The Sky Still Isn’t Falling !!!

The Sky Still Isn’t Falling: Obscenity, 2257 Charges in Spam Indictments No Cause for Panic

PHOENIX - When federal indictments under the CAN-SPAM Act were handed down here last week, a collective shudder went through the adult industry. The three individuals charged not only were accused of emailing hundreds of thousands of unwanted pornographic messages to consumers nationwide, but also of transporting obscene material across state lines via the Internet, laundering money, and conspiring to engage in criminal activity. What’s more, one of the defendants found himself under the gun for failing to comply with the regulations surrounding Title 18 U.S.C. §2257, the federal records-keeping act ostensibly designed to keep adult content producers on the up-and-up with regard to the ages of performers.

Although the tendency in the adult entertainment industry has been to speculate that federal prosecutors might be stepping up obscenity cases and giving extra attention to opportunities to prosecute under the 2257 regulations that were revised in June, the CAN-SPAM indictments probably are no less straightforward than they seem to be on their faces, according to industry attorneys: They embody charges against people who federal agents believe they can prove were violating a law aimed at curbing a nuisance.

“It appears to be [nothing more than] a spam investigation under the CAN-SPAM Act,” said Chicago-based attorney J.D. Obenberger, a former prosecutor within the U.S. Army’s Judge Advocate General corps. In criminal prosecutions in general, and federal prosecutions in particular, “you cover the waterfront with ancillary charges,” he noted, not only because prosecutors are required to file at one time all charges of which they are aware, but also because defendants faced with a bevy of penalties are more likely to plead guilty to at least one of the accusations.

“There is [a certain amount of] gamesmanship in the way the criminal prosecution system works,” Obenberger admitted. “[But] I wouldn’t view this case as marking any major change in policy. I don’t think the case is going to go to trial.”

Chad Belville, a former Arizona prosecutor and a lifetime member of the National District Attorneys Association who now represents clients in the adult entertainment realm, agreed. “My gut feeling is that they’ve thrown [all the other charges] into what is essentially a CAN-SPAM case to show that they are enforcing the law,” he said. “When I was a prosecutor, we charged everything we could to try to force a plea.” He added that it’s not difficult to find grounds for charging adult entertainment entrepreneurs with violations of 2257, because “it’s impossible to comply” with the new regulations.

New Jersey attorney Eric M. Bernstein echoed his colleagues’ analyses, but phrased his outlook slightly differently. “This is a CAN-SPAM case, and [the feds] just happened to stumble upon an idiot who was dumb enough not to make a good-faith effort to comply with 2257,” he said. “It’s not a direct attack on the adult industry. It’s an attack on a segment [rampant, unrepentant, and careless spammers] the adult industry at large finds abhorrent.”

Instead of engaging in knee-jerk reactions precipitated by the inclusion of obscenity and 2257 charges in the indictments, members of the adult industry would be better served by ensuring their own email marketing efforts comply with the guidelines set out in CAN-SPAM, Bernstein said. “[The act] doesn’t say you can’t do it,” he noted. “It just says ‘if you’re going to do it, you have to do it under certain conditions.’”

That’s not to say the Arizona spam indictments won’t have a spill-over effect on legitimate adult businesses that are trying their best to abide by all applicable laws, the attorneys admitted. In fact, the inclusion of obscenity charges, in particular, might be seen as evidence prosecutors are pandering to a vocal, conservative constituency that has stated repeatedly it wants the U.S. government to eliminate pornography altogether. The approach is not likely to have much effect on the larger culture, though.

“There is nothing fundamentally novel about what they are doing,” said Los Angeles-based attorney Clyde DeWitt, himself a former prosecutor. “Laws against electronic, interstate obscenity are not at all new; CAN-SPAM and 2257 are just new twists. Throwing people in jail one at a time is not going to put a dent into the amount of X-rated traffic for which the world has such a huge appetite, any more than enforcing the Prohibition-era’s anti-bootlegging laws stopped people from drinking.”

Bernstein noted, “It’s a combination of show and shock. A lot of these prosecutions are intended more [to stimulate] fear than anything else. The feds do a lot of ‘example’ cases.” He added that court watchers are liable to see obscenity charges become routine in cases involving adult content, especially in light of recent revelations that the U.S. Attorney General may have mandated increased prosecutorial attention in that area. However, Bernstein added, obscenity prosecutions remain difficult to win because of “that pesky jury component. [Prosecutors] are more likely to win CAN-SPAM or 2257 cases because those involve strict statutory interpretation,” not the common man’s evaluation of nebulous “community standards.”

“The feds are going to grab people for doing stupid things,” Bernstein said. “One of the things they have been prosecuting is CAN-SPAM. CAN-SPAM is an easy focus. It’s a law nobody has a problem with: People don’t like being barraged with stuff they don’t want to see.”

CAN-SPAM cases may constitute an easy focus for prosecutors, but they’re a waste of time, according to DeWitt. “If the federal government thinks this will stop X-rated spam, it probably will use teaspoons to clean up the [post-Hurricane Katrina] flood in New Orleans,” he noted with more than a little scorn. “The focus should be on filtering technology. I wonder when they are going to figure out that most of it comes from outside the United States.”

The underlying attitude, DeWitt continued, is symptomatic of a much more endemic problem within the current political climate. “It is unimaginable how any administration’s priorities could be more screwed up than this one,” he said. “For example, has anybody noticed that Afghanistan – a country that is the subject of American military occupation – remains the most significant source of heroin in the world? What if they would put just half the resources into stemming the Afghan production of poppies that they put into incarcerating American heroin addicts?”

The nine-count federal indictment returned August 25 charges Jennifer R. Clason and James R. Schaffer of Arizona and Jeffrey A. Kilbride of Venice, Calif., with two counts of fraud and related activity in connection with electronic mail under the CAN-SPAM Act, as well as one count of criminal conspiracy. The indictment also charges Kilbride and Schaffer with two counts of interstate transportation of obscene material using an interactive computer service, two counts of interstate transportation of obscene material for the purpose of sale or distribution, and one count of money laundering. Schaffer also is charged with one count of operating three pornographic Internet websites without including statements describing the location of identification and other records for the performers portrayed in the websites, as required under 18 U.S.C §2257.

A fourth defendant, Andrew Ellifson of Arizona, pleaded guilty on Feb. 18 to one spamming count under the CAN-SPAM Act and one count of criminal conspiracy. He faces a maximum penalty of five years in prison for each count during a sentencing hearing scheduled for Sept. 26.

Spamhaus, an international nonprofit organization that collects information and evidence on spammers, reported the defendants’ spamming operation was one of the 200 largest in the world.

The CAN-SPAM Act is a federal law designed to crack down on the transmission of bulk, unsolicited commercial electronic mail messages.