March 26, 2007
Introduction
In October 2005, I prepared an in-depth look at the dial-a-porn problem that exploded on the scene in the 1980s – with the hope that by recalling the mistakes our nation made in trying to curb dial-a-porn, we wouldn’t repeat those mistakes with cell phone pornography. This is a much shorter version of that in-depth article (a copy of which is available upon request).
As reported in the N.Y. Times [“Ring Tones, Cameras, Now This: Sex Is Latest Cellphone Feature,” 9/17/05], “With the advent of advanced cellular networks that deliver full-motion video from the Internet – and the latest wave of phones featuring larger screens with bright color – the pornography industry is eyeing the cell phone…as a lucrative new vehicle for distribution.”
Beginning & rapid growth of dial-a-porn
According to an article in the N.Y. Native (“The Business of Phone Sex,” 10/24/83), dial-a-porn first appeared “in its commercial form” in 1981 when staffers at the porn magazine High Society put “sexual messages on answering machines in their office, as a free readers’ service-cum-circulation booster. The response was overwhelming.” Soon after, High Society won “divested dial-it lines in a public lottery,” enabling the magazine to take in 800,000 calls a day. What started as a “whimsical notion…rapidly turned into a phenomenal moneymaker.”
According to an article in DM News (“Dial-Porn Firms Come Under…Regulation by the FCC,” 5/15/87), Eugene Kordahl, president of National Telephone Telemarketing, estimated that dial-a-porn had become a “$2.4 billion annual business in the United States, and it’s growing.’” He also said that “approximately 11,750 agencies” were involved in phone sex.
Children & dial-a-porn
What made “dial-a-porn” so horrific was the ability of any child old enough to dial a telephone to access countless dial-a-porn numbers without proof of age or pre-payment. Calls were automatically billed to phone numbers. Here are excerpts from just four of many articles showing how easy it was for children to access dial-a-porn and the harms that resulted:
“Angry North Andover parents, whose kids have been running up huge telephone bills calling a New York City sex tape, are demanding that the government step in…‘I think its disgusting,’ said [name omitted], a mother of four who is organizing the smut talk protest…‘I confronted the kids and they admitted making the calls…First my 12-year-old daughter called, then her brother and sister, who are 8 and 10, called; then the neighborhood kids came over and called.’” [“Parents stuck with phone bill from smut talk service,” Boston Herald American, 11/15/83]
“Those people and more than 25,000 others have let the Federal Communications Commission know what to think about telephone sex services, known generally as ‘dial-a-porn,’ which allows callers to listen to women simulating sex. The Commission asked for public comment last December, but no one at the agency predicted the deluge of mail received in response. The letters…come from all parts of country…Most are written by mothers…” [“Many Demanding Curb On Phone Pornography,” N.Y. Times, 5/19/84]
[Father’s name omitted] 15-year-old son hid the phone bill when it arrived, so [the father] did not see it until the phone was shut off – for non-payment of $5,312 for calls to a 976 number that offered sexually explicit conversation…‘He got hooked,’ [the father] said, ‘He just got so that he couldn’t keep from calling,’ said [the father’s sister].” [“Regulators Answer Protests of Huge 976 Phone Charges,” L.A. Times, 9/28/87]
“A $10 million lawsuit was filed against Pacific Bell by a family of a 12-year-old boy accused of molesting a 4-year-old girl after he listened to sexual messages on a ‘976’ number…The incident occurred about two weeks after the son and two older boys spent a long session at a Hayward church listening to ‘dial-a-porn’ messages, his father said. The boys had gone there to clean up after a church supper.” [“$10 Million ‘Dial-A-Porn’ Suit,” San Francisco Chronicle, 10/15/87]
Adults & dial-a-porn
But it wasn’t just children. Here are excerpts from just four of many articles showing how adults were also adversely affected by dial-a-porn:
As reported in the L.A. Daily News (“Man sentenced in phone sex case,” 10/3/87), “A man who ran up nearly $38,000 in phone-sex bills has been ordered to spend 180 days in a psychiatric hospital and repay the money he embezzled…to support his habit.”
