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Stand Up and Be Counted

Stand Up and Be Counted

August 27, 2007
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" given that the compliance statement in its entirety will have to be displayed on each page of a website... a web page... might appear to be more of a compliance statement than an adult content page. "

The last time I checked, the U.S. was at war with an enemy unlike any we have had to fight before. An enemy that straps suicide bombs on children for detonation in a marketplace full of innocent people and then claims that doing so is an act of martyrdom condoned by God. An enemy that we are told would love nothing more than to kill millions of Americans with weapons of mass destruction transported into our country across borders literally left wide open due to the mix of historic incompetence and unpatriotic political expediency that has typified the Bush administration.

But despite the clear and unprecedented dangers posed to our homeland by the treatment of terrorism, global warming and a potentially catastrophic avian flu pandemic, in mid-July we learned that the next act in the theater of the absurd that typifies what may be the worst presidency in U.S. history is: new proposed 2257 regulations that are even more absurd and unconstitutional than those currently in effect.

Given the Bush administration's recent drubbing in the press for its apparent disregard for our constitution and the rule of law in general, the timing of proposed new 2257 regulations that even more egregiously violate the free speech and other civil rights of thousands of citizens brings to mind a recent observation by Sen. Charles Schumer, D.-N.Y., who recently stated, "The motto of this administration seems to be: When you're in a hole up to your neck, keep digging." It also brings to mind the indisputable wisdom of Forrest Gump's momma, who taught us all the simple axiom "stupid is as stupid does."

Published, coincidentally on the same day as the XBIZ Summer Forum's 2257 update panel, the U.S. Department of Justice (DOJ) released a new set of proposed amendments to the regulations (28 CFR Part 75 et seq.) pertaining to the federal record-keeping and labeling law (18 U.S.C. § 2257) that we have all come to know not so affectionately as the "2257 regulations."

According to the release, the DOJ's changes in the federal regulations are designed "to account for changes in the underlying statute made by Congress in enacting the Adam Walsh Child Protection and Safety Act of 2006." Specifically, the proposed new regulations are supposed to track and implement a slew of new mean-spirited and counterproductive obligations imposed on adult entertainment content providers by disgraced Congressman Mark Foley and the Republican-controlled Congress just before they were thrown out of power last year. Those obligations, part of the otherwise generally laudable Adam Walsh Child Protection Act, and themselves comprising an unprecedented expansion of the 2257 regulations require implementing rules to be promulgated by the DOJ. It is the proposed version of those implementing regulations that were finally published for comment by the DOJ just four hours prior to our legal panel at the XBIZ show.

The DOJ's publishing of proposed amendments to 2257's administrative rules is a very important matter to which everyone in the industry should pay close attention. The unfortunate reality is that the proposed changes will make an already complex and onerous briar patch of 2257 regulations even more so. And in what could be only a matter of months, if those changes go into effect, virtually every adult content provider across the broad spectrum of the adult business will be required to comply with new and dramatically expanded record-keeping and labeling regulations that impose very substantial periods of incarceration and very large monetary fines for virtually any violation of the law's numerous provisions.

The Proposal
The following are some of the more significant modifications proposed by the DOJ:

  • The definition of the type of content subject to the record-keeping and compliance statement labeling requirements imposed by 18 U.S.C. §2257 et seq. and 28 CFR 75 et seq. ("Subject Content") has been modified to track the specification of the types of content subject to the 2257 regulations, which was recently substantially broadened by the Adam Walsh Act. Therefore, the DOJ's new proposed regulation includes material subject to the 2257 regulations, visual depictions that include lascivious exhibition of the genitals or pubic area, whether clothed or unclothed. Presumably this would mean, among other things, that softcore banners and mobile content would have to contain full 2257 compliance statements in the content, as impractical as that would obviously be.

    Interestingly the new regulation would also subject the publication of sexy "crotch shots," such as Britney Spears' famous commando car exit sans her underwear, to all the 2257 Regulations record-keeping and labeling provisions. Consequently, if the regulations go into effect as written, you can bet that I will be nightly Tivo-ing "The O'Reilly Factor," which runs so many titillating sex stories with censored sexual graphics that I have nicknamed his show "The Mo' Skin Zone."

  • Another proposed modification of the regulations tracks the expansion of the definition of the term "produces" in the Adam Walsh Act to include a much broader scope of parties required to maintain the complex record-keeping system required by the 2257 regulations. If the change goes into effect as proposed, which is likely, virtually every party that creates or re-purposes Subject Content will have to maintain 2257 records. Thus parties formerly termed "secondary producers" under the existing regulations, such as website operators and compilation DVD producers, would now be deemed simply "producers" subject to all the 2257 regulations, including the complex record-keeping provisions.

  • The proposed new regulations, if adopted, would also create a new requirement to include the original date of production of the underlying material comprising Subject Content in every compliance statement associated with Subject Content or presumably, derivative works made from the Subject Content. This would seemingly mean, for example, that the compliance statement for a website on which content originally created by one or more parties other than the website publisher would have to include, in addition to the website's date of production, manufacture, publication, duplication, reproduction or re-issuance, as is currently required, a second production date for each component work displayed on the site corresponding to the particular component work's original publication date.

    Given that the compliance statement is supposed to be no smaller than 12-point type or no smaller than the second-largest typeface on the work on which it is included (28 CFR 75.6(e)), and given that the compliance statement in its entirety will have to be displayed on each page of a website if the new regulations are adopted (see below), a web page with many different works each comprising Subject Content might appear to be more of a compliance statement than an adult content page.

