According to FBI Special Agent Charles “Chuck” Joyner, of the 29 inspections to date four found company records required by the U.S. federal record-keeping and labeling act (18 U.S.C. §2257) to be in complete compliance with the corresponding regulations.
Of the 25 companies whose records were marred by violations, all but four were able to resolve the discrepancies within a week. Two of the four have been tagged for re-inspection because, according to Joyner, “they showed no interest in compliance.” Primary among the situations Joyner said may trigger re-inspection is complete failure to resolve noncompliance issues, either through a lack of administrative deftness or failure to keep any records at all.
Of the inspections conducted so far, five were in Florida and the rest were in California, Joyner said, adding that the FBI’s goal is to complete one inspection every two weeks. All of the producers audited so far primarily are engaged in the DVD end of the adult entertainment industry, although Joyner said because producers are selected from the FBI’s database at random, a primarily web-based company could appear on the inspection list at any time.
As for inspection atmosphere, Joyner said the team of five men and one woman (all retired FBI agents) has spoken highly of the attitude at the adult entertainment companies they have audited. Content producers and records custodians have been “cordial and polite,” and seem to realize “the sole point of an inspection is to ensure compliance,” Joyner said.
The inspections themselves are nonthreatening and straightforward, he indicated, adding that it is important for records custodians to realize inspections are not “raids” and don’t require warrants.
“Warrants imply probable cause of criminal wrongdoing,” Joyner said. “That’s not the case here.”
By the time inspectors arrive at an adult company’s door, they have completed copious background work and have a clearly defined checklist of tasks to accomplish, according to Joyner.
The process begins when a company’s name is selected from the FBI’s database of adult-content producers. Next, the inspectors research the company to ensure it’s a primary producer and to determine how much of its product may be subject to 2257 record-keeping requirements. Once those things are determined, the inspectors select a percentage of the company’s product to review (30 or 40 titles at most, Joyner said), and set about viewing the movies in their entirety to determine which performers appear in sexually explicit scenes and whether the products are labeled with proper compliance statements. They also make screen captures from the products to assist in checking performer IDs.
When inspectors arrive at a company to be inspected, the first thing they do is identify themselves. That initial step has engendered some humorous moments, Joyner said. At one company, the receptionist called someone in another part of the building to tell them “the FBI was there,” and evidently she wasn’t taken seriously. According to Joyner, the receptionist several times repeated “No, really — it’s the FBI,” before she was able to convince the person on the other end of the phone that she was serious.
Once face to face with the custodian of records, the inspectors present not only a letter explaining the procedure but also a spreadsheet listing the titles and performers for which they’d like to inspect records. They are interested only in those records and will inspect nothing else on that visit, Joyner said.
As far as records themselves go, there appears to be no clear-cut preference for digital or physical records within the industry or the FBI. Fewer than half of inspected companies have provided digital records, Joyner said, although most seem to have them.
“We will accept either digital or physical records,” he said. “It’s almost easier for us if they give [the records] to us on a disk,” because then inspectors can review them at their offices and “get out of the company’s way.”
There are some disadvantages to providing digital records, though. Perhaps chief among them: if an inspector notices a discrepancy while reviewing physical records, the company has the opportunity to avoid a violation notice by rectifying the problem right then and there. Discrepancies found in digital records reviewed off-site receive no such benefit.
In addition, Joyner said the department’s interpretation of the law as it stands now is that “the law wants [digital 2257 record-keeping] systems to be on a standalone computer.”
Based on the inspection team’s experiences thus far, the FBI has submitted recommendations for amendments to the proposed new 2257 regulations, and Joyner said he was not entirely surprised to discover they mirrored recommendations submitted by the adult entertainment industry.
He said the common suggestion that made the biggest impression on him was that web-based producers be allowed to use a hyperlink to their compliance statements instead of posting the entire statement on every page bearing sexually explicit content.
“The use of a hyperlink should be sufficient,” Joyner proposed. “It allows the team to get what they need."