All of the 2257 Regs Are On The Table Again - DOJ Calling for Public Comments

[Joe Obenberger]

Tomorrow morning, the Federal Register will publish DOJ's legally-mandated call for public comments about the economic and manpower burdens associated with Section 2257 records creation and maintenance.

They think it takes six minutes.

They think it only applies to about 900 people

Read my take on it here.http://www.xxxlaw.com/articles/DOJ_R...the_Table.html

I think this puts all the regs on the table for discussion. Obviously, DOJ can't just walk away and not regulate because there is a statute. But they have huge and tremendous discretion and most of the burden, and most of the confusing craziness is a product of how they have implemented the mandate of Congress in their bewildering regulations. If you decide to write on your own, at least read my Primer to get your ideas together. http://www.xxxlaw.com/section-2257/index.html

This is a call to action. You have 30 days to comment, to create an administrative record that can later be used in court, and it's possible to do so anonymously.

[u-Bob]

I'll bump this.

[CyberHustler]

[NaughtyRob]

Sweet! A chance for the industry to have a voice on this.

[marcop]

Originally Posted by NaughtyRob

Sweet! A chance for the industry to have a voice on this.

[kane]

Didn't we play this game a few years back and they basically ignored everyone's comments and did whatever they wanted anyway?

[Joe Obenberger]

Originally Posted by kane

Didn't we play this game a few years back and they basically ignored everyone's comments and did whatever they wanted anyway?

They didn't ignore them. They addressed them, rejecting out of hand a ton of issues that were sometimes pretty crazy anyway. There were some really oddball submissions along with others that were very good ideas. They did adopt several ideas that came from comments, including my own and one from Reed Lee. Before the last round of comments there was no obligation to record the actual date of photography, which made the whole thing ineffectual to determine if child porn was created. The whole idea for third party custodians was first proposed by Reed. You can read how they dealt with all of those comments in a 100+ page set of comments linked here as the December 18, 2008 Promulgation. http://www.xxxlaw.com/section-2257/index.html

You can see how they addressed comments back in 2006 in a huge table correlating their responses to comments to the actual regs on the same page lower down, Five Column Table.

They can't ignore them. But they have discretion to do what they reasonably want.

However, in this case, they've set themselves up for disaster. Their basic methodology is so flawed that a court would laugh at it. This is the time to bolster the case of the huge economic and manpower burden.

No, it would NOT be pointless to respond. It will create an administrative record that lawyers can use to challenge this in a frontal assault or in defense of individuals charged.

The guy in charge of all of this, whose email address is in the published notice, is no idiot, miles away from that.

And who knows, it just may so shame them to have the truth published that it may cause changes here and there to avoid the embarrassment of having to defend obvious nonsense while standing in front of a federal judge.

All your comments must be published by law, even the anonymous ones, so they can't deep-six the Comments submitted by industry and public.

[Best-In-BC]

Originally Posted by kane

Didn't we play this game a few years back and they basically ignored everyone's comments and did whatever they wanted anyway?

Thats Politics

[DWB]

Good luck with all that.

[kane]

Originally Posted by Joe Obenberger

They didn't ignore them. They addressed them, rejecting out of hand a ton of issues that were sometimes pretty crazy anyway. There were some really oddball submissions along with others that were very good ideas. They did adopt several ideas that came from comments, including my own and one from Reed Lee. Before the last round of comments there was no obligation to record the actual date of photography, which made the whole thing ineffectual to determine if child porn was created. The whole idea for third party custodians was first proposed by Reed. You can read how they dealt with all of those comments in a 100+ page set of comments linked here as the December 18, 2008 Promulgation. http://www.xxxlaw.com/section-2257/index.html

You can see how they addressed comments back in 2006 in a huge table correlating their responses to comments to the actual regs on the same page lower down, Five Column Table.

They can't ignore them. But they have discretion to do what they reasonably want.

However, in this case, they've set themselves up for disaster. Their basic methodology is so flawed that a court would laugh at it. This is the time to bolster the case of the huge economic and manpower burden.

