The Empire Strikes Back: 2

J. D. Obenberger
In part one, we looked at HR 4472 and the practical effect of the changes it made to Section 2257. In this conclusion, we'll look at what webmasters should do to comply with these new amendments.

What Should Webmasters and Producers Do to Comply with the Amendments?
A five year prison term is nothing to trifle with. Webmaster and producer clients should consult with us to obtain guidance tailored to their own production and/or publication.

a. A webmaster should read Section 2257 as amended, which can be found here carefully, and with recourse to a graphic version that illustrates the changes, which can be found here. The entire text of the Act can be found here.

b. Given the commencement of inspections under the Section by trained teams of agents during the past week and their intimations of a sustained program of inspection, and in light of the five-year penalty provided for in the Statute, it would be foolhardy to continue the publication of covered images that are not documented pursuant to the statute and Regulations. It would be unreasonably risky under these circumstances to license or acquire covered content that is not accompanied by the mandated records, in view of Judge Miller's wholesale rejection of the constitutional claims he considered. Those who have never understood their obligations, and those who never complied, now face the prospect of pulling content down at the risk of a jail term.

c. It is my advice to my clients to cease publication of any content that does not come with its papers. Those producers who refuse to provide the paperwork have justified their position by claiming to protect the privacy of their models. No one seems to articulate that they are also feathering their own nests by protecting their exclusivity concerning models and performers – at the risk of jail time for those who purchase it. The real concern of the content houses is that the models they engage just might be paid more or treated better by their competitors. Model releases produced by this office during the past year expressly authorize the disclosure of records required (on the face of the law) to licensees and assignees and releases without this language should not be used; Acquiring webmasters should refuse to do business with content houses that put them in jeopardy, no matter how prominent or well-established. Acquiring webmasters should not acquire content from producers who do not have as much to lose as they do.

d. All of this applies to all covered images, whether they are licensed or acquired expressly on one hand or simply distributed as free content or banners or otherwise. This Act applies to bitstream torrents, to decentralized file distribution, to the newsgroups, and to other web services. It remains wise practice to affix a 2257 notice to all content elements that may independently circulate.

e. Webmasters and producers should review their record keeping and disclosure statement in view of the recent changes – including the June, 2005 regulatory changes - and webmasters should examine their metatags and coding to avoid misleading persons using search engines (and otherwise) into viewing explicit content that they are not seeking. The disclosure statement should be reviewed. The retention of copies of the depictions and the inclusion and indexing of URLs are matters that should particularly concern clients. All banners should be reviewed for 2257 purposes and those that are covered should not be published without the maintenance of records and indexation.

f. Webmasters should create strict protocols 1) to assure that pre-4472 images are identifiable as exempt (or just taken down) and 2) to assure that images produced after the effective date of HR 4472 are included in Section 2257 record keeping and are embraced within the required Disclosure Statement.

g. The Act effectively provides that a link to the Section 2257 Disclosure Statement should appear on every page of every website that publishes covered material anywhere. It's now a crime to do otherwise, and that should result in some simple site redesign for some webmasters. You should review your sites to assure that each page possesses a link to the disclosure statement.

What Else did Congress do in HR 4472?
Congress went a bit further in responding to the situation in Denver. It included lascivious images depicting genitals and the pubic area with the other matters that had earlier triggered Section 2257. It specifically provided that this provision is prospective rather than retrospective, working only to impose the obligation on images, not otherwise governed by Section 2257, that were not produced in whole or in part before July 27, 2006. This is likely to have a restraining effect on the use of new genital images which are not accompanied by records, which is its intended effect.

Anyone who did not pay attention last summer, when the Attorney General amended the Regulations implementing Section 2257 should be aware that he or she is responsible to keep a copy of each depiction and of every URL on which he or she is publishing the images. The images and identity documents must be retrievable by URL. Judge Miller's decision seems to find that the requirement to keep copies of lengthy streams may be unconstitutional.

A table setting out all of the changes in the Regulations last summer – associated with the pertinent DOJ Commentary – can be found here.

It is best to consult with an attorney in any case – but this is especially critical if you are producing streams.

What other Changes of Interest to Adult Webmasters did HR 4472 Make?
It created a federal felony in the refusal of a producer to permit the Attorney General or his designee to permit the inspections authorized under Section 2257.

