February 13, 2004 06:02am
Advertising Online Escorts - Analyzing Legal Issues
by: Lawrence G. Walters, Esq.
Online escort directories have proliferated in recent times. Although many of the legal issues pertaining to operation of an adult website are equally applicable to online escort venues, such as 2257 compliance, copyright, etc., a host of unique legal concerns are generated by this particular business model. Since some escorts have occasionally been known to "cross the line" and engage in sexual activity, an operator of an online escort directory must be familiar with the laws relating to prostitution, solicitation and assignation, along with the constitutional protections afforded to commercial speech under the First Amendment.
This article will briefly analyze some of the interesting and occasionally complex legal issues for the aspiring online escort agency webmaster.
Law Enforcement Climate
Escort agencies are favorite targets of vice units across the country. Regular raids and sting operations occur in cities across the United States, with cops posing as customers intent on testing the boundaries that various escorts may or may not be willing to cross during their hour long companionship interludes. By flashing enough cold, hard cash, law enforcement officers often successfully tempt escorts into engaging in, or agreeing to engage in, some form of sexual activity in exchange for money.
With the notable exception of regulated brothels in certain portions of Nevada, states outlaw prostitution in its various forms. While the exchange of sexual activity for money is commonly at the root of such prohibitions, various other tangential activities fall within the ambit of modern prostitution laws, including agreements to engage in prostitution, encouraging another to engage in prostitution, arranging appointments for the purpose of prostitution, living off the proceeds of prostitution, operating a facility of business for the purpose of facilitating prostitution, and/or owning a structure used for prostitution activities.
The seriousness of these offenses depends on the particular states' laws involved, but can range from a simple misdemeanor, commonly resulting in a small fine, to racketeering offenses, carrying substantial penalties including decades of incarceration, a six-figure fine and forfeiture of all business assets. Therefore, a comprehensive understanding of the risks involved in helping to arrange meetings between individuals that create an environment fostering sexual activity is critical, given the potentially serious consequences involved.
Law enforcement agencies long ago realized the futility of trying to combat the prostitution problem by routinely arresting individual prostitutes and sending them through the revolving door of arrest, plea, fine and release (although the practice continues). Therefore, vice officers have tried various other strategies designed to combat the problem at different levels, such as arresting customers, publishing their names in the newspaper, educating prostitutes regarding the risks involved, forfeiting vehicles used during encounters, and focusing on punishing "pimps." but even those methods have not been particularly successful in combating the world's oldest profession.
More recently, law enforcement has attacked the problem from a different angle, by focusing on the advertisers of common fronts for prostitution, i.e., escort agencies, massage parlors and body scrub salons. In some areas, even the phone book publishers have been threatened with racketeering offenses if they continued to run yellow page advertisements for escort agencies, resulting in the prompt disappearance of this category from various cities' yellow page listings. The theory is that the prostitution business will dry up if the escorts are forced underground making them hard to find. While this is certainly not a cure-all solution, it has put a damper on the escort business in various cities throughout the United States where such tactics have been used... That is, until the Internet came along.
The Internet created an alternative venue for advertising underground or "gray market" products and services. This instantaneous world-wide advertising venue has become quite popular for escorts and customers alike, allowing the advanced scheduling of sensual liaisons with virtual anonymity, in sharp contrast to the expense and risks involved with long distance telephone calls.
This retreat to the Internet has not gone entirely unnoticed by law enforcement, including in the State of Florida, where a popular escort service information site, BigDoggie.net, was the subject of a criminal prosecution by a joint effort between the Hillsborough County Sheriff's Office and the Metropolitan Bureau of Investigation in Tampa and Orlando, respectively. Although police tried to shut down the website under some creative theories, it remains active as an online venue for the exchange of information about escort services in this state. The prosecution against BigDoggie.net will certainly not be the last of its kind, as vice units across the country realize that the Internet has now supplanted the yellow pages as the primary source of information for adult-oriented entertainment, including escort services.
Notably, many escort services run perfectly law-abiding and legitimate operations, and zealously protect their adult license by strict enforcement of a "no sexual contact" policy. However, law enforcement still views such businesses with a jaundiced eye, and will continue to focus on investigating such establishments for violation of prostitution-related offenses.
Commercial Speech and the First Amendment
Did you ever wonder how High Times magazine can get away with talking about the cultivation and use of illegal drugs without running afoul of the law? The answer is found in the First Amendment. Under Free Speech principles, citizens have the right to discuss, and write about, activities which may themselves be illegal. In other words, the government's ability to regulate conduct is not coextensive with its ability to regulate speech relating to such conduct. In the context of advertising activities that might be illegal, the United States Supreme Court has held that the First Amendment protects commercial speech about a product or service that is within the government's power to otherwise completely ban, such as gambling activities. Thus, while gambling may itself be illegal, advertising that activity cannot be completely banned.
