc. I also shoot fine art and glamour nudes. The crux of the issue is a result of the "implied" sex wording. Overly broad? God yes! I have a friend who's an attorney. On seeing an erotic portrait I shot of a 19y/o model (it was a profile headshot, and she was fully clothed) he said he hoped I had the documents required by 2257. When I asked why he said because her expression made it look like she was having an orgasm...It's a matter of intrepretation, and not having the documents is dumb given the penalty is jail. So ladies, if your updating your portfolio and the photographer asks for two forms of ID you know why.
- Keystone70
- 08-11-2012, 04:09 PM
Sensia- Are you in the 6th Circuit? When a law is struck down in one circuit the other circuits can and often do interpret the law differently. Sometimes when this happens the matter goes before the Supreme Court for the ultimate interpretation of the law. Until this happens then the law can be applied differently in other circuits.
- Sensia
- 08-11-2012, 10:30 PM
I don't think my personal pictures will be the issue. However I am more concerned with verbiage and the legal disclaimers on my new site. Thanks again for the info and I have found someone who handles exactly this!
Very much appreciate the info guys most helpful.
Very much appreciate the info guys most helpful.
- ck1942
- 08-12-2012, 01:54 PM
2257 could only be applied, for most part to websites hosted winthin U.S., imho.
As for "disclaimers" regarding escort "time only payments" vs. prostituition such disclaimers aren't protection against arrest. Please don't attempt "entrapment" as a defense, either.
Your best protection is a strenuous and constant screening/vouching protocol.
As for "disclaimers" regarding escort "time only payments" vs. prostituition such disclaimers aren't protection against arrest. Please don't attempt "entrapment" as a defense, either.
Your best protection is a strenuous and constant screening/vouching protocol.
- 19Trees
- 08-12-2012, 04:50 PM
Hi Sensia...
Nice post...
I do mostly civil and financial legal work sweetie but did represent a large Barcelona based producer and learned the ropes. Here are few points to consider
1. Avoid providing a "premium" channel on your site, or selling anything at all; if you decide to sell goods or services directly or by hyper link, your failure to maintain 2257 records could always end up causing you a legal hassle. Rare yes, but increasing all the time LE getting more sophisticated albeit slowly.
2. Avoid writing anything (on your site, in an email, in a text message, verbally by phone or skype or in a chat session) that suggests a transaction. Many provider websites go too far and people are paying attention, ahem.
3. If you are not selling anything (no product, no service, no link revenue either from your own content or secondary content). Donation for time is still legal although it too is being challenged in a NYC prosecution that is worth watching.
4. Other than the OK I am 18+ click-past screen and making sure you are hosted with a reputable adult hosting service (assume they share), there is nothing "in between" 2257 compliance or not. If you comply with 2257 its a bit costly yes, but if you are that one with the bad luck to get investigated and arrested (unlikely unless you are <18 or are publishing sextreme content - - - uh that is today but watch future LE is active), then your compliance with 2257 will keep you out of the sights of the feds.
4. Disclaimers. Time only/mutual consent on every page. When listing services (BBBJ, GFE, Greek, etc) refer to them as fantasies. Anti entrapment disclaimers do NOT work, rather they just attract more LE attention. Handle your emails NOT through your domain but a 3d party provider and make sure your email ID is not your provider name.
5. If think you can make $10,000 or more selling adult content (your own, or secondary content) then send me PM me since it might be worth getting 2257 compliant depending on what your plans are...
Trees
Nice post...
I do mostly civil and financial legal work sweetie but did represent a large Barcelona based producer and learned the ropes. Here are few points to consider
1. Avoid providing a "premium" channel on your site, or selling anything at all; if you decide to sell goods or services directly or by hyper link, your failure to maintain 2257 records could always end up causing you a legal hassle. Rare yes, but increasing all the time LE getting more sophisticated albeit slowly.
2. Avoid writing anything (on your site, in an email, in a text message, verbally by phone or skype or in a chat session) that suggests a transaction. Many provider websites go too far and people are paying attention, ahem.
3. If you are not selling anything (no product, no service, no link revenue either from your own content or secondary content). Donation for time is still legal although it too is being challenged in a NYC prosecution that is worth watching.