No, it would NOT be pointless to respond. It will create an administrative record that lawyers can use to challenge this in a frontal assault or in defense of individuals charged.

The guy in charge of all of this, whose email address is in the published notice, is no idiot, miles away from that.

And who knows, it just may so shame them to have the truth published that it may cause changes here and there to avoid the embarrassment of having to defend obvious nonsense while standing in front of a federal judge.

All your comments must be published by law, even the anonymous ones, so they can't deep-six the Comments submitted by industry and public.

Thanks for the great response.

I will check out what you have posted here. I will also read your take on things and fashion a decent comment to post on them. I don't shoot content, but I do run some blogs and have some free sites so obviously 2257 can and does impact me.

[suesheboy]

apathy sucks. webmasters are king in an apathetic world...

[Joe Obenberger]

delete post

[Joe Obenberger]

Originally Posted by suesheboy

apathy sucks. webmasters are king in an apathetic world...

You know what they say about the weather, how everybody's always talking about it but no one ever does anything about it? Well, this conjures up the same idea.

For twelve years, and at all the places where I've done legal presentations and panels, there's always been webmasters and content producers complaining about all the time and money spent on 2257 compliance and the crazy, unfathomable maze that is 2257.

Now it's all on the table, to officially talk about, the whole morass.

Their official notice betrays that they don't really have any clue about the size, cost, or expanse of the dimensions of compliance. They say 900 people spend about six minutes per video. They either think that's the truth or they are lying about it. Either way, it's a pathetic distortion of the reality.

And you think they've run out of things to say? That they don't want to complain? That they don't want to lay out the craziness of a law that says people who keep two or three backup ID documents in the official compliance records can go to jail for five years just because the regulations only call for one and only one?

Maybe you're right, but I hope not.

[kronic]

You might be well served to link the image in your sig to your site JD.

[Joe Obenberger]

Originally Posted by kronic

You might be well served to link the image in your sig to your site JD.

Easy for you to say. It took me ten minutes to figure out how to get an image in my sig. I Can't figure out the protocol/code to insert a link in the image.

[Joe Obenberger]

OK. I found the crib sheet at https://gfy.com/showthread.php?t=1062335 and got it done. Thanks for the inspiration.

[davecummings]

Bump for a very important matter!

[raymor]

Reading the DOJ response to comments from the last round, they do make a reasonable effort to balance the intent of the law, requiring that pornographers keep records, with industry concerns about the details of the process. Reasonable from their point of view, that is.

If you comment, your comments are most likely to be effective if you put yourself in their shoes as regulators and explain how your proposal for a change would make the process work better for the public and for DOJ rather than just whining about how it affects you. To pick a random example, if you were going suggest that they allow records to be held by an industry trade group, you could talk about how that could make it quick and easy for DOJ to check compliance by clicking a link to the trade group site that would include a video ID. Just by clicking the link, the trade group's web site would confirm you did in fact upload documents for that video. That gives them a reason to like the idea of the third party record keeper. That third party might have a database such that you only have to upload the ID once, then just click their name for each of their videos, but in the comments you'd focus on how your suggestion helps enforce the law, how it helps the public and how it makes enforcement of 2257 more efficient.

[DWB]

Originally Posted by davecummings

Bump for a very important matter!

It was important 10 years ago. Now it's all "user uploaded" and the shit stain viruses who steal from the guys who do keep records don't have to keep records of anything. The largest company in the industry built an empire exploiting this, and now everyone stands in line to pat them on the back and fight for traffic scraps.

2257 is a joke. If it would have been written correctly and enforced to begin with, the industry wouldn't have such an enormous piracy problem.

Just run a tube site. Nothing to worry about.

[davecummings]

It seems more effective and less hassle for EVERYONE if once DOJ/FBI spot a performer who "looks" younger to them and needs their attention, that they merely contact the producer and request a faxed ID of that performer's DOB document (and possibly a copy of the Model Release, thus allowing documentation of that model's age as of the date of the actual production?).

