Adult Industry Attorneys Outraged Over Military Porn Bill (XBiz)

Blogged under Stupid Politics by fight on Wednesday 23 April 2008 at 5:30 pm

Adult Industry Attorneys Outraged Over Military Porn BillBy Rhett Pardon
Wednesday, Apr 23, 2008

AUGUSTA, Ga. — Adult industry attorneys today blasted a Georgia lawmaker, who has introduced a proposal that would close a loophole and regulate further adult material sold at military exchange stores.

The Military Honor and Decency Act, introduced last week by Rep. Paul Broun, R-Ga., would amend a provision of the 1997 Defense Authorization Act that limited sales of sexually explicit material on military bases.

Broun said in a statement that he wants to bring the Defense Department into compliance with the intent of the 1997 law “so that taxpayers will not be footing the costs of distributing pornography.”

“The Military Honor and Decency Act will right a bureaucratic — and moral — wrong,” he said.

Broun’s proposal would require the Defense Department to review on an annual basis all material that is not deemed sexually explicit now, and is therefore allowed in military stores, to determine if it should be prohibited.

The board, however, did not meet between 2000 and 2005. In 2006, the Defense Department changed its policy to let banned material be resubmitted for review every five years.

Broun’s legislation also would modify the current definition of sexually explicit, to lower the threshold required to deem material sexually explicit. It also adds a new definition of “principal theme,” adds a definition of “lascivious” that is broader than what is included in the current definition, and adds a definition of “nudity” that makes it much more difficult for the sale of sexually explicit material.

Attorney Greg Piccionelli of Los Angeles-based Piccionelli & Sarno told XBIZ that he was offended by the proposal by “ignorant and intolerant hypocrites like Broun and his ilk that are currently plaguing the planet.”

“May I remind the congressman that our troops honor stems from their willingness to lay down their lives to preserve the very freedom that he is so willing to take away from them,” he said. “They are defending our way of life, which fortunately includes our ability to read Playboy and Penthouse magazines. How dare he insult our brave soldiers by claiming they can be sullied by viewing ink on a page.

“If one of our troops, who daily risks being blinded or killed by a roadside explosive tomorrow, would like to view nude images of one of God’s greatest creations, a woman, on what could be his last day of sight, how dare this hypocritical imposter of a patriot try to take that sacred right away from one of our true guardians of freedom. Shame, shame, shame on you Mr. Broun.”

Gary Kaufman of Los Angeles-based The Kaufman Law Group told XBIZ he also was outraged upon finding out about H.R. 5821, which already has attracted 15 cosponsoring legislators.

“It’s ironic that a congressman is actually advocating that the men and women of our armed forces should have fewer rights than the people back home who they are risking their lives on a daily basis for,” Kaufman said. “Our brave soldiers should have at least equal, if not more, rights.”

“With morale always being an issue, shame on this congressman who while sitting in his comfortable office seeks to interfere with the comfort and relaxation of our fighting men and women.”

Broun’s press secretary, Jessica Morris, told XBIZ that the congressman nor his legislative office aides would comment further on the bill or provide any data relative to the sale of adult material at military bases to XBIZ or any other news organization whose primary readership is targeted to the adult entertainment industry.

 

Recent 2257 Ruling: What Does It Mean for the Industry?

Blogged under Serious Stuff by fight on Thursday 25 October 2007 at 9:33 am
Recent 2257 Ruling: What Does It Mean for the Industry?
by Free Speech Coalition
Now that the Sixth Circuit has ruled that 18 U.S.C. § 2257 is unconstitutional, what does that mean for the adult industry? The following is a document prepared by the Free Speech Coalition, which addresses common questions about the recent 2257 ruling in the Sixth Circuit. YNOT is republishing this document without edits, and offers thanks to the Free Speech Coalition for preparing this very thorough FAQ.

Frequently Asked Questions Concerning 6th Circuit Overturning 2257

1. Does this decision mean 2257 is gone for good?

No, probably not. For three reasons.

First, the United States Court of Appeals for the Sixth Circuit is not the highest court in the land. It is one of the second highest federal courts, so its decision is extremely important and very promising. But there are two more steps available to the Government even within the specific case involved. One is for the Government to ask that all of the judges on the court review the decision of the three-judge panel which decided the case yesterday. The other is for the government to ask the United States Supreme Court to review the case.

Second, the Sixth Circuit reviews cases arising from the federal courts in Michigan, Ohio, Kentucky, and Tennessee. The decision issued yesterday is binding on the federal courts in those states unless and until it is altered or reversed. Outside of the federal courts in those states, the decision is persuasive but not binding precedent. That means that other courts in other areas will likely consider it and may follow it, but they are technically entitled to reject it if they think it is wrong. Our analysis (following this FAQ) explains why the decision is not wrong, and we remain hopeful and confident that, in the end, some of the reasoning announced yesterday will prevail.

Third, even if the present version of Section 2257 is rejected by the courts on constitutional grounds, Congress can always try to rewrite the statute to cure its defects. Given the decision yesterday, that would not be easy to do and might not result in anything like the burdensome record-keeping requirements now on the books, but we must remain vigilant against efforts to revive Section 2257 legislatively. Fortunately, the Free Speech Coalition has worked hard over the past few years to be in a position to influence events in Congress as well as the courts. Our efforts there may not always be high-profile, but we are confident that we are in a position to be heard on policy issues as we never have before.

2. Does this just apply for swingers’ magazines in Ohio?

As a strict technical matter, any court decision applies only to the parties before it. In that sense it is clear that the Ohio plaintiffs have the most immediate benefit of the decision. But the full answer is not so simple.

In the first place, the United States Department of Justice was, through the acting Attorney General, also a party to this case, and the opinion is also binding upon it. Since it is the agency which would prosecute alleged Section 2257 violations, and since the FBI is under the Justice Department, the constitutional determinations announced yesterday were made against the government officials and agencies responsible for inspecting and prosecuting Section 2257 matters. For technical reasons (having to do with what lawyers call “non-mutuality” concerning “collateral estoppel or claim preclusion”) it is certainly very possible for other parties litigating against the Justice Department elsewhere to argue that, so long as yesterday’s decision stands, the DOJ has had its day in court and that it has already lost on some crucial constitutional issues.

Beyond the formalities about the identities, though, it is very important to understand one basic feature of yesterday’s decision. Nothing – absolutely nothing – critical to the constitutional defects identified turned on the particulars of a “swingers’ magazine” or of its patrons or readers. Even the burdens and the chilling effects identified by the court can be claimed by many others; and, in any event, there are many more burdens and chilling effects which can be raised by others. The basic “overbreadth” or “overinclusiveness” identified in the opinions does not depend on whether the challenger is a swingers’ magazine, a DVD video producer, an Internet website, or a micro-producer operating from home. The constitutional defects upon which the court relied affect all, and can be asserted by any challenger. So, despite the technicalities concerning the parties to this case, the decision is indeed very, very promising for all.

3. Can the Government appeal this? If yes, how long will that take?

Yes, it can. See the answer to 1 above. The Government has a few weeks to decide what to do. If it wants to move for a so-called “en banc rehearing” (before all Sixth Circuit judges), it must do so in a few weeks. If it decides ask the Supreme Court to hear the case, it must do so in a few months. So either way, it will be a few months before we know just how this particular case is going to come out. Either en banc review or Supreme Court consideration would take several months at least, and both together could easily last until June, 2009.

But we will know well before then just what the Government plans to try to do.

4. What are the possible 2257 future scenarios?

If the Government decides to fight on at this point, future litigation is, unfortunately, the most likely scenario. The Free Speech Coalition has always been prepared to continue its challenge and it will do so, if necessary, once the Justice Department finalizes the pending regulations. To the extent that the pending regulations sweep away some of the serious but less fundamental issues which have preoccupied recent Section 2257 litigation, they will in fact help the courts reach the fundamental constitutional questions of the sort decided yesterday. On those questions, we have always been confident of ultimate success.

It is also possible – remotely possible – that the Justice Department could try to address the problems identified yesterday in the regulations it is working on. One of the Free Speech Coalition’s proposals might help in this regard, but it would effectively end Section 2257 record-keeping as we know it and would end inspections of anyone who writes a letter to the Attorney General. Although Congress itself created this alternative (for mainstream Hollywood producers), we do not think it is likely that the Justice Department will extend it to those covered by Section 2257. Beyond this option, it is very hard to see how the Justice Department can deal with Section 2257’s constitutional problems in the pending administrative regulations.

The other option would be for Congress to try to rewrite Section 2257. There are precedents: on at least two pervious occasions, Congress has responded to developments in pending litigation by amending Section 2257. This time, though, the identified defects are broad and deep. Unless Congress scaled back the Section’s requirements so dramatically that they are almost unrecognizable, any Congressional rewrite is very likely to suffer the same constitutional fate. The Free Speech Coalition is now in a position to monitor and participate in any Congressional effort to rewrite the statute.

5. What does this mean for the proposed rules and regulations that we just commented on in September?

As noted in answer to 4, above, it is unlikely that the Justice Department can or will write administrative regulations which resolve the very deep constitutional flaws in Section 2257. The only way it could do so is by reducing the law’s requirements to an essentially trivial level. Following a suggestion by Congress itself, the Free Speech Coalition has urged the Justice Department to take such a step. But since it would effectively end Section 2257 as we know it, the Justice Department will have to do a good deal of soul searching before it would agree to take such a step.

