SAN DIEGO – Attorney Eric Bernstein of embalaw.com spoke to a room full of adult Webmasters at this year’s Cybernet Expo gathering in San Diego, California. While the session was not intended to be construed as legal advice, Bernstein provided valuable information about the laws that affect adult Webmasters; he spoke at length about important legal topics, and also answered questions from the audience.SAN DIEGO – Attorney Eric Bernstein of embalaw.com spoke to a room full of adult Webmasters at this year’s Cybernet Expo gathering in San Diego, California. While the session was not intended to be construed as legal advice, Bernstein provided valuable information about the laws that affect adult Webmasters; he spoke at length about important legal topics, and also answered questions from the audience. Topics included hot button issues such as 18 U.S.C. § 2257, obscenity and extreme content, the proposed .xxx domain name extension, politicians and federal prosecutors, and possible legal concerns related to partnering with other adult Web sites.
“Not only do I represent people in this industry, I [also] represent ‘those’ people,” explained Bernstein in his opening remarks. “Those people refer to you as those people, but when I refer to those people in this group, I’m talking about politicians.”
As previously reported by YNOT, Bernstein is no stranger to controversy. A municipal attorney for several New England townships, Bernstein came under fire recently from several local politicians when they discovered that he also represented clients from the adult entertainment field. Bernstein told his Cybernet Expo audience that his experience with local and state politicians gives his firm a singular viewpoint in terms of the adult industry’s relationship with government.
“We have a unique perspective knowing what goes through or doesn’t go through [local and state politicians’] minds. And I’ll tell you all folks, whether you like it or not, they really don’t care about you,” said Bernstein. “They don’t want to be bothered with you as long as you don’t make it their business for you to be in front of them … you need to be compliant, you need to follow the laws.”
The topic then turned to obscenity, and Bernstein explained why he believes the Extreme Associates case is a no lose proposition for the adult industry.
“I think the Extreme Associates case is the best thing that could ever happen to this industry,” said Bernstein. “This is a no lose case for this industry. The United States Attorney’s Office [recently] announced, ‘Oh we have seventeen grand juries going and another fifty being considered.’ What they left out, folks, is how many total grand juries are presently sitting. It’s like tens of thousands.”
“They have picked Pittsburg, Pennsylvania [for the Extreme case] because it’s their belief that in spite of the fact that Rob Black is located here in California, that a jury of Mr. Black’s peers in Pittsburg will be conservative enough to find his content to be obscene.”
So what happens if Black loses his obscenity case and is convicted?
“We may have some idea as to what the so-called extreme, no pun intended, end of this business is,” explained Bernstein. “If, however, they find in favor of Mr. Black … there will be very little that [federal censors] can do.” A favorable decision for Black, Bernstein said, makes future obscenity prosecutions more problematic for federal prosecutors.
Bernstein stressed that there are no guarantees for adult Webmasters looking for firm guidance as to what kind of content they can safely distribute.
“If you put material in the open market you’re going to run the risk of somebody in someplace finding it to be obscene,” said Bernstein. “That doesn’t mean you shouldn’t.”
The discussion next turned to federal record keeping requirements as outlined by 18 U.S.C. § 2257.
“2257, folks, is an easy case,” said Bernstein. “You either have it or you don’t. There’s no grey area here, you either have the releases or you don’t have the releases. And the more [documentation] you have in backup, whether you actually have the material or you obtained it from a content provider or you at least attempted to obtain it from a content provider, [it] gives me a better defense to argue that you’ve done everything required and you didn’t know the twelve year-old was in fact twelve. ”
Bernstein warned Webmasters that anyone publishing pictures of underage models would be quickly found and prosecuted by the federal government. He also stressed the importance of taking the necessary steps to help keep minors away from uncensored adult materials.
“You’re supposed to have a disclaimer,” said Bernstein. “This is of an adult nature, this is not for minors. You’re supposed to have your custodian of records information. And you’re not supposed to have nudity or simulated sex acts or [sexually explicit materials] on the front page where the kids who have no business being there in the first place have found you.”
An attendee asked Bernstein if there was an advantage to locating adult businesses offshore, but Bernstein warned that American prosecutors have long arms.
“You can start the company, folks, anywhere you want, but the fact of the matter is the market’s here,” said Bernstein. “If you have any connections in the United States, assets etcetera, they will come and find you.”
Bernstein said federal prosecutors pick their cases wisely.
“They don’t like to lose. It’s bad for business. It’s bad for the record. It’s bad for staying employed. Therefore they’re going to pick cases which they think they’re going to win outright, or they think you all are going to settle. There were 25 prosecutions last year for obscenity, 23 of them were settled.”
Another attendee asked about possible legal liability stemming from links to other adult sites. Bernstein replied that the more separation between a Webmaster’s site and another site targeted for illegal activity, the better. Those directly linking to a Web site that is offering child porn, for example, probably run a better chance of being dragged into the illegal site’s legal problems than those who are six links removed from the illegal site.
As the topic changed again, this time to the proposed .xxx domain name extension, Bernstein dismissed as “fantasy” the argument that a .xxx domain name extension could somehow work to keep children away from porn sites.
“I also believe that if you are all crazy enough to want to be in favor of .xxx in lieu of .com, you get what you deserve,” warned Bernstein.
Is the sky falling for the online adult entertainment business?
“The world is not coming to an end in this business,” said Bernstein. “It’s only going to get better. But some people are going to have to be weeded out.”
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