It would be fast and save the cost of inspectors having to incur the expense of an on-site inspection.

Joe, if you like the idea, feel free to include it in your input?

Dave

[raymor]

Originally Posted by JohnnyClips

Why the fuck is everything so over-complicated and thousands of pages worth of utter bullshit for something so simple?

Because it's GOVERNMENT. Our government was designed to be slow, inefficient, complicated, and fair. I never understood why people want more government in our lives.

If you have suggestions on how to make 2257 rules less complex, please submit them. Of course, if your suggestion in implemented, it will probably be implemented as a special case in a way that makes things more complicated and more inefficient because after all, it's government. Government is always complicated and inefficient, by design.

[Joe Obenberger]

Originally Posted by davecummings

It seems more effective and less hassle for EVERYONE if once DOJ/FBI spot a performer who "looks" younger to them and needs their attention, that they merely contact the producer and request a faxed ID of that performer's DOB document (and possibly a copy of the Model Release, thus allowing documentation of that model's age as of the date of the actual production?).

It would be fast and save the cost of inspectors having to incur the expense of an on-site inspection.

Joe, if you like the idea, feel free to include it in your input?

Dave

Dave, the Regulators just don't trust this industry not to fudge the records if they get any advance notice of inspection. They lay out emphatically in the regs that no notice will ever be provided at Sec. 75.5: "(b) Advance notice of inspections. Advance notice of record inspections shall not be given." If they went so far out of their way to carve that in stone, I don't think that there is much of a chance that they will be willing to make a phone call to some producer and ask whether he just might send over a copy of the ID on the the model who looks twelve. They would be afraid that every shred of digital evidence that she ever existed would wind up forty feet under Lake Michigan, Santa Monica Bay, Miami or Tampa harbors, or in the waters off New Jersey [take your choice] within an hour after the call.

[tony286]

Originally Posted by raymor

Because it's GOVERNMENT. Our government was designed to be slow, inefficient, complicated, and fair. I never understood why people want more government in our lives.

If you have suggestions on how to make 2257 rules less complex, please submit them. Of course, if your suggestion in implemented, it will probably be implemented as a special case in a way that makes things more complicated and more inefficient because after all, it's government. Government is always complicated and inefficient, by design.

Actually 2257 was much more simple until Ashcroft put his fingerprints on it. They didnt go after porn because of 911 so they wanted to mess with us.

[Barry-xlovecam]

Originally Posted by davecummings

It seems more effective and less hassle for EVERYONE if once DOJ/FBI spot a performer who "looks" younger to them and needs their attention, that they merely contact the producer and request a faxed ID of that performer's DOB document (and possibly a copy of the Model Release, thus allowing documentation of that model's age as of the date of the actual production?).

It would be fast and save the cost of inspectors having to incur the expense of an on-site inspection.

Joe, if you like the idea, feel free to include it in your input?

Dave

What?

Apply the rules of reasonable or probable cause to porn -- wouldn't that be constitutional or something?

Sarcasm aside, the request for comment is an starting point for a possible change in the CFR for the statute but not in any change of the statute itself -- the DOJ cannot do this.
So, shitstain Santorum says that the laws on porn are not being enforced in the country and the USDOJ's response is this?
Carry on ...

[Joe Obenberger]

Originally Posted by JohnnyClips

Can someone please explain 2257? Why the fuck is everything so over-complicated and thousands of pages worth of utter bullshit for something so simple?

I take a photocopy of model IDs, have them fill out 2257 forms and model releases from https://www.2257services.net/ as well as my own release

There are reasons why it's so complicated. Some sensible, some stupid, some just plain history.

DOJ has tried to fit digital and Internet publication into a structure that was designed for linear expression, movies, magazines, video tapes, and books. The tools and vehicles of what this industry does 21 years after the basic Regs were written is a poor fit, and all of the tortured analogies break down. Where does a notice go on a .jpg? If put in metadata, it's not obvious or conspicuous. Do you then alter that requirement for the movies and magazines and say it can be magnetically encoded in the sound track or staple?