House Bill 4472 made it a federal crime to produce obscenity. Though any competent defense to such a charge will include constitutional attacks on the statute, this elevates content production to a matter which may implicate a federal felony for the first time. This is the first new federal obscenity statute in a very long time. Why did Congress enact it? Probably to give federal agents a basis for a search warrant on producers who do not publish directly.

Section 702 of the Act creates a federal crime to deceive persons into viewing obscenity through metatags or other coding – punishable by up to ten years in prison – and to deceive minors into viewing material harmful to minors – punishable by up to twenty years in prison. It is time for webmasters to take a very close look at metatags and coding, and under the advice of a qualified attorney, to deal with such terms as "toys" in a manner that eliminates the risk associated with such words.

Finally, Congress created Section 2257A dealing with simulated depictions of sexual acts, a provision which expressly extends a wide discretion to the Attorney General in fleshing out Regulations that will precisely describe duties and exemptions, and which will not become effective until those Regulations are promulgated.

Isn't There an Injunction Against Section 2257 Inspections?
There is no injunction against Section 2257 Inspections of primary producers and the government has started a program of inspections with specially trained teams. This relief was denied to the Free Speech Coalition in Denver. Free Speech Coalition members and non-members, alike, who produce content, may be inspected.

There remains a preliminary injunction against inspections of secondary producers who are members of the Free Speech Coalition. Non-FSC members are simply not covered. Whether it will long survive or whether it applies to anyone in light of the new statutory amendment remains to be seen.

Isn't all of this Unconstitutional?
That will be for the courts to determine ultimately. With the one exception noted in this article above – and another issue related to the duration for which records must be maintained - the few courts that have considered Section 2257 and its Regulations have rejected each constitutional argument they have squarely faced. While it's obvious that past performance is no guarantee of future yields (or the lack thereof!), a reasonably prudent webmaster should not place heavy reliance on the unconstitutionality of Section 2257 or its associated Regulations generally in conducting a content production or online publishing business.

Along with many other defenders of Liberty, Reed Lee of this office believes passionately that the entire scheme is constitutionally flawed because it works an unreasonable burden on expression. He believes that most strict scrutiny should be applied to the scheme by the courts and that it must fall because it cannot be constitutionally justified. I most sincerely hope that he is correct. Reed points to the victory concerning virtual child pornography in the Free Speech Coalition case as the kind of victory that can be won here. In balance, no real children were directly affected by the statute considered by the Supreme Court in that case, whereas actually underage persons are the articulated protected class in this legislation. That factor is capable of making a significant difference in the outcome. He also believes that the creation of Section 2257A creates a content-regulating scheme that invites strict scrutiny. The counter-argument is that the scheme simply allocates the burden of record keeping on the perceived risk of harm to children in distinguishing hardcore from simulation. Time will tell.

Our universal hope that the scheme falls because of the unwarranted burden it places on erotic expression is no substitute for confidence in the success of that argument, and little consolation to those facing time in the Bureau of Prisons should the statute be deemed enforceable and constitutional.

What Should I Do if the Agents Come for an Inspection?
a. Ascertain authority – It is not clear at present who has been designated by the Attorney General to conduct Section 2257 Inspections. This office will shortly transmit a Freedom of Information Request to DOJ in an attempt to determine who has been designated and you will be informed further as we learn more. Teams composed of at least one FBI agent with DOJ credentials accompanied by other active duty or retired agents bearing DOJ credentials should provisionally be assumed to have authorization to conduct such investigations. You should ask the team whether it also has a search warrant and if the answer is affirmative, you should ask to see it.

b. In the words of Cecil Adams, Don't panic. Try to calm down.

c. Determine from the team the nature of the inspection – ask them what they want to see, and produce those records. If you are a member of the Free Speech Coalition and the team has asked to see records that include secondary producer records, tell them that you are a member of the Free Speech Coalition and that you believe that an injunction from the US District Court for the District of Colorado protects you from inspection of these records. If they insist on examination of the records, produce them for inspection while politely expressing objection.