As reported in the N.Y. Daily News (“Beyond the Valley of the Dials,” 5/17/91), “The 34-year-old salesman spent $10,000 a year on [pornographic] lines for nine years…‘I’d go on binges…I’d call as often as 20 times a night’…His compulsive calls to fantasy girls ‘really hampered my social skills and ability to become intimate. I was looking for sex in a way that really wasn’t healthy – paying a woman on the phone, while looking at centerfolds from porno magazines’…[N]ow a member of Sex Addicts Anonymous, he admitted that constant use of the lines led him to ‘think of women as sex objects…’”
As reported in the N.Y. Post [“Gambinos in $200 million phone-sex rip-off: feds,” 2/10/04], “The Gambino family raked in nearly half a billion dollars ripping users of phone-sex lines and Internet porn sites, the feds charged yesterday. A new indictment charges Richard Martino and a white collar cohort with roping millions of victims into a $200 million fraud scheme by advertising ‘free samples’ of adult entertainment services – such as phone sex…Once the customers had placed a call to one of the [“free”] 800 numbers, a monthly $40 fee would automatically be added to their telephone bills…”
As reported in the N.Y. Daily News (“Now it’s hot(sex) line,” 5/20/05), “Got an arson tip? …Well, don’t call the FDNY hotline (800) FIRE-TIPS. The crucial number was mistakenly cancelled by bungling bureaucrats – and the easy-to-remember digits are now in the hands of a phone sex company…[Name of company omitted] has a history of picking up recently cancelled numbers an redirecting them to phone sex lines.”
Legal efforts to control dial-a-porn
Obscene communications
The dial-a-porn industry could have been “nipped in the bud” in the early 1980s had it not been for the Federal Communications Commission. In early 1984, the FCC ruled that a federal criminal law [47 USC 223], which on its face clearly applied to obscene commercial phone calls between consenting parties, only prohibited harassment type calls.
In 1988, Congress finally enacted a law that prohibited obscene phone calls regardless of their nature. The Supreme Court upheld the law in 1989, but to my knowledge, this law has never been enforced by the U.S. Justice Department, despite the fact that dial-a-porn is still marketed in pornographic and mainstream publications and on TV and the Internet.
In partial defense of the Justice Department, by 1989 the Department was focused on curbing distribution of obscene materials through the mails and in “adult businesses;” and in the 1990s, the Internet grabbed the attention of both the pornographers and children.
Indecent communications
Between 1983 and 1989 Congress amended 47 USC 223 on three different occasions for the purpose of restricting minors’ access to indecent dial-a-porn communications. On several occasions between 1984 and 1990, the FCC also issued a Report and Order for the purpose of restricting minor’s access to indecent dial-a-porn messages. It was not until 1991, however, that two U.S. Court of Appeals upheld both the statutory prohibition in 47 USC 223(b) on providing indecent communications to minors and the accompanying FCC regulations.
Section 223(b) prohibits the making, by mean of telephone, of any indecent communication for commercial purposes that isavailable to a person under 18. Message providers have a defense if they (1) require payment by credit card before messages are transmitted or (2) require an authorized access code before messages are transmitted or (3) scramble the message so that it is comprehensible only to one using a descrambler.
To my knowledge, the FCC never enforced 223(b) after the courts upheld it in 1991. In partial defense of the FCC, most providers complied with the law once it was upheld.
Common carrier responsibilities
Telephone common carriers have a general obligation to hold out their services to the public on a first-come, first-served basis without regard to content. There is an exception to this general obligation, however, which is that carriers are permitted to deny the use of their facilities for an illegal purpose. Transmitting obscene material by means of the telephone is illegal. Making indecent commercial communications available to children is also illegal.
According to the FCC, however, if a carrier denies service to a provider that the carrier reasonably believes is violating the dial-a-porn law, without first having a court or federal agency determine that the messages are in fact unlawful, the carrier can be liable if the messages are later determined to be lawful. The FCC has also determined that unless a carrier has actual notice that communications have been “adjudicated” obscene (or otherwise illegal), the carrier is not responsible for carrying the communications. As a result of these two FCC determinations, telephone common carriers adopted a hear no evil, see no evil, think no evil policy towards dial-a-porn, even when citizens brought probable violations of 47 USC 223(b) to their attention.
