I totally agree but the way the rules are written all the web site has to do in order to fall under it's coverage is to be viewable in the US.
Plus in Neil's case the website server is based in the US so that apparently exposes him to it even if he himself is not based here.
Otherwise what would prevent you and Steph from just moving your servers a little farther north and telling the DOJ to go screw themselves.
Realistically the DOJ would not have the balls to try and actually enforce this law overseas as they would get laughed out of court however the way the rules are written he is "supposed" to comply.
As far as challengeing the new rules in court the biggest change is one they actually do have a leg to stand on and that is the definition of a "producer" primary or secondary. There is already two cases which disagree with each other and the DOJ chose to use the one they won and ignore the other even though that is exactly what the Federal Appelate/Supreme Court is designed for. So they may get an injunction on the grounds that the DOJ blatently ignored a Federal Judges ruling when drafting the new regulations.
They can also attack the definitions as being too broad.
The inclusion of the plain view statement can probably get ruled as beyond the DOJ's authority as the original law did not address other inspections or authorize searches under the guise of inspections without a warrent.
They can attack the way the DOJ specified you had to store your records and make them available as the original law didn't address that either but you will probably lose that one.
Last but not least is the one I am surprised no one has apparently tried from the beginning and that is that the whole purpose of 2257 is to require people to "Prove they didn't commit a crime with no prior evidence that they did commit one" and then "Punish people when they can't prove they didn't commit a crime." That to me would seem to be a very good constitutional leg to stand on since you are then going with the approach of "Guilty until you can prove you are innocent." It seems to me that a good argument would be that the regulations should specify that the DOJ needs a resonable reason to conduct an inspection of records. I.e. they must prove that they had probable cause to believe that a minor was involved not just say you have taken 100,000 images. Prove one of them didn't involve a minor.
Also in the ruling you noted the judge specifically said that the "Internet" was an option and now the DOJ has closed that so they can argue that point as well.
Just read something in the original version of 2257
(h)(3) the term "produces"...but does not include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted ;
Which is pretty much the exact ruling in the case the DOJ chose to ignore when writing the regulations and definitions. Seems pretty clear to me that the DOJ overstepped it's authority when they expanded the law to include people specifically exempted by it. Though one Judge did rule they could do so.
Jurisdiciton does not follow the location of the hard drive containing the images. (BTW, hosting service providers are specifically exempted so the whole where the site is hosted thing is a non-issue.) Steph and I would have to physically relocate our place of business (and possibly our home since they are one in the same) to Canada in order to avoid persecution using your logic.
Definition of secondary producer from thre new 28 CFR 75:
The test for who must maintain records is dependent on who is responsible for the content of the page. An individual or a company can be responsible regardless of where their website is hosted. Hosting is a non-issue as long as the hosting company meets these guidelines:
I do think this has been argued at the Appellate Court level and was determined to be Constitutional. The argument you are proposing is one of prior restraint ( I think that's the legal term). This has specifically been argued. I'll try to find the cases/ The courts have already ruled that the state's interest in protecting minors from sexual exploitation outweighs the free speech issue.
I was not saying that the web server was at fault just that the fact that Neil's server was in the US means that he is "supposed" to meet 2257 if required. As his site is here. While they couldn't go after him personally they could require the company who owns the server to shut him down for not being so.
What some of the content providers and web sites in Europe are apparently being told by their lawyers is that if ANY part of your business is in the US (servers, sites, billing) then you should be 2257 compliant since the DOJ will have jurisdiction over those entities.
I am not saying it is right just saying what they are relaying on.
Actually one lawyer has already specifically warned against moving operations out of US just to avoid the law as it just opens up way to big of a can of worms.
Ask 10 different lawyers for their interpretation of the new rules and you'll get at least 10 different answers. A hosting company is exempt under the new rules as long as they meet the requirements previously mentioned.
I'm no longer playing lawyer on this issue. Arguing on the internet is like the Special Olympics. You might win but in the end you're still retarded. I'm content with being retarded.
It's been pretty settled that if any part of a 'criminal operation' touches US soil, the US can go after the whole thing, particularly if any of the money/banking/funds transfer is done in the US. According to the final rules, the DOJ would consider any non-compliant material from Europe to be in violation.
Like you've said about box cover images, I don't imagine anyone wants to be first to test that.