4. Other than the OK I am 18+ click-past screen and making sure you are hosted with a reputable adult hosting service (assume they share), there is nothing "in between" 2257 compliance or not. If you comply with 2257 its a bit costly yes, but if you are that one with the bad luck to get investigated and arrested (unlikely unless you are <18 or are publishing sextreme content - - - uh that is today but watch future LE is active), then your compliance with 2257 will keep you out of the sights of the feds.
4. Disclaimers. Time only/mutual consent on every page. When listing services (BBBJ, GFE, Greek, etc) refer to them as fantasies. Anti entrapment disclaimers do NOT work, rather they just attract more LE attention. Handle your emails NOT through your domain but a 3d party provider and make sure your email ID is not your provider name.
5. If think you can make $10,000 or more selling adult content (your own, or secondary content) then send me PM me since it might be worth getting 2257 compliant depending on what your plans are...
Trees
- 19Trees
- 08-12-2012, 07:02 PM
Killing the Messenger: The Campaign Against Online Escort Advertising Sites Part II – Operational Policies & Legal Issues
Sunday, December 04, 2011 Text size:
By Lawrence G. Walters & Kim Harchuck
In Part I of the Killing the Messenger blog post, we addressed the latest headlines highlighting the plight of online escort directories, specifically including the story of Craigslist.org, Backpage.com, and Escorts.com. We now turn to an overview of the legal issues associated with such attention-grabbing stories and attempt to identify preventative measures to be considered by those associated with the online escort directory business model.
One of the unanswered questions resulting from the epidemic of law enforcement activity against online escort directories is whether the mere acceptance of advertising revenue from escort-related activity is against the law? Does some state or federal statute prohibit this business model, or is this a large ‘bluff’ by those seeking to censor disfavored speech? Indisputably, prostitution is against the law throughout the United States except for small portions of Nevada, where legal brothels are allowed to exist. Virtually all states prohibit not only the act of sex for hire, but many related offenses such as deriving proceeds from prostitution, renting a space for purposes of prostitution, and facilitating (or aiding and abetting) the act of prostitution.[1] At the federal level, earning money from prostitution that involves some element of interstate commerce (such as website operation) can allegedly violate the Travel Act and money laundering laws[2], as seen in the Escorts.com case. However, not all escort directory websites are equally vulnerable to prosecution under these laws, as discussed below. Paying close attention to certain relatively common business practices and developing reasonable advertising review policies can make a significant difference in the degree of risk associated with operation of an online escort site.
Escorts, although engaging in presumptively lawful companionship activity, awkwardly fall within what has become known as the “sex worker” occupation. While those in the adult industry recognize that these companionship providers do not equate their services with sex, their business is erotic and adult-themed entertainment. Nudity may or may not be involved, although stripping in the privacy of a home or hotel room is typically not against the law,[3] and does not constitute prostitution. However, the association with the ‘sex worker’ category is often perceived by mainstream society as having some type of involvement with actual sexual intercourse, or some other form of sexual activity. Until this perception is corrected, escorts will continue to fight being unfairly, and automatically branded as prostitutes by those not familiar with the nuances of the profession.[4]
Federal conspiracy, solicitation and money laundering statutes certainly don’t help an escort site’s plight. The epitome of broad and vague statutory language; these laws expose even the most tangentially involved individual/entity to potential legal liability.
Under classic criminal conspiracy, the government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts to execute the agreement, and (3) intent to commit the substantive crime. The language of the conspiracy statute cited as grounds for Count I against Escorts.com defined the alleged conspiracy as two or more persons conspiring to commit an offense “in any manner or for any purpose” – you can’t get much more general than that.
As seen in the Escorts.com case, the breadth of the solicitation and money laundering laws may be even more alarming. Looking at the plea agreement, the only admissions of fact were that:
1) the website allowed escorts to post advertisements pertaining to their services,
2) the company owning/operating the website received revenue from the escort’s ads and subscriptions from users paying to view such ads,
3) the site’s users were allowed to post reviews, and,
4) “some” of the escorts advertising on the site engaged in prostitution at some point during the advertiser’s association with the site.