Read my assessment of the basic structural flaws of the scheme at http://www.xxxlaw.com/articles/primer5.html.

You do have a sense of humor about it by suggesting that compliance is as easy as downloading free forms and telling a model to fill them out! Not sure whether to call that parody or sarcasm, but you're right, thousands of webmasters really do think it's that simple, and that the issue is the kind of thing that can be fixed with things as simple as Band Aids.

[Far-L]

Where to comment? Is there a link?

[Robbie]

Originally Posted by DWB

It was important 10 years ago. Now it's all "user uploaded" and the shit stain viruses who steal from the guys who do keep records don't have to keep records of anything. The largest company in the industry built an empire exploiting this, and now everyone stands in line to pat them on the back and fight for traffic scraps.

2257 is a joke. If it would have been written correctly and enforced to begin with, the industry wouldn't have such an enormous piracy problem.

Just run a tube site. Nothing to worry about.

Just wanted to quote that.

2257 has become the very least of anyone's worries these days.

For online people...the biggest websites in the world show entire video scenes and NEVER have any 2257 docs. If it's truly "user generated" (meaning the user actually created the video...then that shouldn't be an issue for the uploader)

THAT is what should be brought to the dept. of justice's attention since they obviously live under a rock.

You want to "enforce" 2257 laws? Then first change the goddamn DMCA laws to REQUIRE any uploaded video to have 2257 docs.

End of problem.

[sperbonzo]

Keep fighting the good fight Joe!

Illegitimi non Carborundum!!!





.

[Joe Obenberger]

Originally Posted by tony286

Actually 2257 was much more simple until Ashcroft put his fingerprints on it. They didnt go after porn because of 911 so they wanted to mess with us.

Actually, the biggest precipitating factor was the FSC lawsuit in Denver. Congress got honked off, and the guy with the black hat wasn't Ashcroft, who was then required to report to Congress on the enforcement of Section 2257 in writing within a year.

It was the one-term chairman of the House Judiciary Committee, Jim Sensenbrenner, (someone with whom I've had more than a casual acquaintance since I was fourteen). When Congress demanded the report on enforcement, Ashcroft begged off and said the Regs had to be brought up to date to fit the Internet - and so, he was buying time. That first Report ultimately was made and is on my site and shows the few scattered prosecutions - but is silent about inspections because none had ever been conducted.

Ashcroft wasn't opposed, but he did not provide the impetus. It was imposed on him.

[Joe Obenberger]

Originally Posted by JohnnyClips

Ok, then please explain 2257 in full

It's like nobody can fucking explain it

Oh, I can explain it. There are a few other lawyers who can explain it, too.

It's not that nobody can explain it, and I think you know that.

[Joe Obenberger]

So you mean that if I _couldn't_ explain it, I'd be part of the solution?

I'll have to think about that till it makes sense to me.

[InfoGuy]

Joe, thanks for bringing this to everyone's attention. Bump to the top.

Since this is an important subject, maybe Eric or Theo can pin this for a week.

[Barry-xlovecam]

Originally Posted by JohnnyClips

Then you're part of the problem and not the solution

Don't give Joe a hard time -- he is an attorney -- he doesn't promulgate the laws. This law is a political creation and Joe is not a politician. Put the blame where it belongs. Sure the law is a folly but his folly is a federal felony so it needs to be dealt with.

If you want a land with no enforced laws try Somalia and bring your own AK-47 you will need it.

We live in a republic where two wolves and a sheep decide who is for dinner. It may seem that the constitution was made to be interpreted to regulate the roasting temperature but it is not always so.

[GetSCORECash]

Originally Posted by DWB

It was important 10 years ago. Now it's all "user uploaded" and the shit stain viruses who steal from the guys who do keep records don't have to keep records of anything. The largest company in the industry built an empire exploiting this, and now everyone stands in line to pat them on the back and fight for traffic scraps.

