2257 regs passed

[Greenguy]

Taken from http://www.xxxlaw.net/

Attorney General Gonzales Signs Order Adopting Revised Regulations Implementing Section 2257

The United States Justice Department announced this afternoon that Attorney General Alberto Gonzales has signed a final rule containing changes to the Justice Department regulations implementing 18 USC Section 2257. These changes will become effective thirty days after their publication in the Federal Register unless their enforcement is enjoined by a federal court. Until they are published, we cannot know how closely they resemble the changes proposed last June by the Justice Department. A table comparing the existing regulations with the June 2004 proposal is found here. A detailed article highlighting the differences, published last Summer in AVN Online, is found here.

Contrary to at least one GFY-posted account, the sky may not actually be falling. The promulgation points however to a present intention on the part of DOJ to actually enforce Section 2257 for the first time. Indeed, there may be something falling on the heads of those who have not taken the law seriously, but it will not be the sky. The press release does put quotation marks around the term "pornography producers", a term that does not exist in the present statute or regulations or the proposed regulation, and hints that the final version has been modified, probably in the direction of the so-called "secondary producer" requirements; Though at least one US Court of Appeals has found the provisions to work beyond the authority of the Justice Department, the existing regulations have always required web publishers who buy content made by others to obtain and retain and make available for inspection the original documents and alias information obtained by the original content producers. Substantial parts of the proposal made last Summer were unconstitutional on their face - notably the inspection requirement that mandated availability for inspection of the records from 8am to 6pm. The burden this onerous requirement would place on part-time webmasters would eliminate substantial constitutionally protected expression. The proposal also required the long-term archiving of terabyte upon terabyte of live, streaming content for many years - and the expensive segregation of this data from the working servers of sites. All of this was related to Justice by this firm during the comment period, and we will shortly know whether any of the hardship was taken into account in the final rule.

The Free Speech Coalition can be expected to take point at the forward edge of this battle by initiating litigation. Understand though, that an injunction against the enforcement of the changes alone will be of little value. The existing regulations provide the Justice Department with very effective tools for all of the purposes underlying the statute and regulation. It is my best hunch that Justice would not be promulgating the changes without plans to enforce in the immediate future.

All available information will be posted here as it becomes available. JDO