CHICAGO, IL —Attorney J.D. Obenberger responded officially to amendments proposed by the Department of Justice to regulate the internet, accusing the DOJ of preserving ambiguity upon ambiguity in the regulatory scheme that devastates webmasters and content producers. In statements to the press, Obenberger denounced the proposals as “burdening 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” whose ambiguities create an entirely unnecessary minefield.
Obenberger advanced four arguments regarding the proposal:
First, the new regulations now require that a date of original photography be set out in a Section 2257 Disclosure Statement. Noting that Obenberger proposed the same in his last batch of comments to the Justice Department in 2004 and that the comment was ignored at the time, Obenberger humorously congratulated Justice for now realizing that the date of actual photography is the only date relevant to protecting anybody, but noted that now Justice has to deal with an enormous amount of fully legal content that it cannot constitutionally ban, that was made before any obligation existed to use such a date in a Section 2257 Disclosure Statement. He noted that the Proposal still falls short of requiring anyone to actually record and maintain a record of a date of photography.
Second, he contended that the existing scheme of statute and regulations have created a confusing conceptual morass. What is the matter to be regulated: a website as a whole, a page of the Web site, each and every content element, still and video, or all of them, Obenberger mused. The proposed regulations 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 of 150 still images in a set simply acts to harass the webmaster, doing nothing to actually protect children.
Third, he argued that nothing in the Adam Walsh Act requires actual notices instead of links on every page of web sites. He noted that the requirement of law is that the notices be “affixed” to each page in the “manner and form” prescribed by the Department of Justice, and that DOJ is free to require affixation digitally by means of a link.
Fourth, Obenberger attacked the existing requirement that all records be indexed by the URLs upon which they appear, noting their transitory nature, often changing with every update or produced for one-time use, and said that nothing so important should be fixed to a location that migrates. He contended that the requirement is so burdensome that the courts will undoubtedly determine it to be unconstitutional.
Obenberger has filed an Administrative Appeal, which gives the Justice Department 20 days to act before a lawsuit against the Justice Department may be filed to compel disclosure. The government has produced a memorandum that recommended that the FBI be designated after approval of a plan for inspections and the creation of an inspections unit, and it produced Alberto Gonzales’ manually signed approval of the recommendations dated October 25, 2005. The government blacked out more than five pages of the discussion of the issues which his signature approved. While the government claimed an exemption from disclosure related to their deliberative processes, it was, in Obenberger’s view, final agency action. Because the memorandum is the only available document establishing the Attorney General’s designation of authority of the FBI to conduct investigations, it will necessarily be used in the future as part of any prosecution against individuals who decide to refuse inspection. Moreover, Obenberger believes it likely that the withheld discussion, approved by the Attorney General, establish the duties and responsibilities of the inspection unit.
