There are many ways to fight 18 U.S.C. §2257, the federal recordkeeping and labeling law. Some, like Free Speech Coalition, file lawsuits; some, like attorney J.D. "Joe" Obenberger, file Freedom of Information Act (FOIA) requests.
"I wanted to know who the agents are that are authorized to conduct 2257 inspections," Obenberger told AVN. "The statute says it has to be authorized by the Attorney General. The question I always had was, how is anybody to know, when somebody shows up at their door and shows an ID that says, 'I'm an FBI agent,' how do we know the Attorney General ever said, 'FBI, go do it'? The real issue back under President Clinton was that [Attorney General Janet] Reno refused to designate anybody to conduct 2257 inspections, even though the L.A.P.D. was knocking on her door a lot, and that's why no inspections were ever conducted by anybody, because Reno refused or declined or neglected or whatever to appoint anybody. So now, there was this hullabaloo under Ashcroft and then Sensenbrenner and now Gonzales, and they finally have begun doing the inspections, so the question is, when did the status quo change? When did the Attorney General make a designation?
"So it took a year of them searching," Obenberger continued, "and deliberating among the different offices that have an interest in this, including the FBI and the Office of Legal Policy and the Executive Office of the Attorney General, and they have finally released to me an expurgated, redacted document, which is six pages in length."
The document, which was approved by the Attorney General on Oct. 28, 2005, can be seen here.
"The heading page, most of it's present," Obenberger said, "and entirely redacted are pages 2, 3, 4, 5 and the top part of 6, which are all explaining their reasoning, apparently, on why different agencies should or should not be used, and the way it concludes is, I recommend that you designate the Federal Bureau of Investigation as lead component to conduct the inspections authorized under the new regulation to insure compliance with 18 U.S. Code 2257, and direct the director of the FBI to submit to you, within 60 days, a plan to establish within six months an operational regulatory inspections unit. Until the FBI is prepared to conduct the inspections, I recommend that you designate the Bureau of Alcohol, Tobacco, Firearms and Explosives as the component to conduct the inspections on an interim basis for up to six months, and that you direct the director of the ATF to initiate the necessary union negotiations and conclude them properly to permit the onset of inspections as soon as possible.'"
Obenberger suspects that the suggestion to use ATF inspectors was based on the fact that that agency was already familiar with conducting inspections of gun dealers, and of archiving dealers' records after they've ceased doing business.
"They know how to inspect; the FBI doesn't, so they're going to need a learning curve," Obenberger summarized. "However, I have no information tending to confirm or deny that ATF ever conducted any inspections when they acted as interim inspectors. I must say I'm curious about the reference to 'union negotiations' connected to ATF in that last paragraph."
Obenberger is also curious about what underlies the blacked-out portions of the memo, but isn't sure whether he has a basis to appeal for an unredacted copy.
"At this point, I'm certainly looking at that," he advised. "I haven't read the exemption statute (b)(5) – that's the exemption they're claiming – and I certainly haven't looked at the annotations yet. I'll be reviewing the FOIA statute and associated cases during the next few days in order to make a decision on whether to file an administrative appeal regarding the redacted material.
"I originally made the request to clarify the situation for adult content producers for when an FBI knock came on the door," Obenberger explained. "Until this document was produced, it was unclear whether the FBI was acting under the designation called for in the statute. Those of us who prepared checklists of guidance for webmasters who might be inspected, back in 2005, dealt with the issue of authority vaguely, because in the absence of what we have now, the authority of potential inspectors, including FBI agents, was unclear. Now it is clear that FBI agents do have the authority of law, by Attorney General designation pursuant to statute, to conduct the inspections."
More information on Obenberger's view of the 2257 regulations can be found at http://www.xxxlaw.net.
