While a search-and-seizure warrant is considerably rare for web-based operations, particularly in the case of 2257 records inspections, companies involved in the production or distribution of content believed to depict obscenity could at any time have their homegrown businesses manhandled by federal agents or local police.
The great enabler of search and seizures is the Fourth Amendment, which sets forth the specifications for how investigations are carried out, particularly when it comes to protecting people's privacy.
However, the distinction between obscenity-related search warrant executions and 2257 inspections are huge and distinct, adult attorney Jeffrey Douglas told XBiz. Search warrants related to obscenity are judicially authorized intrusions, the limits of which are defined by allegations specified in the affidavit. The terms of a search warrant are boundless and include a provision to seize not only all computers, but also all memory devices, Palm Pilots, Blackberrys and anything that can store data.
"They can even take the mouse pads if they want to," Douglas said.
However, in the case of 2257 inspections — the constitutionality of which is being contested in Free Speech Coalition vs. Attorney General Alberto Gonzales — the process is administrative, so the rules are defined by the regulations and comments that support 2257 law.
"Records inspectors have a relatively detailed set of rules of what they can and cannot do, and they are universally applicable, unlike a search warrant, which is more of a general search," Douglas said. "It is as if you have waived or limited your Fourth Amendment rights beforehand."
Anatomy Of A Search Warrant
The task of getting a warrant signed requires that a police officer or agency convince a magistrate that a crime has taken place, that evidence of the crime will be found at the specified location and that all items the officer or agent would like to seize provide a basis for proving the crime was committed.
Once the judge signs the affidavit, it must be executed within 96 hours. Typically, officers and agents involved in executing a search warrant enlist the support of local officials like sheriffs or local police, and after the search has been executed, materials seized are transported to FBI office and ultimately to the custody of the U.S. Marshal.
Depending on the nature of the alleged crime committed, the person under investigation or business owner can be detained by police or allowed to leave the premises, depending on the discretion of the officer in charge. Employees on the premises are usually detained outside the location or segregated into other rooms, but the situation can vary.
"Unless evidence of another crime, such as possession of dope, is in front of the law enforcement agents, no one will be taken into custody during either an execution of a warrant or a 2257 inspection," Douglas said.
In the case of a 2257 inspection, agents will almost always request to be alone with the records, in which case Douglas suggests installing surveillance cameras. Additionally, after the agent has inspected the records at their leisure, they will almost never, Douglas said, notify the business owner of the outcome of the inspection.
After the initial 2257 inspection, agents are allowed to make three additional random inspections for no reason at all, particularly if they have reason to believe child exploitation has occurred.
However, Douglas added, since Justice has not yet conducted a 2257 inspection since the law was enacted, how the law is enforced and how inspections are carried out is still a relative mystery.
According to adult entertainment attorney J.D. Obenberger, for many search and seizures, the devil is in the details.
After acting as the lead defense attorney in the Mike Jones obscenity and child pornography case that was eventually overturned because of an overly broad search warrant, Obenberger knows all too well that agents and police often can overstep their boundaries when it comes to collecting evidence during a search. And if extreme caution is not exercised, a case can easily lose its legs in court.
"A search warrant should not give agents or authorities an unbridled blank check to trample on people's privacy rights," Obenberger said. "Additionally, if the address of the location is incorrect on the warrant and they enter a separate location and discover a crime, that evidence is automatically suppressed."
Obenberger added that the reason Jones, former owner of CDBabes, eventually won the case after four years was because, aside from basic defects in the warrant, the officers basically took everything that wasn't nailed down, including Jones' 14-year-old daughter's homework and other irrelevant materials.
The case was eventually tossed after the judge ordered all evidence seized from Jones' property suppressed, leaving the prosecution with very little to support their charges.
"There are many cases where searches have been overturned because news media were allowed onto the location or other careless oversights that violated the terms of the warrant," Obenberger said. "If they are looking for a stolen car, they cannot go into the drawers and the cabinets."
Said Douglas: "Most of the time the court will find a way to excuse a warrant oversight," he said. "They have lots of ways around the rules. There is an exception to the Fourth Amendment that says if you can show the agents were engaged in good faith even though they broke all the rules, then there is an exception to the suppression requirement."
In a worst-case scenario, once a search warrant or 2257 inspection has been executed, a grand jury investigation follows, then an indictment and then, typically months after the search warrant execution, orderly surrender and bailout.
"In most cases, arrangements for bail are made in advance with Justice and provisions in the federal system have been more cooperative and flexible than in state courts," Douglas said. "In an obscenity case, unless there are detailed, specific reasons to suspect flight plans, bail arrangements should be easy."
In the case of Internet businesses, many sites become inadvertently disabled because the business owner keeps backup servers on the premises, which Obenberger said should be a cautionary tale for all adult business owners. After the FBI's recent raid on the offices of Max Hardcore's Max World Entertainment, Hardcore's websites were disabled for almost two days because he kept his backups on the premises.
Douglas' advice when it comes to either an inspection or search is to cooperate with authorities.
"They have guns and you don't," he said.
"Just leave it to your lawyer to work out. If a confrontation is required in order to maintain your life, you better make sure it is the lawyer who engages in that, not you."