In the end, it is most unlikely that Section 2257’s constitutional problems will be resolved by administrative rulemaking.

6. Why had nobody had heard of this case? Why now?

It is not quite true that “nobody had heard of this case.” The First Amendment Lawyers Association’s discussions of Section 2257 have always considered it, followed its development, and suggested litigation strategies. The legal team which worked on the Free Speech Coalition’s case cooperated closely with the attorney who litigated the Connections case. Because the particular facts of the case offered the courts some “narrow” ways to rule for the challengers, it was not clear that the Connections case would be the first in well over a decade to reach some of the most basic constitutional issues raised by Section 2257. This is probably the reason that much attention was focused elsewhere.

7. Can I stop keeping records if I’m a primary producer? If I’m a secondary producer?

You should consult you own attorneys about the immediate impact of this decision on you and your business. It seems fair to say that if either of the first two opinions issued yesterday become the undisputed law of the land, no producer could be prosecuted for failing to create or keep records or for otherwise failing to comply with the unconstitutional statute. Even if the third of yesterday’s opinions were finally to prevail, very many of Section 2257’s current requirements, particularly those relating to secondary producers, would fall.

The current problem is that yesterday’s decision is not yet the undisputed law of the land; and legal development can never be predicted with certainty. Thus, until the law is settled, the unfortunate truth is that there remain risks in this area. The specific risks you face can only be effectively evaluated by you and your attorneys on an individual basis.

8. Will the FBI inspections stop?

That decision is up to the FBI in the first instance. The Free Speech Coalition believes that it should cease all inspections, and we strongly suggest that the FBI consider the issue preclusion matters touched upon in answer to 2, above. If the FBI nevertheless decides to continue inspecting before further legal developments, further legal proceedings would certainly be possible.

9. Is FSC still involved in the 2257 battle? How?

Yes, it is. And it will be so long as there is a Section 2257 in anything like its present form. The Free Speech Coalition has long objected to Section 2257 on very basic constitutional grounds including those relied upon in yesterdays decision. We have other, related constitutional objections as well.

Unless Section 2257 is dramatically rewritten, FSC will continue its litigation efforts at the appropriate time and place. Barring dramatic developments, that time still appears to be after the publication of the pending regulations in their final form. FSC anticipates that this is the best way to get to the basic constitutional issues. And as yesterday’s decision shows, that is exactly what we want to do.

On the other hand, if the Section 2257 battle moves back to Congress, we are ready for that too. FSC has worked hard to develop avenues for responsible policy input at the federal level. And we have already taken positions concerning Section 2257 and its amendments which may help legislators and their aides to realize why it is finally time to start listening to us when it comes to Section 2257.

Analysis

In order to understand the recent decision of the Sixth Circuit panel, it helps to know a little bit of constitutional law. We here present what we hope is enough law to understand the basis on which the court held Section 2257 unconstitutional.

Under the Constitution, Congress writes federal law (with the President’s signature or over a veto). But Congress is bound by the Constitution, and that document limits what Congress can do, even by duly enacted law. For present purposes, the important Constitutional limitation is the First Amendment’s stricture that “Congress shall make no law . . . abridging the freedom of speech, or of the press; . . .”

When any law, such as Section 2257, is challenged as violating that First Amendment stricture, the courts ask several questions. First, they ask what the government’s goal was in enacting the legislation. If the government’s goal or purpose was to suppress some ideas because the government doesn’t like them, the case is going to be very tough going for the government. But the government usually identifies a much more laudable goal than that. In this case, the government says, as expected, that it enacted Section 2257 in order to combat child pornography. Virtually everyone, certainly including the Free Speech Coalition, agrees that this is a legitimate, substantial, and even compelling government interest. Each of the judges on the Sixth Circuit panel also accepted this as a
good and sufficient government purpose.

But determining that the government has a good motive does not end the First Amendment “scrutiny,” as the constitutional lawyers call it. The next question is whether the burdens which the law imposes on expression (assuming that they are more than trivial) are “narrowly tailored” to the government’s legitimate objective. Many, many challenged laws fall because the government legislated in a way which sweeps too broadly even admitting a legitimate underlying purpose. This is why, for instance, Congress could not ban “indecent” expression over the Internet even assuming it could ban the legally obscene. Obscenity, properly understood, is a very narrow category; and much “indecent” expression falls far short of being legally obscene. For this reason, the Supreme Court held that the indecency provisions of the Communications Decency Act were unconstitutional.

One of the government’s most basic problems with Section 2257 is that, although it says the Section is designed to combat child pornography, most – by far – of what it applies to is not that at all. The idea seemed to be that ‘if we pass a law that applies to all pornography, we’ll be sure to catch the child pornography.’ But since pornography which does not depict children and is not obscene is constitutionally protected, that amounts to burdening a great deal of constitutionally protected expression because it looks like or might be unprotected expression. In the Free Speech Coalition’s own Supreme Court case from a few years ago, the Court squarely held that Congress cannot ban protected expression just because it looks like unprotected expression (in this case, child pornography). The same is true with a burden of the magnitude imposed by Section 2257’s record-keeping requirements, even if that burden falls short of an outright ban. That, in any event, has been one of FSC’s basic arguments against Section 2257, and it was accepted by every one of the judges on the Sixth Circuit panel.

This is the reason why the judges spoke of Section 2257’s “overbreadth” or “overinclusiveness,” words can live perfectly good lives without ever hearing let alone uttering. But the concept is what’s important here. Laws restricting expression must be “narrowly tailored” to their legitimate objectives. The judges recognize, as does the Free Speech Coalition, that child pornography is a problem (child abuse) that government can and should deal with. But here, Congress tried to deal with that problem by burdening a vast amount of expression which has absolutely nothing to do with children or with child abuse. Whether appropriate judicial scrutiny is strict or intermediate, as the constitutional lawyers say, that is just not narrow tailoring. Laws against child pornography should target child pornography, and Section 2257 misses that mark by a long shot. That is why it has been declared unconstitutional.

In the debate over Section 2257, some may try to avoid this overinclusiveness by reformulating the purpose underlying the Section. They may say, for instance, that ‘we just want the pornographers to prove that their expression is not child pornography.’ But this reformulated goal is not a constitutionally permissible one. There are, to be sure, some kinds of expression which the government may legitimately suppress, and child pornography is clearly one such type. But the burden is always on the government to establish, if it can, that expression is unprotected. It cannot shift that burden to a speaker or producer. At least not without gutting some serious constitutional protections which our courts have recognized for decades. That, at bottom, is what the fight over Section 2257 is about, in constitutional terms. And that is why the Free Speech Coalition has joined the fray.

Consider a hypothetical example (since legal discussions are so often filled with them), outside of the area of free expression, to illustrate the Government’s dilemma here. Suppose a public university has discovered some vandalism in one of its dorms. Suppose further that the vandalism occurred overnight, so that the school is quite sure that one or more dorm residents (and not an outsider) did it. If, under these circumstances, the school were to punish all dorm residents for the vandalism, it would be sure to get the perpetrator(s). But that would quite obviously be impermissibly “overinclusive.” The burden would fall upon many who had nothing to do with the problem. On the other hand, if the school said ‘we’ll punish those who cannot prove that they did not commit the vandalism,’ that would impermissibly shift the well-known constitutionally required presumption that person are innocent unless and until the government bears the burden of proving them guilty. The school’s perfectly legitimate interest in combating and punishing vandalism would justify neither move. Each move suffers from a different independent constitutional problem.

And so it is in the case of Section 2257.

Again, special thanks to the Free Speech Coalition for producing this excellent FAQ, and also to industry attorney and FSC board member Reed Lee of J.D. Obenberger & Associates for his hard work in putting these answers together. To find out how you can become a member of the FSC, or contribute to its efforts to protect the industry, visit FreeSpeechCoalition.com.
 

6th Circuit Court of Appeals Rules 2257 Unconstitutional (XBiz)

Blogged under Serious Stuff by fight on Tuesday 23 October 2007 at 3:22 pm
6th Circuit Court of Appeals Rules 2257 Unconstitutional
Court holds that statute is overbroad, cannot be narrowed except through fundamental revisions by Congress.
By Q Boyer
Tuesday, Oct 23, 2007

CINCINATTI — The 6th Circuit U.S. Court of Appeals ruled today that the federal record-keeping statute 18 U.S.C. 2257 is unconstitutional, holding that the law is overbroad and facially invalid.Attorney Lawrence Walters told XBIZ that the court’s opinion, while a very significant victory, is not the final word on the question of 2257’s constitutionality and cautioned that adult webmasters should not view it as the end of their 2257 concerns.

“Generally, you have to be very careful with reacting too rashly to any opinion,” Walters said. “This is a panel ruling, and it is not final. The government could ask for an en banc rehearing by the full circuit, and they can appeal the decision.”

Walters also noted that the decision only applies to the portion of the U.S. that is covered by the 6th Circuit – namely, Kentucky, Michigan, Ohio and Tennessee.

