The FBI Meets With Adult: 1

Gregory Piccionelli
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.

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