House bans misleading domains

[pam]

" Of course, I have no idea of how the law will be prosecuted but this just seems like a common sense approach."

When I considered going to law school, I sat down and spoke with the dean, who asked me why I wanted to be an attorney. After giving my little rehearsed speech, I ended it with "to me, a lot of the law is common sense, and I like to think I have a lot of common sense."

Her snotty response:

"My dear if you want a job where you apply common sense, there is a Burger King down the street. The law uses anything but common sense."

It stung, I remembered it, and I think (25 years later) that it's bullshit . If more people thought like you, Ari, and used common sense approaches toward the law, we'd be a lot better off.

Pam
(who will spend this weekend putting up a second warning page on every single adult website she has)

[diverge]

Originally posted by Ari Goldberger
Here's what the ACLU said about this in a letter to the Senate concerning the then pending bill...

...the additional problem is that it now becomes even easier for both children and adults to find sexually explicit material on the Internet. All they need do is search for domain names with "porn" or "sex" in the title.

Who do they think they are kidding. Can it be any EASIER to find porn on the Internet? If that's the best argument the ACLU can come up with, they should go back to defending man-boy-loving-child-killers.

"Before this law, I used to look ALL WEEKEND for porn on the Internet, and I couldn't find it ANYWHERE. Now that all porn sites have the word 'SEX' in them, finding porn is SO MUCH EASIER."

Whatever.

[Ari Goldberger]

>Who do they think they are kidding. Can it be any EASIER to find >porn on the Internet?

I agree that was a stupid point made the ACLU. Anyone can just put "porn" or "Sex" in a search engine and find whatever they want...

The strongest argument is the vagueness of the term "misleading domain."

They could have made the law very simple by just requiring a warning page.

[jberryhill]

"The strongest argument is the vagueness of the term "misleading domain." "

I don't know. It's a question of fact like, say, a misleading advertisement. There also has to be an intent to mislead. A jury could handle that.

There are all sorts of crimes - fraud, conspiracy, assault, criminal solicitation - that can be committed using just words... coupled with the right kind of intent.

As far as the "visual depictions of sexually explicit conduct" goes, that does not have to run aground on the rocks of the undefinability of obscenity in the jurisprudence of porn, because the statute seeks not to ban such material. So, it is not a question of what kind of speech is to be banned or not to be banned. Instead, the statute is getting at the activity of using some kind of fraudulent inducement to get people to do something they (presumably) didn't want to do.

Getting back to the example of things like "thetoystore" for an "adult toy" store, it is pretty clear that the requisite intent is not there, and I believe a jury would understand that.

[Ari Goldberger]

>I don't know. It's a question of fact like, say, a misleading advertisement. There also has to be an intent to mislead. A jury could handle that.

John. I agree with you that there must be an intent to deceive. The problem with the vagueness of "misleading domain" is that allows for a lot of prosecutorial discretion.

The law really could have left out the "misleading domain" part. I agree there's no intent to deceive if you use the domain <hotsex.com>. The question is whether <babes.com> necessarily suggests a sex cite -- or <playmates.com> for that matter. ;-)

Under the law, I believe you could use toys.com (an arguably misleading domain) for a sex toys site, provided you have a warning page.. However, the warning page clears up the whole "intent to deceive" issue anyway -- making the "misleading domain" part irrelevant.

So, regardless of whether or not this has 1st amendment problems, I think the key thing for adult webmasters to focus on is the "intent to deceive" part. Put up a warning page and you aren't being deceptive. You can only be 100% safe without a warning page if your domain has "Sex" or "porn" in it, or perhaps some other dirty word.

Agree?

[pam]

I do, but I don't count

:razz:

Seriously -- and I *do* have one of those toy stores with a name that could be construed as misleading -- I've always had 2 warning pages on it, so there is no 'intention to decieive' in any way, shape or form.

I'm surprised whitehouse.com hasn't been taken down -- no warning page, clear sex right there on page 1, and I'm sure kids doing homework on government would think of that domain to search for information before hitting the search engines.

