Pornhub controversy raises issue of credit card payment processors and social credit

 

countryside in MD

Danny O’Brien and Rainey Reitman speak well when they write on Electronic Frontier Foundation, “Visa and Mastercard are trying to dictate what you can watch on Pornhub.”  Nicholas Kristof had written an expose about Pornhub in Canada in the New York Times. 

Right, credit card behemoths were not elected to be censors of what Americans can watch.  However, the finance industry as a whole has to worry about “know your customer” rules (and racketeering laws and the like, which have been mentioned as a possible way around Section 230 in some criminal cases). But payment processors have also come under social pressure especially from the progressive Left to deny banking services to villains in the culture wars over hate speech, as if they had a say on a customer’s “social credit” (like literally so in China). Paypal has been involved in this problem.  

Pornhub has recently removed a lot of videos where it is alleged underaged performers were used (which could invoke child pornography prosecution risks even for consumers if you take seriously the idea of strict liability, as used to be the case in some states like Arizona).

Pornhub may be offering “complete” endings for some tempting videos on YouTube that set up edgy situations and then stop.

Case of minor solicitation in Virginia raises questions about Facebook's moderation

 

Virginia Blue Ridge, Feb. 2020

The Richmond Times Dispatch reports on a conviction of a Pennsylvania man for making illicit proposals to a minor repeatedly on Facebook after temporarily moving to Virginia to live with a troubled relative.

What is remarkable is the volume of exchanges that went on undetected, despite Facebook’s claims of monitoring in various testimonies recently in Congress.

Section 230 would not protect Facebook from possible liability for illegal acts, including solicitations and child pornography as in this particular crime.

The man was sentenced to 35 years in prison, with 33 years suspended.

Virginia computer crime law has language regarding the "purpose" of an activity, which could raise issues with gratuitous publication. 

The town of Martinsville is in the southern Piedmont, near Danville.

Bizarre "underage" prosecution in UK rehearses a situation in one of my own short film screenplays

 

There was a bizarre case in the UK (NY Post story) where a woman (a mother) had met a young man on social media (Facebook) and then had intimate relations with him, believing he as 16, the age of consent in Britain. It turned out he was 14, and she was tried for a crime but acquitted.  Apparently in Britain, “knowingly” is part of the crime.  In many states in the US, you can be convicted even if you didn’t “know”.  And in a number of states (like California) the age of consent is still 18.

This is a bit ironic.  In early 2005, I had posted online an original screenplay of a short film “The Sub” where a substitute teacher winds up in that situation, and is tricked by the student, then arrested and jailed and dies in prison in surgery after a heart attack.  The plot had started when the sub had a cardiac arrest when subbing in gym class and the student had given him CPR.  (One year later, the schools started putting defib equipment in hallways).  The sub got out of that situation and went back to work and was tricked into a situation.

Young women mature earlier than men do (by about 18 months), so it is more likely that a man is charged with an underaged female.  But sometimes men mature earlier in their teens and look older than they are, setting up this kind of risk.

Of course, it is dangerous to trust information like this on social media.  The COPA trial in 2006-2007 in Philadelphia had looked at age verification software and the use of credit cards.  Of course, this may have advanced somewhat since then. (COPA is not the same as COPPA).

The screenplay is no longer available online (I do have the PDF’s), but it is a backstory of my feature film screenplay “Epiphany” set on a space station, with retrospects into the pasts of some characters. (The treatment is available with out the backstory details, the actual Final Draft document is not yet.) The screenplay was apparently found online through search engines and contributed to a bizarre incident when I was substitute teaching (details, main blog, July 27, 2007).  

Wall Street Journal has major article on minors and sexting

 

The Wall Street Journal has a surprising article in its Review section, by Amy E. Feldman, “For young people, sexting can be a crime”.

I have covered this problem several times over the years.  It’s interesting to see a major column on it in a weekend WSJ.   24% of children have had requests for legally inappropriate photos.  Many cases are prosecuted, and judges struggle to keep minor off s.o. lists according to the letter of state laws.