The good news, Walters said, is that the government’s options in getting the opinion overturned are all “long shots,” and he said the court’s reasoning in the opinion was very sound.

“The judges on this panel are renowned for being tremendously bright and it shows through in this ruling,” Walters said. “There’s no doubt that the 1st Amendment arguments here were strong, and the court recognized that the law clearly sweeps in too much protected speech, and there are just too many problems with the law, generally.”

The court’s decision came in the case Connection Distributing vs. Gonzales, a case that reaches all the way back to 1995, when Connection, a publisher of swingers-themed magazines and websites, first challenged the constitutionality of 2257. Following a long history of rejections and appeals, the path eventually led back to the 6th Circuit court of appeals, and today’s ruling.

Writing for the majority, Judge Cornelia G. Kennedy stated in the opinion that the court’s hands were tied in terms of trying to impose any limiting construction on the statute that would comport with the intent of Congress, leaving Congressional amendment of the statute the only option for rendering 2257 constitutional.

“The plain text, the purpose and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record-keeping important in battling all of it, without respect to the creator’s motivation,” Kennedy wrote in the opinion. “There is, therefore, no narrowing construction.”

The government argued in the case that 2257 was aimed only at conduct and not speech. Had the court accepted this argument a lower standard of review would have been applied, and the court may have ruled that 2257 was a valid regulatory statute. The court rejected the government’s assertion that 2257 merely regulates conduct, however, in very direct fashion.

“This argument is unpersuasive,” Kennedy wrote. “While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument.”

Kennedy also noted that the child abuse, “the actual conduct in which the government is interested, is already illegal.”

“Child pornography, while speech, can be considered more like conduct because the conduct depicted is illegal, and if that illegality did not occur, no images of child pornography would be created,” Kennedy wrote. “Adult sexual conduct is not illegal and it is in fact constitutionally protected … The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct. It is, therefore, a regulation of speech, because both the photograph and the taking of a photograph ‘bear … [a] necessary relationship to the freedom to speak, write, print or distribute information or opinion.’”

Kennedy said the court was not unaware of the serious scourge of child pornography — it just believes that there has to be a less burdensome option for attacking the problem.

“We do not belittle the despicability of child pornography, and we appreciate the difficulties faced by the government,” Kennedy wrote. “There are a myriad of limitations available, however, that would reduce the breadth of the recordkeeping requirements and would more narrowly focus on the government’s interest and therefore remove some of the protected speech from the statute’s coverage. Such limitations have been suggested by witnesses who testified before Congress and by the plaintiffs here.”

Ultimately, Walters said adult webmasters and business owners should take a “wait and see” approach to the ruling, but there’s no question that the ruling should be counted as a victory in one 2257-related battle, even if it is not the decisive shot of the overall war.

“People should treat this as a step in the ladder towards total invalidation of 2257,” Walters said. “It certainly provides a roadmap for future arguments, as well.”

J. Michael Murray, the attorney for Connections Distributing, was not available for comment at press time.

Download the court’s opinion (pdf file) here

Law Firm Delivers ‘Earth-Shattering’ 2257 Letter to Feds (xbiz)

Blogged under Serious Stuff by fight on Thursday 4 October 2007 at 4:07 pm
Law Firm Delivers ‘Earth-Shattering’ 2257 Letter to Feds
Experts on the Regulatory Flexibility Act said that the Justice Department has failed to satisfy requirements of that legislation.
By Q Boyer
Thursday, Oct 4, 2007

WASHINGTON — Experts on the Regulatory Flexibility Act asserted in a letter submitted during the recent 2257 public comment period that the Justice Department has failed to meet their requirement under the RFA to consider the impact of 2257 regulations on small businesses.The letter, primarily authored by David E. Frulla, a partner in the firm Kelley, Drye, Collier & Shannon, honed in on the fact that the Justice Department apparently has done no research whatsoever on the economic impact of 2257 and the burden that compliance would impose on small businesses within the industry.

FSC Chairman Jeffrey Douglas told XBIZ that the RFA concerns cited by Frulla in his letter are “earth-shattering” for the Justice Department’s continuing efforts to enforce 2257.

“I don’t know how the Justice Department is going to proceed,” Douglas said. “If they ignore [the RFA claims] the statute will be enjoined — hopefully root and branch. If they comply, then they have to start all over again, and consider the economic impact of the entire statute.”

The Kelley, Drye, Collier & Shannon firm was retained by the Free Speech Coalition, along with Georgetown Economic Services (GES), to help communicate to the Justice Department concerns over the economic impact of 2257. GES conducted a study on the costs, and Kelley, Drye, Collier & Shannon was retained to present the legal arguments surrounding the RFA.

The firm previously has represented clients on RFA issues initiated by a wide range of federal rulemaking proceedings, including ones initiated by the Commerce Department, the Environmental Protection Agency, the U.S. Army Corps of Engineers, the Agriculture Department and the Federal Communications Commission.

“[T]here are thousands of small businesses in the adult entertainment industry that will experience a significant adverse economic impact if the proposed rule is implemented,” Frulla wrote. “Accordingly, pursuant to the RFA … the Justice Department is required to conduct detailed regulatory flexibility analyses … in connection with developing this rule.”

Frulla also observed that “while the adult entertainment industry’s overall economic contribution to the U.S. economy is large, the overwhelming majority of industry participants (and, likewise, of the FSC’s members) are small businesses.”

Frulla argued that small businesses in the industry will “suffer substantial economic, administrative and other injury, which almost assuredly will force a significant number of them (particularly Internet-based businesses) out of business should the proposed rule proceed to final rule in its current form.”

Whatever the true economic impact of 2257 may be, Frulla asserted that the Justice Department simply has not met its responsibilities under the RFA with respect to researching that impact.

“In its proposed rule, the Justice Department states, in conclusory fashion, that it ‘drafted the rule to minimize its effect on small businesses while meeting its intended objectives,” Frulla wrote. “Yet nowhere in the proposed rule does the Department explain how it sought to minimize impacts on small businesses, nor is such consideration otherwise evident.”

This unsupported assertion on the part of the Justice Department “falls far short of what is required of agencies under the RFA, the SBA Guide and controlling case law,” Frulla wrote.

Douglas noted that the Justice Department not only failed to conduct any real analysis of the statute’s economic impact with respect to the newly proposed revisions to the regulations, the agency never considered the impact of the statute and regulations in their original form.

“They haven’t even gotten to step one of a long, complicated road,” Douglas said.

Guide to Submission of Comments for 2257 New Rules and Regulations (FSC)

Blogged under Serious Stuff by fight on Tuesday 31 July 2007 at 7:58 am
Guide to Submission of Comments for 2257 New Rules and Regulations
July 12 - September 10, 2007
By:
Posted: 7/30/2007

 

 

 

 

 
Background
The U.S. Justice Department is seeking to amend and update the 2257 regulations by a process known as notice-and-comment rulemaking. In this process, the Government publishes proposed regulations in a publication called the Federal Register and invites public comment for a specified period. Then, the Government goes back and considers the comments. It can and usually does change the proposed rules at least slightly. Then it publishes them, also in the Federal Register, as a final rule with an effective date announced when the final rule is published.

So far, the first step in this process occurred on July 12, 2007. You can find the relevant pages of the Federal Register (giving the Justice Department’s reasoning and the proposed regulations) on the FSC web site.  The next step, the comment period, is NOW.
Here is what you can do . . .

Submit Comments
In their released regulations, the DOJ stated that the cost of industry compliance for 2257 is negligible.  It is up to us to convince them otherwise.  If we can make a case that 2257 imposes an undue burden to small business or an expense of over $100,000,000 annually to the industry as a whole, the government is under severely increased scrutiny as far as the imposition of these regulations.  Financial burdens are only one of the subjects appropriate for comment. You are the expert, make sure you communicate the full extent of the burden 2257 imposes on you and your business.   If DOJ disregards our input from the public comment period, at the very least, we will have a much more solid foundation for our next phase of litigation.

 

What to Submit
It is important communicate the extent of the burden 2257 imposes including any or all of the following:

•    Staffing costs to maintain records
•    Attorney costs to assure compliance
•    Storage expenses
•    Additional IT expenses
•    If you, or someone you know, have not been able to enter the industry because of the financial burden that 2257 would impose
•    Associated costs for 20 hours per week availability for FBI inspections between the hours of 9AM and 5PM and during production
•    Cross-referencing and additional information collection and maintenance (required for 7 years)
•    The percentage of overall company expenses related to 2257
•    For secondary producers the difficulty and expense of obtaining records from primaries
•    Other burdens imposed by 2257

(Note: Always strive to be accurate when speaking to the Government. But cost and other burden estimates are okay so long as they are reasonably accurate as forecasts–just as you would do for business planning purposes. It is not necessary or advisable to go into a lot of personally identifiable detail about your record-keeping practices to date.)
How to Submit Comments
FSC would like to make it as easy as possible for adult entertainment industry members to participate.  Below are three ways to participate – select the one that works best for you. 
 

