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Porn Spam: Government Regulation Looks to
Be Right Around the Corner |
 If the adult Internet's ship has one stubborn family of barnacles clinging to its
hull, it's the porn spam family. "Let me say it loud and clear," says Joseph
Obenberger, a Chicago attorney whose clients include players in the adult
Internet and other entertainment. "I think the people who are spamming, and
obnoxiously spamming [adult material], are urinating in the well that all of us
drink from."
If they think the law isn't paying them closer attention than they might
normally pay adult entertainment, on and offline, they should be advised that
the Arkansas House of Representatives has a new bill making the rounds - to
force the porn spammers to include warnings, be traceable to commercial
distributors, and include a sender's name, correct street address, and source
computer identification number.
And that isn't as far as the law might be looking, either. "What they may not
know," said Parry Aftab, executive director of WiredSafety.org, and a veteran
activist for children's safety online, "is that federal regulators are now going
to be spending a good deal of time and expertise to stop porn spam. Already, the
Justice Department and FBI have been instructed to do something with this."
The Arkansas bill includes clauses to keep Internet service providers and other
companies from liability if porn spammers use their services and violate the new
bill should it become law. But the language of the bill does not block porn
e-mails from those who request or authorize it to be sent to them.
The porn spammers will find little sympathy from Obenberger. For one thing, he
says, leading obscenity cases in the pre-Internet days often as not began when
people who didn't incline toward adult-oriented materials got them in the
old-fashioned mail - and there's no quicker way to get someone furious enough to
want you prosecuted than to jam your materials down their throat. "And [porn
spam recipients] will wind up on juries in obscenity cases I try," he says, "and
when I defend these Webmasters, I don't want 12 people angry and upset because
they made the mistake of reading these e-mails and had their 12-year-old kids
reading over their shoulders."
Aftab agrees. "People who will put up with movie theaters with adult content, or
walk past a sex shop, or deal with [adult] magazines and videos in their local
stores, have a very high patience threshold with adults doing what adults want
to do," she said from her New Jersey offices. "But all of a sudden, they'll
become active against them when it's stuck in their face every day [on the
Internet]. It's really done a disservice to the adult industry. And it's feeding
right into the hands of the people who don't support the First Amendment. And I
think the porn industry needs to start regulating itself."
"There really is [that] danger," said Free Speech Coalition executive director
Bill Lyon. "They're sending this stuff indiscriminately, and they're sending
materials that are offensive to recipients, and those people are calling their
Congressmen. You can't send a little blue-haired lady in Pasadena people of
pictures screwing and expect her not to react by calling anyone she can think
of."
Saying the issue has to be treated as spam first and in terms of its particular
subject matter second, Aftab said requiring the porn spammers to use real
addresses, instead of stolen or masked addresses, would allow people who don't
want to be bothered by them to reply. "Having the true identifiable information
is important, because then the people who receive it would know who to contact
to get off the list," she said. And she doesn't think that should apply to porn
spam alone. "I think that is something we should be doing across the board, for
all bulk unsolicited e-mail," she said.
Spammers, porn and non-porn alike, are fond of using dummy addresses, which
recipients can't reply to without getting mailing error notices. They also
include links for recipients to be removed from their mailing lists, but these
links do not always function properly - which spam opponents often think is
something the spammers set deliberately.
"We endorse [regulating] that," Lyon said. "There's nothing worse than somebody
sending you spam and you're not able to cut it out."
But Obenberger thinks state regulation of spam compares to state regulation of
activity along interstate highways, if not building interstate highways
themselves: an undue burden on interstate commerce, as earlier Supreme Court
rulings have held in comparable cases. "We're dealing with a phenomenon that is
national and, ultimately, international," Obenberger said of the Internet. "I
don't think any regulation of [spam] short of national regulation can
constitutionally regulate what goes on on the Internet. It unreasonably burdens
interstate commerce for states to regulate spam. And the problem is that no one
really does anything about it in Congress."