What about domains that mislead surfers by placing themselves in search engines for non-adult products? I can't tell you how often I search for 'normal' things in Google and the first 20 listings end up being hot porn sites.

I still say you need to make it mandatory to use sex or porn in the TLD --- i.e. domainname.sexcom, domainnaim.sexnet, etc --- you can put 'sex' before any TLD so no one has to make changes to their original URL -- then develop software to block kids (parents can use it) from visiting any dot sex dot something domain

[HOWARD]

I wouldn't be surprised if WHITEHOUSE.COM is not the first test case under this new law. I agee that "intent to deceive" is the key phrase to be used in conjunction with "misleading domain". Thus, if there is no warning page coming up first, it will probably be ruled PRIMA FACIE evidence of intent to deceive. The registrant of WHITEHOUSE.COM and other "obviously" misleading domains will be hard pressed to negate the PRIMA FACIE evidence that there was NO intent to deceive.

[Ari Goldberger]

Whitehouse.com has a warning page now.

http://www.whitehouse.com/

[pam]

Now if they were just in compliance with 18 USC 2257 and not in violation of Federal law, things would look good for them



PS: Funny how the first week of the new law they didn't bother to put up the warning page ...

[jberryhill]

"Funny how the first week of the new law they didn't bother to put up the warning page ..."

Must be their lazy lawyer.....

(heh, that would be Ari FYI)

"the key thing for adult webmasters to focus on is the "intent to deceive" part."

Absolutely. The road to porn must be paved with good intentions... or something like that.

[DaddyHalbucks]

Would any legal eagles here care to post a public domain Warning Page template that can be freely copied by DNFers?

No smart remarks, JB!

[pam]

OOOH good question!!

I am in the middle of designing one for my adult sites, a third warning page -- stating the new law, stating I have no intention of misleading or deceiving anyone, and stating that if you're here, you know damned well it's an adult site and if not, click below to get out!

Gee, maybe Ari or John needs to visit some of my adult sites, purely for educational purposes, of course

[Ari Goldberger]

>"Funny how the first week of the new law they didn't bother to >put up the warning page ..."

>Must be their lazy lawyer.....

>(heh, that would be Ari FYI)

While I do not deny being lazy, I am not on a regular retainer with this party; I cannot verify when their page was updated; I warned numerous parties of the pending law before it was even enacted; and have recommended warning pages and clarifications to ambiguous non-sex-sounding names that go to porn sites since before the bill was even presented.

[pam]

But but but .. even if you WERE on retainer, you can't make them add a warning page, you can only advise them and they pay for it, correct?

I don't think lazy is the word, I'd say the webmaster is just a moron

:razz:

PS: You going to do that template for us? Pretty please? Pretty please with sugar on top?

[Ari Goldberger]

I would only provide such a template on an individualized basis.

[jberryhill]

I was only kidding, Ari. I'm still looking for a way to get even for April 1st.

Folks, you should know that you do NOT want to be on Ari's April Fool prank list, though.

The problem with an "all purpose legal instrument" of the type often requested here is that inevitably someone will end up using it in an inappropriate way, have a problem, and then blame the author of the template for causing the problem.

And, one of the problems of being a lawyer is that lawyers are not able to limit their malpractice liability, which is sobering enough even when they are getting paid.

[Ari Goldberger]

>I was only kidding, Ari. I'm still looking for a way to get even for April 1st.

No fair! You have to wait until next year! ... Alright, I'll take it as a down payment... but I'm leaving town on April 1st next year. I got lucky and know I'm no match for you.

[DaddyHalbucks]

How do you lawyers like my Warning statement here==>

http://www.tandoor.net

[jberryhill]

I'm confused. I was looking to buy a tan door...

[DaddyHalbucks]

LOL. I knew that you lawyer types could get easily confused, that why I wanted to make sure that the women's mammary glands and their genitals were clearly labelled as "SEX." I'd hate to have them mistaken as cherry pie! Or, a tan door!