1.    FSC will assist you in writing your statement for public comments - Email us at legal@freespeechcoalition.com, tell us about the burdens that 2257 imposes on your business, we will  compile your comments into a document ready for submission and send it back to you with instructions on how to submit.
2.    Sign on to a statement prepared by FSC representing concerned members of the adult entertainment industry. Email us at legal@freespeechcoalition.com tell us that you would like to sign on to the 2257 proposed Rules and Regs statement and we will add your name to the list.  The statement will be posted on our website by mid August and sent back to you for confirmation prior to submission.
3.    Submit your own statement for public comment :
By mail to:
Andrew Oosterbaan
Chief
Child Exploitation and Obscenity Section
Criminal Division, United States Department of Justice
Washington DC 20530
Attn: “Docket No. CRM 104”

Comments may be submitted electronically to:  Admin.ceos@usdoj.gov or by using the electronic form provided on the site at www.regulations.gov
Comments submitted electronically must include Docket No. CRM 104 in the subject box.

Please send a copy of your correspondence to:
Free Speech Coalition
2257 Public Comments
PO Box 10480
Canoga Park, CA 91309
or legal@freespeechcoalition.com

When Are Comments Due?
The public comment period ends September 10, 2007.  Please don’t delay.

The FBI Meets With Adult: Part 2 of 2 (XBiz)

Blogged under Serious Stuff by fight on Friday 5 January 2007 at 2:54 pm
The FBI Meets With Adult: Part 2 of 2
In part one, we began our look at the invitation-only meeting of a select group of adult entertainment companies at FBI headquarters in Washington. In this conclusion, we’ll look at discussions surrounding the inspection process as well as what the future may hold:Pre-Inspection
It was disclosed that the FBI has compiled a database of adult content producers in which approximately 700 companies, including foreign companies, are identified. The database is not static as they continue to expand the number of producers included. To select the companies to be inspected, the FBI uses a program they claim will select 10 producers at random from the database.

Once a producer has been selected from the database, FBI agents will randomly select and purchase one or more of the producer’s titles. Each selected title is then reviewed. During the review process, screen captures of each performer appearing in the work are made in a manner that optimizes the facial features of the performer. Also during the review process, there is an attempt to correlate each depicted performer with names in the work’s cast list and to record the data in an Excel spreadsheet. If such a correlation cannot be reasonably accomplished, the unidentified performer is listed in the spreadsheet as unidentified female or unidentified male.

We were also told that during the pre-inspection phase, the review of the selected work also includes a careful examination of the compliance statements associated with the works. This includes an evaluation of whether the right font size was used on the packaging and a determination of whether the compliance statement was displayed for the proper duration in the video program.

The Inspection
Upon arrival at the producer’s location, the agents will photograph the outside of the producer’s building. Before entering the producer’s premises, the agents will identify themselves as FBI agents and disclose the purpose of their visit, i.e., to perform a 2257 compliance inspection. They will also show their badges.

Once on the producer’s premises, the agents will photograph the location of record-keeping. They will also photograph the area where they will do their review of the subject materials to protect the inspectors against subsequent claims of damage to equipment, etc.

The agents will then attempt to retrieve the subject titles and required performer identifications. They will also check for proper cross-referencing as required by the regulations. The agents will make photocopies of the materials retrieved from the producer’s record-keeping system using their own copiers that they will have with them.

Before the agents depart, an informal, one-page, courtesy preliminary report will be prepared and left with the producer or the custodian of records. It was noted that of the seven inspections that the agents had conducted prior to the meeting, only one resulted in no reported violations and only one was “nearly perfect.” The others, however, were described as administrative catastrophes.

The most common violations that the agents have reported to date have been illegible identification documents, including copies of IDs where the photographic area is little more than a large black dot; missing identification documents; and failure to cross-reference the records as required by the regulations.

Post-Inspection Process
The principal feature of the post-inspection phase is the preparation of a comprehensive compliance report. The report, which is typically about 40 pages in length, will describe the inspection conducted and the violations found, if any. A copy of the report is sent to the Child Exploitation and Obscenity Section of the Department of Justice. Two internal FBI copies are also maintained.

It was disclosed at the meeting, however, that if a producer provides corrected or missing documentation to the supervisory special agent who conducted the inspection before the completion of the comprehensive compliance report, the agent will document in the report the fact that the missing or corrective documentation was provided. However, it was emphasized with particularity that any violation that was detected at the time of the inspection would still be reported as a violation in the comprehensive compliance report, and thus could still be prosecuted.

Generally, the 2257 compliance inspection unit’s responsibility ends with the completion and submission of the comprehensive compliance report to the DOJ. After that, it is up to the DOJ to decide what if any action will be taken against the producer. If prosecuted, a different set of FBI agents will be assigned to the case as investigating agents.

The Discussions
The balance of the meeting comprised a candid and sometimes lively discussion across a broad range of topics pertaining to the 2257 compliance inspection process, including the problems posed by ambiguities inherent in the regulations themselves. For example, the industry attorneys were able to pose numerous questions regarding specific situations we have encountered where it is difficult to know in advance what would and would not be considered by the inspectors to be a violation. It was clear by these discussions, however, that there is a substantial variance of opinion between the FBI agents conducting the inspections and the DOJ regarding several key provisions of the regulations.

For example, Jeffrey Douglas, Paul Cambria, and I emphasized to the FBI representatives how the exponentially larger number of parties required to maintain 2257 data by recent changes in the law inescapably increases the likelihood of performer identity theft and the risk of harm from stalkers. We also suggested to the group that the vulnerability of personal data in 2257 record systems might be diminished by allowing producers to store identification documents with addresses redacted. When I asked the supervisory special agent if such redacted identification documents would be viewed as a violation of the regulations, the answer was that it would not.

I was personally very happy to hear that response, as it is at once reasonable, ethical and legally supportable. I had to explain to the agent, however, that unfortunately, I could not advise my clients to maintain redacted identification documents unless and until the DOJ indicated that it too agrees with that interpretation, as its current official position is that such redacted identification documents would not comply with the regulations.

The Future
As the meeting drew to a close, Burrus reiterated his sincere desire to establish a dialogue with the industry. To that end, he invited our continued input and mentioned that he was considering the possibility of establishing a website that could provide a simple means for the inspection unit to communicate to the adult industry and vice versa. He also seemed genuinely enthusiastic about a participant’s suggestion that he directly communicate with XBIZ, AVN and YNOT.

By the end of our unprecedented meeting, I felt that we had engaged in an unexpectedly constructive and candid exchange of information and ideas. Needless to say, I was relieved that our initial concerns about ulterior motives and hidden agendas never materialized. But perhaps the most important product of the meeting will be hope, specifically the hope that the adult entertainment industry has turned a corner in its relationship with at least part of the government and that the meeting is not just a “one-off,” but that it truly will be the beginning of an ongoing dialogue.

Many people in the adult entertainment business complain about the government and its persecution of the industry. The adult entertainment lawyers have raised this practice to a high art. Rightfully so, in my opinion, because the legitimate adult industry has been unfairly treated. But every now and then the government gets it right, and the appropriate response is simply to say, “Thanks, good work.” I sincerely believe that such a response is due to Burrus, the SSAs and others who broke with the past, took a chance and reached out. Thanks, good work.

Gregory A. Piccionelli, Esq. is an Internet and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375.

The FBI Meets With Adult: Part 1 of 2 (XBiz)

Blogged under Serious Stuff by fight on Thursday 4 January 2007 at 2:51 pm
From a legal perspective, 2006 was not a particularly good year for the adult entertainment industry. So far, the industry’s legal misfortunes have included the commencement of 2257 compliance inspections and a tidal wave of state and federal legislation targeting adult entertainment businesses, including a dramatic expansion of the scope of 18 U.S.C. § 2257, and, for the first time in U.S. history, the criminalization of the mere creation of sexual depictions. As usual, these laws were enacted without any opportunity for input from the adult industry.

Despite evidence to the contrary, however, and perhaps with a tad of foolish optimism, I have always believed that someday legislators and government regulators will actually request the adult industry’s input on legislation and other regulations affecting its interests before they become law. I even think that someday mainstream adult entertainment will be so culturally accepted that the industry will be regulated rationally and treated more like every other multi-billion-dollar contributor to our economy. When pigs fly, you say?

Well, amid all of last year’s bad legal news, there emerged what I believe to be yet more reasons to be optimistic about the industry’s long-term legal prospects. In October of 2006, I had the privilege of participating in two rather remarkable events that I believe just might be early indicators of small but significant changes in the way at least some government officials view the adult entertainment industry and their proper regulatory relationship to it.

The first of these events occurred Oct. 12, when the FBI hosted an unprecedented invitation-only meeting of a select group of adult entertainment companies and their attorneys to candidly discuss the 2257 compliance inspection process at FBI headquarters in Washington. The meeting was extraordinary both in its character and because it was initiated by the government for the stated purpose of obtaining input from, and establishing a dialogue with, the adult entertainment industry regarding the 2257 compliance inspection process.

The second event occurred Oct. 27 at UCLA. It too comprised an unprecedented meeting of specially invited adult industry participants, government regulators and policy advisers. Titled “Think Tank: Safety of Performers in the Adult Film Industry,” the unique gathering brought together a wide spectrum of parties affected by adult film industry performer safety issues, including adult performers, adult entertainment companies, regulatory agencies, healthcare providers, doctors and attorneys. One goal of the event was to identify consensus positions, if they exist, in order to advise and assist state and local governments in the creation of fair and effective regulations pertaining to adult film industry performer safety.