A significant factor in the Escorts.com case appears to be the ability of users to post reviews directly on the site. While the significance of this feature may not be readily apparent to those outside this particular niche, the existence of ‘free form’ user reviews, where customers of the advertisers can post comments and feedback pertaining to their ‘experiences’ with the escorts, can significantly impact the level of knowledge imputed to the escort directory operators. For example, if a user posts that he or she engaged in illegal sexual activity with a provider (whether true or not) this is something that the government might use to demonstrate actual or constructive knowledge of illegal activity by the website operators. The element of “knowledge” would be key in any criminal prosecution brought against an online escort site. Absent some level of knowledge that escorts were ‘crossing the line’ into prohibited conduct, an escort directory should be treated the same as any other online advertising venue for a presumptively legal service. Only when the site operators learn that their advertisers are engaging in such illegal activity, should the concept of criminal liability even be considered.[5]
With the foregoing in mind, what are the danger zones when it comes to “knowledge” that can be associated with criminal culpability? The answer to that question can only truly be provided by an experienced attorney that is familiar with the specifics of any particular escort site’s business model and operating policies. But the following issues should be considered when evaluating potential legal exposure associated with an online escort directory:
User Reviews: As noted above, any sort of free form reviews incorporated into an escort’s advertising space can be dangerous. Initially, the potential for bogus or fraudulent reviews exists, which could confuse readers and provide prosecutors with plenty of evidentiary fodder, even if the information is not truthful. Moreover, if a user submits an accurate review that includes references to an escort engaging in sex for money, the government would argue that such a review should impute some degree of guilty knowledge on the escort site operator. Counter-arguments exist, of course, but allowing user reviews to be placed directly on an online escort’s ad is a practice that should be carefully evaluated, if it is permitted at all.
Age Verification: Escort activities are for adults only. Law enforcement is particularly concerned about exploitation of minors by online escort directories. Therefore, use of some age verification device for advertisers is essential. While all escorts may not be willing to provide government-issued ID’s prior to placing an ad, criteria can be developed so that young (or young-looking) advertisers are required to engage in a higher level of age verification than older advertisers. A wise mixture of online age verification devices,[6] database searches,[7] and ID checks can be important to reduce the legal risks associated with online escort directories.
Ad Approval:
To Review, or Not to Review? Should escort ads be reviewed and approved by the site operator before publication, after publication, or not at all? That is a difficult decision that will need to be made after consideration of the interplay of three federal statutes; 47 U.S.C. §230 (“Section 230”), 17 U.S.C. §512 (“the DMCA”), and 18 U.S.C. §2257 (Section 2257). We call it; the “Trifecta.” These statutes provide potential immunity, safe harbor and records-keeping compliance exemptions (respectively), for certain online service providers, assuming the business operation is set up properly. While advance review of images and text might be the natural inclination for the diligent webmaster trying to prevent the publication of improper (or illegal) material, such actions could adversely impact the protections afforded to online service providers by federal law. For example, selecting which images are acceptable for publication in an ad could make the site a ‘producer’ under Section 2257, and thus responsible for keeping records associated with any sexually explicit depictions. However, failure to review material before publication could result in underage images or other inappropriate material appearing on the site for at least some period of time, thus triggering other legal concerns. Similar concerns apply to the text of the proposed ads. Reviewing ad text is important to identify any advertisers who intend to offer illegal services. Different policies can be developed for review of images as compared to text, so all options should be explored with counsel.
Approval Criteria. Assuming that some level of pre-publication review occurs, what criteria should be used? This is where the ‘rubber meets the road’ for escort directories and their lawyers. Development of a viable set of publication standards is critical for risk mitigation purposes. Obviously, any ad that states or suggests willingness to trade sex for money should automatically be rejected. But numerous questions arise concerning where to draw the line in such circumstances. What if the suggestion is made using little-known slang terms, or is the subject of a subtle hint as opposed to an outright proposal? The vernacular of the escort industry is constantly changing, so keeping up with a list of ‘banned terms’ can be a full time job. If the ad is rejected, should the advertiser be permanently banned, as someone willing to engage in illegal activity, or should the advertiser be offered another opportunity to submit a legally-compliant ad? If the advertiser is banned, what precautions should be implemented to ensure that he or she does not sign up using different contact information, or a different name? Should the law of the location where the proposed services will be rendered be taken into consideration, or only the law where the escort directory operates? The answers to all these questions are by no means clear, and much depends on the risk tolerance of the website operator. But generally, the more efforts that are used to weed out escorts who demonstrate a desire to violate the law, the safer the site will be.
