2257 Regulations Update

J. D. Obenberger
In June, 2004 the US Department of Justice published a comprehensive proposal for the amendment of the regulations implementing Section 2257; These regulations paid special attention to the Adult Internet. The proposal was open for comments from the public until August 24, 2004 under the informal rulemaking procedure employed by Justice. Since then, we have heard nothing from any official source. The proposals remain proposals and are not the law. They may never become the law. We hope not.

All of this came about, we suspect, because of the obligation Congress imposed on the Attorney General to report back to Congress within one year about the history of inspections and enforcement under Section 2257. When John Ashcroft got around to brining in the report, a couple of months late, the brief document admitted that his department had never conducted a single inspection but noted five prosecutions around the country (in New York and Texas) for violation of Section 2257 which arose in other contexts, as for probable example, discovery of a violation during the course of the execution of a search warrant.

A poorly copied and partially illegible copy of the Report of the Attorney General was obtained from one of the wire services and is floating around. My office was retained by AVN to secure a wholly legible copy from DOJ under the Freedom of Information Act. I have had a steady stream of correspondence and phone calls with Justice about the two-page document, and at last report, two weeks ago, Justice was in the process of reviewing whether this public document, a report to Congress under the mandate of Congress, contained any sensitive material that could be exempted from disclosure.

The proposed regulations, we suspect, were written by folks who really don't have a clue as to the Draconian, impossible burden they impose upon adult erotic expression in the real world. The proposed provisions are costly, cumbersome, time-consuming, and almost wholly ineffective to achieve the articulated aim of the Statute. I suspect that all of this will come as a surprise to the regulators when they get around to reading the comments, that they will be disinclined to believe what they read in the comments. It may come as quite a surprise to the Regulators to learn the real world consequences of the provisions they have abstractly dreamed up in the corridors of the Justice Department: The Regulators stand to learn that it is one thing to regulate commerce in tomatoes and quite another thing to regulate communication about social, moral, and sexual ideas.

My office submitted comments to CEOS on behalf of several clients, comments which attacked the proposals on many grounds including the constitutionally impermissible tax they impose on sexual speech. What I've been able to learn from CEOS by phone is that it has no plans to publish any of the the public comments - which we have reason to believe violates the procedure laid down for such informal rulemaking in law, and that it had no ready access to even a ballpark estimate of how many comments have come in. Nor could an estimate be given as to when the final regulation will be published. It seems obvious that the new regulations, afflicted as they are with infirmities of a constitutional dimension, are on the back burner at DOJ. Meanwhile, several groups and law firms have openly expressed their intentions of filing lawsuits to enjoin enforcement of the regulations if and when they are published.

J. D. Obenberger will take part in the Webmaster Access Legal Seminar, Saturday, November 20 at 2:30 p.m., PST at the The Santa Monica Doubletree, 1707 Fourth Street, Santa Monica, CA, where legal issues including those surrounding the proposed amendments to 18 USC 2257 will be discussed.

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