The human throng couldn’t have moved more quickly if someone had shouted “Fire!” in the crowded seminar room as soon as attorney Paul Cambria announced that he only had a limited number of copies of his and associate Roger Wilcox’s “2257 Client Handbook.”
More than two dozen attendees jumped out of their seats and raced to the pile of handbooks, cutting Cambria off in mid-sentence as he was explaining the history of the recordkeeping and labeling law, 18 U.S.C. §2257 during the seminar titled, aptly, “Are You In Compliance with Section 2257?”, held Thursday in Room 305 of the Sands Expo Center.
As the crowd was moving toward the handbooks, Cambria quickly noted that five more boxes of them had been delayed in shipping, but would be arriving at the convention today.
The primary speakers at the seminar were Cambria and Free Speech Coalition (FSC) board chair Jeffrey Douglas, a criminal defense attorney with an abiding interest in the adult industry. The pair were introduced by Sean Bersell of the Video Software Dealers Assn., who in turn was introduced by FSC Director of Public Relations Tom Hymes.
Cambria outlined 2257 practically from its beginning, noting that it was his agreement with the U.S. Department of Justice, then under Attorney General Janet Reno, that established the earliest date for 2257 compliance as July 3, 1995, thereby legalizing all product shot before that date. Attorney Clyde DeWitt shouted out from the audience that he had a copy of the Justice Department’s letter of agreement, and offered to photocopy it for Cambria, who’d misplaced his copy years ago.
Cambria then touched on the uselessness of the 2257 regulations regarding preventing minors from appearing in sexually explicit depictions.
“Generally speaking,” Cambria said, “people who shoot underage performers don’t bother to keep copies of their IDs so in case a government inspector wants to look at them, he can prove that his performers were all minors.”
Cambria then detailed some of the requirements of the older 2257 regulations, which were updated last summer by Attorney General Alberto Gonzales, and touched on some of the changes embodied in the new regs.
For instance, under both sets of regulations, performers in sexually explicit material need to provide government-approved forms of identification, with the new regulations disallowing some forms that had been acceptable under the old regs. Notably, those new restrictions included foreign passports and driver’s licenses, making it nearly impossible for recent immigrants to get work in adult features.
Cambria also explained the concepts of “primary” and “secondary” producer as embodied in both sets of regulations, and mentioned that the recent decision by Judge Walker D. Miller on a preliminary injunction in FSC’s lawsuit against the law invalidated the “secondary producer” concept, limiting the recordkeeping – but not the labeling – requirements to those who actually employed the performers who appeared in the material. Secondary producers, Cambria said, need only obtain from the primary producer a letter indicating who the custodian of records is, where the records are kept, and the date of production of the material. He also advised that the secondary producers obtain a statement that all participants in the material are 18 years old or older.
Cambria (and later Douglas) stressed that Judge Miller’s ruling would only apply to Free Speech members.
Cambria also voiced agreement with some of the points DeWitt had made in a recent AVN.com article, over some of the omissions in Judge Miller’s opinion that will continue to cause major problems for producers. Most notable were the hours during which producers will have to have their records made available for government inspectors – none of whom have yet been identified nor trained to perform inspections – and the failure to deal with the foreign ID situation.
When it came Douglas’ turn at the podium, he outlined the genesis of FSC’s lawsuit, noting that attorney and fellow FSC board member Reed Lee had discussed with him in 2003 the idea of suing to overturn the 2257 law, saying, “We can’t live with it.” Douglas further noted that Gonzales’ revamping of the regulations provided the perfect opportunity to both challenge the regs and attempt to invalidate the law at the same time.
Douglas then outlined the good points in Judge Miller’s preliminary injunction, highlighting the abolition of the requirement that secondary producers keep identity records on performers, mentioning that such regulations had been responsible for dozens of reports of stalking and theft of performers’ identities through widespread, nearly uncontrolled access to those records. He also spoke of the ruling that providers of live webcam content could not be required to record their sessions and archive them, which the judge had noted would require thousands of terabytes of storage space.
“The judge’s goal seems to have been to maintain the status quo,” Douglas said, in that Judge Miller’s ruling upheld the Tenth U.S. Circuit Court of Appeals decision in Sundance Associates v. Reno 11 years previous which had also denied the concept of secondary producer – a ruling which the government ignored in promulgating its new regulations.
Douglas said he expected the limitations on enforcement in the injunction to be good for at least two or three years, and that he expected them to be permanent once the lawsuit comes to trial and FSC wins, an outcome he described as “very likely.” He also noted that even if Congress should pass laws which have already been introduced in both houses – House Resolution 3231 and Senate Bill 2140 – which would reestablish the “secondary producer” concept, those laws could only be prospective, so any material shot before the effective date of such laws would be exempt from its requirements.
Douglas stressed that at this point in the lawsuit, FSC would need to identify more victims of the 2257 regulations – people who had lost business or otherwise been affected by the regs’ onerous requirements – and he urged such victims to contact FSC to become witnesses in the lawsuit.
A lively question-and-answer session followed, with audience members asking germane questions in trying to understand the current state of 2257, and others obviously still not clear on the differences between primary and secondary producers.
Several responses from the attorneys are worth noting, including the opinion that nothing in 2257 requires that the records be kept within the United States, and that in the cases where a company or individual is both a primary and secondary producer, that the records required to be kept by a primary be segregated from records that may be in the company’s possession as a secondary producer.
All in all, it was a lively 90 minutes, and at its conclusion, attendees crowded the front of the hall with additional questions for the attorneys.