An Unusual Invitation
In mid-September one of my clients received an unusual letter from the FBI which read in part:

“As you may know, the FBI recently began conducting regular inspections of the records kept by producers of sexually explicit materials pursuant to Title 18 United States Code, Section 2257, commonly referred to as 2257, and Title 28, Code of Federal Regulations, Part 75.

These regulations and the resulting inspections are designed to prevent producers from hiring minors as performers, and carry criminal penalties for violations. I would like to invite you to meet with me and representatives from the FBI, as well as several other adult entertainment industry leaders, for a briefing on the inspection process and to ask for your input.”

The letter was signed by James H. Burrus, Jr. Assistant Director, Criminal Investigative Division.

Given the rich tradition of government hostility toward the adult entertainment industry, including the use of government sting operations, my client and I were reasonably concerned that there might be more to this “invitation” than meets the eye. After all, since when does the government ask for the adult industry’s input?

On behalf of my client, I contacted the supervisory special agent (SSA) in charge of coordinating the meeting. When asked why the FBI wanted to have the meeting, the SSA indicated that there was concern about a number of adult industry media stories that were inaccurately reporting information regarding the inspection process. One example was a news story that he said incorrectly reported that an FBI inspector said the FBI had dispatched 16 four-person teams to conduct 2257 inspections. According to the SSA there is, in fact, only a single five-person team performing the inspections and that no FBI agent has ever indicated otherwise.

To avoid additional misunderstandings, the SSA told me that the FBI wanted to provide to the adult industry, through some of its larger companies, accurate information regarding the 2257 inspection process. Additionally, he said, the bureau was interested in any feedback or other input the companies might have regarding the inspection process and what the FBI views as violations of the regulations.

It would be fair to say that I was dubious about the SSA’s explanation of the government’s purpose in calling the meeting. While I would subsequently learn that my concerns were unfounded, at the time they were hardly unreasonable in light of the long history of the government’s heretofore consistently unfair, and often unlawful, treatment of the adult entertainment industry.

Several subsequent conversations with the SSA were required to resolve a number of basic issues regarding the proposed meeting. Although the FBI was amenable to several changes regarding attendees, such as allowing them to be accompanied by counsel, they unfortunately refused to allow a representative of the Free Speech Coalition to attend the meeting despite my vigorous arguments to the contrary. The FBI did indicate, however, that it might not be adverse to the inclusion of the FSC in a subsequent FBI meeting with additional adult entertainment companies on the west coast sometime in 2007.

The Meeting
On the day of the meeting, I met up with my friends and fellow attorneys Paul Cambria and Jeffrey Douglas in the highly secured waiting area of the J. Edgar Hoover Building in Washington. Without much ado, and with our clients in tow, we were escorted to a large windowless conference room on the eighth floor to join our FBI counterparts. Then, after all the attending parties introduced themselves, Assistant Director Burrus explained the purpose of the meeting.

Burrus told us that the 2257 compliance inspections the FBI has been assigned to perform comprise the bureau’s first efforts in the area of industrial inspections. He then told us that it was his intent to accomplish the task in a manner consistent with the FBI’s reputation of excellence. He explained that to do so, he consulted with other federal agencies responsible for performing industrial record inspections and other regulatory functions. He was advised to learn about the industry and make contact with respected industry leaders who can assist the agency in the discharge of its inspection responsibilities. He was also told that effective regulation and performance of inspection responsibilities would require an ongoing dialogue with the regulated industry.

Burrus then candidly indicated that he and the FBI staff charged with the responsibility of 2257 compliance inspections determined that they were not sufficiently familiar with the adult entertainment industry to optimally perform the 2257 compliance inspections. They also recognized that there was no existing channel of communication between the adult entertainment industry and the FBI, much less an ongoing dialogue with the adult entertainment business. As a result of these realizations and concerns regarding inaccuracies reported in the adult entertainment press, Burrus called for a meeting with leading adult industry companies in order to commence such an ongoing dialogue with the industry.

As I listened to Burrus conclude his apparently sincere comments, I realized that I might have just heard the first effort by a representative of the federal government to engage the adult entertainment business in the kind of regulatory dialog that is typical of other large industries. (If the room had windows, I think I might have seen pigs flying by.)

After Burrus’ opening comments, a supervisory special agent presented a detailed description of the various phases of a 2257 compliance inspection.

In part two, we’ll look at discussions surrounding the inspection process as well as what the future may hold.

Gregory A. Piccionelli, Esq. is an Internet and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375.

FSC Seeks Halt to All 2257 Inspections (XBiz)

Blogged under Serious Stuff by fight on Friday 17 November 2006 at 6:04 pm

FSC Seeks Halt to All 2257 Inspections
By Steve Javors
Friday, November 17, 2006

LOS ANGELES — Free Speech Coalition Chairman Jeffrey Douglas told XBIZ he believes that the FBI has violated a court-ordered injunction designed to protect FSC members who are defined as secondary producers.
The alleged violations occurred when FBI agents inspected the records of secondary producers Robert Hill Releasing, Legend and Pure Play Media.

While the FSC has publicly remained silent about what it believes to be violations of the injunction, Douglas assured XBIZ that the FSC legal team is working behind the scenes.

“Free Speech Coalition is taking a two-pronged approach to these violations,” Douglas said. “We are currently engaged in communications with the Justice Department to see if they will agree to temporarily stop the inspections, and hopefully we can reach an agreement. If these good-faith talks do not progress, we will ask the judge to enforce his order.”

Prior to the Legend inspection, the FSC informed the lead FBI agent in charge of 2257 inspections that the inspection of Robert Hill Releasing was in violation of the injunction, according to Douglas. FSC sent a letter to Justice after the Legend inspection, which was the second company with to be inspected with secondary producer status, which would have allegedly violated the injunction. Since Legend, the FSC has been involved in negotiations with the FBI to halt inspections until these issues are resolved.

Legend had a letter that was presented to the FBI before it began inspections explaining its secondary producer status.

Douglas further cautioned members of the adult industry to not resist what the FBI demands at any point during an inspection under any circumstances.

“The FBI orders in the nicest possible way,” Douglas said. “It would be a grave problem for someone to refuse what the FBI demands even if what he or she asks for is illegal. The courts will decide that. It’s in no one’s advantage to refuse access. If you think the FBI is conducting an illegal records inspection, the best approach is to document it. Immediately have your lawyer notify the FBI while the agents are there. All companies should have a letter to present to the FBI explaining that its secondary producer records are exempt citing the injunction, but that you will still supply the agents with whatever records they need to complete the inspection.”

Douglas refused to issue a timetable for resolution, but he said the FSC understands the gravity of this issue, which must be resolved quickly because other secondary producers could be inspected in the meantime. While he stopped short of employing scare tactics, Douglas sounded slightly unnerved that the FBI and Justice have treated the letter of the law in such cavalier fashion.

“We want this to be resolved in the short-term future,” Douglas said. “The FSC is making a good faith effort to resolve what we feel are violations by agents of the federal government. No one should feel safe because the FBI and Justice are not following the law.”

Douglas also believes that the FBI has created a large legal quandary for itself by violating the injunction because “if we are to assume that a judge agrees that these inspections violate the injunction, I think it’s unlikely that Justice will succeed in any prosecution based on these inspections.”

After mid-term elections saw many socially conservative Republicans voted out of office, Douglas recognized an immediate benefit to the landscape of politicians that stand opposed to the adult industry.

“If the best short-term benefit to the mid-term elections is that the primary force behind aggressive enforcement of 2257 came from a small cadre of ideological Republicans in the Senate and House,” Douglas said. “Without those individuals in power to threaten, hold hearings and generally humiliate, and with the Democrats in power, this means that the primary impetus to enforcing a law that is pointless, unconstitutional and utterly stupid, dissipates.

However, Douglas cautions that if the Democrats can’t hold onto both houses in two years, it will be a very short-lived victory.

Pure Play Media Undergoes 2257 Inspection (XBiz)

Blogged under Serious Stuff by fight on Friday 17 November 2006 at 8:26 am

Pure Play Media Undergoes 2257 Inspection
By Steve Javors
Thursday, November 16, 2006

CHATSWORTH, Calif. — The FBI conducted a 2257 records inspection of Pure Play Media this morning, CEO Richard Arnold told XBIZ.
Five FBI agents visited the Pure Play offices with their own equipment and a list of titles to inspect.

“With the help of our attorney, we keep all our ducks in a row in regard to our 2257 files,” Arnold said. “The FBI seemed to be very satisfied with our records, they were courteous and friendly. The agents brought a list of titles and some copying equipment. It seemed like they were impressed because our 2257 records are in pretty good shape.”

Arnold declined to mention the titles on the FBI’s list.

Pure Play Media employs a full-time staffer to maintain the company’s 2257 records.

Pure Play Media is both a primary and secondary producer of adult films, and Arnold said the agents inspected records from both types of productions. Pure Play Media is a member of the Free Speech Coalition and its secondary producer records should be exempt from federal inspection via an injunction the FSC won for its secondary producer members in December.