Well, my POV is pretty simple on 2257. To show box covers, I need to have the documentation (and all the other pieces that go with it.) Videorama used to do less-hardcore covers for the Spanish market, but only in limited quantities, DBM doesn't do it at all, AVN has stopped since Scala took them over, and John Thompson,...well... It would be illegal for the European producers I deal with to provide me with the documentation. I could attempt to sell without box covers, but I believe absolutely that will fail. So,.....
Any body heard any new news about the new 2257? I just read a article at AVN.com and it says that just nudity is not grounds for keeping records. It also said that linking to a third party site that does have depictions of actual sex acts is not responsible for keeping records. I know that in the next couple of weeks we should hear what the Judge will say about the FSC lawsuit, but this news seems to be pretty decent for the outlook of ADT.
CHATSWORTH, Calif. - Content producers, take heart. Some of the confusion surrounding the U.S. Department of Justice’s take on the regulations for enforcing the federal records keeping and labeling act, 18 U.S.C. §2257, has been clarified.
-advertisement-
The clarification of six key points in the regulations came as a result of interrogatories submitted in Free Speech Coalition Inc. v Gonzalez, a civil suit filed by the Free Speech Coalition on behalf of its members. The suit seeks to enjoin enforcement of the regulations on several grounds, including their onerous nature and potential unconstitutionality.
In a letter to plaintiffs’ attorneys Louis Sirkin and Jennifer Kinsley dated July 18, DOJ litigator Samuel C. Kaplan laid out what the FSC calls “the official position of the Attorney General” as follows:
- Domestic producers who travel outside the United States to record images of sexually explicit conduct may rely on foreign government issued passports.
- The requirement that a “copy of the depiction” must be maintained does not apply to materials recorded prior to June 23, 2005.
- The requirement that the “date of production, manufacture, publication, duplication, reproduction, or re-issuance” be identified on the label is satisfied by stating the last date of filming, and characterizing that as the date of production.
- Material produced before June 23, 2005, that was compliant with the old regulations may continue to be marketed without fear of prosecution under the new regulations.
- The term “actually sexually explicit conduct” does not include “lascivious exhibition of the genitals” (i.e., mere nudity).
- A website containing no depictions of “actually sexually explicit conduct “ that provides hyperlinks to a third-party website that does contain such material has no record-keeping obligations.
“Most of the clarifications are certainly positive news for the industry,” says Free Speech Coalition Communications Director Tom Hymes, who characterizes Kaplan as “a very nice guy.” “There’s no question that the DOJ is willing to engage in a dialogue with the industry [about this issue].”
Hymes also said industry members and observers who attended the August 2 hearing in Denver “almost felt sorry for” the young federal prosecutor who seemed a bit out of his depth when matched against adult industry legal powerhouses Sirkin and Paul Cambria.
Just wanted to update this thread. The image policy is changing. You can once again embed images in the forum and link directly to them on other sites.
So that's good news. So does that mean that all such images and urls in old posts that were previously blocked will now appear, now that your automatic scripts are gone?
I would think that any legislation would get shot down by the court when it comes to the secondary producer issue. if it were up to congress breathing would be illegal. alot of people complain about judges, well if it weren't for them we would have no freedoms left.
I can only assume that your post implies that re-enabling image support in the forum is somehow a bad thing? Please explain.
[Link]
DenverDon Benevolent
Firmly Embedded in Depravity 5914 Posts 7/02
Posted - Dec 30 2005 : 10:23PM
Drew,
He tried to be Johnnie-on-the-spot with a quick post, embedding an image. You said you would try and implement it later tonight, so his embedded image didn't work. His response to himself was 'poop'.
I think that his outburst is from when he tried to post a hardcore picture in another thread and got yelled at by Steph. He's subesquently edited that post, including Steph's scolding. Right before doing that, he edited his post in this thread.
Edited by - Bill on 12/30/2005 11:30:05 PM
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AC Cream Deactivated User
1066 Posts 5/04
Posted - Dec 30 2005 : 11:40PM
Yes Bill aka "Captain look at me look at me" I edited it because it was a hardcore image, BUT I edited it AFTER Steph corrected me in the other thread. Thank you.
Drew it had been so long since we were able to embed pics I forgot what was ok and what isn't.
Yeah. That's what I wrote. She yelled at you, you edited your post in this thread and then you edited your post in the other thread, including the part when she yelled at you.
Besides, you didn't edit the hardcore image. Steph had already removed it. Essentially, you just edited the fact that you got scolded for it.
