FSC statement about the 2257 meeting

[Bill]

Bottom line - untill the government actually releases the new regs under Adam Walsh, we are at an impasse.

I think this is the most interesting statement - yet, it looks like it CAN'T be settled untill the Feds attack some secondary producer...


“We are all confident that no court would allow a retroactive obligation to be placed upon secondary producers for which there was no lawful authority when they acquired the images. Furthermore, until the new regulations are finalized, how can any secondary know what their obligations are? For instance, they cannot comply with the regulations applicable to primary producers – actual inspection of the original ID is impossible for a secondary producer.”


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Dear FSC Members,

On Wednesday, April 25th in Colorado, Federal District Court Judge Walker Miller held a status conference with the Free Speech Coalition and Government attorneys. The conference was requested by FSC attorneys, in cooperation with government litigators after Judge Miller’s ruling of March 30, 2007 dismissing some causes of action and allowing others to proceed in light of the Adam Walsh Act amendments to 18 U.S.C. § 2257 enacted on July 27, 2006.

Result of the status conference:
We are awaiting the Court’s minute order. Upon issuance of that Order, it will be posted on our website along with attorney comments. It is expected that the Judge will dissolve portions of the preliminary injunction which ordered the Government not to inspect secondary producers. That does not mean that inspections of secondaries are likely in the foreseeable future.

What Does This Mean For Secondary Producers?
Our litigation team has stated the following: “We have no reason to anticipate imminent inspections of secondary producers. The reasoning underlying Judge Miller’s preliminary injunction remains valid; that is, prior to July 27, 2006, there was no statutory authority for record-keeping by secondary producers. We are awaiting regulations which will announce the Department of Justice’s position on what secondary producers’ responsibilities are under the July 27, 2006 amendments.”

FSC Board Chair and First Amendment attorney Jeffrey J. Douglas adds, “We are all confident that no court would allow a retroactive obligation to be placed upon secondary producers for which there was no lawful authority when they acquired the images. Furthermore, until the new regulations are finalized, how can any secondary know what their obligations are? For instance, they cannot comply with the regulations applicable to primary producers – actual inspection of the original ID is impossible for a secondary producer.”

Should there be any indication that the Government is claiming such authority, the Free Speech Coalition will immediately seek another court order. FSC will provide regular updates on the status of 2257 as the case unfolds through our weekly XPRESS newsletter, e-mail alerts and posting on our websites.

Sincerely,
Diane Duke
Executive Director
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[kane]

yep, it looks like all secondary producers (well, I guess the new amendment to the law does away with that term and considers them just producers) will have to have documents on hand and have filing system for them.

the big question is what exactly with they have to do in order to be compliant. I guess we will find out pretty soon.

[lassiter]

Doesn't sound like the FSC is doing very well with this so far.

[kane]

Originally Posted by lassiter

Doesn't sound like the FSC is doing very well with this so far.

I would argue the opposite. Without them nobody would have fought the secondary producer standings and the industry would now have to follow a law that was hard to understand and impossible to comply with. They got the secondary producer thing stopped, but the government (via an addition to the Adam Walsh act) changed the law again to remove the secondary producer provision and make everyone a "producer".

From what I understand the judge then told them that since it has changed there is no use in going forward with the fight. So now people that would have fallen under the "secondary producer" area will have to have docs and records, but it looks like the FSC is going to work with the justice department to come up with exactly what they will need to have. As it says, currently someone that just buys some content can't comply with the law because they didn't personally inspect the IDs and they didn't personally witness the signatures on the docs. There are other things in there too that "secondary" type producers can't comply with. Hopefully they will be able to come up with some type of a reasonable thing that will be easy to comply with so anyone that has to won't spend hours a day just up-keeping records.

[Bill]

You know, it seems to me that the most useful item to push for in the new regulations would be to not have it be retroactive.

I wonder if the FSC knows that and is pushing for it?

I wonder what the best way to communicate that to the FSC would be?

[lassiter]

Originally Posted by kane

Without them nobody would have fought the secondary producer standings and the industry would now have to follow a law that was hard to understand and impossible to comply with.

Which is exactly the situation, now that the injunction regarding secondary producers has been lifted. Point goes to DOJ.

Originally Posted by kane

So now people that would have fallen under the "secondary producer" area will have to have docs and records, but it looks like the FSC is going to work with the justice department to come up with exactly what they will need to have. As it says, currently someone that just buys some content can't comply with the law because they didn't personally inspect the IDs and they didn't personally witness the signatures on the docs. There are other things in there too that "secondary" type producers can't comply with.