Vouching. What about user or advertiser ‘verification’ or ‘vouching’ services? The Internet has allowed individuals to obtain feedback about potential customers and service providers in all industries, and escorts are no exception. Customers can make sure that the thin blonde in the ad is really a thin blonde, while escorts can make sure a potential customer is not violent, deceptive or incompatible. These are all positive developments for both parties, but implementing a verification procedure increases certain risks for the site providing such services. Any failure of the system might be blamed on the site operator. This is where online terms of service and disclaimers are essential. Again, one’s risk tolerance must be considered when verification or vouching services are offered.
As referenced above, it is imperative for escort sites to realize the subtle “red flags” when it comes to escort advertisements. This is a more difficult job than identifying prohibited images. A visual image that crosses the line, so to speak, is relatively easy to notice even in a stack of digital ads. Finding one little word that might violate a site’s publishing standards, on the other hand, is completely different and can be extremely arduous. Detection of unlawful terminology is often considered so important to the legal health of an escort site, some operators have taken to publicizing “banned terms” list as a guideline for their advertisers and have gone so far to generate an even more comprehensive internal list of flagged terms as an added precaution. Decisions as to what terms to include in public and/or internal lists are difficult, but reasonable policies can be developed and implemented.
Although ignorance is bliss, the law often doesn’t see it that way. Defending prostitution or money laundering charges with an “I didn’t know” argument may, in fact, be the truth, but it’s not likely to get you very far with an aggressive prosecutor. Even though escort services are presumptively legal, escort directory sites should implement reasonable precautions to identify those escorts with a proclivity to violate the law; preferably before an ad is published.
The preventative measures discussed above are far from comprehensive and have only scratched the surface of online escort directory safeguards. If nothing else is taken away from this post, understand that operating an escort website is not to be undertaken lightly. Even if you are able to distinguish your current business model from that of sites like Escorts.com or the former adult services category of Craigslist.org, the law in this area remains murky, and concepts of conspiracy, intent, and facilitation are inherently vague. Nonetheless, these legal concepts are routinely applied to prosecute individuals having only tangential association with criminal activity. Given the focus on escort classified sites by state and federal authorities in recent years, a comprehensive risk mitigation strategy should be developed for any existing or new operations in this field.
All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com or www.FirstAmendment.com.
[1] See e.g., Chapter 796, Fla. Stat. (2011). See, 796.03 – Procuring person under age of 18 for prostitution; 796.035 – Selling or buying of minors into sex trafficking or prostitution; penalties; 796.04 – Forcing, compelling, or coercing another to become a prostitute; 796.045 – Sex trafficking; penalties; 796.05 – Deriving support from the proceeds of prostitution; 796.06 – Renting space to be used for lewdness, assignation, or prostitution; 796.07 – Prohibiting prostitution, etc.; evidence; penalties; definitions; 796.09 – Coercion; civil cause of action; evidence; defenses; attorney’s fees.
[2] See 18 U.S.C. §1952; 18 U.S.C. § 1957(a).
[3] Some cities and counties prohibit nudity in ‘commercial establishments’ but personal residences and hotel rooms would typically be exempted from the purview of such laws.
[4] For example, the vast majority of BDSM companions (such as dominatrixes) categorically refuse to mix actual sexual activity with their professional services, and none is expected by those who engage such companions.
[5] That being said, as shown by the pressure brought to bear against Craigslist and Backpage, knowledge isn’t always a given in these cases. Law enforcement may also claim that the operators are, in various ways, turning a ‘blind eye’ to ongoing illegal activity by their advertisers. Thus far, this argument has not been tested in any published court case.
[6] See e.g., www.BirthDateVerifier.com, provided by the author’s law firm.
[7] See e.g., http://www.idology.com.