He'll get no argument from Aftab. "I think Congress absolutely needs to take
spam more seriously," she said. "And we need to deal with adult spam. It should
be done federally." The problem with spam in general, she continued, is that
other commercial or financial enterprises like using spam as prominent elements
of their own marketing strategies - not to mention their political power. "They
have lots of lobbyists and well-known representatives who can help affect what
happens and doesn't happen in Congress," she said. "And they have opposed broad
legislation dealing with spam."
Except, she added, when it comes to adult spam. "They're obviously not opposing
anything related to adult content spam," she said, "but that's problematic on a
constitutional as well as an enforcement level."
A published report said Arkansas Attorney General Mike Beebe told the state
House Advance Communications and Technology Committee removing the distributors'
anonymity, as the new bill propses, would cut off "much" porn spam distribution.
Beebe's office is said to have worked on the bill over long negotiation with
companies like Microsoft and Acxiom, with Democratic state Rep. Mike Creekmore,
who introduced the bill.
In addition to the sender's name, address, and valid domain, the Arkansas bill
would require the phrase ADULT in the subject line. "A lot of times," Creekmore
told reporters, "you don't know what it is until you open it."
Penalties for violating the provisions of the bill, if it's signed into law,
would include making the porn spammers liable beginning at $10 per porn spam
mail and court costs up to $25,000 per day. Beebe told reporters his office has
extra consumer protection personnel in place to enforce the bill, thus costing
Arkansas no extra revenues.
Even adult Internet critics like Aftab acknowledge a distinction between
"responsible" adult Websites, who prefer to approach their business
professionally and not try to force it upon anyone; and, the "irresponsible" or
"unreliable" sites who spam freely and recklessly, regardless of whether or not
their recipients want their wares. "They are... the ones who are now focusing
moms and pops around the country," Aftab said of the porn spammers. And those
are the moms and pops - not to mention the kids the porn spammers only think
might be titillated enough to let their curiosity play a bit - who might get
annoyed enough to take a stand and begin pressuring lawmakers and law
enforcement.
"It's in their faces, it's in their kids' faces, and these are the people
Congress is going to listen to," Aftab continued. "Every parent I talk to, most
of the kids I talk to, hate spam. They resent that it's going to them. Even if
we think [young] boys are going to be interested in this stuff, they resent that
it gets in the way of their ESPN, or the games they want to play. And the [porn
spammers] are losing that generation."
If there comes enough state action against porn spam, Lyon said, that could
finally push the federal government to enact some kind of legislation. But one
of the problems they might encounter is the fact that a large amount of porn
spam originates outside the United States. "Nothing we do is going to control
that," he said. But that doesn't mean the adult Internet can afford to ignore or
dismiss the porn spammers as a mere nuisance.
"[They're] going to kill the goose that lays the golden eggs," Lyon said of the
porn spammers. "And you can't determine how much is the offshore stuff. But it's
not letting up. We get about 30 of them a day at home."
The federal government was occupied with matters such as terrorism and the war
in Iraq, but that won't stop the government from keeping the adult Internet in
check, Lyon said. "The minute they get out of this war situation... then it's
going to be politically vitally important that they get to doing something that
regains and rebuilds their political capital. And it's going to be natural for
them to start doing things against us," he said.
And while a newly-presented U.S. Senate bill on child porn seems likely to
survive, Lyon continued, it's narrower enough that "it's not going to cause us
much trouble," he said. "[Attorney General John] Ashcroft isn't going to be able
to count on that to come after adult [as a whole]. So spam is going to be very
important."
Aftab said the adult Internet culture has one slight difference against the
adult entertainment culture that existed in the pre-Internet generations: the
new providers, especially the ones who began strictly on the Internet, never
felt the kind of legal heat the old timers felt.
"People who'd been in adult entertainment for many years [previously] knew the
sting of the law. They knew what would happen if they went too far. Most, if not
all, had been prosecuted and served some time in jail.... The new guys never
felt that. Under the U.S. Administration, no one had prosecuted Net pornography.
And so they kept pushing the envelope, further and further, doing things the
more experienced and responsible adult providers would not do."
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