The FSC has been working with some of the FBI guys that actually do inspections, but the DOJ and the Khristian Kongressional Krazies are another thing entirely. Their intention is to make the regulations impossible to comply with, so they can tell the cracker vote "see, we forced a whole bunch of evil pornographers out of business, like we promised we would."

[tickler]

Seems like Moonlight Entertainment just got audited.
http://avn.com/index_cache.php?Prima...tent_ID=288544

[Bill]

Yeah, I heard about that - bascially a continuation of the inspections that were going on before the Gonzo hearings. Primary producers, video productions only as far as I've heard.

They found nothing - the guy inspected said they were friendly and helpful. He had already closed his business, they went to his home and spent an hour going over his records.

[jonnydoe]

I can't wait to rent an office so I have a physical location to list and spend all the money and time on a software system to track all this crap...and mostly for MILFs...haha. Hey Lassiter, some take "cracker" about as well as an "N" bomb.

[lassiter]

Originally Posted by jonnydoe

Hey Lassiter, some take "cracker" about as well as an "N" bomb.

Born & raised in Central Florida (pre-Disneyfication) so I'm talking 'bout my own homies, dig?

[jonnydoe]

haha...no problem here.

[Toby]

It would appear that any resolution on the "secondary" producer issue is still months away. From FSC's most recent newsletter.

Frequently Asked Questions
1. As a secondary producer, what records should I have in place to be in compliance as a result of this decision and from what point in time do I need them?
Secondary producers were required by Congress to have records (photocopy of passport, DMV-issued ID, military ID or "Green Card" as well as personal information form) for materials acquired after July 27, 2007. The regulations detailing how compliance is to occur were supposed to be issued in January of 2007. They are now scheduled for release in June. Nothing legally has changed in regards to the basis by which FSC got its injunction; that is, Congress had not authorized any record-keeping by secondary producers prior to July 27, 2007. Therefore secondary producers need not acquire or maintain any records for materials acquired prior to July 27, 2007, at the earliest. It is more realistic to say that records will not be required until the effective date of the new regulations. If the Government is so stupid as to try to enforce record-keeping by secondary producers for materials acquired before Congress authorized such record-keeping, FSC will seek and expects to get an immediate order halting such action.

2. When do you anticipate is the soonest the new regulations concerning 2257 will be released?
The Government recently stated that the proposed regulations will be released in June of 2007.

3. What happens once the new regulations are released?
With a 60 day public comment period, assuming that the proposed regulations are released June 1, 2007, the Government has unlimited time to reflect on the public comments before issuing the final regulations. Assuming a conservative 60 day period after public comments to issue the final regulations (60 days would be lightning speed), the 2257A regulations, by statute, would go into effect 90 days thereafter. It is reasonable to assume that the same will apply to the 2257 regulations. Therefore the soonest they could go into effect would be seven months from June 1, 2007. So it looks like 2008 is when we shall see final regulations become effective.

4. Is FSC going to file for another injunction? What are FSC's next steps?
FSC will seek a court order preventing the new regulations from going into effect, assuming that the government does not completely relent from the burdensome compliance regime it has heretofore insisted upon. Additionally, because of the newly enacted "Hollywood" exemptions to 2257 and 2257A, there is a much stronger argument for declaring the entire 2257/2257A record-keeping and labeling scheme unconstitutional. This is a realistic hope.

5. If secondary producers are no longer covered, from a legal standpoint, why should I continue being a member of FSC?
Should the government attempt to enforce the record-keeping provisions against secondary producers for materials acquired before the effective date of the new regulations, your existing/ongoing membership will protect you when the new injunction issues. And assuming that FSC gets injunctive relief from the law itself and/or new regulations, you will definitely need to be a member then. But membership in FSC conveys many benefits, of which protection from government misconduct is only one of them. The fact that you are making this inquiry of us demonstrates the vital role we play in informing our membership of the pressing issues. Through your support of FSC, the adult industry has a lobbyist in Washington, D.C., has a respected voice in the wide-ranging public debate about the place of sexual communication in our culture, as well as commercial/financial benefits (see our website).

6. If FSC proceeds with a new lawsuit/injunction at what point will I need to be a member to be covered under the new lawsuit/injunction?
We cannot say at this time. We always try to have any legal relief cover as many people and businesses as possible. The significance of specific effective dates of membership depends on the judge and any agreements reached with the government in any given lawsuit. For instance the join date of May 23, 2005, in the Denver litigation was simply an arbitrary date imposed by the Justice Department. As to the next time, we must wait and see. If you maintain your membership, you need not be concerned about the effective join date in the future.