The can be problems for older teens, who are still (barely sometimes) under 18 but pretty much look just like adults. 

Lockdowns could conceivably revive the old question (fielded in COPA in 2007), is "gratuitous" self-broadcast a "fundamental right"?

 

On Sunday, Nov. 8, I did write a posting on my main “BillBoushka” blog regarding whether gratuitous websites or even social media channels could be forcibly closed (possibly forever) on the grounds that they encouraged “inessential activity” in an extreme coronavirus lockdown, which might be possible given the explosive epidemic (although the vaccine news is encouraging).

Again, the question comes up, is “self-broadcast” a fundamental right, embedded in the First Amendment?  There was some language in the 2007 COPA opinion (not COPPA) around page 51 or so that the judge in Philadelphia thought so.  But self-publishing (at low or sometimes almost no cost to the writer) became feasible in the late 1990s with the Internet as Web 1.0.  Before that, “getting published” was always thought of as elitist and a “big deal”.  We didn’t have it before.  So it might be hard to maintain this idea, if it came before the current Supreme Court somehow.

For what it matters to people right now, SCOTUS hears Obamacare today.  Protests? 

California state senator harassed by "Q" for introducing bill treating LGBTQ s.o. the same as straight (in terms of release)

 

Scott Wiener, a California state senator, writes in the New York Times that “Qanon” came after him for introducing a law in the California legislature allowing LGBTQ persons to come off sex offender registry under the same rules as straight persons, as he explains here.  

The bill was SB145.

The article describes the vile messages sent to him.

Arizona lawyer apparently claims that watching "Cuties" on your computer from Netflix streaming puts you in violation of many state c.p. laws

 

Robert Groler of the R-R Law Group, has a rather shocking video about the Netflix movie “Cuties”.

He analyzes one sequence (< 2 min) from the film that he says is on the YouTube channel of “GhostJim”.  I looked at that account and I don’t see it.

The film was released in France in August 2019 by BAC Films, a respectable distributor, and on Netflix in the United States on Wednesday September 9.

Groler practices law in Arizona and he examines the film from the viewpoint of Arizona law as to whether it would constitute child pornography.

He says other states are comparable, but Arizona in fact is one of the strictest in the nation.  In 2006, it prosecuted someone who claimed his computer was hacked after being singled out by Yahoo groups, at a time when possession for any reasons was viewed as a “strict liability” offense. (See my Internet Safety Tips blog, February 25, 2007, go through Blogger profile).

Groler goes through the items in the statute, highlighting them in red, and concludes that legally, even watching the film from Netflix on your computer might be legally dangerous, at least in Arizona.

Now when you play a Netflix film I doubt your hard drive caches the whole thing, there wouldn’t be enough room, even on modern SSD drives.  If it did, there could be a risk that a cloud backup could save it permanently.

So the claim seems a bit facetious.

But I certainly would not take screenshots from the sequence and keep them, even privately. In fact, by Groler’s reasonsing, playing the GhostJim excerpt (which is much smaller and might get cached) would sound riskier.  I wonder if YT took that clip down.

Netflix should blur out the legally questionable images if it wants to keep the film online.

The filmmaker Maimouna Doucoure and Netflix maintain that the film show immigrant culture (Somali) in France and Europe as it really is and that the public needs to understand this goes on. 

It should be noted that IMDB lists another film by that name about gay teens being murdered (horror), not available yet.  

The artwork picture is from Nevada (2012). 

A Note on COPA and "gratuitous speech" (looking back to 2007)

  

I don’t post on this blog real often because the issues it covers aren’t exactly the most critical in the media today, but I wanted to make a historical note, to open the month of October 2020, at least.

My original affidavit as a sub-plaintiff under Electronic Frontier Foundation, filed in Dec. 1998 (while I was living in Minneapolis) states, in point 3, that I wanted to “establish myself as a credible political and social commentator in the area of individual rights and responsibilities.”  Later it talks about “taking advantage of writing opportunities with major commercial publishers or even motion picture ventures.”

