EFF Weighs In on FSC's 2257 Lawsuit and Privacy Rights

PHILADELPHIA—In the modern age of digital cameras, cell phones and the internet, sometimes it's easy to lose sight of how far sexual content has come, and how ubiquitous it's become, since Congress passed its first version of 18 U.S.C. §2257, the federal recordkeeping and labeling law, in the late 1980s.

Fortunately, the Electronic Frontier Foundation (EFF) remembers.

"At some point in the past, the kind of sexual content that Section 2257 regulates may not have been typically created by the average American," the introduction to EFF's amicus brief in support of Free Speech Coalition's anti-2257 lawsuit states. "But times have changed, with respect to both social mores and technical abilities.  Digital cameras and videocameras and the Internet have combined to make it easy and inexpensive for people to take photos and videos of themselves while nude or in sexual situations and to share those images with others ina wide variety of ways."

As the brief's authors—EFF's Matthew Zimmerman and prominent Philadelphia atorneys Carl A. Solano and Edward J. Sholinsky—point out, nearly two-thirds of Americans now own digital cameras, more than a third own video cameras, and nearly three-fifths use their cell phones to take and share digital pictures—any of which can be used to create sexual content. What's more, about three-quarters of all Americans can now access the internet, and about a third of them haved posted content online.

And what that means, according to the EFF brief, is that the "millions of adults [who] exchange or share personally-produced sexually-explicit depictions" are now subject to all the onerous requirements of the 2257 regulations, including a vast but incalcuable number who "merely take sexual photos or videos of themselves in the privacy of their own homes."

And what that means is, "Section 2257’s record-keeping, labeling, and inspection requirements infringe the rights of individuals to participate in anonymous expression, a problem of expanding scope as more and more individuals utilize what are increasingly ubiquitous communications technologies," the EFF attorneys charge.

The brief goes on to summarize some of the legal and social precedent involving protections for anonymous speech, noting, "Courts have long recognized protection under the First Amendment for the right to engage in anonymous communication—to communicate, listen, and/or associate anonymously—as fundamental to a free society. The U.S. Supreme Court has consistently upheld the right to speak anonymously in a variety of contexts, noting that '[a]nonymity is a shield from the tyranny of the majority ... [that] exemplifies the purpose [of the First Amendment] to protect unpopular individuals from retaliation ... at the hand of an intolerant society.' ... Adult sexual communications, if not obscene, enjoy First Amendment protection for all the reasons that animate the right to anonymity."

The EFF brief argues that, if for no other reason, the "wide [and growing] swath of individuals" creating sexual content, who would therefore be subject to the more onerous requirements of 2257—such as being available for records inspections for at least 20 hours per week, and revealing the content creator's name and home address for the world to see—the courts should take as "considerable cause to scrutinize the First Amendment impact of this law."

In fact, it is this concern for privacy/anonymity that EFF believes should place the onus on the government to demonstrate that 2257 "furthers a substantial governmental interest while being reasonably tailored to advance that interest" and that the statute protects rather than chills sexual speech.

"The Government asserts that the chilling effect of this regulation is minimal as the statutory scheme 'would only allow the Government—not the public at large—to view identifying information about performers.' This argument ignores the doctrinal underpinnings of the right to speak anonymously," the EFF brief rightly notes. "It also offers no comfort to the growing number of individuals who fall under the scope of these requirements. Neither Section 2257 nor its accompanying regulations impose confidentiality limitations on law enforcement."

That fact has long been of concern to adult performers, who usually ply their craft behind pseudonyms, but is perhaps even more important to the mass of citizens who may wish to contact other individuals and couples for sexual liaisons, but whose attempts to pictorially show their prospective partners what they'll be getting is not the type of disclosure they'd like to see made widely and identifiably available either to their neighbors or to government investigators.

And since the alleged purpose of 2257 is to prevent minors from appearing in sexually explicit content, and since the vast majority of explicit content produced in this country features adults rather than children, the EFF raises the important issue of physical as well as social privacy.

