CHICAGO - Attorney J.D. Obenberger, responding Monday to the Department of Justice's (DOJ) proposed amendments to Section 2257 regulating the adult Internet, accused the DOJ of preserving ambiguity in the regulatory scheme that affects webmasters and content producers.
He said the proposed amendments would "[burden] the creation and expression of erotic works far beyond what is reasonable, far beyond what is necessary for the protection of children and far beyond what is constitutionally permissible," creating a "monster" of ambiguity.
Obenberger, who frequently writes and speaks for the adult Internet concerning legal issues and advises clients regarding compliance with Section 2257, attacked the proposal on four fronts.
First, Obenberger said, the proposal falls short of requiring anyone to record the date of original photography, which presently must be included in Section 2257 disclosure statements.
He also contended that the existing regulatory scheme has created a "confusing,
fundamental conceptual morass" that makes it unclear whether the regulations
cover a website as a whole, each of its pages or each of its content elements. The
proposed regulations, he said, "not only perpetuate, but deepen the serious
questions about the number of notices to be required and what each must
disclose." He argued that a system that would require a separate notice for
each still image in a set, for example, "simply acts to harass the webmaster,
doing nothing to protect children or anyone else."
Obenberger also argued that nothing in the Adam Walsh Act requires 2257 notices
instead of links on every page of a website. He said the law requires notices to
be "affixed" to each page in the "manner and form"
prescribed by the DOJ, which can require this to be done via a link.
He also attacked the existing requirement that all records be indexed by the web
addresses at which they appear. Because online addresses have a "transitory
nature," nothing so important should be tied to a location that changes. He
contended that the requirement is "so burdensome that the courts will undoubtedly
determine it to be unconstitutional."
