One year to the day after proposed revisions to the federal regulations governing enforcement of Title 18 U.S.C. §2257 were published in the Federal Register, the revised regulations (28 CFR Part 75) will take effect. Content producers who haven’t already brought their documentation into compliance with the changes to the law may be too late, according to industry attorneys.
”Yes, the new regs are going to change the way this business is conducted,” notes Seattle-based attorney Robert S. Apgood. It’s not uncommon for Apgood to disagree with his fellows over the interpretation of one or another law of particular importance to the adult Internet, but he stands shoulder-to-shoulder with them on most points involving this one. “Even with entirely legal, legitimate content you could still be in violation of the law and face significant criminal penalties [if your records aren’t in order].”
Many of the revised regulations’ most onerous requirements remain, despite public comment suggesting they be modified. “They completely blew off privacy concerns,” says Lawrence G. Walters, a partner with the bicoastal law firm Weston, Garrou, DeWitt & Walters. “The conspiracy theorist in me says the Justice Department is waving the banner of ‘protecting the kids’ in order to do harm to the industry.”
Apgood agrees. “The regulations are a clear indication that the Justice Department wants the public to think protecting children from abuse is more important than the privacy concerns of adults who choose to participate in the adult entertainment business,” he says. “They feel justified in violating performers’ rights if they can do it in the name of ‘protecting the children.’”
Even Joan Irvine, executive director of Association of Sites Advocating Child Protection, says she is unsure about federal motives where the revised regulations are concerned. “It appears the government is confused,” she avers. “The legitimate businesses in the [adult] industry are already doing what is necessary to protect children and comply with 2257. I have to repeat what has been said before: If the government was really interested in protecting children, they would be using avenues such as hashed values of known [child pornography] images to find this illegal and horrific content.
“They are treating the adult entertainment industry as if it is trying to lure children into the business, and this is not true. The government can't even handle the workload of [legitimate child porn] investigations.”
Conspiracy theory aside, though, Walters faults the regulations for other reasons. “A lot of the biggest concerns were not addressed. The date [forward from which records have to conform] was a big concern, but that was fixed. They were proactive on the hours-of-availability requirement, but they left unanswered who will be doing the inspecting and they mandated a minimum number of hours the records custodian must be available. [In addition, the government] can use these records against webmasters in obscenity prosecutions. That raises some big Fifth Amendment concerns, because they’re requiring webmasters to file and maintain potential evidence for them. Justice backed down on the easy stuff, but sidestepped everything else.”
J.D. Obenberger, principal in the Chicago law firm J.D. Obenberger & Associates, noticed a number of things “sidestepped” by the Justice Department when it drafted the final regulations. Obenberger went so far as to call the issues “ignored.” Among them is the economic burden imposed on Web cam operators by the requirement that they archive and include with their records a copy of every live broadcast. The legality of collecting and filing multiple, redundant IDs – often encouraged when dealing with new models – is another gray area Obenberger feels should have been addressed for the benefit of both the adult industry and the government. “Producers are prohibited by law from having more than one form of ID with any one record,” Obenberger says. “You can go to jail for [violating] that. It just makes sense for a producer to copy more than one ID, because [an underage] girl might have a fake driver’s license saying she’s 21, but it’s unlikely she’d have two IDs that match.”
Walters says the requirement that adult websites associate every explicit image with a specific URL is beyond onerous. “Mega-sites with huge amounts of content require URL associations for every image,” he says. “That’s difficult, because sponsors-slash-secondary producers-slash-webmasters often don’t know where their images are. It’s almost impossible to track that kind of thing.”
The biggest concern for most webmasters, however, is the requirement to keep, organize, and make available records at all. That’s going to prove problematical for a large segment of the adult Web, attorneys believe, because until the proposed revisions were published June 24, 2004, many webmasters believed they weren’t subject to records inspection. Under guidelines established by the 10th Circuit Court in the 1998 Sundance Associates Inc. v Reno decision, most webmasters – and some attorneys – believed so-called “secondary producers,” a category under which most websites fall, satisfied the requirements of records-keeping laws by referring inspectors to the records custodians for the companies and individuals from whom they purchased, leased, or borrowed their content.