Recently, the last of these has appeared on the horizon as maybe becoming more significant (ironically, Covid is both good and bad in timing).

But the whole precept seems to presume a “fundamental right” to place free or “gratuitous” content on the public web and be indexed by search engines and be found anywhere in the world (except where blocked by an authoritarian government – and by the way – China does block “Blogger” but yet I have analytics from China;  it has never blocked doaskdotell (once, in 2013, I got an email about registering it under .cn) or my Wordpress sites). 

The more common understanding in the writing world (“Writers Digest”, etc) is you get paid to write what other people will pay for before you just state your own opinions about things for free. 

And there is also the issue of the legality of hidden political influence, viz. this earlier explanation of campaign finance reform in the early 2000's. 

The March 22, 2007 post here gives a link to the Opinion in Reid’s decision, and around page 51, Section 5, the opinion talked about the costs to speakers about providing credit card verification for free content, as if indeed such a fundamental right exists.

That could be an important idea in other problems today (like the desire to further erode Section 230, as FOSTA already has).

Even "competitive cheerleading" has an offender problem (with women)

 

I wasn’t aware of a world of “competitive cheerleading”, the USASF, but the group which monitors conduct of its members has overlooked 76 convicted sex offenders, a report in USA Today maintains. 

The blacklist, which has existed for maybe 3 decades now, really shows how lives can be ruined quickly.  But these apparently weren’t sacked completely enough.

A few "words to the wise", over several years

 

Here is a rather sobering article about how the FBI can “get around” TOR and plant, with warrants, malware to detect home users of child pornography.  The article goes back to January 2016, by Ellen Nakashima. 

There was a case in Georgia in April when a public school system’s Zoom call system (for virtual learning due to the pandemic) was hacked with child pornography, story on Fox5 in Atlanta.  

There was a case in South Carolina, in 2015 (apparently) where are soldier (tried under the UCMJ) was looking for adult pornography and downloaded folders that incidentally included some samples of c.p. which he “should have suspected” would be there, Sumter SC news story.   

At least one children’s hospital was hacked briefly in 2014 with c.p. images (Twitter story in Aug 2020). 

So this stuff still happens, and the pandemic could incentivize some of it.

Billionaire in S.D. was investigated for c.p. possession, but why?

 

 There is a disturbing report that the “richest man in South Dakota”, banker and philanthropist (including children’s charities), was under investigation by the state for possession of child pornography. No charges have been filed, but the United States Department of Justice may investigate further. Propublica has a story. What is disturbing is the lack of detail as to what led to the suspicion (other than some very superficial observations about behaviors).

Argus Leader says that an “electronic device” owner by the man has been under suspicion.  It would be possible to wonder if hacking could have occurred. 

Embedded picture from Wikipedia, bridge in Wind Cave National Park, click for attribution.

Major guide for child Internet safety updated and published

 

I got an email about a posting on my main blog Oct 3, 2010 on child Internet safety, about a suggested link. I added it as a comment there, but I thought it should have a posting on this blog.

It comes from Nicole Frank of Online Safety Masters, and she describes an “awesome guide” for protecting children online even now, with 10 more years of social media (and Russia and Trump).

It is called "The Ultimate Parent Guide for Protecting Your Child on the Internet" (updated Aug 2020), or "How to Keep Your Kid Safe". 

The author of the guide is Ariel Hochstadt.

It talks about addition topics like smart TV’s, and does discuss the old COPA issue of filters.

It also covers topics like gaming, bullying and screen time.  It is quite well illustrated.

Odd site reported in Ohio creates controversy as Facebook doesn't take its page down despite FOSTA

There is a rather disturbing story about a Facebook page called “Cute Boys” which would appear connected to stuff that is rather illegal (FOSTA. Etc).  Ross Madison writes for the Scioto County Daily News.

A Facebook friend (conservative) tried to report it and was told she should just block it.

