HOLLYWOOD, Florida – The summer InterNext Expo Legal Roundtable seminar was standing room only last Saturday afternoon at the Diplomat Hotel in Hollywood, Florida. With Ashcroft’s proposed changes to 18 U.S.C.HOLLYWOOD, Florida – The summer InterNext Expo Legal Roundtable seminar was standing room only last Saturday afternoon at the Diplomat Hotel in Hollywood, Florida. With Ashcroft’s proposed changes to 18 U.S.C. 2257 weighing heavily on the minds of adult industry professionals, Internext attendees abandoned the show floor and packed into the show’s large seminar room to listen to a panel of adult industry legal experts discuss the potential consequences of the proposed changes. Panel experts included attorneys Larry Walters from Weston, Garrou and DeWitt, Joe Obenberger from J.D. Obenberger and Associates, and Greg Piccionelli from Brull, Piccionelli, Sarno, Braun and Vradenburgh.
The first presentation came from attorney Larry Walters, who lectured on both the current and proposed record keeping laws that affect adult entertainment businesses.
“Keep in mind that the Court has had very little opportunity to interpret or to evaluate the scope of 2257,” Walters explained. “Since it was passed in 1990, there have been no prosecutions at all under 2257 in criminal court … the Court has had very little opportunity to render rulings on the defenses that might be available, how the laws are being interpreted, and it is therefore a novel issue unlike many other federal statues in other industries that have a whole body of case law that determine how the statute is supposed to be interpreted, what it all means.”
He added that regulations are open to differing interpretations by the administrations that enforce them.
“Any set of regulations might be interpreted completely differently by a Bush administration as opposed to a Clinton or Kerry administration,” Walters said.
According to Walters, if Ashcroft’s new changes are approved, Webmasters who license sexually explicit content for their Web sites will then need to compile and maintain records in the same manner as the primary producers of said content. When determining what type of content falls under 2257 regulations, Walters said a good rule of thumb is any content that depicts penetration, masturbation of S&M activities.
“Mere nudity does not fall within the realm of 2257,” Walters explained.
Although straight nudity does not fall under the record-keeping laws, Walters recommended that Webmasters with softcore content nonetheless comply on a voluntary basis. Such compliance, he argued, would help protect a Webmaster should there ever be a question about the age of a model.
“We’ve always recommended that our clients reply with 2257 for all their content,” Walters said. “Why? Well, because the child pornography statue is much broader than 2257, and in the event that you have nudity involving a seventeen year-old girl, you might have the records showing that she’s in fact eighteen years of age to avoid a child pornography charge, even if those records are not required by 2257.”
Walters also pointed out that censoring sexually explicit content – for example, blurring out the penetration – does not exempt that content from record keeping requirements. Since the supposed goal of the law is to prevent children from acting in adult productions, the fact that the content has been censored means little to the federal government.
In addition to expanding the applicability of 2257 record-keeping requirements to secondary producers, Ashcroft’s proposed changes would have a number of other effects if adopted. Walters explained that the changes add additional required records to be kept, clarify and expand maintenance and indexing requirements, clarify disclosure statement requirements, establish new inspection procedures, and specifically apply previous requirements to the Internet.
Walters concluded his presentation with an explanation of the adult industry’s opportunity to provide public comments to the Justice Department prior to any decision on the new regulations. Until August 24th, industry professionals who want to comment to the Justice Department about these proposed changes can send an email to admin.ceos@usdoj.gov. Walters pointed out that there are differing opinions regarding the wisdom of making such comments, and advised attendees to check with their attorneys first should they decide to comment.
The next speaker was attorney Joe Obenberger, who gave a mixed review of 2257 in general.
“I have mixed feelings about 2257,” Obenberger told the crowded room.
He encouraged Webmasters to feel good about the work that they are accomplishing online, arguing that the online adult entertainment industry helps define the sexual norms of American society.
“You are fighting … through the congress of the adult internet for the freedom of discussion and discourse in American society, and you do a very holy work, a very sacred work in that sense,” Obenberger said.
Obenberger said that those who comply with 2257 should look at the laws as a kind of protective barrier that can help prevent the possibility of their being charged with child pornography as a result of content that they thought contained only legal adults.
Yet despite his approval certain aspects of 2257, Obenberger did point out some of the issues that are raised when smaller Webmasters are forced to comply with regulations that are meant to target large adult entertainment companies. Obenberger said that he once approached a high ranking official from the Justice Department to discuss 2257. After pointing out that work-from-home cam girls would be put in physical danger if they were forced to reveal their home address, Obenberger said the reply he received from the official was, “What makes you think we care?”
In addition to safety concerns, Obenberger argued that the proposed new regulations can have other harmful effects on the rights of smaller Webmasters. Requiring Webmasters to be at the location of the records from 8:00 AM until 6:00 PM, he argued, limits who can publish erotic content. It also poses an undue burden on small content providers who then cannot leave the premises for on location shoots without incurring legal risks.
Attorney Greg Piccionelli offered the final presentation on 2257. He started off by arguing that the government was losing its battle against the adult entertainment industry. He pointed to the limited success of laws like COPA, CDA and the CAN-SPAM Act. He argued that obscenity convictions are a difficult and costly proposition. Because of these issues, Piccionelli believes 2257 might be the government’s last chance to make a big dent in the online adult entertainment business.
Pointing out that the government has not brought a single 2257 case to criminal court, Piccionelli questioned the motivations of new record keeping regulations that suspiciously saddle the adult entertainment industry with a considerable burden without any clear indication as to why that burden is necessary or beneficial to the government’s cause of protecting children.
“How many records did they ask for [under the current regulations]? Zip,” Piccionelli said. “And Congress has appropriated money for this, they appropriated money for 25 attorneys … this is an extraordinary situation. Congress says we passed a law and you enforce it, and they still don’t enforce it … what they do is they [author] twenty-six pages of additional regulations. Why?”
Arguing that the real purpose of the proposed regulations is to attack the legitimate adult entertainment industry, Piccionelli added, “That’s why I call 2257 a weapon of mass destruction.”
“All of these new regulations, this isn’t to protect the kids, it’s to screw with us,” Piccionelli said. “That’s the reason why, folks.”
Piccionelli suggested that the lobbying efforts of conservative, religious groups are behind the actions of the Justice Department when it targets the adult entertainment industry for unnecessary new regulations meant to disrupt business. He pointed out that these critics of the adult entertainment industry have views in this regard that are close in line with terrorists and repressive governments.
“This is the kind of thing that Osama bin Laden and the Taliban would probably approve of,” Piccionelli said.
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