The new regulations make it abundantly clear that’s not the case, according to Walters. “American Library Association v Reno [1995] determined that records needed to be kept, but the constitutionality of the secondary producer part of the regulations was never addressed in that case.” Now Justice appears to be saying there was a tacit approval in the omission, Walters notes, “so that allows them to require secondary producers to keep records. Justice interprets the regulations to apply even to webmasters and sites that digitize [adult video and DVD] box covers to sell DVDs on their sites. They don’t have any other explicit content, but because the box covers have explicit images [that often can’t even be seen], those webmasters have to maintain records, too.
“The bigger issue now is that [the Justice Department] is saying ‘we reject [Sundance vs. Reno],’ which is what gave rise to the industry standard [that secondary producers could refer inspectors to the primary producer’s custodian of records instead of keeping the documentation themselves],” Walters continues. “Webmasters bought content, and all they got was the name of a records custodian. The majority of secondary producers who don’t keep records don’t keep them because of Sundance. Many of the old content producers are no longer in the business or they never had records or they won’t give them up, so it’s a problem.”
Apgood adds that the term “producer” is confusing to many in the adult industry, and that may lead to some potentially fatal misunderstandings. “The guys who create pages to promote sponsors’ sites using images from the sponsors are now producers,” he says. [Thumbnail gallery post] owners may now qualify as secondary producers.”
And what about webmasters who have no explicit content on their sites by design but rotate sponsors’ banners automatically via a code snippet they insert into their HTML documents? “The way I read the regs, [a webmaster who does that] is a secondary producer because he is responsible for inserting the content on the Web page he created and over which he has control, regardless of the ‘source’ of the image he is displaying,” Apgood says. “In other words, [the webmaster] has the final say on whether the banner is displayed or not displayed on his page,” even if explicit banner content appears only occasionally and without the webmaster’s knowledge.
Obenberger sees the secondary producer requirements as the most potentially damning – and potentially challengeable – of the requirements. “My biggest criticism of [the revised regulations] is their reliance on American Library Association v Reno,” he says. “The secondary producers requirement is not new. It’s been there from the beginning, and the reasoning behind it is that when the law was passed, magazines and video companies were the ones required to keep the records. Publishers and video companies tend to last when photographers may disappear like a cloud, so the requirement made sense as far as being able to track the records well into the future. The problem is, Congress did not give the Justice Department power to enforce the regulations on secondary producers. That’s beyond their authority – but that doesn’t mean they won’t act on what’s in the regulations until a court tells them not to.”
That may prove to be the rub. The Free Speech Coalition (www.freespeechcoalition.com) is working to challenge the regulations on a number of legal grounds, but no one is sure yet if the challenges can be heard in time to prevent arrests or the mass disappearance of “undocumented” content from the adult Web. “I’m not even sure an injunction is going to stop the inspections,” Obenberger says, noting that he expects to see inspections and arrests starting June 24, the first day the Justice Department can enforce the revised regulations. “[An injunction] might stop prosecutions, but it won’t stop the inspections. There is some reason to believe people are going to be arrested and charged as soon as possible.”
Walters adds, “Hopefully the courts will act before 30 days expire, but those parts of the regulations that don’t specifically say ‘June 23, 2005,’ can take effect immediately. As a practical matter, any attempt to start enforcement early would make them look overzealous – sort of a ‘damn the torpedoes’ attitude.” Still, he’s not entirely sure Justice views that attitude as a bad one.
The earliest victims, the attorneys agree, probably will be small or relatively new operators who either haven’t sought legal advice or haven’t taken the advice they’ve received from reliable sources. That frustrates Apgood, who says, to their detriment, too many webmasters believe what they read online in discussion forums. “Don’t take advice from people on the [webmaster chat] boards about what’s legal and what’s not, no matter how long they’ve been in the business,” he warns. “That’s the biggest mistake too many people make. There’s so much bad advice out there, and people just absorb it.”