Telephone common carriers also “played fast and loose” with their obligations under 47 USC 223(c). Subsection 223(c) requires carriers that collect charges for dial-a-porn services through phone bills to block access to indecent communications from the telephones of subscribers who have not previously requested access in writing. Section 223(c), however, also permits a carrier to act “in good faith reliance upon” the message provider’s failure to inform the carrier that it provides indecent messages; and many providers of indecent messages didn’t and still don’t inform the carriers. Carriers have failed to block access to content even when they knew or should have known that they were collecting charges for dial-a-porn services.
In partial defense of telephone companies, it is a “safe bet” that had these companies been given a choice in 1981 as to whether they wanted to carry dial-a-porn, every company in the United States would have responded with a resounding, “NO!” The companies were forced to provide service to dial-a-porn providers by the FCC and state public service commissions.
Lessons from the heyday of ‘dial-a-porn’
Phone porn can compete with other types of porn
Who would have thought that people would spend billions of dollars to listen to pornographic sex on the telephone – especially at a time when sources for pornographic magazines, videos and cable channels were proliferating? But they did! And they will do so again to an even greater extent with cell phone porn because:
Cell phones combine voice with visual images and bigger screens are on the way
Cell phones, unlike traditional phones, can be taken and used almost everywhere
Cell phones, unlike laptops, are convenient to take and use almost everywhere
Cell phones provide access to both “phone porn” and computer porn
Phone porn is not harmless
In 1985, with sponsorship of the U.S. Justice Department, Dr. Victor B. Cline, a psychotherapist and University professor, was commissioned to conduct a pilot field study on the effects of dial-a-porn on children and on their parents. Here are some of his observations:
“With every one of the children we studied, we found an ‘addiction-effect.’ In every case, without exception, the children (girls as well as boys) became hooked on this sex by phone and kept going back for more and still more. None of them ceased until found out…Disclosure usually occurred when the parents received an enormous phone bill…I found nearly all the children had clear memories of…content of calls they heard, even when there was a time lag of one or two years. I also found that, almost without exception, the children felt guilty, embarrassed or ashamed… In nearly all cases, there were problems generated in the parent-child and family relationships…I have also interviewed some children, where as a result of hearing Dial-A-Porn, they engaged in sexual assaults with other children…” [From “Pornography’s Effects on Adults & Children,” pages 10-11, Morality in Media, Inc., 2001 edition]
Dial-a-porn also adversely affects adults in a various ways. In particular, sexual addiction can lead to indebtedness, loss of employment, divorce and sexual crimes.
Parents alone won’t protect children from phone porn
What made “dial-a-porn” so accessible to children was the ability to access these services from a home or work or other phone, without any need to provide proof of age and without any need to “pay up front.” Dial-a-porn charges were usually billed to a customer’s phone bill.
Presumably, therefore, to the extent that telephone companies enabled parents to block access to dial-a-porn services, children should have been protected. But they weren’t. In Dial Information Services v. Thornburgh, 938 F.2d 1535 (1991), cert. den., 502 U.S. 1072 (1992) , the Second Circuit Court of Appeals observed:
It seems to us that voluntary blocking would not even come close to eliminating as much access of children to dial-a-porn…as would the pre-subscription requirement…Blocking has been available for over two years in the New York area, but only 4% of the 4.6 million residential telephone lines in the area having access to the 970 prefix assigned by the telephone company for adult messages have been blocked…Even if voluntary blocking is assumed to be the least restrictive means…it is…not an effective means.”
Parental use of blocking is, of course, part of the solution. But for a variety of reasons, including the cost of blocking and parental ignorance, naiveté and indifference, many parents don’t use it. Furthermore, children can access telephones outside the home; and dial-a-porn services figured out how to avoid blocking by going overseas and by using 800 numbers.
U.S. shouldn’t fight phone porn with one hand tied behind its back
Had the FCC in 1984 correctly interpreted 47 U.S.C. 223 as applying to any obscene communication, irrespective of whether there was an intent to harass or abuse, the “dial-a-porn” problem might have been “nipped in the bud.” U.S. Attorney Brent Ward in Utah was ready to enforce the federal obscenity laws against the New York City enterprise that launched dial-a-porn, and had he been permitted to do so, it is highly unlikely that so many other pornographers would have been pounding at the door to provide even more smut by phone.