Major bust of MS13 for trafficking said to provide safety for lawful immigrants in DMV

The US Department of Justice has announced arrest and charges of 11 MS-13 gang members for abduction, prostitution and trafficking of 13-year-old girl, as in a WUS9 story.   WJLA also reported it tonight.

  

The US Attorney in the Alexandria courthouse said that the group posed an existential danger to other lawful immigrants living in northern Virginia and that the action as definitely pro-immigrant. It was not reported if FOSTA is involved (good chance it is).

Bizarre MD murder case(s) from 2008 show how c.p. can be connected to national security threats

I just wanted to cite a couple of links about some unsolved crimes in the past and let the visitor draw their own conclusion.

Murderpedia has a writeup of Jason Thomas Scott, who terrorized mainly Prince Georges County MD (maybe other locations) from (probably) 2007 until 2009, and now serves a 100+ year sentence. He had at least one accomplice.  He seemed to be particularly cunning for the sake of pure deliberate evil. And among other things he did child pornography. (There is a blog post of a Dateline episode about him on Jan 24, 2015 on the TV blog).

The other case is a pair of bizarre unsolved murders of national security technicians, Kanika Powell and Sean Green, in Aug. 2008 and Nov. 2008,  There are a lot of disturbing details in True Noir and True Crime Daily, with conceivable links, if you follow them, to North Korea (more than a decade ago), with perhaps sinister implications. It’s speculative but it is still puzzling that neither ABC 20-20 nor NBC Dateline or CBS 48 Hours has done a full investigation on this one.  There existed a nonsense blog with jibberish about Powell that I stumbled across in early September 2008 (before the financial crisis, if that matters), and it was still up after Obama's election in November, even though Google was generally removing stuff like that then.  It's probably not there now. But that was indeed odd. 

So sometimes “bad associations” really can matter.

Flight attendant caught in lawsuit when she gets overzealous about suspicion of trafficking

Elizabeth Nolan Brown has a seemingly bizarre story (in Reason) about an American Airlines flight attendant, and a black social worker transporting a white child.

The flight attendant apparently took this as a “see something, say something” moment and tried to follow up as possible sex trafficking, which sounds ridiculous on its face.

But that is the climate that FOSTA-SESTA has created, linking all prostitution to trafficking.

France seems ready to pass its version of COPA

The French parliament has passed a law requiring all pornographic websites to require age filters for access, to prevent minors from seeing it.  Timothy B. Lee provides an article on Arstechnica.

The law is reminiscent of the US COPA law, which was overturned in March 2007, as documented here previously.

 Update: July 27  TLDR News EU has a newer video discussing the law. 
  

Picture: Toulouse town square, I was there in May 2001 (Wikipedia, embed, click for attribution) 

What is the "TVPRA"?

I’ll be reviewing Jeff Koseff’s “The Twenty Six Words that Created the Internet” very soon (on Wordpress), but I wanted to note here his mention of the Federal Trafficking Victims Reauthorization Act (TVPRA) on p. 256 and 270 (also named after William Wilberforce), text.   

There are special ways it applies to the children of immigrants on the border (link).

It appears to have been passed first in 2005 and revised in 2008 and 2018.  The video embedded above comes from 2014.

Section 230 always allowed federal prosecutions against platforms that broke federal laws or which knowingly allowed users to do so (mainly with regard to child pornography and mandatory reporting to National Center for Missing and Exploited Children in Alexandria, VA), it had blocked civil lawsuits from victims, but FOSTA now explicitly allows these lawsuits.  Furthermore, the language of FOSTA was enlarged to include all commercial prostitution, with attendant exposure to civil liability (which can also include exposure under state laws).

That’s one reason why Craigslist and various other sites stopped various personals services, because it seemed so subjective what “knowing” means (like in the 2009 sci-fi movie about a coming apocalypse).

Decorative Picture: Along US 301 in MD, no specific significance 

Web hosts and tech companies still have COPA language in their AUP's

I just noticed something, probably innocuous, in some hosting companies’ AUP’s (acceptable use policies). The policies explicitly use the term providing content that is “harmful to minors” (sometimes meant to apply to a commercial context).