View/Post Comments! (2)
Sunday, December 04, 2011 Text size:
By Lawrence G. Walters & Kim Harchuck
In Part I of the Killing the Messenger blog post, we addressed the latest headlines highlighting the plight of online escort directories, specifically including the story of Craigslist.org, Backpage.com, and Escorts.com. We now turn to an overview of the legal issues associated with such attention-grabbing stories and attempt to identify preventative measures to be considered by those associated with the online escort directory business model.
One of the unanswered questions resulting from the epidemic of law enforcement activity against online escort directories is whether the mere acceptance of advertising revenue from escort-related activity is against the law? Does some state or federal statute prohibit this business model, or is this a large ‘bluff’ by those seeking to censor disfavored speech? Indisputably, prostitution is against the law throughout the United States except for small portions of Nevada, where legal brothels are allowed to exist. Virtually all states prohibit not only the act of sex for hire, but many related offenses such as deriving proceeds from prostitution, renting a space for purposes of prostitution, and facilitating (or aiding and abetting) the act of prostitution.[1] At the federal level, earning money from prostitution that involves some element of interstate commerce (such as website operation) can allegedly violate the Travel Act and money laundering laws[2], as seen in the Escorts.com case. However, not all escort directory websites are equally vulnerable to prosecution under these laws, as discussed below. Paying close attention to certain relatively common business practices and developing reasonable advertising review policies can make a significant difference in the degree of risk associated with operation of an online escort site.
Escorts, although engaging in presumptively lawful companionship activity, awkwardly fall within what has become known as the “sex worker” occupation. While those in the adult industry recognize that these companionship providers do not equate their services with sex, their business is erotic and adult-themed entertainment. Nudity may or may not be involved, although stripping in the privacy of a home or hotel room is typically not against the law,[3] and does not constitute prostitution. However, the association with the ‘sex worker’ category is often perceived by mainstream society as having some type of involvement with actual sexual intercourse, or some other form of sexual activity. Until this perception is corrected, escorts will continue to fight being unfairly, and automatically branded as prostitutes by those not familiar with the nuances of the profession.[4]
Federal conspiracy, solicitation and money laundering statutes certainly don’t help an escort site’s plight. The epitome of broad and vague statutory language; these laws expose even the most tangentially involved individual/entity to potential legal liability.
Under classic criminal conspiracy, the government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts to execute the agreement, and (3) intent to commit the substantive crime. The language of the conspiracy statute cited as grounds for Count I against Escorts.com defined the alleged conspiracy as two or more persons conspiring to commit an offense “in any manner or for any purpose” – you can’t get much more general than that.
As seen in the Escorts.com case, the breadth of the solicitation and money laundering laws may be even more alarming. Looking at the plea agreement, the only admissions of fact were that:
1) the website allowed escorts to post advertisements pertaining to their services,
2) the company owning/operating the website received revenue from the escort’s ads and subscriptions from users paying to view such ads,
3) the site’s users were allowed to post reviews, and,
4) “some” of the escorts advertising on the site engaged in prostitution at some point during the advertiser’s association with the site.
A significant factor in the Escorts.com case appears to be the ability of users to post reviews directly on the site. While the significance of this feature may not be readily apparent to those outside this particular niche, the existence of ‘free form’ user reviews, where customers of the advertisers can post comments and feedback pertaining to their ‘experiences’ with the escorts, can significantly impact the level of knowledge imputed to the escort directory operators. For example, if a user posts that he or she engaged in illegal sexual activity with a provider (whether true or not) this is something that the government might use to demonstrate actual or constructive knowledge of illegal activity by the website operators. The element of “knowledge” would be key in any criminal prosecution brought against an online escort site. Absent some level of knowledge that escorts were ‘crossing the line’ into prohibited conduct, an escort directory should be treated the same as any other online advertising venue for a presumptively legal service. Only when the site operators learn that their advertisers are engaging in such illegal activity, should the concept of criminal liability even be considered.[5]
With the foregoing in mind, what are the danger zones when it comes to “knowledge” that can be associated with criminal culpability? The answer to that question can only truly be provided by an experienced attorney that is familiar with the specifics of any particular escort site’s business model and operating policies. But the following issues should be considered when evaluating potential legal exposure associated with an online escort directory:
User Reviews: As noted above, any sort of free form reviews incorporated into an escort’s advertising space can be dangerous. Initially, the potential for bogus or fraudulent reviews exists, which could confuse readers and provide prosecutors with plenty of evidentiary fodder, even if the information is not truthful. Moreover, if a user submits an accurate review that includes references to an escort engaging in sex for money, the government would argue that such a review should impute some degree of guilty knowledge on the escort site operator. Counter-arguments exist, of course, but allowing user reviews to be placed directly on an online escort’s ad is a practice that should be carefully evaluated, if it is permitted at all.