Phone companies shouldn’t be aiding & abetting phone porn crime
On the whole, we can be thankful that telephone common carriers cannot refuse service because management doesn’t like a message provider or disapproves of the messages. On the other hand, it is foolish for the FCC to say to a carrier that while it is not required to provide service to a criminal enterprise – e.g., drugs, fraud, gambling, obscenity, prostitution, terrorism, or trafficking in women – the carrier will be held liable if it mistakenly denies service.
At bare minimum, if a telephone common carrier makes a good faith (reasonable) judgment that a content provider is violating the law and terminates service, it should be immune from liability. On the other hand, if a carrier is obligated [as in 47 USC 223(c)] to restrict access to a prohibited communication and it fails to do so even when it knows or has reason to know that it is providing access in violation of law, that carrier should be held accountable.
Recommendations for curbing cell phone pornography
Enforce federal obscenity laws
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court stated: “This much has categorically been decided by the Court that obscene material is unprotected by the First Amendment.” [413 U.S. at 23]
The Justice Department has also indicated that enforcement of federal obscenity laws is a “priority.” If this is true, then enforcement of federal obscenity laws [e.g., 18 USC 1462 & 1465 and 47 USC 223(d)(1)] against persons that distribute obscene materials by means of cell phones (or that provide obscenity for distribution by means of cell phones) can’t begin too soon.
In some cases, federal obscenity laws [e.g., 18 USC 1464 & 1465 and 47 USC 223(d)(2)] can also be enforced against cell phone carriers. To their credit, however, the major U. S. cell phone carriers are not providing pornographic content on their own systems. Nor to date have they entered into business deals to promote or provide Internet pornography.
One federal Internet obscenity law in particular merits special comment. Title 47, United States Code, Subsection 223(d) reads as follows:
(d) Sending or displaying offensive material to persons under 18. Whoever—
(1) in interstate or foreign communications knowingly—
(A)…
(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that is obscene or child pornography, regardless of whether the user of such service placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined…or imprisoned…or both. [Italics added by author]
One advantage of using Section 223(d)(2) is that in Pinkus v. United States, 436 U.S. 293, at 298 (1978), the Supreme Court indicated that children can be included in determining community standards if there is “evidence that…petitioner had reason to know children were likely to receive the materials.” [Italics added by author]
Most commercial websites that peddle hardcore pornography display free “teasers” that any child can view free of charge and without restriction. Many if not most of these websites also promote hardcore pornography in a manner (manners) that is (are) likely to draw children to the site (e.g., by using porn spam, misleading domain names, etc.). Evidence also abounds that children are inadvertently or purposefully accessing Internet pornography in large numbers.
Make cell phone carriers that provide billing services liable for unlawful content
What made “dial-a-porn” so horrific, as far as children were concerned, was the ability of any child old enough to dial a telephone to access thousands of dial-a-porn numbers without any need for proof of age or pre-payment. Calls were automatically billed to phone numbers.
One way for Congress to address this problem is to repeal or preempt any law (federal, state or local) that requires cell phone carriers to provide billing services for commercial vendors and to make carriers that choose to provide billing services liable for content they know or should know is obscene or in violation of any other law.
Require cell phone carriers that provide billing services to block access to indecent content
Cell phone carriers that provide billing services for vendors should also be required to block access to content that the companies know or should know is indecent, unless an adult first requests access to such content. Content providers should be required by law to inform carriers if they intend to provide indecent content, but carriers should not be let off the hook simply because a content provider fails to inform the carrier that it is providing indecent content.
Protect cell phone carriers that do not want to aid and abet crime
Cell phone carriers are private, for profit corporations, not agencies of the government; and a good case can be made that not only should these companies not be required to carry illegal obscenity, they should be criminally liable if they “knowingly” do so.
As it is, the FCC tells common carriers that while they are not required to carry obscene or other illegal communications, they will be liable if they mistakenly deny service. The result is that common carriers rarely if ever exercise their “right” not to carry illegal obscenity, to the detriment of society. If the FCC won’t change this foolish rule, Congress should.
