Day 6 of 2257 Trial Finds a Familiar Face on the Stand

PHILADELPHIA, PA—Testimony in the trial of Free Speech Coalition v. Holder, whose objective is to strike down the federal recordkeeping and labeling law, 18 U.S.C. §2257, is nearing its end with just two more days of testimony remaining, and closing arguments scheduled to be delivered after the government presents two more expert witnesses on Monday.

Today, however, most of the testimony revolved around the plaintiffs' Fourth Amendment claims of privacy violations under the law, and plaintiffs' attorney J. Michael Murray hit that point home in his continued questioning of FBI Special Agent Stephen Lawrence.

As he had begun to do yesterday, Murray took Lawrence step-by-step through the 2257 inspections he and his "contractors"—all retired FBI agents themselves—performed on the companies Alexis Lord and Angry Young Man, with the Lord inspection having been done at the company owner's home. As Lawrence had previously testified, in each case, he and his team arrived at the location, took photos of the outside of the building, of the room where the records were reviewed for 2257 violations—in Alexis Lord's case, the dining room, and in the case of Angry Young Man, a studio area—and of the records themselves.

But in the case of Angry Young Man, Lawrence's report of the inspection contained some troubling information. It seems that in reviewing some videos created by the company which claimed to have been filmed surreptitiously in locker rooms and showers on military bases, Lawrence determined that the movies may have criminally violated the Universal Code of Military Justice, and he reported his findings to the Naval Criminal Investigation Service (NCIS) for possible prosecution. He also determined that approximately 90 percent of the performers used by Angry Young Man were off-duty military personnel, and he reported that fact also to NCIS as another possible violation, as 2257 allows him to do with evidence discovered in the course of an inspection. However, Lawrence noted that when he was allowed into the company's "studio area," he saw mock-ups of military locker rooms and showers that apparently had been used to shoot the alleged "surreptitious" videos.

Murray also questioned Lawrence about the physical characteristics of the "work area" where the studio owner allowed Lawrence's team to conduct the inspection, establishing that Lawrence didn't know whether the area was open to the public, though he agreed that in order to be in that area, one would have to have the permission of the proprietor. Murray asked similar questions regarding several of the inspections, and in one instance, got into a long discussion with the witness about how access to such an area would differ if Lawrence had obtained a search warrant to enter it. (Of course, 2257 allows inspectors to access a company offices and/or record retention areas without a warrant and "without delay.")

Lawrence testified that he found seven 2257 violations altogether, including the fact that the business had no hours of operation posted; that the owner was not present at the business for at least 20 hours per week, and had not informed the FBI of when he would be there; that there was no cross-referencing of the records as required; and that one movie had no date of production indicated.

The Fourth Amendment problems of inspectors accessing private residence and office areas without a warrant, and photographing those buildings' interiors (occasionally even areas beyond those where the records were stored or inspected), were touched upon in Murray's questions about several other inspections as well, including Don Goo, whose records were maintained by a third party since the company was out of business at the time of the inspection, and the records' current owner was not aware of the 2257 requirements of cross-referencing, etc.. Lawrence stated that even after searching through several filing cabinets in the storage facility where the old records were kept, he was unable to find some of the records he had asked to see.

The JT Video inspection was another interesting case. Lawrence had previously testified that the company's 2257 compliance label had listed a post office box for the records custodian's address, and upon investigation, that box had led to another P.O. box, which led back to the first one—and when he had finally been able to contact the owner by phone to conduct the inspection, the owner had said that he would be out of town on business for 11 or 12 days, and could do it after his return. However, apparently on that same day, the owner told a news blogger that he had received the call from Lawrence and that he would be inspected—and that somehow inspired Lawrence to abandon his agreement to come back after the owner returned from his trip, and called the owner to say that the inspection team would meet him at his home that evening to conduct the inspection. JT Video was one of five inspections for which the FBI had given the owners advance notice, even though 2257 specifically allows for no notice at all to be given.