d. Do not refuse the inspection to a team which apparently seems to be authorized to conduct such an inspection. - It is appropriate to indicate that you are granting no consent to any search but that you express no objection or refusal to permit the inspection. Do not physically impede, obstruct or interfere with any aspect of the investigation, speak any issue or objection in a measured tone, and do not get belligerent or argumentative with any member of the team. If you observe what you believe to be misconduct, note the particular details and the team member or members involved.

e. Immediately call the lawyer you have previously retained. Before calling, make note of the number of agents, the nature of their credentials, their names, the agency in which they work and the name of the field office, the time of arrival, and any statements any of them have made to you. If they have given you a card, be prepared to provide that lawyer with the information.

f. It is best to restrict the locale of the inspection to a designated room or area where the records are stored by constructing such a place and putting the records there in advance of an inspection. Object politely to any deviation into any place other than where the records are to be inspected.

g. Such a designated area can be equipped with a video camera for surveillance of the activity with a signal sent to a remote location. In some places, including Illinois, it is illegal to make a voice recording of a conversation without the knowledge and consent of all persons involved in the conversation, and you should avoid making a sound recording without such consent of all persons present unless you have clearly established a legal right to do so in your jurisdiction.

h. You are under no obligation to answer any questions except to identify and authenticate the records and it is unwise to discuss any matter concerning your operations, business, or activity with the agents. Any statement made under such circumstances can be admissible in court against you. You will make no mistake by avoiding any casual conversation. The agents are performing their job and that job includes obtaining any and all useful information and physical objects. It is most definitely not your job to give them anything whatever other than the documents which must be produced and you should not do so. You may refer them to us if they have questions.

i. Keep visual observation of the activity. The team can be expected to copy records at their own expense with their own equipment. No records normally will be taken away. If the agents wish to remove records in your possession, express an objection politely, ask for a receipt for the document or things taken, and request that they make a copy for your own records. Take close and detailed notes on what they say and do. Do not show them your notes. Do not show them this list.

j. All of your 2257 records should be physically segregated from all other records – and include no other records within them. If they ask for other records, it is best to advise them that you do not maintain them with the records kept for Section 2257 purposes and that they are not available at this location at this time.

k. At the end of the inspection, the agents may tell you that you have passed. Or they may tell you that you need to correct mistakes and that they will be back. Or, if the situation warrants, if they believe that they have probable cause, they may arrest you and you will be taken for questioning or detention pending a bond hearing. You must get word concerning this to us immediately and from that point forward, you must make no statement whatsoever and advise them that you desire to speak with your attorney They may attempt to engage you repeatedly in conversation to get additional facts. Remember always, that if their case was air-tight, they wouldn't feel any need to question you. You are unlikely in the extreme to talk your way out if you have been arrested, but you are quite likely to build a case for them if you make comments, even those that sound innocent at the time.

l. Call your lawyer again when the inspection concludes and be prepared to discuss everything that took place.

Will Joe Obenberger Conduct any Seminars or Workshops on These Changes?
On Saturday, August 5, at the hour of 1:00 p.m., Joe Obenberger will conduct a two-hour legal workshop for content providers and webmasters as part of the AVN Online Internext show and under its auspices, at the Westin Diplomat Resort in Hollywood, Florida, in Diplomat Ballroom 1. The workshop will be free to Internext attendees with a Seminar Pass. The program will concentrate on the substance of the law of obscenity and the punishment and forfeiture provisions that apply to it – and Section 2257, including its recent amendments – and to the legal principles involving copyright, privacy, and the appropriation of images and performances. This workshop is intended to provide essential legal information that should be in the possession of everyone involved in the online adult industry.

At the hour of 10:00 on Sunday Morning, August 6, he will participate in the Internext legal seminar together with other attorneys of national stature who serve the Adult Internet. Though it seemed at first unlikely that a seminar held at 10 a.m. on the last day of Internext, a Sunday, was likely to draw a substantial audience, the present circumstances suggest that a standing-room-only audience may appear.

Potential clients who desire personal consultation during Internext or by phone are requested to make arrangements with this office promptly.

No short article on this topic can comprehensively deal with all of the issues in their complexity and I make no claim that this article has done so. This article does not constitute legal advice but general information for the public. No attorney-client relationship is formed by virtue of this article with any person.

Copyright 2006 J. D. Obenberger and Associates. All rights reserved.

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