Require providers of cell phone pornography to verify a customer’s age
In Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989), the Supreme Court invalidated a Congressional ban on “indecent” dial-a-porn communications. In so doing, however, the Court noted that the Second Circuit had indicated its approval of FCC regulations that made access codes, along with credit card payments and scrambled messages, defenses to prosecution under § 223(b). [492 U.S. at 122] The Court went on to say, “For all we know from this record, the FCC’s technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages.” [492 U.S. at 130]
Today, however, many children under 18 have their own credit, debit or pre-paid cards. See, e.g., “Teenagers and Their Plastic, the Rites of Passage,” N.Y. Times, 6/25/05, “Kid credit cards are all the rage,” N.Y. Post, 7/28/03, “Charge It: 3-yr.-old gets 5G Visa Card,” N.Y. Post, 10/10/99, “Hand a Teenager a Credit Card?” Kiplinger’s Personal Finance Magazine, 2/98.
This is as good a place as any to say that if there is any question as to whether the existing telephone “dial-a-porn law” [47 USC 223(b)] applies to cell phones, Congress should either clarify that 223(b) does apply or amend another section of Title 47 to restrict children’s access to indecent commercial communications disseminated by cell phones.
U.S. Supreme Court must uphold the Child Online Protection Act
One big difference between “dial-a-porn” and cell-phone porn is that cell phone carriers, in addition to providing content from providers that are in a contractual relationship with the carriers, also provide unrestricted access to the Internet. To the extent that the cell phone carriers do nothing more than provide access to the Internet, they have no legal responsibility to block access to pornography. [47 U.S.C. 223(e)]
As noted in the N.Y. Times (“Sex Is Latest Cell Phone Feature,” 9/17/05), major mobile phone carriers allow parents to block access to the Internet. Most major cell phone carriers now also enable parents to just block access to Internet pornography. Parental use of filtering technology is, of course, an important part of the solution—especially for younger children. But as children get older, they can get access the Internet outside the home. Tech-savvy children can also circumvent technology, and no technology blocks access to all pornography. Furthermore, for a variety of reasons many parents don’t and won’t use a technology.
These days, all it takes for a child to have access to hardcore pornography on the Internet is to have one or more friends with a cell phone with unrestricted access to the Internet.
This ought to encourage the Supreme Court to uphold the Child Online Protection Act (COPA), which prohibits the knowing posting, for commercial purposes, of website content that is harmful to minors (under age 17). Similar to the “dial-a-porn” law, COPA provides an affirmative defense to providers who restrict access to prohibited content by requiring a credit card or “other reasonable measures that are feasible under available technology.”
Congress enacted COPA [47 U.S.C. 231] in 1998; and it has been tied up in court ever since because of the Supreme Court’s and lower federal courts’ mistaken notion that parental use of screening technology alone can protect children from Internet pornography.
Curb use of cell phone pornography on public transport
Another difference between dial-a-porn and cell phone porn is that cell phone porn can be viewed by persons, other than the subscriber. Morality in Media has prepared a bill to prohibit exposing non-subscribers of any age, while riding on federally regulated public transport in a captive audience milieu, to obscene, indecent or profane material emanating from a cell phone. States should enact complimentary legislation.
Conclusions
In an article published Aug. 18, 1997 (Reuter), Al Cooper, clinical director of the San Juan, California Marital and Sexual Center, expressed his opinion that “adult entertainment” and “sexually explicit material” on the Internet “would drive telephone sex services out of business in a few years.” He was wrong about that, but Internet pornography did push dial-a-porn out of the limelight and helped make dial-a-porn less of a problem for children.
Common sense ought to inform us that cell phone pornography has the potential of causing far more harm than dial-a-porn. Unlike old-fashioned phones, cell phones are portable; they show pictures and video; they also provide access to the Internet.
There isn’t any one solution to the cell phone pornography problem, but if we enforce federal and state obscenity laws against cell phone providers of hardcore pornography and enlist the help of cell phone carriers to curb obscene content and restrict children’s access to indecent or harmful to minors content and require commercial content providers to verify the age of their customers before exhibiting indecent or harmful to minors content and encourage parents to use filters, we will provide a significant amount of protection both for children and society.
Congress and the FCC, however, would be well advised to “do their homework” before enacting new laws or regulations to protect children from cell phone pornography, since these days the U.S. Supreme Court would appear to be far more concerned about the “rights” of pornographers and adult porn consumers than it is about the welfare of children.