In the specific case of advertising online escort agencies, the First Amendment plays a significant role. Theoretically, the advertisers are all licensed escorts, agencies or businesses, conducting presumably legitimate escort activities. Therefore, under the appropriate test for determining the validity of any potential regulation of commercial speech, the government would have difficulty completely banning truthful advertising relating to such activities. There is some precedent for criminalizing other communicative activities such as solicitation of murder, extortion or assignation of prostitution, for that matter. However, the typical online escort directory involves a simple sale of advertising space and not actual involvement in arranging the meetings between customer and service provider. The traditional advertising relationship enjoys commercial speech protection, generally. While the government is currently flirting with the argument that advertising alleged illegal activity, such as online gambling, constitutes "aiding and abetting" illegal activity; there is little, if any, support found in legal precedent for the argument that advertising itself can be sufficient to impose criminal liability.
The Legal Issues
By way of summary, the following legal issues are some of the more important that should be addressed and evaluated in connection with the creation of an escort directory website:
1. Escort Age Verification - it is important to confirm that all models depicted on the website, especially those depicted in a sexually-oriented manner or nude, were over the age of eighteen when the images were created, and have executed proper age verification records as required by Title 18, U.S.C. ? 2257.
2. Copyright/Publicity Issues - a method must be implemented allowing the online escort directory to obtain a release of the intellectual property and publicity rights necessary to post images and/or text relating to the individual escorts and/or agencies. These details are often ignored, and can result in significant liability if images are used without supporting rights transfers.
3. User Age Verification - as with any adult-oriented content, some method of age verification must be implemented to confirm that users or members of this website are over the age of eighteen. Escort customers must also be adults under most local adult entertainment codes, and thus the issue of facilitating a meeting between an adult escort and a minor may arise in the absence of valid user age verification, such as that described on www.BirthDateVerifier.com.
4. User Terms & Conditions - All disclaimer, warranties and customer service terms should be included in a custom drafted set of Terms & Conditions for an online escort directory.
6. DMCA Compliance - Since the website will presumably be using content provided by others, some form of Notice & Takedown Procedure and/or Designation of Agent to Receive Notices of Claimed Infringement should be considered. One copyright infringement claim can destroy a small business.
7. Spam Policy - in light of the recently-enacted Can-Spam Act, it is essential to implement some sort of strict policy relating to the use of unsolicited email to promote the escort directory.
8. Copyright Registration - Once the directory is created, its graphics, images and text should be registered with the United States Copyright Office, to help protect copyrights to the fullest extent. Timing is important on this issue.
9. Avoiding criminal exposure - This is certainly the most complex area to address, and involves a variety of factors, such as proper use of disclaimers, image content restrictions, escort descriptions, linking policy, the terms of the Advertising Agreement, and the overall look and feel of the site. The Advertising Agreement will likely require any escort agencies to have in place a set of rules and regulations governing escort conduct to prohibit any illegal activity.
As always, the devil is in the details, and it is therefore critical to obtain a competent attorney's review of the entire website, along with the Advertising Agreement between the directory website and the escorts and/or agencies. Some financial relationships are more dangerous than others, from a liability standpoint. A healthy set of User Terms & Conditions can also help limit legal liability in connection with these business models. Conclusion
The growing popularity of online escort directories has not gone unnoticed by law enforcement officers, who have successfully intimidated other traditional escort advertisers out of the business. However, by implementing some simple protective measures, and paying attention to the legal details, potential exposure can be minimized. As with all areas of developing Internet law, legal precedent is far from being set. By taking a few common sense precautions, risks can be reduced to a more acceptable level. Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou & DeWitt, with offices in Orlando, Los Angeles, and San Diego. Mr. Walters represents clients involved in all aspects of adult media. Nothing in this article constitutes legal advice. Please contact your personal attorney with specific legal questions. Mr. Walters can be reached at Larry@LawrenceWalters.com, through his website: FirstAmendment.com or via AOL Screen Name: "Webattorney."
E.g. Ch. 796, Fla. Stat. (2003). Greater New Orleans Broadcasting Association, Inc. v. U.S, 527 U.S. 173, 119 S.Ct 1923, 144 L.Ed.2d 161 (1999). Id.
The courts used what is commonly referred to as the Central Hudson Test in determining whether governmental regulation of speech is valid. This Test involves an initial determination whether the product or service being advertised is legal, and if so, whether there is a significant governmental interest in regulating the activity, and finally a consideration of the "fit" between the goals sought to be achieved, and the methods used to accomplish those goals in the challenged regulation. Hudson Gas & Electric Corp v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).