2257 ruled constitutional

[baddog]

http://www.xbiz.com/news/166308

[AsianDivaGirlsWebDude]

Baylson also said that the statutes, 18 U.S.C. §§ 2257 and 2257A, are constitutional under the Fourth Amendment, except for in one regard ? "the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record."

Can someone expand on this, regarding what the ramifications are for inspections at the residences of producers?

The most important points I took from the article are that the last inspection was 2007, the FBI dismantled their 2257 inspection program in early 2008, and the DOJ has shown no interest in resuming inspections in 6 years.



ADG

[JFK]

saw that as well, lot more tax dollars to be wasted

[crockett]

I think everyone assumed it was unconstitutional even the FBI and DOJ hence why the never bothered to do any inspections

[mikesouth]

The ruling indicates that inspections at "bona fide residences of producers" are unconstitutional without a warrant.

businesses are not

[mikesouth]

bad for porners...good for mom and pop sites

[Barry-xlovecam]

From my point of view this is a lose-lose with a sweetener added of the Fourth Amendment warrantless searches unconstitutional ONLY at personal residences.

This ruling makes a difference in warrantless inspections allowed of commercial businesses and private residences. Pornography is regulated free speech now.

This implies regulated art or other "offensive opinion or matter."

One argument of the Fourth Amendment complaint was upheld and other arguments were not. Appealing on the First Amendment complaints might be possible but it is just buying time.

Most of the major webcam producers are not based in the United States and are not subject to this law. I think that the issue of the "secondary producer" might be litigated but the outlawing of gambling promotion and advertising in the United States does not bode well for any litigation success on the issue of secondary producers.

[Grapesoda]

Originally Posted by AsianDivaGirlsWebDude

Can someone expand on this, regarding what the ramifications are for inspections at the residences of producers?

The most important points I took from the article are that the last inspection was 2007, the FBI dismantled their 2257 inspection program in early 2008, and the DOJ has shown no interest in resuming inspections in 6 years.



ADG

when the cops are your location inspecting dicks they'll check the 2257

[firequartz]

I have to confess, every time I try to delve into the details of 2257, I get a whopping headache .. so can anyone capsulize what all this means for affiliate webmasters?

Thanks.

[LAJ]

Additional coverage here: http://www.ynot.com/content/119021-d...itutional.html

[signupdamnit]

So I take it they are probably going to start enforcing secondary producer again and all these tubes with "user submitted" content are going to be immune from it while the people who are legitimate will have to deal with it?

[GetSCORECash]

As a result, plaintiffs do not face a realistic threat of ?irreparable harm? ? due to an inspection ? at any point in the foreseeable future. A judge must take a deep breath before enjoining the nation?s top law enforcement officer from doing something that the Department of Justice has shown no interest in doing for the last six years.

Under these circumstances, the court believes it would be an abuse of discretion to enter an injunction against the attorney general.

Just hold your breath until 2016, and/or 2020, and/or 2024...

[Qbert]

The implication for secondary producers that work from home could be quite significant. If I understand this correctly, since it's also a primary residence, DOJ would need a search warrant in order to do a 2257 inspection in such a situation. Search warrants require probable cause and also limit the scope of the search.

[Barefootsies]

Originally Posted by mikesouth

bad for porners...good for mom and pop sites

[Barry-xlovecam]

bump for a real business thread

[xxxjay]

It would be great if they defined the tubes as "producers". I'd love to see them sweat a 2257 inspection.

We were the 2nd inspection by the FBI back in the day and passed with no issue.

I'm all for it.

[signupdamnit]

Originally Posted by xxxjay

It would be great if they defined the tubes as "producers". I'd love to see them sweat a 2257 inspection.

We were the 2nd inspection by the FBI back in the day and passed with no issue.

I'm all for it.

Even if they required records to be kept on the "uploader" that would be a huge win for many obvious and not so obvious reasons. It would be even better if they required the uploader to provide a name and address for record purposes along with reasonable measures to verify it.

[PornoMonster]

Originally Posted by signupdamnit

Even if they required records to be kept on the "uploader" that would be a huge win for many obvious and not so obvious reasons. It would be even better if they required the uploader to provide a name and address for record purposes along with reasonable measures to verify it.

Just add an ID card to all the "Babes" section at Freeones, and link every gallery to that... LOL

Funny, but kinda serious in a way, he has about every model out there....

[Barry-xlovecam]

Originally Posted by xxxjay

It would be great if they defined the tubes as "producers". I'd love to see them sweat a 2257 inspection ...