Age Verification: Escort activities are for adults only. Law enforcement is particularly concerned about exploitation of minors by online escort directories. Therefore, use of some age verification device for advertisers is essential. While all escorts may not be willing to provide government-issued ID’s prior to placing an ad, criteria can be developed so that young (or young-looking) advertisers are required to engage in a higher level of age verification than older advertisers. A wise mixture of online age verification devices,[6] database searches,[7] and ID checks can be important to reduce the legal risks associated with online escort directories.
Ad Approval:
To Review, or Not to Review? Should escort ads be reviewed and approved by the site operator before publication, after publication, or not at all? That is a difficult decision that will need to be made after consideration of the interplay of three federal statutes; 47 U.S.C. §230 (“Section 230”), 17 U.S.C. §512 (“the DMCA”), and 18 U.S.C. §2257 (Section 2257). We call it; the “Trifecta.” These statutes provide potential immunity, safe harbor and records-keeping compliance exemptions (respectively), for certain online service providers, assuming the business operation is set up properly. While advance review of images and text might be the natural inclination for the diligent webmaster trying to prevent the publication of improper (or illegal) material, such actions could adversely impact the protections afforded to online service providers by federal law. For example, selecting which images are acceptable for publication in an ad could make the site a ‘producer’ under Section 2257, and thus responsible for keeping records associated with any sexually explicit depictions. However, failure to review material before publication could result in underage images or other inappropriate material appearing on the site for at least some period of time, thus triggering other legal concerns. Similar concerns apply to the text of the proposed ads. Reviewing ad text is important to identify any advertisers who intend to offer illegal services. Different policies can be developed for review of images as compared to text, so all options should be explored with counsel.
Approval Criteria. Assuming that some level of pre-publication review occurs, what criteria should be used? This is where the ‘rubber meets the road’ for escort directories and their lawyers. Development of a viable set of publication standards is critical for risk mitigation purposes. Obviously, any ad that states or suggests willingness to trade sex for money should automatically be rejected. But numerous questions arise concerning where to draw the line in such circumstances. What if the suggestion is made using little-known slang terms, or is the subject of a subtle hint as opposed to an outright proposal? The vernacular of the escort industry is constantly changing, so keeping up with a list of ‘banned terms’ can be a full time job. If the ad is rejected, should the advertiser be permanently banned, as someone willing to engage in illegal activity, or should the advertiser be offered another opportunity to submit a legally-compliant ad? If the advertiser is banned, what precautions should be implemented to ensure that he or she does not sign up using different contact information, or a different name? Should the law of the location where the proposed services will be rendered be taken into consideration, or only the law where the escort directory operates? The answers to all these questions are by no means clear, and much depends on the risk tolerance of the website operator. But generally, the more efforts that are used to weed out escorts who demonstrate a desire to violate the law, the safer the site will be.
Vouching. What about user or advertiser ‘verification’ or ‘vouching’ services? The Internet has allowed individuals to obtain feedback about potential customers and service providers in all industries, and escorts are no exception. Customers can make sure that the thin blonde in the ad is really a thin blonde, while escorts can make sure a potential customer is not violent, deceptive or incompatible. These are all positive developments for both parties, but implementing a verification procedure increases certain risks for the site providing such services. Any failure of the system might be blamed on the site operator. This is where online terms of service and disclaimers are essential. Again, one’s risk tolerance must be considered when verification or vouching services are offered.
