CANOGA PARK, Calif. - Addressing fellow members of the Free Speech Coalition at a recent meeting, attorney Jeffrey Douglas said the FBI won't show up anytime soon to inspect the records of adult producers under the revised 2257 regulations.
"It is unlikely that there will be inspections in the near future," Douglas said. "And inspections are the necessary triggering event for prosecution for anything involving record keeping."
Douglas' remarks followed in the wake of events which have left the latest changes to 2257 in limbo, leading to questions about the future of the record-keeping laws under President Obama.
The final revisions to 18 U.S.C. §2257 officially took effect Jan. 20 - the same day Obama was sworn into office.
Obama's Chief of Staff Rahm Emanuel announced on the same day that all regulatory changes not yet in effect from the final days of the Bush regime would be suspended, pending review by the new administration.
Peter Orszag, Director of the Office of Management and Budget, clarified Emanuel's dictum in a Jan. 21 memo to federal agencies under Obama.
Orszag outlined eight considerations that department heads should take into account during staff review of proposed changes to federal regulations. The memo advises officials to closely examine the fairness of the procedures involved in approving "lame duck" regulations such as the December revisions to 2257.
If federal agencies find fault with the rules under these guidelines, Orszag recommended postponing enforcement for another 60 days under the Administrative Procedure Act (APA). He also reminded department heads that under the APA, "you may also postpone the effective date of an agency action pending judicial review, where justice so requires."
FSC sent a letter to the Department of Justice in response to these developments, formally asking the chief of the Child Exploitation and Obscenity Section to delay enforcement of the new 2257 rules.
Drafted by Douglas and FSC executive director Diane Duke with help from attorney Reed Lee, the letter used Orszag's memo to bolster its argument.
In its letter, FSC identified two legal situations that place 2257 in the category of "an agency action pending judicial review".
The original version of the regulatory scheme is still facing a court challenge from FSC in Denver. And in the Sixth Circuit, an en banc panel has yet to decide an appeal of the October 2007 ruling that struck down the record-keeping rules as unconstitutional in the case of Connections Distributing.
FSC also called attention to the fact that the FBI has not inspected the records of any adult producer since the Sixth Circuit declared 2257 unconstitutional. Therefore, FSC argues, it can't hurt to hold off on enforcing the rules until the new Justice Department gets a chance to review them.
"A formal delay in implementing these regulations will not harm the government's ability to achieve whatever goals section 2257 purportedly accomplishes," the letter states.
FSC used several additional points addressed in the Orszag memo to its distinct advantage.
For example, Orszag raised the question of "whether objections to the rule were adequately considered, including whether interested parties had fair opportunities to present contrary facts and arguments."
FSC seized on this language as an opportunity to point out that in drafting the many versions of 2257, the DOJ never officially consulted with anyone connected with the business affected by the rules. And that's not the way federal regulations are normally written.
By law, the Justice Department did allow the industry a certain period of time to respond to the most recent changes – but the resulting comments were ignored.
Among these comments were significant objections to the massive costs of the record-keeping procedure and the near-impossibility of compliance – especially for so-called "secondary producers," who would be forced to stick labels on every web page, chat room, and video clip containing nudity or sex.
Other industry respondents objected to the entire regulatory scheme as unconstitutional, because it shifts the burden of proof to adult producers. That is, instead of forcing the government to prove a performer is underage, the law requires pornographers to prove every performer is not underage.
FSC also pointed to the discrepancies between the 2257 requirements for adult producers and the obligations of Hollywood producers under the newly revised section 2257A. Mainstream film producers dealing in sexually explicit images are held to a much less rigorous standard than pornographers.
The Justice Department doesn’t have to listen to these arguments; cynics might suggest that the FSC letter could just as well have landed directly in a circular file or porcelain throne somewhere in the bowels of Washington, D.C.
But even if the government doesn't hold off on enforcing the revised 2257 rules, enforcing them won't be easy. According to Douglas, no FBI inspectors have yet been trained to implement the latest changes in procedure.
And as Douglas pointed out in his remarks at the FSC membership meeting, it's going to take a while for the new Justice Department to review the regulations, considering all the technicalities and the unresolved legal battles involved.
The fact remains: After inspecting more than two dozen adult companies in an 18-month period, the Justice Department has yet to bring a single 2257-based criminal case against a "mainstream" adult producer.
And the question remains: Will President Obama's administration continue to pursue an even more overcomplicated version of this law?