Keeping Line Open on 2257
The first and most dramatic example of the communication between the FBI and the adult industry came in February, when Special Agent Chuck Joyner gave a presentation at the XBIZ Hollywood conference. In his presentation, Joyner laid out with some detail what producers could expect if they are inspected by the FBI, as well as addressing questions from the audience — after those questions had been carefully vetted by the industry attorneys participating in the discussion.
In the months since February's presentation, there has been little evidence of continuing communication between the FBI and the adult industry. In the interest of keeping that communication channel open, and improving on the foundation established with October's meeting, XBIZ recently sat down with Special Agent Joyner for another talk about 2257, the inspections process and the fledgling relationship between the Bureau and the industry.
XBIZ: If a company maintains its records "off site" with respect to its primary place of business — at a lawyer's office, for example, or some other manner of separate office maintained by their custodian of records — would that storage location/method itself be considered non-compliant by the FBI?
In other words, if I'm a producer who is primarily located in offices at 123 Hollywood Blvd., but my custodian keeps the required records up the road in Burbank (and I properly indicate such on all my labels, websites and other associated compliance statements), does that mean I'm not "compliant" in the FBI's view, or does the FBI just concern itself with the completeness and accuracy of my records, wherever those records might be located?
Special Agent Chuck Joyner: I would not write this up as a violation. My belief was "place of business" should be interpreted broadly for inspection purposes. If records are maintained at a lawyer's office or another physical location of a business contracted by the producer to maintain records, I would interpret that to also be the producer's place of business and within the constraints of the law. I also spoke with the AUSA [Assistant U.S. Attorney] in Los Angeles responsible for this program and to a DOJ attorney, and both agreed to this interpretation.
Perhaps a simpler answer is the producer directs the FBI to the location where the best records are kept. This is done by listing that location as the Custodian of Records and that is where we will go to conduct the inspection.
XBIZ: What has been the most common problem the FBI has encountered thus far with respect to the records being kept by the companies that have been inspected to-date? Illegible IDs? Incomplete records? Flat-out missing records?
Joyner: The majority of companies have had violations. The majority of violations include missing photo identification, illegible photo identification (either the photo is not identifiable or the date of birth is illegible), and incomplete or non-existent cross-reference system.
XBIZ: Have the inspection teams found any information indicating that any of the producers inspected to-date have employed underage models, or have the "violations" thus far been merely clerical/technical in nature?
Joyner: I wouldn't characterize it as being "merely clerical/ technical" as this tends to minimize the offense. Even though it is a record-keeping violation, similar to white-collar crime or fraudulent tax records, it is still a federal felony.
All violations to date have been record-keeping.
However, two producers have had records indicating two performers were underage at the time of filming. According to the identification on record, both were 16 years old on the production date.
Although additional investigation determined both performers were of legal age, it does demonstrate some producers' record-keeping is so poor they could negligently hire an underage performer.
XBIZ: During your presentation at the XBIZ Hollywood conference in February, you discussed the fact that should a problem be found in a producer's records, there is a kind of grace period offered for the producer to correct the problem; can you briefly address that issue, and how it works if/when you discover something that needs to be rectified? For example, suppose a producer supplies you with an ID that cannot be read, or is not clear enough to see the face of the person on the ID — do you then offer the producer a chance to obtain a better copy of the ID? If so, how long would you give the producer to correct the problem?
Joyner: I provide a "non-official, preliminary report" to the producer at the end of the inspection. This report is strictly from me to the producer and is not made part of any official document. Its purpose is to provide the producer a list of all violations we discovered, cite the law in which the violation appears, and give them the opportunity to resolve the violations.
In the example you provided, the producer would have at least one week to provide us with a legible ID.
If the producer has the necessary record on hand, it can be provided to us at that time and it is not a violation. If the appropriate records are not available, the producer then has at least one week from the date of inspection to correct any violations.
The fact [that an] ID is missing or illegible at the time of inspection is a violation and is noted in the final report to DOJ and the U.S. Attorney's Office. However, if the producer corrects the violation within the grace period, it is noted in the final report as "violation resolved."
Our purpose is to identify any underage performers and to identify if producers are keeping adequate records to ensure they don't hire an underage performer either purposely, accidentally or negligently.
XBIZ: If the report indicates "violation resolved," does that close the door on a possible prosecution for the resolved violation, or is that violation still subject to action by DOJ?
Joyner: Legally speaking, no — it does not close the door to possible prosecution.
XBIZ: As it has been described previously, the method for selecting content/records to be inspected is a random process of drawing producers/names from a database maintained by the FBI. Can you detail how that works?