That language is a holdover from the old COPA law (Child Online Protection Act), as distinguished from the more recently (but pre-COVID) controversial COPPA (Children’s Online Privacy Protection Act). Both passed in 1998. But COPA was finally struck down in March 2007 in a Philadelphia federal court, after two previous visits to the Supreme Court.  However, many tech companies are probably unaware of this history in this kind of detail.

Can convicted SO's ever use the Internet again? Yes

I don’t recall that I have talked about it here, but it had been the practice in the past that convicted sex offenders, when released conditionally (sometimes into restricted neighborhoods or halfway arrangements) were not allowed to possess computers, electronic devices, or access the Internet, for example the US Courts link on the issue.

In June 2017 (after Trump was in office) the Supreme Court ruled that states cannot unreasonably stop released sex offenders (at least after serving sentences) from using social media (USA Today story), like by restricting any site that allows minors to access it.

The ruling seems to make the whole scandal of Hillary Clinton’s emails and Anthony Weiner right before the 2016 election (Comey’s Friday afternoon letter) seem a bit ironic. It is, for me, retrospectively relevant to an incident in 2005 when a fictitious screenplay I had posted online (about a substitute teacher who gets into trouble with a student, and the circumstances are intentionally ambiguous) surfaced and caused an enormous controversy at one school, as apparently people thought another permanent teacher there had followed the script.

The case was Packingham v. North Carolina, and had to do with getting onto Facebook to talk about a parking ticket. 

Note in the video ("We Are the Internet TV") how the "News Gathering privilege" on the Internet is combined with the idea that anyone can be a news gatherer (an ideas that seems to be expressed toward the end of the 2007 COPA opinion.) 

Picture: UNC campus, April 2015

Don't forget about the "Protect Kids" bill in Congress, that would raise the age floor to 16

Alyson Klein had written, back in January 2020 (just before we got overwhelmed by “public health”) that the age floor for COPPA could be increased from 13 to 16 by a bipartisan bill introduced in Congress.

This would have been the Protect Kids Act, PDF here. The long title is "Preventing Real Online Threats Endangering Children Today". 

Sophos, also known as a web security platform (Webroot), notes that kids under 16 would enjoy a European style “right to be forgotten”.

Generally in my own blogs I haven’t mentioned minors in a negative light; the main mention are for minors that do accomplish things (music, science, etc) while still minors.

The current Wikipedia article on COPPA does not mention any progress in Congress.  There are some videos about the issue as late as early March (when COVID was really getting menacing.)

It's not just FOSTA, now coronavirus targets sex workers and they are not eligible for anything

The Federal Disaster Loans for Business, Private non-Profits, and Homeowners and Renters  has wording to eliminate sex workers. 

“Applicant does not present live performances of a prurient sexual nature or derive directly or indirectly more than de minimis gross revenue through the sale of products or services, or the presentation of any depictions or displays, of a prurient sexual nature.”

   

Anybody remember FOSTA? Remember it is the intersectional minorities who get targeted the most. 

"Earn It" proposed law would require pro-activity by platforms to protect children to keep Section 230 protections

In a recent video, Richard Hoeg (“Hoeg Law” or “Virtual Legality”) read and analyzed the entire text of the “Earn It” bill written in part by Senator Lindsey Graham, which implies that to maintain the downstream liability protections of Section 230, platforms would have to “earn it” by following “best practices” of a commission whose prescriptions would be unknown in advance logically.

The bill is essentially like a recursive function in mathematics.

  

One of the main points of the bill is to require platforms to attempt to prevent child exploitation or endangerment (including the pornography) on their platforms.   This reminds me of the expectations of COPA back in 1998. 

  

At 35:00 in the video Hoeg discusses U.S.C. 2252 and 2252A and at 45:00 2258, as particularly relevant to downstream liability exposure in the environment that could be created by this proposed law.