As referenced above, it is imperative for escort sites to realize the subtle “red flags” when it comes to escort advertisements. This is a more difficult job than identifying prohibited images. A visual image that crosses the line, so to speak, is relatively easy to notice even in a stack of digital ads. Finding one little word that might violate a site’s publishing standards, on the other hand, is completely different and can be extremely arduous. Detection of unlawful terminology is often considered so important to the legal health of an escort site, some operators have taken to publicizing “banned terms” list as a guideline for their advertisers and have gone so far to generate an even more comprehensive internal list of flagged terms as an added precaution. Decisions as to what terms to include in public and/or internal lists are difficult, but reasonable policies can be developed and implemented.
Although ignorance is bliss, the law often doesn’t see it that way. Defending prostitution or money laundering charges with an “I didn’t know” argument may, in fact, be the truth, but it’s not likely to get you very far with an aggressive prosecutor. Even though escort services are presumptively legal, escort directory sites should implement reasonable precautions to identify those escorts with a proclivity to violate the law; preferably before an ad is published.
The preventative measures discussed above are far from comprehensive and have only scratched the surface of online escort directory safeguards. If nothing else is taken away from this post, understand that operating an escort website is not to be undertaken lightly. Even if you are able to distinguish your current business model from that of sites like Escorts.com or the former adult services category of Craigslist.org, the law in this area remains murky, and concepts of conspiracy, intent, and facilitation are inherently vague. Nonetheless, these legal concepts are routinely applied to prosecute individuals having only tangential association with criminal activity. Given the focus on escort classified sites by state and federal authorities in recent years, a comprehensive risk mitigation strategy should be developed for any existing or new operations in this field.
All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com or www.FirstAmendment.com.
[1] See e.g., Chapter 796, Fla. Stat. (2011). See, 796.03 – Procuring person under age of 18 for prostitution; 796.035 – Selling or buying of minors into sex trafficking or prostitution; penalties; 796.04 – Forcing, compelling, or coercing another to become a prostitute; 796.045 – Sex trafficking; penalties; 796.05 – Deriving support from the proceeds of prostitution; 796.06 – Renting space to be used for lewdness, assignation, or prostitution; 796.07 – Prohibiting prostitution, etc.; evidence; penalties; definitions; 796.09 – Coercion; civil cause of action; evidence; defenses; attorney’s fees.
[2] See 18 U.S.C. §1952; 18 U.S.C. § 1957(a).
[3] Some cities and counties prohibit nudity in ‘commercial establishments’ but personal residences and hotel rooms would typically be exempted from the purview of such laws.
[4] For example, the vast majority of BDSM companions (such as dominatrixes) categorically refuse to mix actual sexual activity with their professional services, and none is expected by those who engage such companions.
[5] That being said, as shown by the pressure brought to bear against Craigslist and Backpage, knowledge isn’t always a given in these cases. Law enforcement may also claim that the operators are, in various ways, turning a ‘blind eye’ to ongoing illegal activity by their advertisers. Thus far, this argument has not been tested in any published court case.
[6] See e.g., www.BirthDateVerifier.com, provided by the author’s law firm.
[7] See e.g., http://www.idology.com.
View/Post Comments! (2)
- 19Trees
- 08-12-2012, 07:18 PM
That one case has not been overruled nor stricken down by the Supreme Court, its out of step with most circuits who have bent over backward to protect 2257... so feds, state & locals use it today... As a practical matter, any producers who are counting on invalidation of 2257 as their records-keeping strategy need to wake up and read the tea leaves – to mix a metaphor. All producers of 2257-triggering content should be in full compliance by now. Nothing for sale and no click revenue, no publication of content covered by statute then don't worry this is still the USA.
... Until the BOTS start to run things, then we all either in trouble or in nirvana...
Trees
So if you are producing original content which is available for sale (even if free but you eligible for link-click revenue) and/or permit downloads of other producer/performer content (secondary) still better comply (keep records that all models of of age with 2 govt issued ID's etc)...
... Until the BOTS start to run things, then we all either in trouble or in nirvana...
Trees
So if you are producing original content which is available for sale (even if free but you eligible for link-click revenue) and/or permit downloads of other producer/performer content (secondary) still better comply (keep records that all models of of age with 2 govt issued ID's etc)...
- texag
- 08-14-2012, 02:31 PM
Sensia is in the 5th Circuit
Texag
Texag