Joyner: The database contains producers of sexually explicit material and is constantly being updated. Using a random sequence generator, producers are randomly selected by number. Products are then ordered for review.
XBIZ: Given that the law is designed to prevent underage people from appearing in adult entertainment content, isn't it a little inefficient to choose content for inspection at random? If the FBI pulls a random a video that clearly includes only models over the age of 35, as many "mature" videos and websites do, isn't it a bit of a waste to inspect that company's records, at least with respect to the purpose of the statute being enforced?
Joyner: DOJ and the FBI carefully thought out the process and wanted to avoid even the appearance they were "targeting" particular companies. In an attempt to conduct the inspections as fairly as possible, it was determined the inspections should be random. However, once a producer has been randomly selected, we have discretion as to which titles to select. This can help in making the process more efficient.
XBIZ: Many adult companies distribute the same content — not just content featuring the same models but precisely the same videos and/or photo sets, in many cases. Once the FBI has inspected a producer's records concerning a given video/DVD, does that information then go on file, so that if a future random selection brings back a title that the FBI has already obtained data on, it might skip that title and pull another one from the database at random? If not, are you concerned about duplicating efforts and possibly inspecting the same content/video multiple times?
Joyner: We're focused on producers rather than mere distributors, so we should not be reviewing the identical product from two separate producers.
The information from each inspection does go on file. As we conduct more inspections, this should make the process easier for us and the company being inspected. For example, as we become more knowledgeable about the performers, we can quickly eliminate those we know to be of legal age from further scrutiny.
If we select the same producer or return to an earlier-inspected producer due to unresolved violations, we will select new products to review; however, this does not preclude us from looking at products from the first inspection if they had issues.
XBIZ: This suggests that only "primary" producers are being inspected, as secondary producers, by definition, obtain and redistribute content created by primary producers. Is the FBI not inspecting secondary producers?
Joyner: We can look at secondary producers, but our focus is on two things: One, we want to ensure that no underage performers are being used. Two, we want to ensure that producers are keeping good records. I want to make sure that we look at the best possible set of records, and those are typically going to be with the primary producer.
Can we look at secondary producers? Yes. Is that where the best possible records will be kept? Not necessarily. I'm not saying we won't look at secondary producers, though.
XBIZ: What can producers do to ease the inspection process once an inspection team has shown up at their door? I recall that at the XBIZ Hollywood conference, you said that you like to have a separate room in which to work, like a conference room for example, so that you can conduct your business with minimal interference/ interruption. What else can producers do to help make things go smoothly?
Joyner: Thank you for asking this. Actually, every place we have inspected to date has been professional and courteous. We greatly appreciate the treatment we've received. The main thing the producers can do is provide a comfortable work area for us. We need space to set up two printers, a laptop and workspace for five inspectors. The more we can spread out (such as in a conference room), the more quickly we can finish and get out.
You mentioned "minimal interference/interruption" and I want to make sure there is not a misunderstanding. We welcome (and prefer) that someone from the company be present at all times. I'm happy to answer any questions the producer may have during the inspection. Actually, I think we've been able to share significant information about the inspection process and we appreciate the opportunity to have a dialogue. It also assists us to have someone there if we have questions regarding specific records. Many times, companies have been able to avoid violations by having an employee present who can identify performers from photographs and assist us in completing our spreadsheet.
XBIZ: According to your/the FBI's understanding of the mandate to inspect the records of adult entertainment producers, is "extraterritorial" application of the law (inspection of records held by foreign producers/companies) something that we are likely to see in the future? If, for example, the producer of a DVD or set of content posted online is located in Prague, would the FBI undertake inspection of such a producer, either directly or in cooperation with Czech authorities?
Joyner: The law does apply to extraterritorial companies if there is a U.S. nexus … for example, if a foreign producer has a branch office in the U.S.
If a specific company was suspected of criminal activity, the FBI would work closely with that country through our legal attaché. It would then be a criminal investigation and not a routine 2257 inspection. Our program is responsible for conducting 2257 inspections and does not conduct criminal investigations.
On a related note, I did want to mention some re-inspections that have occurred. If a company has no violations, we are unable to inspect them again for at least four months. Some companies have violations and failed to resolve them. This is bad and leads to a re-inspection. If they continue to have violations, this indicates a deliberate disregard of the law.
XBIZ: You mentioned that "some re-inspections have occurred" and "some companies have violations and failed to resolve them." To clarify, have there been re-inspections wherein the producer failed to resolve violations noted in their initial inspection?
(Note: Joyner could not discuss further these re-inspections, or the unresolved violations, as they pertain to specific inspections, and Joyner is not authorized to discuss specific inspections in detail.)