CHICAGO—As most AVN readers know, the federal recordkeeping and labeling law, 18 U.S.C. §2257, has been around since 1988, shortly after the Meese Commission report recommended that something similar be enacted. And most AVN readers also know that that law received zero enforcement until Congress, in hearings in mid-2003 regarding the "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today" (PROTECT) Act, asked then-Attorney General John Ashcroft how his department had been enforcing 2257—at which point Ashcroft evaded the question by claiming that the regulations then in place were insufficient to allow the law to be implemented.
So Ashcroft and his successor in office, Alberto Gonzales began rewriting those regulations—and the Justice Department (DOJ) has continued rewriting them, both formally and informally, right up to the Third Circuit hearing in January, which wound up reinstating Free Speech Coalition's (FSC) dismissed lawsuit against the law.
But one provision of the PROTECT Act which has received little attention is the requirement that the Attorney General of the United States supply Congress with annual reports detailing the progress the DOJ has made in enforcing 2257.
That provision reads, "On an annual basis, the Attorney General shall submit a report to Congress— (1) concerning the enforcement of this section and section 2257 by the Department of Justice during the previous 12-month period; and (2) including—(A) the number of inspections undertaken pursuant to this section and section 2257; (B) the number of open investigations pursuant to this section and section 2257; (C) the number of cases in which a person has been charged with a violation of this section and section 2257; and (D) for each case listed in response to subparagraph (C), the name of the lead defendant, the federal district in which the case was brought, the court tracking number, and a synopsis of the violation and its disposition, if any, including settlements, sentences, recoveries and penalties."
Undoubtedly, at least one such report would include the brief period in 2006 and 2007 when an FBI task force conducted inspections of more than two dozen adult video and internet companies to determine their 2257 compliance—and which inspections ended just as FSC was awaiting a ruling by U.S. District Judge Walker Miller in its first lawsuit against the law filed in the District of Colorado.
Surely, however, the fact that FBI agents raided dozens of adult companies and inspected their 2257 compliance records, and that inspection team leader Chuck Joyner discussed the industry's general lack of complete compliance with attorneys Robert D. Richards and Clay Calvert, should have been worthy of reporting to Congress, shouldn't it?
First Amendment attorney J.D. Obenberger decided that he'd like to see copies of those annual reports to Congress, so on May 9, he filed a Freedom of Information Act (FOIA) with Melanie Ann Pustay, director of the Justice Department's Office of Information and Privacy—one of the few offices within the DOJ that handles FOIA requests—and asked for copies of those reports.
"Pursuant to the federal Freedom of Information Act, 5 U.S.C. §552," Obenberger's request stated, "I request access to and to be provided with an authentic, wholly legible, reproduced copy of any and all such annual reports, made in compliance with the foregoing statute by the Attorney General and submitted to Congress after April 30, 2004."
But the DOJ's response to Obenberger's FOIA request was less than informative.
"I said, 'Show me all these annual reports,' and I got just a masterpiece of administrative bureaucratic gobbledegook," Obenberger told AVN. "The request went to the same people I sent it to last time, which is the Office of Information and Privacy. If you look at FOIA, it says they're in charge of compliance reports to Congress by the Attorney General. And they've written back, and among the things they say is, I wrote to the wrong people."
"This response is made on behalf of the Office of Legislative Affairs," came the response from Carmen L. Mallon, Chief of Staff of the DOJ's Office of Information Policy. "Please be advised that a search has been conducted of the electronic database of the Departmental Executive Secretariat, which maintains certain Office of Legislative Affairs records, and no records subject to the FOIA and responsive to your request were located."
The letter went on to say that Obenberger could file the same request with the Child Exploitation and Obscenity Section (CEOS), but it hardly seems likely that the division responsible for bringing criminal prosecutions of offenders would also be tasked with the duty to make the reports to Congress that then-House Judiciary Committee chairman F. James Sensenbrenner had directly ordered Attorney General Ashcroft to produce.
"They just seem to be tapdancing all around this because they don't want to admit that they broke the mandate of Congress," Obenberger concluded. "Meanwhile, with one voice, they're telling the federal courts out East that this statute serves a compelling public purpose in protecting children, and when Congress says, 'Well, tell us how good you're protecting children,' all they get is... nothing."
Obenberger says he'll continue trying to obtain the reports, if they even exist, which seems unlikely at this point. And if in fact they don't exist, that certainly calls into question the motivations of the Justice Department, especially during the Bush years, as to whether they really wanted to protect minors from appearing in adult movies, or whether they simply wanted to harass and cause extraordinary expenses for the adult industry in its attempts to comply with a federal law that even the Justice Department recognizes is useless in keeping minors out of XXX movies.