Pure Play Media mostly functions as a distribution house for production studios that include Asia Bootleg, Cousin Stevie, DanniHardcut, Erotic Media, Hundies, Naughty America, Private, Score, Seymore Butts, Suze Randall and Swank Digital.

The other companies that have been subject to 2257 records inspections are Evasive Angles, Darkside Entertainment, Legend, Sunshine Films, Robert Hill Releasing, Sebastian Sloane Productions and Diabolic. The FBI’s inspection of Bethlehem, Pa.-based Sebastian Sloane Productions was prompted by an unrelated search warrant.

Jeffrey Douglas: Latest 2257 Inspection Violates FSC Injunction

Blogged under Serious Stuff by fight on Wednesday 11 October 2006 at 10:47 pm

Jeffrey Douglas: Latest 2257 Inspection Violates FSC Injunction
By Michael Hayes
Tuesday, October 10, 2006

SANTA MONICA, Calif. — Free Speech Coalition attorney Jeffrey Douglas, who also represents Chatsworth, Calif.-based Legend Video, said today’s FBI inspection of the company’s 2257 records was conducted in violation of an injunction issued in favor of the trade group’s secondary producer members by a U.S. District Court in Denver.

Legend Video, which Douglas called a classic secondary producer, buys, duplicates and distributes finished adult films, but does not produce any primary material. According to Douglas, the company is therefore protected under the injunction issued in December by U.S. Judge Walker D. Miller.

“I regard this as a very serious matter,” Douglas told XBIZ. “It is a bad thing that the FBI has treated this injunction in such a cavalier fashion.”

Douglas said his client, Legend co-owner Bruce Mendleson, put him touch via phone with the FBI agent leading the inspection team.

“The explanation that the agent in charge gave to me regarding their decision to continue despite my objections was wholly unsatisfactory,” Douglas said. “The next step is to meet with the FSC litigation team and plan our response.”

In late December, the U.S. District Court granted in part and denied in part the preliminary injunction that halts enforcement of several amended rules relative to U.S.C. 18 § 2257.

The order sustained the FSC’s argument that the inclusion of “secondary producers” in the accompanying regulations violated a previous 10th Circuit ruling — Sundance Associates Inc. vs. Reno, 139 F.3d 804 (10th Circuit, 1998) — and other aspects of the organizations’ contention that 2257 imposes undue burdens on speech, but otherwise denied their claim that 2257 is unconstitutional.

The case is Free Speech Coalition vs. Alberto Gonzales, No. 05 CV 1126 WDM.

FBI Not Targeting Specific Titles in 2257 Inspection (XBiz)

Blogged under Serious Stuff by fight on Tuesday 25 July 2006 at 9:36 pm

FBI Not Targeting Specific Titles in 2257 Inspection

By Matt O’Conner
Tuesday, July 25, 2006

LOS ANGELES — FBI agents on Monday conducted a routine inspection at the offices of Diabolic Video of records related to 18 U.S.C. §2257, XBIZ has confirmed.
“It was an inspection in accordance with Title 18, Section 2257, which allows the FBI to inspect a company’s offices during normal working hours,” FBI spokesperson Laura I. Miller told XBIZ, adding that she could not offer more details at this time.

Miller did, however, say that the records were randomly selected and that no particular titles were targeted.

2257 regulations requiring record keeping for content depicting actual sexual acts have been in place since Nov. 18, 1988. However, until this week, no adult companies had been subject to inspections.

In 2004, then-Attorney General John Ashcroft called for an expansion of the requirements to extend to secondary producers. The new rules officially went into effect June 23, 2005, but the FSC secured an injunction against enforcement on behalf of members. The injunction remains in force.

Senate Legislation: 20 Years for Disguising Porn Sites as Child-Friendly (AVN)

Blogged under Serious Stuff by fight on Tuesday 25 July 2006 at 6:56 pm

Note: This is quality legislation. For once I completely agree with the Congress on this issue. Anyone actually, purposefully tricking children to come to a porn site should be shot, cut into little pieces and buried alive.

The only reasons to do that, that I can think of, is to a) get the unsuspecting child to deliver personal information, which means the web site operator intends some kind of harm to the child or, b) thinks he’ll get paying adult to come to the site through the same trickery.

In case “a”, that person needs to be jailed (or buried alive - up to you) for being an evil bastard. In case “b”, they need to be put away for being incredidbly stupid! The FSC (and others) has it right: the legitimate adult industry needs to clean up their act - now - or the gov will do it for us.

Now, I do have one question. I’ve thought about this, and something doesn’t quite make sense. Why would a predator go to the trouble of creating a pornographic web site, embedding keywords and other search engine optimization methods (hey - the kids gotta find it somehow) to attract children, if they truly have the intent of causing that child harm - harm in person - like most predators are known to do? Does that make any sense? What child, looking for whatever lead them there in the first place, would find a pornographic web site, then eagerly enter their contact data and wait for a response from “the nice man with the porno site”?

I don’t get it. Are there any cases on record of someone doing this? Going to the trouble and expense to create a porn site designed to attract children? To paraphrase Commodus from the movie Gladiator, I’m vexed.. I’m terribly vexed.

If this has ever happened, it certainly has nothing to do with the legitimate adult industry, for at least two reasons. One, most adult webmasters are not evil bastards. Two, and it’s not pretty or intended to make people feel good (but it’s true), kids can’t buy porn. We don’t want them to, so that’s cool. The fact of the matter is, there is no market incentive to attract kids to a porn site. None, nada, zip.

Anyway, enjoy the article:

Senate Legislation: 20 Years for Disguising Porn Sites as Child-Friendly
By: Larissa Gates
Posted: 3:00 pm PDT 7-25-2006

WASHINGTON - Luring children to websites containing sexual content by using child-friendly words may soon be a felony, under new legislation approved by the U.S. Senate Thursday, according to a report by CNET News.com.

The Child Protection and Safety Act would see fines and imprisonment for up to 20 years handed to anyone convicted of deliberately misleading children to view potentially harmful web pages, the report said.

“Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a minor into viewing material harmful to minors on the Internet shall be fined under this title and imprisoned for not more than 20 years,” the legislation declares.

“This bill will protect children and save countless lives by dramatically improving our efforts against sex offenders and violent criminals,” said Rep. F. James Sensenbrenner, R-Wisconsin, after the vote. “Too many parents are devastated by an innocent child exploited and harmed by predators lurking in our communities.”

Webmasters, however, would have to clearly indicate an “intent to deceive” visitors who access the site before they would be subjected to charges under the legislation, a requirement that would leave the application of the law open to extensive judicial interpretation, according to the report.

The legislation would also tighten laws relating to child porn, sex offender registration and child exploitation.

The Senate approved the bill by a voice vote. The House, which voted to approve an earlier version of the bill, is expected to clear the revised version next week and send the legislation to President Bush for his signature. The president endorsed the legislation Friday, saying it would provide “law enforcement officials with the tools they need to track those who prey upon children”.

Previously the Child Protection and Safety Act was amended to include a section called “Truth in Domain Names” or Misleading Domain Names on the Internet.

FBI Visits Diabolic Video to Check 2257 Records (AVN)

Blogged under Serious Stuff by fight on Monday 24 July 2006 at 9:18 pm

FBI Visits Diabolic Video to Check 2257 Records
By: Paul Fishbein and Mark Kernes
Posted: 4:20 pm PDT 7-24-2006

CHATSWORTH, Calif. - FBI agents on Monday visited the offices of Diabolic Video to check the company’s records in accordance with the recordkeeping regulations of 18 U.S.C. §2257, according to Diabolic owner Greg Allan.

“The agent said there are 10 companies on their list and we were the first, but Diabolic, not Anabolic,” Allan told AVN.com exclusively.

However, sources tell AVN.com that at least one other company has had its records inspected, and that the list of companies to be inspected was not limited to 10.

Monday’s inspections were the first time any adult company had ever been visited in the 11 years that the regulations have been in effect to verify its compliance with the record keeping requirements of §2257.

“They’ve been very nice and professional and are just doing their jobs,” Allan said at approximately 1 p.m. Pacific time. “I’m passing with flying colors. They’re still here but midway through, I know we have everything.

“I’ve dedicated a lot of time and money to this so I think I’ve taken it more seriously than a lot of people,” Allan explained. “It’s never a comfortable feeling when the FBI is downstairs, wanting to talk, but again, they’ve been really nice about it.”

Allan said the FBI did not disclose the other names on the list, but knowledgeable sources say that the agents are interested in examining the records of 23 video titles from various producers. That list was not made available to AVN.com.

At least one attorney had speculated that the inspections might be connected with the rumor, some months ago, that a fairly new performer by the name of “Seduction” had made features and posed for explicit photos while underage, but knowledgeable sources say that the current investigations have nothing to do with that performer.

However, according to First Amendment attorney Roger Wilcox, “If they went in with a list of titles of movies they have a concern about, they are probably looking more for proof of age than the status of anyone’s compliance with the recordkeeping regulations.”

Adult producers would be well advised to contact their attorneys if they have any questions about their own compliance with §2257, or if they have been contacted by the FBI or any government agency with regard to their products.

