J.D. Obenberger: Call to Probe MindGeek Appears Disingenuous

CHICAGO—As the coronavirus pandemic escalated last month, one U.S. senator took the opportunity to slam one of the adult entertainment industry’s leading brands and its parent company, while calling for a federal investigation into the conglomerate’s business activities. Sen. Ben Sasse, the Chairman of the Senate Judiciary Subcommittee on Oversight, wrote to U.S. Attorney General William Barr, seeking a probe of Montreal-based Pornhub and its owner MindGeek for their alleged involvement in streaming videos of human trafficking victims.  The timing of his March 10 letter was questionable. Here, the world was beset by problems of enormous proportions, and the Nebraska lawmaker was publicly placing a bullseye target on a business that operates the industry’s top blue-chip brands. (MindGeek not only operates Pornhub, but also RedTube and YouPorn, as well as production companies Brazzers, Digital Playground, Reality Kings, Men.com, among numerous others.) In the letter sent to Barr, Sasse cited two cases of alleged sex traffickers posting videos of their victims to Pornhub, which racked up more than 42 billion visits in 2019. Industry attorney J.D. Obenberger, of Chicago’s J.D. Obenberger and Associates, called the letter “remarkable” in that it not only attacked Pornhub, but by implication all tube sites that permit user posts. Obenberger told AVN that the timing of the “weakly supported letter” appears to be more of an “electioneering gesture than a serious suggestion.” “Were it serious, he would have brought it before the Senate Judiciary Committee,” said Obenberger, a former federal prosecutor. Sasse’s letter coincides with a recent effort, supported by a Change.org petition that has gained about 750,000 signatures, to hold Pornhub and its executives accountable for aiding human traffickers. Perhaps the single most remarkable aspect of his letter is a distortion that defames Pornhub, the longtime First Amendment attorney said. “He cites (with considerable outrage) in a footnote to an article that appeared in the South Florida Sun-Sentinel on Oct. 23, 2019,” Obenberger said. “The headline—which he cites!—should have tipped him off that the backstory does not impugn Pornhub, but rather it demonstrates that Pornhub was the very key that freed an abducted 15-year-old girl. He cited correctly the headline, which read, "58 porno videos of 15-year-old girl lead to Davie man's arrest. “It was precisely the posting to Pornhub by 31-year-old Christopher Johnson of Davie, Fla., that proximately and directly led to her rescue from the two men who held her for one year. Once she was recognized from the posting and the police were told about the videos, and the images of men in the posted videos were compared with surveillance videos from a convenience store, she had visited one day after running away from home, a chain of events ensued that resulted in a police stake-out, her discovery, and criminal prosecution. In some degree, Pornhub led to her rescue." Obenberger noted that serious, non-regulatory crimes were committed but not by Pornhub, which was innocent of any knowledge about the victim or her age. It was Johnson of Davie, Fla., who was “stupid enough to post child pornography and was jailed for it.” “Were the government permitted to control the upload of videos by Big Brother oversight, only God knows what fate might have come to the 15-year-old girl, but it is unlikely that she would have been liberated,” Obenberger said. The same story was covered nationwide, generally under headlines that suggested Pornhub's instrumental role in solving this crime, he said. The headline on local WFTV’s website reads, "Online porn videos of Missing Teen Girl Lead to Florida Man's Arrest, Officials Say." The Detroit News reported, "Online Porn Videos of Missing Teen Lead to Man’s Arrest." “Sasse has quite oddly flipped that instrumental role that helped the girl against Pornhub, which merely acted as a web host for the videos. Is there any evidence that, once alerted, Pornhub failed to take down the abusive videos? Just what did this Canadian operator do wrong? Obenberger questioned. Obenberger said Sasse’s second illustration in the letter had little to do with Pornhub, and the connection is tenuous. “He writes about Girls Do Porn, whose operators shot porn for their own purposes and publication on their own paysite,” Obenberger said. “They seem to have used Pornhub for promotional clips. Whatever may be determined in the end about the allegations that the performers were duped, coerced, or misled, it was the use of videos on Girls Do Porn itself, not in its promotions, that had the most massive direct result. “Even the most draconian regulation of tube sites would have had no effect whatever on the videos that appeared on Girls Do Porn, and it seems strange that Pornhub draws his fire on account of its tangential role in that alleged victimization,” Obenberger said. “Sasse points to two isolated, anecdotal instances out of 6,597 petabytes of data transferred by Pornhub in 2019. If one were reasonable, one might conclude that he was making a microdot into a billboard. His two instances cited in the letter bear that relationship (or less) to the whole of Pornhub's content. Instead, his illogic leads him to the conclusion that this must be the tip of the far more sinister iceberg. Says who?” Those two isolated instances lead him to demand that DOJ launch a major investigation, said Obenberger, noting that Sasse's term comes to an end in January 2021, and thus he writes in the midst of his reelection campaign.  “Of course, there are American laws that can be applied against American operators and violation of any American law can be investigated. Sasse does not expressly call for a reinvigorated enforcement of Section 2257, a discussion of which has some bearing on this topic,” Obenberger said. “However, it should be noted that President Bush had no enthusiasm for such enforcement, that President Obama has had no enthusiasm for it, and to this point, President Trump has no enthusiasm,” he said. “In fact, what the DOJ told the trial and circuit courts of appeal in recent 2257 litigation is that the DOJ has no funds available with which to conduct Section 2257 inspections and that it has no present intention to inspect records of age and identity.” Obenberger noted the rulings obtained in the long-running FSC case that challenges the constitutionality of 2257 thus far have no direct effect outside the 3rd U.S. Circuit Court of Appeals. “The application of Section 2257 to inspections in Toronto, of all places, creates some thorny issues, though I suppose the U.S. Attorney General has the power to appoint Department of State officials to inspect, or at least he would be free to do that if his lawyers were not telling the federal courts that there is no money for inspections and that DOJ has no interest in conducting them,” Obenberger said. “The truth is that every common carrier has been used by criminals for criminal purposes—from the U.S. Mail to Western Union to the shipping and express companies,” Obenberger said. “Were they to transfer money and goods only at the risk of strict criminal liability without intent or knowledge, our entire system of commerce would collapse because the risks associated with any transfer would be unreasonable. That was the point of the Section 230 immunity. “Remember though that Section 230 never provided any immunity against the violation of federal criminal law, and that the immunities granted in intellectual property matters were limited. These exceptions, though, prove the point that common carriers, and I see hosting companies and tube sites to be akin to common carriers, are liable only when they have criminal knowledge and/or intent. “In the pending Backpage case, and in the news statutes that became effective about the time that case commenced, the frontiers of criminal liability without knowledge or intent, or what the concepts of criminal knowledge and intent actually mean in Internet operations, are now in dispute. “A free society requires free distribution of the maximum amount of information without criminal liability, and where exceptions to that principal are appropriate, it is critical that each exception be sharply limited and amply announced to all; liability for expression should never creep up unannounced on anyone.” Obenberger said that he believes the Justice Department is in a poor position to effectively do what Sasse suggests and does not appear to be so inclined. “Though there is some chance that Sen. Sasse might get a decent reception during a presidential election year, given what's already on the table, I think his timing could not be worse, and the odds are low.”