Lawrence also reproduced both the owner's initial blog post in his report, as well as a follow-up posting from the owner after the inspection had been concluded, though both posts were clearly irrelevant to the process.

Murray then got into what might be called some philosophical areas of discussion. He brought out that if a couple or solo masturbator made a sexually explicit video at home, the FBI would be unaware of it, even though technically such videos should carry 2257 compliance labels and their creators be subject to the 2257 requirement to be available for inspection 20 hours per week for the succeeding seven years. Similarly, Lawrence testified that the FBI would be unaware if someone sexted photos or videos of people having sex or of solo masturbation—unless someone tipped them off to the existence of the material, or the husband and wife in the video sent the FBI a letter saying they would comply with the 20-hours-per-week availability requirement! (Lawrence noted that the FBI had received no such notifications.)

Murray also questioned the witness as to whether he was familiar with how searches in criminal investigations would be conducted with a search warrant, and later, at the direction of Judge Baylson, the witness went over all of the differences between warranted searches and 2257 investigations. (Hint: when executing search warrants, the agents do wear jackets that say "RAID" in big letters on them.)

Finally, Murray asked Lawrence whether, if the law were changed to required photo IDs for only performers who were under 25 years old, it would make inspections harder? Lawrence said it would, because he expected that many disputes would arise between inspectors who thought a particular performer appeared to be a minor, and producers who would argue that the performer was over 25 years old, and that he therefore didn't need to keep ID records on that person. He also noted that in some videos, a performer's face is not visible, just their genitals, or a fetish performer might only be seen wearing a leather mask, though Murray brought out that that had not been the case with any of the videos Lawrence had viewed for inspection. Also, when asked if producers would keep ID records on performers if not required to do so by 2257, Lawrence opined that they wouldn't.

On redirect examination, DOJ attorney Kathryn Wyer brought out that producers rarely read the letter which had been created by the FBI's Office of General Counsel detailing a producer's duties under 2257 that the inspectors handed to company owners when they first entered the premises. She also elicited that the movie sets Lawrence had seen at Angry Young Man were in plain view of the inspection area, and that the Don Goo inspection had been made much more difficult because of the lack of proper record retention and cross-referencing.

After both parties had completed their questioning, Judge Baylson asked some of his own, including what range of records the inspection team dealt with. Lawrence said the smallest inspection looked at only one binder or records, but at larger companies, there could be several file cabinets full. The judge also joked that in some criminal cases, defendants would go out of their way to destroy records in advance of a search, but with adult producers, they would go out of their way to keep the records intact, and possibly even improve them. However, the witness testified that while some producers might put records in better order prior to an inspection, he doubted if a company would try to create new ones if given advance notice of the search.

The day's second witness was retired FBI Special Agent Charles Joyner, who had been the second agent in charge of the FBI inspection team and a name well-known in the adult industry. After relating some of his law enforcement background and experience, Wyer asked him, as she had Lawrence, how the list of companies to possibly be inspected had been created, and whether that list had been expanded during Joyner's tenure.

Wyer also brought out that Joyner had been part of a special meeting between the FBI, the Justice Department and adult industry producers and attorneys in FBI headquarters in Washington, D.C. several years ago, and that Joyner had spoken on panels at several adult conventions and had given press interviews regarding 2257.

Wyer also questioned Joyner regarding what material he would inspect under 2257, to which he replied that it would be sexually explicit material that was sold commercially. In answer to succeeding questions, he said he would not inspect still photographers, publishers of books or magazines containing sexually explicit photos, art galleries displaying the same, nor social networking or dating websites. He also said that in response to a federal court ruling in Free Speech Coalition's lawsuit on 2257 in Colorado, he did not inspect secondary producers, only primaries.

Wyer then took Joyner through several of the 20 inspections for which he had been in charge, and elicited details of those inspections much as she had from the previous witness, with little new information being added. One humorous response, however, was Joyner's report of what happened when his inspection team showed up at Diabolic Video, the very first company to have been inspected. He said the receptionist had called the company's owner when the inspection team arrived, and he heard her saying, "No, seriously, it's the FBI. I'm not kidding. Seriously. Seriously, it's the FBI."