2257 is a joke. If it would have been written correctly and enforced to begin with, the industry wouldn't have such an enormous piracy problem.

Just run a tube site. Nothing to worry about.

Originally Posted by Robbie

Just wanted to quote that.

2257 has become the very least of anyone's worries these days.

For online people...the biggest websites in the world show entire video scenes and NEVER have any 2257 docs. If it's truly "user generated" (meaning the user actually created the video...then that shouldn't be an issue for the uploader)

THAT is what should be brought to the dept. of justice's attention since they obviously live under a rock.

You want to "enforce" 2257 laws? Then first change the goddamn DMCA laws to REQUIRE any uploaded video to have 2257 docs.

End of problem.

You guys probably weren't invited, but the FBI once said concerning 2257, "If your servers are located in China you better have your records in orders."

I guess Chip Burrus is retired by now and won't back that statement.

[topnotch, standup guy]

Originally Posted by GetSCORECash

You guys probably weren't invited, but the FBI once said concerning 2257, "If your servers are located in China you better have your records in orders."

I guess Chip Burrus is retired by now and won't back that statement.

It's not about where the servers are, it's about "user uploaded" meaning no need for 2257 records, talent releases, ethics or anything else.

.

[topnotch, standup guy]

Originally Posted by Barry-xlovecam

Don't give Joe a hard time -- he is an attorney -- he doesn't promulgate the laws. This law is a political creation and Joe is not a politician. Put the blame where it belongs. Sure the law is a folly but his folly is a federal felony so it needs to be dealt with.

If you want a land with no enforced laws try Somalia and bring your own AK-47 you will need it.

We live in a republic where two wolves and a sheep decide who is for dinner. It may seem that the constitution was made to be interpreted to regulate the roasting temperature but it is not always so.

I think you meant to say is: but it WAS not always so.

As for everything you said, I agree.
.

[Robbie]

Originally Posted by GetSCORECash

You guys probably weren't invited, but the FBI once said concerning 2257, "If your servers are located in China you better have your records in orders."

I guess Chip Burrus is retired by now and won't back that statement.

Yeah...it looks like all their bad-ass "we're gonna get ya" talk was only aimed at people like me and you who are actually honest and don't steal.

I think we both know that the govt. has a "hands off" approach to anything they perceive as destructive to our industry. And NOTHING has ever been more destructive to the porn industry than piracy and the new idea that all porn is free.

Quite simply...they don't want piracy to stop until everybody's business is dead except Manwin. And then it will be a simple operation to move in and arrest Fabian and shut down everything in one swipe.

[DWB]

Originally Posted by Robbie

Yeah...it looks like all their bad-ass "we're gonna get ya" talk was only aimed at people like me and you who are actually honest and don't steal.

I think we both know that the govt. has a "hands off" approach to anything they perceive as destructive to our industry. And NOTHING has ever been more destructive to the porn industry than piracy and the new idea that all porn is free.

Quite simply...they don't want piracy to stop until everybody's business is dead except Manwin. And then it will be a simple operation to move in and arrest Fabian and shut down everything in one swipe.

QFT

We're doing a pretty efficient job of killing ourselves. The government does not need to intervene at this point. A few more years of the current trends and most of what's left of the industry will be gone. Then the biggest guy on the block is going to have a HUGE target on his back. But by that time the bulk of the money will be well laundered and long gone. Just like the first owners did. Yea, they paid a few million in fines but that was peanuts compared to what they walked away with I'm sure. They didn't even miss affiliate payments.

[2MuchMark]

Thank you JD for looking out for the business people in porn, taking the time to post this and to answer all of those questions. You are appreciated more than you may realize my friend.

[baddog]

Originally Posted by JohnnyClips

Why do we have a government again?

It's 2012, not 2000 BC...how stupid is our species?

If you are any indication, pretty fucking stupid.

[davecummings]

Originally Posted by **********

Thank you JD for looking out for the business people in porn, taking the time to post this and to answer all of those questions. You are appreciated more than you may realize my friend.