    Now if you are thinking that my example above is a good indication of how illogical and unfair the regulations are, consider the fact that there is still no requirement that the date of production be included in the records that are required to be maintained by producers. In fact, since the DOJ's 2006 revisions to the federal regulations, 28 CFR 75.2(e) states that "Records required to be maintained under this part … shall not contain any other records …"

    Consequently, it would appear that inclusion of the date of production of the content in the records could subject the producer to five years in jail for each instance that he or she does so! Odd, considering the fact that the government touts the lofty purpose of 2257's elaborate burdening of adult expression as to better enable law enforcement to quickly identify and prosecute child pornography.

    I applaud the government for finally considering the importance of the original date of production in the regulatory scheme. One might question why it took 11 years, but hey, this is the same administration that still hasn't secured our borders or rail lines nearly six years after 9-11 or delivered all the necessary equipment to our troops in Iraq more than four years after the commencement of the conflict. But even lauding their latent attention to the matter, logically one would think that the requirement of the original date of production should be a requirement (it still is not) and it should be required to be where it could be compared with the birthdates of the performers appearing in the Subject Content. Instead it is still potentially a prohibited record under 18 CFR 75.2. Go figure.

  • The proposed regulations also track the modification of usable identification documents set forth in the amendment of 18 U.S.C. §2257 by the Adam Walsh Act. If adopted as proposed, the new regulations would render copies of foreign government-issued identification documents, such as foreign passports or driver's licenses, unusable for 2257 record-keeping compliance with respect to foreign performers performing in Subject Content shot in the U.S., or for U.S. citizens performing in Subject Content shot abroad. Instead, in such situations only copies of picture identification documents issued by the U.S., one of the states of the U.S., a political subdivision thereof or one of the territories of the U.S. will satisfy the 2257 Regulations.

Many more proposed modifications of the regulations were published by the DOJ. So many, in fact, that it is far beyond the scope of this article to comprehensively discuss all of them, much less discuss how the DOJ's proposed amendments might likely apply to the various types of adult businesses that would be affected by them.

For more detailed materials, visit the Free Speech Coalition website at FreeSpeechCoalition.com, where you can obtain the current and proposed regulations, additional commentary by attorneys participating in our court challenge of the 2257, and sample forms for submitting comments to the DOJ during the public comment period.

Regardless of the availability and quality of additional 2257-related resources FSC is making available at the FSC site, given the magnitude of what might be at stake for you, I implore you not to rely solely on any published articles, websites, nonlawyer "advice" available on webmaster boards, or your ability to discern what your 2257 compliance obligations are from observation of 2257 compliance by what appears to you to be a similarly situated party. Considering that the FBI has commenced 2257 inspections and that the DOJ is clearly ramping up prosecutions of adult entertainment companies and the individuals that run them, if you are in the adult entertainment business it is simply imperative that you discuss the matter of your 2257 compliance with an attorney experienced in adult entertainment law as soon as possible.

Comments Needed
Finally, it is important to recognize that the regulations that the DOJ published on July 12 are simply proposed regulations, issued for comment and subject to possible change. This means that the proposed changes to 28 CFR 75 et seq. will not become effective until after the "effective date," a date which will likely be announced in association with the DOJ's publication of the final version of the regulations and its published responses to the comments received during the comment period (which ends on Sept. 10).

Needless to say that FSC and all of the attorneys associated with the litigation challenging 2257 will provide extensive comments to the DOJ's proposed amendments to 28 CFR 75 et seq., as we did in 2005. Unfortunately however, in 2005 relatively few industry participants filed comments. I sincerely hope that will not be the case this time. To help make that hope a reality, FSC intends to launch an industry-wide campaign to elicit comments from as many parties as possible.

As we learned in our successful campaign against the ".XXX" domain adoption, in which hundreds of industry participants let their anti-.XXX opinions be known, numbers count (no pun intended). Building on that lesson, we now see that, given the truly huge number of adult companies that will be significantly affected by the proposed amendments to the 2257 regulations, and given the precarious political predicament the Republicans find themselves in, a truly unique opportunity to motivate the DOJ to "be a bit more realistic" may be at hand.

Given that Republican political strategists know that their party is on the ropes due to the Bush administration's incompetence, and given the high level of voter disgust with the "holier than thou" segment of the Republican party, it is not inconceivable that they would want to avoid an all-out PR war with the adult industry, and the tens of millions of eyes and ears it commands, over the issue of more governmental incompetence due to misplaced priorities (i.e., battling pornographers instead of terrorists). Simply put, Republican strategists know that the average American voter is fed up with government policy that has for the last six years consistently ignored science, rational analysis and even reality, in favor of serving the interests of a group of moral hypocrites that even Republican Sen. John McCain has termed "agents of intolerance."

So I emphatically urge you to let your voice be heard. Let Washington know that this is still a democracy and not a theocracy. Let your government know that this industry should not have to use half its web pages to display a conceptually defective compliance statement like some kind of scarlet letter or go to jail for five years.

In conclusion, about the only good thing I can say about the DOJ's proposed amendments to the federal regulations pertaining to 18 U.S.C. §2257 is that if what is finally adopted by the DOJ is substantially similar to the current amendments proposed, 2257 would then so patently violate the free speech, due process, equal protection and ex post facto provisions of our Constitution that I would be more hopeful than ever that we will be successful in our efforts to invalidate many of the worst parts of the 2257 regulations, if not the whole of 2257 "root and branch" as my friend and fellow FSC legal team member Reed Lee has often advocated.

But make no mistake about it, unless and until that happens, the industry will have to comply with the plethora of 2257 regulations that are in effect now as well as those that are likely to go into effect, unless the DOJ can be persuaded otherwise during the public comment period.

Please, let Washington hear your voice. The comment period ends Sept. 10.

Gregory A. Piccionelli specializes in Internet Law, Entertainment Law, including adult entertainment matters, and free speech issues. He can be reached at (310) 553-3375.


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