Joyner said that at least one company allowed the inspectors to burn CDs of digital copies of the company's 2257 records with them so they didn't have to inspect them on the company's premises. He said that he had also run across one company that had used a third party recordkeeper, although that option would not be added to the regulations until the following year.

In general, Joyner said that his team never forced their way into any business or home in order to inspect, and that they never entered the premises without the invitation of the owner. Wyer also asked whether the requirement that 2257 records be segregated from other company records made inspections easier (it did) and whether the FBI required that any specific cross-referencing system be used? (It didn't.) He also testified that he was unable to tell many performers' ages just by looking at them, and that he would have to see the identification documents.

Finally, Joyner noted that the inspection regimen had been curtailed after the Sixth Circuit decision striking down 2257 in the Connection Distributing case, and that the inspection team had been disbanded after February, 2008.

On cross-examination, Murray brought out that one reason Joyner had served on industry panels was to inform producers of 2257's requirements, and he also said that no producer ever asked him for a warrant, and he never told any of them that they could decline to be inspected.

Joyner also testified that he had conducted several inspections in a company's reception area without being allowed further access to the building, although the FBI's photographer was allowed to take pictures of the company's file room. That issue became somewhat controversial, with Murray trying to prove that for legal purposes, that reception area was private and generally not open to the public unless with the permission of the owner, while the government tried to portray the area as one commonly used by the public to conduct business with the company.

Interestingly, Joyner testified that in one case, the owners of Midnight Video had kept their records in the owner's home garage, and the FBI inspectors looked at the records in the home's driveway—and that he didn't object to using that location.

Joyner noted that some companies he had inspected had no records at all but that he had not detected anyone attempting to use fraudulent records. He also reported on one case where a performer's ID seemed to indicate that she was underage, but upon further inspection, it turned out that the ID had used the Buddhist calendar for its dates, and that the performer was an adult after all.

Murray also made a point that besides the inspection team entering non-public areas of a company's offices, they also brought in a photocopy machine to copy records—something that a member of the general public would be unlikely to do.

The day's final witness was Dr. Mark Zimmerman, a professor at the University of Michigan's School of Public Health, who as part of a study of adolescent health and their transition to adulthood, had asked a group of more than 800 18- to 24-year-olds whether they had ever sent or received sexts. The study had taken nearly two years, was conducted online—there was some controversy during the testimony regarding whether the survey sample had neglected some social or ethnic groups that might not have had internet access—and was published in the peer-reviewed Journal of Adolescent Health.

The survey had asked, "Have you ever sent or received a sexually suggestive, nude or nearly-nude photo or video of yourself?" Roughly 30 percent of those surveyed said they had sent such an image, while roughly 48 percent said they had received one or more. Zimmerman said he had compared his results to the results of two similar studies and found the responses comparable, and that when Murray had asked him to attempt to extrapolate those results to the general population of the U.S. using census data, he concluded that, after weighing several other factors, at least four million citizens had sent or received sexts.

Government attorney Nathan Swinton cross-examined Zimmerman extensively on the study's protocols, bringing out that neither his nor the two studies to which Zimmerman had compared his own study had defined the terms "sexually-suggestive" or "nearly nude," and asked how Zimmerman himself had distinguished sexts containing depictions of sexual intercourse or masturbation, which would be covered by 2257, from images simply of female breasts or just cleavage, which would not be covered.

Swinton also asked several questions regarding how participants in the study were selected, attempting to show that the participants were not representative of 18- to 24-year-olds in general, but it was unclear whether he was successful. However, there was no doubt that millions of people had indeed sexted at one time or another—and if the sexts were hardcore, they would have violated the 2257 requirements.

After Zimmerman's testimony, court recessed for the day, and Judge Baylson announced that the next witness, Dr. Daniel Linz, would be heard on Friday morning.

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