The tubes are defined as "secondary producers" now. Anyone who "publishes sexually explicit content" is a "producer".

But 18 USC §2257 is a US law and does no good in Hong Kong or Ukraine. US Laws, unless reciprocal or their recognition by a foreign government are meaningless outside of US territory.

As an example, §2257 is in direct violation of the EU and Canadian Laws (and others) on privacy unless a person whose records are kept by a business give EXPLICIT permission for those records to be divulged to A NAMED PARTY without a warrant or subpoena from that business' domicile court. e.g., the national jurisdictional courts.

[Joe Obenberger]

This is my take on what's most important in Judge Baylson's curious Opinion.

http://www.xxxlaw.com/articles/baylson.html

No, there's nothing in the Opinion ever requiring warrants.

Start reading at page 63 of Judge Baylson's Opinion and start reading closely at page 68. He's all across the boards and rambles his way into a finding that no other court has come close to. He says 2257 Inspections don't need a warrant, and while he is not touching the statute, he's concerned with the Regulations. He won't expressly determine them to be facially unconstitutional. He says it works with advance notice when the records are in a bona fide home, not a warrant. He then seems to excuse custodians who go on vacation and don't comply with the Regulations that require availability for inspection - and the presence of the custodian - at least 20 hours per week - at page 69. But he never directly deals with the Regulations insofar as they require those 20 hours per week. And he doesn't begin to explain why the situation in the home, in that respect, should be different in an office or studio. This ramble around the issues is honestly difficult if you are looking for a logical, coherent judicial determination. The words that come to mind are "peculiar" and "curious" with regard to what he has to say about home inspections. The word "wrong" comes to mind about the whole document readily.

[Markul]

Would this setup mean you cannot be inspected for 2257?

You live somewhere in the US.
You place your servers outside of the US.
You place the main company that owns the rights and - more or less - everything else, outside of the US.
You operate out of a daughter company of the main company based in the US? (since you need to pay bills in the US and get salary, I presume you need to be incorporated in the US).

Purely theoretical of course, since I am not actually in the US. Neither is any of my companies.

[Barry-xlovecam]

Joe, I didn't have the benefit of reading the memo thanks for posting it
I stand corrected

at page 70 footnote21

When the Supreme Court developed the administrative search doctrine, it contemplated searches at commercial premises rather than at residences. See Donovan, 452 U.S. at 598-99 (“The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.”). Accordingly, one could argue that the administrative search doctrine is not applicable to homes at all, and that any inspection at a residence should preceded by a warrant. This Court does not go so far. It finds the administrative search doctrine does apply to Section 2257 inspections at residences, because “producers” of sexually explicit depictions are still part of a “closely regulated” industry even if they choose to store their records at home. But the Court finds the reasonableness of an administrative search should be informed by the type of premises being inspected. When it is a bona fide residence, the place at which privacy expectations are highest, additional protections may be justified. The Court concludes such protections – in the form of advance notice – are required here, given the lack of evidence at trial as to the need for unannounced inspections and the considerable testimony about the burdens that no advance notice places on producers who maintain records at homes

The issue is "sexually explicit depictions are still part of a “closely regulated” industry." So, porn is a legitimately regulated industry -- that is an interesting point in itself ... I know of no other “closely regulated” industry whose only regulation is in the Title 18 criminal code but maybe they will regulate bank robbers too -- you have to keep records of your bank robbery plans for inspection, (1) No information or evidence obtained from records required to be created or maintained by this section shall, except as provided in this section, directly or indirectly, be used as evidence against any person with respect to any violation of law.

The whole law is ludicrous but there is little to be done in the courts now but good luck getting the Congress to repeal it and the President of sign the repeal bill.

I think given the current political climate, and barring its radical change: The principle tenants of statutory construction of §2257 are cast in stone.

[Joe Obenberger]

Originally Posted by Markul

Would this setup mean you cannot be inspected for 2257?

You live somewhere in the US.
You place your servers outside of the US.
You place the main company that owns the rights and - more or less - everything else, outside of the US.
You operate out of a daughter company of the main company based in the US? (since you need to pay bills in the US and get salary, I presume you need to be incorporated in the US).

Purely theoretical of course, since I am not actually in the US. Neither is any of my companies.

Markul - you really need to consult with a lawyer. If for any reason you don't feel comfortable contacting me, call Larry Walters or Greg Picchionelli.