COPA decision back in 2007 had expressed a view that many people think websites should sell and act rather than just talk

I wanted to take a moment to revisit the COPA Court Decision from Philadelphia in March 2007, in the March 22 post.  I had visited the trial for one day as a sub-plaintiff on Oct. 30, 2006. 

    

On pages 51-52 of the Opinion (linked in the earlier post), Reed discusses the idea that websites, as a matter of course, should be expected to be able to process credit cards as a manner of age verification (which was at one time a proposed requirement of COPA – don’t confuse it with COPPA). 

   

That does presume a mentality that I discussed on a Wordpress blog Sunday, that in the future sites might be expected to have a legitimate commercial (or non-profit) purpose to be hosted.  It seems as this concept had been thought about back in the middle 2000’s even if not discussed much.

Teachers and school employees are indeed vulnerable to false or made-up allegations

I don’t think I’ve talked about false accusations against teachers and school employees before, but it not surprising that in practice it seems like it is “guilty until proven innocent”.

Here is a National Education Association page on the problem (2008) called “Defend Yourself”. 

  

Here is a more recent piece, by Neal Davis Law Firm, from 2018.  

Expulsion of Saudi trainees from Pensacola air station connected to c.p. possession

David Shortell and Evan Perez of CNN report on the expulsion of more than a dozen Saudi-immigrant sailors at the Pensacola Naval Station.

Social media examination has shown association with jihadist organizations overseas, but also child porn was found on some of their computers.  This seems to have been a particularly disturbing find. It is also inconsistent with our understanding of the usual interpretations of religious law under Sunni Islam.

Apple has not been willing to provide decryption for the FBI to look at remains of cell phones, as Tim Cook says this would be a form of “cancer” for civil liberties and privacy.

  

The examination followed a shooting by one sailor in December 2019.  This tracks to the usual idea that violent crime or terror often includes an interest in c.p.
     
 I visited Pensacola in November 1998, and actually went to the Brownsville Assembly of God and witnessed "slaying in the spirit".

What if someone sends you a marginally (il)legal photo "privately" on social media? Maybe this really gets legally tricky

Recently an older article from Forbes, from 2014, about John Grisham, crime thriller novelist (“The Firm”), was recirculated on Twitter. The article indicated that many older men convicted of possession of child pornography, apparently with honey pot stings online (likely P2P), have never personally disturbed children and would not, and are often 60 years old or more (and usually white).  So this is a crime of bad karma, where the sin is said to be the demand (like with drugs).

It’s true that most cases that make the local media involve people found to have large “collections” after police get warrants.

New Years morning, I received a private Facebook message with a photo from “Happy Nude Year”, probably as a joke.  The photo showed young men, in full frontal nudity, which would have been illegal (under federal law in the US) if any nudity occurred on anyone under eighteen at the time of photography.  I saved it offline on a USB thumb drive but not on the computer.  Trend Micro did not object to the JPG file.  Theoretically, a hidden impression could still exist on the solid state drive.
   

It is generally considered “safe” to view adult porn sites if from lawfully operated content providers who are required to verify ages of all actors (as at least 18) if in the US, Canada, or most other western countries.  Likewise, bars and discos, with age admission restriction policy related to alcohol consumption anyway, can normally show nude videos safety as long as the films come from reputable providers who obey these laws.

I would be less sure about a random photo provider, when a Google search did not identify any particular source.

A possibly noteworthy oddity about the photo was that none of the men (all white) showed chest hair, which statistically implies that some of them were likely under 18 unless all had been waxed or otherwise depilated.  It that the hidden and ironic point of a photo like this?  This gets quickly to sensitive stuff about race and identity and the law.

I would suspect that eventually cloud providers will check for watermarked images, whose NCMEC count has increased because of recent international busts (some connected to trafficking).  But the risk could be that some Internet users could get “infected” without realizing it.  A coming problem?  
      

This deserves further checking.

Facebook ordinarily does not permit even adult nudity on public posts (except for special purposes like medical or breast-feeding). 

       

For this post, I picked a picture with no people.