"Section 2257 and its associated regulations further run afoul of the First and Fourth Amendments," the EFF argues, "because they authorize the Government to conduct warrantless searches of the home without probable cause and outside of any valid exception to the warrant requirement. ... The Government denies the problem by asserting that every producer of sexually explicit material is a business subject to warrantless inspection. This response stands the Fourth Amendment and its protection of the home on its head. ... The Government cannot, by regulation or legislation, convert Plaintiffs’ homes into businesses to be inspected at the discretion of law enforcement." [Citations removed here and below]

"The Fourth Amendment’s protections cannot be circumvented by sending government agents into the home without warrants for 'limited' inspections of records," the brief continues. "No home would be safe from such record-keeping/inspection schemes. That 'the regulations require the inspector to notify a producer of "the limited nature of the records inspection," and inform the producer of "the records that he or she wishes to inspect,"' and that 'an inspector could conduct such an inspection in the entryway or waiting area of a producer's business,' is meaningless: once in the home, law enforcement will inevitably be privy to many details of household life. ... Indeed, the Government has made plain that inspectors are supposed to collect these intimate details: the '2257 Program Inspection Procedures' posted on the FBI's website indicate that 'as part of the inspection procedure, investigators photograph the exterior of the premises and the interior area of the premises where the records are stored and the area of the premises where the records are examined.'"

The EFF also attacks the government's contention that 2257 inspections are permissible under the Fourth Amendment because they're "administrative" and part and parcel of proper industrial regulation.

"Of particular concern to amicus is the Government's improper invocation of the administrative search doctrine," the brief notes. "Under the doctrine, certain searches of 'closely-regulated industries' are permissible without a warrant when the following conditions are met: (1) a substantial government interest informs the regulatory scheme under which the search is made; (2) the search is necessary to further the regulatory scheme; and (3) the statute’s inspection program is a 'constitutionally adequate substitute for a warrant.'... Section 2257's search regime does not fall under the administrative search exception to the Fourth Amendment’s warrant requirement.  The obligations and authorized intrusions imposed by Section 2257 target expressive activity. The number of individuals participating in that expressive activity grows everyday, influenced by changes in both technology and social values. Thus the regulations do not map closely (or even remotely) on a 'closely-regulated' industry—or an industry of any kind. They affect ordinary adult Americans with digital cameras and Internet connections.  Burdening their legal expression with these regulations is inconsistent with the doctrinal underpinnings behind the administrative search doctrine and runs afoul of the protections of the Fourth Amendment."

The brief also shoots down the government's contention that because the 2257 requirements are well known to the adult entertainment industry, everyone affected by the law has been put on notice that any explicit (or even simulated) sexual material that it produces will be subject to records inspections.

"Here again, the Government relies on the fiction that these regulations target an 'industry'," EFF argues. "In fact, the regulations target the common First Amendment activity of producing and distributing sexually explicit images—an activity that, today, many individuals lawfully enjoy both in the privacy of their homes and on the Internet, and without any idea that they could belong to any closely regulated 'industry.'"

Finally, the EFF brief takes the government to task for claiming that 2257's authorization for its warrantless searches (and potential seizures) should be upheld until some citizen's privacy has actually been violated, and then the law should be subject to an "as-applied" challenge—a philosophy the amicus brief roundly rejects.

"Here, of course, the regulations plainly authorize official invasion of homes and businesses precisely because they are engaged in protected speech—without judicial supervision, without probable cause, and without exigent circumstances," the EFF argues. "Where, as here, the search invades the home, targets expression, and is not subject to judicial oversight via the warrant requirement, the resulting search violates the First, as well as the Fourth, Amendment... Similar dangers are presented by the record-keeping/warrantless-inspection scheme here, which targets the production and distribution of sexually explicit images. First, while individuals wishing to publish sexually explicit images need not apply for a license to speak, the possibility of warrantless inspections of their homes has clearly caused many of the Plaintiffs to self-censor. This threat requires no inspection at all: it is inherent in the very possibility of warrantless inspections. Second, the regulations here give the Government standardless discretion to conduct warrantless searches of the home aimed at protected expression."

In other words, allowing government inspectors free rein of a person's home simply because they have produced sexually explicit materials, the vast majority of which, it has already been established, are made only by adult with adult "performers," without any definite knowledge on the inspectors' part that children have been involved in the production, clearly violates the individual's Fourth Amendment privacy protections.

In sum, then, the EFF attorneys have wisely concentrated their amicus on the fact that, with the amount of image-producing gadgetry available to the average American in the modern world, 2257 will authorize an ever-increasing level of violation of Americans' privacy rights on the specious assumption that any citizen with a camcorder, webcam or cell phone is recording kids having sex—and as any thinking American understands, that's horseshit ... and constitutionally infirm.