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"The change of 'actual sexually explicit conduct' to just 'sexually explicit conduct,' as well as the addition of nudity, vastly expands the scope of the materials covered by 2257," agreed attorney/AVN columnist Clyde DeWitt, "especially given all of the federal child pornography cases from around the country that have held that 'lascivious exhibition of the genitals or pubic area of any person' can include a fully clothed pubic area."

"The earlier distinction came because of the motion picture industry," added Obenberger, "so now, you're going to have to have 2257 notices in the end credits of movies where there's apparent or simulated sexual intercourse."

The change would also cut many Hollywood productions out of the tax benefits provided in the American Jobs Creation Act of 2004, which allows mainstream production companies to amortize the costs of movies more quickly ? unless the feature has content requiring that 2257 records be kept, which includes all adult features, and under this bill, most R-rated and all NC-17-rated Hollywood productions.

But wait; it gets better. Sec. 3 of the new bill would make it a federal crime to refuse to allow "the Attorney General or his or her delegee to conduct an inspection under subsection (c)." Therefore, if an adult businessperson ? let's say, a "secondary producer" ? believes he/she has some legal right to keep the (so far undesignated) "2257 inspector" from examining his/her 2257 records, that mere refusal itself would be a crime, and the businessperson could find him/herself arrested on the spot and hauled off to jail.

Indeed, H.R. 3726 attempts to do away with the "secondary producer" controversy altogether, by amending 18 U.S.C. §2257 to remove the exemption for anyone whose business involves "mere distribution or any other activity which does not involve hiring, contracting for managing or otherwise arranging for the participation of the performers depicted." As amended, 2257(h)(3) would now read, "the term 'produces' means actually filming, videotaping, photographing; creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; or digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or, inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct." [Change emphasized] Apparently, nobody does anything "mere" in the adult industry anymore!

"I think this is a direct response to the Free Speech Coalition lawsuit," Obenberger said. "I think the Justice Department was willing to let the Tenth Circuit [Sundance Associates v. Reno] opinion just float out there for years. It wasn't doing any harm, substantially, in the country. But we've now put it in their face and rubbed their face all around it in the courtroom and humiliated them in Denver, so they said, 'Well, fine; we'll fix their clock. We'll take away the most important tool in that litigation.'"

With this bill, also, the federal government's administrative subpoena powers ? that is, its power to issue subpoenas to compel a person's appearance or to obtain records for a legal proceeding without demonstrating probable cause before a judge ? have been "enhanced" to include not only a "Federal health care offense" and "a Federal offense involving the sexual exploitation or abuse of children" but also "a Federal offense involving the distribution of obscenity."

"There is not a great deal of difference between an administrative subpoena and a grand jury subpoena in practice," noted DeWitt, "but then those of us that were around for the flurry of prosecutions in the '80s can all remember what a terrible nuisance grand jury subpoenas can be, and surely administrative subpoenas give the Department of Justice one more missile to fire. The potential for abuse is overwhelming."

And to go along with the industry's new decreased Fourth Amendment protections, the bill also contains an onerous new criminal and civil forfeiture section.