“If you are a primary producer or a primary and a ’secondary’ producer, expect an inspection,” wrote Tom Hymes, media coordinator for the Free Speech Coalition. “If you are in the latter category and are also a member of the Free Speech Coalition, only the primary producer records are subject to inspection.”

“If you are exclusively a ’secondary’ producer, or both primary and ’secondary,’ and exempt from ’secondary’ inspection by virtue of your Free Speech Coalition membership, it is important that you ask your lawyer how to decline the Federal inspection, and notify the FSC office as soon as possible if such an inspection is attempted,” the Coalition advised.

Attorneys serving the adult industry were dismayed that with the pending Free Speech lawsuit against the labeling and recordkeeping regulations, that the FBI would attempt to conduct inspections, especially after failing to have conduct even one in the 11 years of the regulations’ existence.

“It would be nice if [the government] could see that the people representing the industry have, for many years, counseled people to take §2257 very seriously,” Wilcox added. “With the signing into law of the amendments to §2257 that’s expected this week [see story on H.R. 4472], the need to get your house in order, if you have any concerns, is more pressing than ever, because of Congress’ attempt to get rid of the Sundance ruling and to allow enforcement of the secondary producer provisions by amending the statute.”

Industry Alert: Senate Agrees to Revamping of 2257 Statute (AVN)

Blogged under Serious Stuff by fight on Saturday 22 July 2006 at 3:36 pm

Industry Alert: Senate Agrees to Revamping of 2257 Statute
By: Mark Kernes
Posted: 5:01 am PDT 7-22-2006

CHATSWORTH, Calif. - What do Megan Kanka, Jetseta Gage, Jessica Lunsford, Sarah Lunde, Amy Zyla, Christy Ann Fornoff, Polly Klaas, Jimmy Ryce, Carlie Brucia, Amanda Brown, Molly Bish, Samantha Runnion and Adam Walsh all have in common?

1) All were minors who were abducted, in most cases sexually assaulted, and murdered over the past 15 years, and 2) all have been pressed into service posthumously by Congress this week to restrict Americans’ right to enjoy sexually explicit material.

Yesterday, the U.S. Senate passed its version of House Resolution (H.R.) 4472, now titled the Adam Walsh Child Protection and Safety Act of 2006, with minor changes that are sure to find approval in the House, and President Bush is expected to sign the bill into law on July 27.

Why July 27? Because on that date, 25 years ago, six-year-old Adam Walsh was abducted from a mall in Hollywood, Florida, to be discovered dead in a canal 100 miles from his home two weeks later – so what better date to sign a bill, most of whose provisions create new categories of offenses and increase penalties for child sexual abuse, child prostitution and trafficking in children?

But Title V of that bill, the section titled “Child Pornography Prevention,” also revamps 18 U.S.C. §2257, the statute derived from the Child Protection Restoration and Penalties Enhancement Act of 1990, whose effect will be to put more adult content producers at risk for federal prison sentences and fines, even though they deal exclusively in material made by adults, for adults.

The duplicity used by congressional theocrats in passing this bill is first evident in Title V’s “Findings” section, which talks about “[t]he effect of the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography on the interstate market in child pornography.” The section rightly notes that there is evidence that the making and distribution of child porn is harmful to the child, and “has a substantial and detrimental effect on society as a whole”; that it’s a multimillion dollar industry; and that child porn is widely traded, both through the mails and on the Internet. As such, the “Findings” claim, child porn has “a substantial and direct effect upon interstate commerce” even though “[m]uch of the child pornography that supplies the interstate market in child pornography is produced entirely within the boundaries of one state, is not traceable, and enters the interstate market surreptitiously.”

Those last points are important, since Sec. 506 of this Act amends 18 U.S.C. §1465 to add “production of obscenity” to the already-existing crimes of transportation, distribution and sale of obscene material. This section obviously draws on the recent Supreme Court decision in Gonzales v. Raich, which allowed federal agents to target medical marijuana suppliers and users even in states where such sale and use is legal, on the specious premise that even if all the marijuana is grown and distributed within the state, it nonetheless has an effect on interstate commerce, thus allowing the federal government to attempt to regulate this purely intrastate industry. How this addition to the federal obscenity laws will shake out in practice remains to be seen – but it is unlikely to be beneficial to the adult entertainment industry.

But the main thrust of Title V is the revamping of §2257, both to update the section to bring it into the digital age, but more importantly, to codify by statute the overbreadth contained in the Justice Department’s regulations allegedly drawn from the Child Protection Restoration and Penalties Enhancement Act. That overreaching reached astronomical heights with Attorney General John Ashcroft’s 2004 revised regulations, which were put into effect by his successor, Alberto Gonzales, in June of 2005, and which are currently “on hold” for members of the Free Speech Coalition due to FSC’s lawsuit against those regulations.

For instance, H.R. 4472 adds producers of any “digital image” or “digitally- or computer-manipulated image of an actual human being” to the list in subsection (a) of §2257 of those who must keep records of performers of “actual sexually explicit conduct” and index them, while another section adds a §2257 labeling requirement, already mandatory for every magazine, videotape and DVD containing sexually-explicit matter, for “every page of a website on which matter described in subsection (a) appears.”

H.R. 4472 also strikes the phrase “identification document” from §2257, thereby apparently allowing the list of acceptable forms of identification listed in the regulations – passport, driver’s license, green card, etc. – to become the only officially accepted IDs.

But the most dramatic change in §2257 is hidden away in subsection (h)(2)(B)(iii), ostensibly in the section that lists those people exempt from the recordkeeping requirements.

§2257(h)(2)(B)(iii) now reads that the term “produces … does not include activities that are limited to … any activity, other than those activities identified in sub-paragraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers.”

The trouble is, sub-paragraph (A) defines “produces” to mean “(i) actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; (ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or (iii) inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct.”

But the “digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct” is exactly what the Justice Department, in its §2257 regulations, has been referring to as the definition of a “secondary producer” – and it’s that definition, which had no basis in the original Child Protection Restoration and Penalties Enhancement Act, that was struck down by the Tenth U.S. Circuit Court of Appeals in the famous Sundance Associates v. Reno case as being an unwarranted interpretation of the statute. The Justice Department never bothered to appeal that 1998 ruling, but since it was therefore the established law in the Tenth Circuit, many adult businesspersons even outside the Tenth Circuit have followed that ruling, and the Justice Department never challenged that practice until the issuance of the 2005 revised regulations. H.R. 4472, when it’s signed into law, will place just such a “secondary producer” definition (though not those exact words) into the statute itself.

Of course, the concept of “secondary producer” is one of the primary facets of Free Speech Coalition’s lawsuit filed last June against the Justice Department, and since that suit was filed in the Tenth Circuit, the presiding judge in the case, Judge Walker D. Miller, was required to follow the law of his circuit and issue an injunction against the government attempting to apply its “secondary producer” definition to the plaintiffs in that lawsuit, which includes all Free Speech Coalition members, and according to one legal analyst, that injunction won’t change even after the passage of H.R. 4472.

“Whatever either side thinks is the effect of this new statutory amendment, it will have to go back to Judge Miller and make those arguments, and he’ll decide,” explained First Amendment attorney and FSC board member Reed Lee. “For instance, the government may think that the portion of the injunction concerning secondary producers in now moot and should be lifted. We of course will argue that there are constitutional issues, which means that that part of the injunction is perfectly proper. We may go further and say that there are now a whole bunch more reasons why Judge Miller should enjoin and restrain enforcement of even more of the regulations, so nothing will happen without Judge Miller modifying the injunction one way or another, and any modification or refusal to modify will be immediately appealable.”

Lee went even further, however, and suggested that H.R. 4472 may even strengthen FSC’s case against the §2257 regulations.

“We’re going to argue that the change in the definition of ‘producer’ shows that the previous definition of ‘producer’ – that is, the current one – did not support the notion of ’secondary producer’,” Lee added, “so that there can be no secondary producer culpability at least until the effective date of the amendment, and we’re going to have a bunch of constitutional issues why there shouldn’t be secondary producer culpability after that.”

So does that mean that the government’s actions regarding “secondary producers” will depend more on Judge Miller’s injunction than the passage of this Act?

“Oh, right,” Lee agreed. “In terms of any changes to the injunction, that will be for Judge Miller to make in the first instance, then the appellate court, and everybody has understood this litigation may go all the way [to the Supreme Court].”

But the “secondary producer” concept is only one way H.R. 4472 will affect how the adult industry continues to do business. For instance, note that “digitizing an image, of a visual depiction of sexually explicit conduct” makes someone a “producer” under §2257, and therefore subject to the recordkeeping and labeling requirements of producers. Note further that this section of the Act makes no mention of whether this digitized “image of a visual depiction of sexually explicit conduct” is exempt under either the Act or the regulations. This implies that the mere act of digitizing – scanning – an exempt image for commercial purposes makes that image non-exempt and subject to the recordkeeping and labeling requirements of the Act, and in many cases – perhaps the vast majority of cases – those records no longer exist, or were never created in the first place. This will create major problems for companies that want to market golden-age titles, since they may not have the name and address of the primary producer’s custodian of records to put on the required label.

