While 2257 regulations have been in place since 1990, fears of a flood of prosecutions against adult webmasters have recently peaked on the heels of Ashcroft's recommendations, which would give increased power to federal prosecutors to use 2257 regulations more directly against online adult companies, webmasters and content providers.
According to 2257 regulations as they currently pertain to adult webmasters, records must be kept on all content that contains one or more visual depictions of actual sexually explicit conduct made after Nov. 1, 1990.
The original 2257 regulations were set in place to avoid inadvertent child porn violations, protect minors from being exploited, maintain an industry standard for billing processors and assure law enforcement of business and user legality.
And while the proposed regulations are still subject to a public commentary period until Aug. 24, there is a possibility the regulations could become law shortly after if the federal government has its way, all three attorneys agreed.
On hand to lend a dose of reality to the issue as well as quell any unreasonable fears was Lawrence G. Walters of Weston, Garrou & DeWitt; J.D. Obenberger of J.D. Obenberger and Associates; and Greg Piccionelli of Brull, Piccionelli, Sarno, Braun & Vradenburgh and the co-author of the "The Online Adult Entertainment Webmaster Legal Resource," a comprehensive guide of legal tips and facts for all adult companies.
Obenberger urged the crowd of webmasters to remember that they are leading the fight for free speech in America and that they have helped define the sexual interests and tastes of the wired world, and Piccionelli delivered an impassioned speech on the dangerous influences of the religious right and the Bush administration.
"We have a very serious matter here," said Piccionelli, calling Bush and Ashcroft their very own weapon of mass destruction. "But there may actually be a silver lining in hindsight and this might be one of the last battles we need to fight to be a freer adult industry."
Piccionelli listed the tools the Justice Department has used in the past to get at the adult webmaster industry, which have so far failed to bring results. Those tools include obscenity prosecutions, the distribution of material that is harmful to minors, the Can-Spam Act, the issue of simulated child porn, and now an updated and more lethal version of 2257 law.
"[The regulations are] their last resort," he said, calling Ashcroft's 26-page proposal an extreme and drastic measure by the government.
A rapid-fire PowerPoint demonstration by Walters outlined previous 2257 regulations, Ashcroft's recommended additions and how webmasters will need to comply in order to stay out of the federal government's hair and as far away from undeserved child porn convictions as possible.
According to Walters, the proposed regulations are both an attempt to sharpen compliance requirements and methodology and create a shoe-in for federal prosecutors to litigate against webmasters with so much as a piece of paper out of place in their records-keeping process.
The three attorneys agreed that Ashcroft's latest witch-hunt after the online adult industry is both fueled by the upcoming presidential election, and an effort to save his reputation before Congress after failing to launch a successful prosecution campaign against pornographers.
In June, Ashcroft was required to report to Congress on the status of upholding 2257 regulations. Instead, he presented his proposed amendments to existing law in order that they apply more directly to the Internet.
Current 2257 regulations require the primary content producer to maintain certain records, multiple forms and copies of model identification information, a designated records keeper, and a very specific process of categorizing, duplicating, and making records accessible for federal records inspections.
"This is the time to come together and present the right challenges," Walters told seminar attendees, adding that as the regulations come closer to possibly being adopted, some aspects of the proposed changes might be dropped or revised, and there is always the possibility of negotiating with the Department of Justice, as difficult and unlikely a scenario as that might be for adult webmasters.
"The closer you get to the top of the DOJ, the less understanding there is of the real human issues" said Obenberger, adding that 2257 regulations as they currently apply help keep webmasters out of jail and away from the potentially catastrophic effects a child porn conviction can have on a business and a person's life, giving the Mike Jones obscenity case as a perfect example.
"Freedom is being impeded in American society," Obenberger said. "This is the time to act. We don't know what is coming next. Think smart and reach appropriate decisions." He added that some of the proposed 2257 regulations are "downright silly."
According to all three attorneys, Ashcroft's proposed changes make significant additions to existing law and in some cases make the records-keeping process so complex and fastidious that prosecutors will have no problem finding holes with which to litigate against webmasters.
One of the sticking points in Ashcroft's additions directly targets the person responsible for the records-keeping process. Current 2257 regulations require the producer of the content to maintain records, or the secondary producer, if they were involved in the making of the content.
But Ashcroft's changes would expand that definition to possibly include web-hosting services, a producer of a remote computing service, as well as parent organizations of the original producer or secondary producer.
According to the three attorneys, other changes would include where records are kept, an expanded definition of how records are maintained, a disclosure statement location, new inspection procedures, and the applicability of 2257 to the Internet.
Additionally, 2257 inspections can occur at the official place of business between the hours of 8 a.m. – 6 p.m., seven days a week and inspectors can seize any information they feel is indicative of improper records-keeping or that suggests the use of content depicting underage talent.
All three adult attorney's strongly urged webmasters to consult with their own attorneys on the matter and not interpret information provided in the seminar as necessarily applicable to their own businesses and circumstances.
The three panelists also urged webmasters to contribute to the public commentary period with the Department of Justice and communicate how they feel the new regulations will negatively impact their businesses. The commentary period will expire on Aug. 24.
The new regulations could become law up to 30 days after publication on the federal register.
Piccionelli ended his speech by encouraging webmasters to avoid fear and instead conjure up a sense of indignation over the actions of the federal government.
"If we panic and if people are fearful, then just like the effect the terrorists had, we stopped traveling," said Piccionelli. "The people in government are using this [proposed regulation] as a way to screw us."