Indeed, indeed, INDEED!!!!!! Thanks, Joe --you are a true and gifted professional, and all-around nice guy who really cares.

[Far-L]

Joe - I asked a question earlier in the thread but it was buried beneath a bunch of Johnny Clips utterly nonsensical wannabe anarchist blather so I will have to ask it again - is there a DOJ site with a comment form?

[davecummings]

Originally Posted by Far-L

Joe - I asked a question earlier in the thread but it was buried beneath a bunch of Johnny Clips utterly nonsensical wannabe anarchist blather so I will have to ask it again - is there a DOJ site with a comment form?

Today, Xbiz carried a report that provided this link which includes an email and a phone # to input comments ---It also seemed to be steering comments mainly to certain aspects:

https://www.federalregister.gov/arti...-requested#p-5

[Joe Obenberger]

Originally Posted by Far-L

Joe - I asked a question earlier in the thread but it was buried beneath a bunch of Johnny Clips utterly nonsensical wannabe anarchist blather so I will have to ask it again - is there a DOJ site with a comment form?

Sorry, Farrel, I've been scrambling to get unfinished work off my desk before Phoenix.

The notice published in the Federal Register is linked from my article. It provides an email link to Andrew Oosterbahn [email protected] who is in charge. This is part of a report he must make to the Office of Management and Budget to justify the paperwork and economic burden on the Industry and the public. Don't forget about those people sitting in front of laptops with cameras, your kinda people, Farrel, they are all covered too, and even in simulations or mere lascivious nudity, because they don't keep employment records, none of them are eligible for 2257A certification - meaning they have to comply as though it was all hardcore.

[Joe Obenberger]

AVN just published a really in-depth analysis of the legal issues on the Notice published today in the Federal Register. Mark Kernes. Excellent article.

(Now, if only I can convince them to write a much-deserved review of http:/www.xxxlaw.com !)

Their sources are Attorney Reed Lee who works in my Chicago office - and is a board member at Free Speech - and yours truly, though they never quite identify Reed's connection.

http://business.avn.com/articles/leg...aw-470386.html

[Far-L]

Originally Posted by JohnnyClips

Yes, let's plead to a group of criminals who can violate any laws and rules they wish at will...I'm sure things will be much better after we give them our all!

This is a thread for professionals to communicate directly with an intelligent and respected attorney that is not charging anyone here right now for his time to communicate things that actually have a real business impact on many people in this industry.

Would it be too much to ask for you to take your soap box to another thread, better yet, one you can create all by your anarchist self to show your true anarchist spirit, and show the respect and courtesy of letting others get the critical information that they need to get here. There are plenty of "legal advice" threads on GFY but almost none of them are posted by a practicing attorney with an expertise in these matters.

With all due respect, thank you.

[AaronM]

Originally Posted by Far-L

This is a thread for professionals to communicate directly with an intelligent and respected attorney that is not charging anyone here right now for his time to communicate things that actually have a real business impact on many people in this industry.

Would it be too much to ask for you to take your soap box to another thread, better yet, one you can create all by your anarchist self to show your true anarchist spirit, and show the respect and courtesy of letting others get the critical information that they need to get here. There are plenty of "legal advice" threads on GFY but almost none of them are posted by a practicing attorney with an expertise in these matters.

With all due respect, thank you.

Amen.

[AaronM]

Originally Posted by Joe Obenberger

You do have a sense of humor about it by suggesting that compliance is as easy as downloading free forms and telling a model to fill them out! Not sure whether to call that parody or sarcasm, but you're right, thousands of webmasters really do think it's that simple, and that the issue is the kind of thing that can be fixed with things as simple as Band Aids.

LOL, The sad thing is, he's actually being serious.

[GetSCORECash]

This thread should be on page 12 by now but here it still sits on page 2 only do to JohnnyClips.

[geedub]

Originally Posted by DWB

2257 is a joke. If it would have been written correctly and enforced to begin with, the industry wouldn't have such an enormous piracy problem.

You should quit porn and become a comedian because your opinions are hilarious!