Another clause of the Act is particularly puzzling. In a paragraph labeled “Construction,” the Act reads, “The provisions of section 2257 shall not apply to any depiction of actual sexually explicit conduct as described in clause (v) of section 2256(2)(A) of title 18, United States Code, produced in whole or in part, prior to the effective date of this section unless that depiction also includes actual sexually explicit conduct as described in clauses (i) through (iv) of section 2256(2)(A) of title 18, United States Code.”

“Clause (v) of section 2256(2)(A) of title 18, United States Code” is part of the definition of “sexually explicit conduct,” and reads, “lascivious exhibition of the genitals or pubic area of any person.” Lascivious exhibition had previously been entirely excluded from the requirements of §2257, but with H.R. 4472’s changes to the law, lascivious exhibition will apparently now be included if the material also depicts sexual intercourse, bestiality, masturbation or sadistic or masochistic abuse, all referenced in clauses (i) through (iv) of §2256(2)(A).

However, the purpose of the “Construction” caveat seems to be a reference to the entirely new recordkeeping and labeling requirements created by Sec. 503 of H.R. 7742, “§2257A - Record Keeping Requirements For Simulated Sexual Conduct.”

Yep, you read right: All of those Hollywood movie producers (not to mention producers of late-night cable fare) of “simulated sexually explicit conduct” will be required to “create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction” – maybe.

Why “maybe”? Well, leaving aside the fact that nowhere is “simulated sexually explicit conduct” defined – let’s not forget that Stephen Knox was imprisoned for videotaping the genital areas of clothed children on a playground – check out §2257A(h)(1):

“(h)(1) The provisions of this section and section 2257 shall not apply to matter, or any image therein, containing one or more visual depictions of simulated sexually explicit conduct, or actual sexually explicit conduct as described in clause (v) of section 2256(2)(A), if such matter–

“(A)(i) is intended for commercial distribution; [and]

“(ii) is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer…” [Emphasis added]

So in other words, if the subject is simulated sexually explicit conduct (whatever that is), and whoever’s producing a work containing such material keeps, for instance, an IRS W-2 form for each performer, that producer may not be required to keep any additional record for §2257A purposes – which is bound to be a relief for any mainstream producer, since the recordkeeping and indexing requirements for §2257A are just about as onerous as the requirements for §2257.

All well and good … but what about labeling? §2257A(c) requires that “[a]ny person to whom subsection (a) applies shall maintain the records required by this section at their business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times.”

Now, that requirement is slightly different from a similar (and new) requirement in §2257, which makes it a crime “for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c),” [emphasis added] but it should still be problematic for mainstream performers to have records of their real names and home addresses available at some location for anyone off the street – a potential stalker, for instance – to come in and “inspect.” (After all, there is still no statute or regulation which defines just who is a “designee” for purposes of inspecting §2257 or §2257A records, and to refuse to allow anyone who claims to be such a designee to perform a records inspection may be a crime!)

Those are some of the more obvious concerns embodied in H.R. 4472, which will be significantly more of a problem for producers who are not members of Free Speech Coalition, and it seems likely that more subtle problems will arise as the Justice Department attempts to implement this bill’s provisions. Keep watching this site for updates on this issue so vital to the adult entertainment industry.

Hollywood and 2257

Blogged under Serious Stuff, Stupid Politics by fight on Thursday 20 July 2006 at 7:39 pm

Senate Vote Near on Filmed-Sex Bill
July 20, 2006
By Brooks Boliek
WASHINGTON — The Senate could vote as early as Thursday on legislation that includes language that would increase Hollywood’s record-keeping requirements for movies and TV shows that carry steamy love scenes.

While the central focus of the legislation is the establishment of a national sex offender registry, it includes a provision that would require Hollywood studios to ensure that they keep records of the ages of the actors who pretend to have sex in motion pictures and TV programs.

According to Senate leadership aides, approval of what is now being called the Adam Walsh Act is expected to come as early as today. The House is expected to accept the Senate’s version of the bill with an eye toward getting President Bush to sign it into law July 27, the aides said.

Adam Walsh, the 6-year-old son of John Walsh, was abducted from a department store in Hollywood, Fla., on July 27, 1981. The next month, his severed head was found in a Vero Beach, Fla., canal. His other remains have not been recovered, and no one has been convicted of his slaying.

The crimes prompted John Walsh to become a victims’ rights advocate and helped spur the formation of the National Center for Missing and Exploited Children. Walsh’s outspokenness brought him to host the television program “America’s Most Wanted.”

Over the past few days, Walsh and his fellow child-welfare advocates have mounted an extensive lobbying effort to win approval of the bill.

While Hollywood isn’t thrilled by the bill, the studios didn’t want to give the appearance that they are standing in the way of legislation meant to help the government crack down on child abusers.

“To be clear, we support legislation that stops child pornography,” the MPAA said. “But the original proposal would have subjected studios to criminal penalties, federal searches and near-impossible labeling requirements, none of which would have advanced the stated goal of protecting children. While this latest draft is not a perfect outcome, it is much better than it was.”

The bill potentially reaching the Senate today has been significantly altered to address the concerns of the motion picture industry, contrary to the language first pushed by Rep. Mike Pence, R-Ind., equating sexy Hollywood fare with hard-core pornography.

Under Pence’s original amendment, “any book, magazine, periodical, film, videotape or other matter” that contained a simulated sex scene would come under the same government-filing requirements that adult films must meet (HR 3/9).

Currently, any actual filmed sexual activity requires an affidavit that lists the names and ages of the actors who engage in the act. The film is required to have a video label that claims compliance with the law and lists where the custodian of the records can be found. The record-keeping requirement is known as Section 2257, for its citation in federal law. Violators could spend five years in jail.

Pence’s provision expanded the definition of sexual activity to include simulated sex acts like those that appear in many movies and TV shows.

According to a draft of the current legislation obtained by The Hollywood Reporter, the makers of movies and TV programs still would have to keep records that verify the actors involved in simulated sex scenes are over 18, but they wouldn’t have to keep separate records or a different record for every scene. As long as the studios tell the Justice Department that they keep records of performers’ ages under the course of their normal business practices, they will comply with the new language.

Also removed is language that would have subjected makers of movies and TV shows to specific criminal penalties for failing to maintain records of performers’ ages.

The new language also does away with requirements that the films carry labels similar to X-rated movies certifying compliance, removes a prohibition against state and local production incentives for movies with simulated sex and would affect only products made after the law goes into effect. It does not give the Justice Department the right to inspect the records whenever it chooses.

Critics say antiporn effort could affect wrong sites (news.com.com)

Blogged under Stupid Politics by fight on Wednesday 21 June 2006 at 6:07 pm

Critics say antiporn effort could affect wrong sites

By Anne Broache
Story last modified Tue Jun 20 12:26:29 PDT 2006

Photographer Ron Hildebrand believes the black-and-white nude portraits displayed in his online gallery are “more sensual than sexual.”

Even so, the Nevada-based artist said he thinks people should take responsibility for the content they publish online, so he posts a brief disclaimer on his home page. Among his cautions: “Please do not enter if you are offended by such imagery.”

That voluntary warning may not be enough if a bill backed by the Bush administration becomes law. Under the Stop Adults’ Facilitation of the Exploitation of Youth Act–or Internet Safety Act–introduced last week in the U.S. Senate, all “commercial” Web site operators who fail to flag each page containing “sexually explicit material” could risk fines, up to 15 years in prison, or both.

While backers say they are mainly targeting child pornography and trying to keep kids away from mature content, legal experts argue that a broad range of less obvious material could be affected as well, including, for example, a news report that details a sordid sex crime, a computer animation that demonstrates condom use, or even an online lingerie catalog.

“By quite consciously not trying to limit the statute to real, live sex acts, they’ve swept in just a potentially huge universe of sites,” said John Morris, director of the Internet Standards, Technology and Policy Project for the Center for Democracy and Technology.

Proposed last week by Arizona Republican John Kyl, the Internet Safety Act is, according to its backers, chiefly concerned with combating child pornography.

“Advances in technology have brought us many wonders,” Kyl said in an editorial published Monday in the National Ledger, an online news publication. “Unfortunately, they have also brought to our children a whole new world of threats that were not there when we were children. This disturbing fact requires the vigilance of parents, and thoughtful action by government.”

The Justice Department-backed proposal would, in fact, beef up penalties for those engaged in that criminal practice, introducing the possibility of life in prison for the most salient offenders.

Web labeling could allow sexually oriented sites to be picked up by filtering software and relegated to a child-safe blocked list. But the act’s language appears sweeping enough to stretch far beyond pornography, public interest groups charged.

According to federal law and prior court decisions, the term “sexually explicit material” used in the Justice Department and now the Senate proposal covers not only various forms of sexual intercourse and abuse but also “lascivious exhibition of the genitals or pubic area of any person,” even if clothed.

By that logic, “it would appear that the Victoria’s Secret Web site may be sexually explicit,” said Marv Johnson, legislative counsel for the American Civil Liberties Union.

‘Instantly inaccessible’

The bill calls for Web site operators to include “marks or notices” developed by the Federal Trade Commission eith