Pre-Inspection
It was disclosed that the FBI has compiled a database of adult content producers in which approximately 700 companies, including foreign companies, are identified. The database is not static as they continue to expand the number of producers included. To select the companies to be inspected, the FBI uses a program they claim will select 10 producers at random from the database.
Once a producer has been selected from the database, FBI agents will randomly select and purchase one or more of the producer's titles. Each selected title is then reviewed. During the review process, screen captures of each performer appearing in the work are made in a manner that optimizes the facial features of the performer. Also during the review process, there is an attempt to correlate each depicted performer with names in the work's cast list and to record the data in an Excel spreadsheet. If such a correlation cannot be reasonably accomplished, the unidentified performer is listed in the spreadsheet as unidentified female or unidentified male.
We were also told that during the pre-inspection phase, the review of the selected work also includes a careful examination of the compliance statements associated with the works. This includes an evaluation of whether the right font size was used on the packaging and a determination of whether the compliance statement was displayed for the proper duration in the video program.
The Inspection
Upon arrival at the producer's location, the agents will photograph the outside of the producer's building. Before entering the producer's premises, the agents will identify themselves as FBI agents and disclose the purpose of their visit, i.e., to perform a 2257 compliance inspection. They will also show their badges.
Once on the producer's premises, the agents will photograph the location of record-keeping. They will also photograph the area where they will do their review of the subject materials to protect the inspectors against subsequent claims of damage to equipment, etc.
The agents will then attempt to retrieve the subject titles and required performer identifications. They will also check for proper cross-referencing as required by the regulations. The agents will make photocopies of the materials retrieved from the producer's record-keeping system using their own copiers that they will have with them.
Before the agents depart, an informal, one-page, courtesy preliminary report will be prepared and left with the producer or the custodian of records. It was noted that of the seven inspections that the agents had conducted prior to the meeting, only one resulted in no reported violations and only one was "nearly perfect." The others, however, were described as administrative catastrophes.
The most common violations that the agents have reported to date have been illegible identification documents, including copies of IDs where the photographic area is little more than a large black dot; missing identification documents; and failure to cross-reference the records as required by the regulations.
Post-Inspection Process
The principal feature of the post-inspection phase is the preparation of a comprehensive compliance report. The report, which is typically about 40 pages in length, will describe the inspection conducted and the violations found, if any. A copy of the report is sent to the Child Exploitation and Obscenity Section of the Department of Justice. Two internal FBI copies are also maintained.
It was disclosed at the meeting, however, that if a producer provides corrected or missing documentation to the supervisory special agent who conducted the inspection before the completion of the comprehensive compliance report, the agent will document in the report the fact that the missing or corrective documentation was provided. However, it was emphasized with particularity that any violation that was detected at the time of the inspection would still be reported as a violation in the comprehensive compliance report, and thus could still be prosecuted.
Generally, the 2257 compliance inspection unit's responsibility ends with the completion and submission of the comprehensive compliance report to the DOJ. After that, it is up to the DOJ to decide what if any action will be taken against the producer. If prosecuted, a different set of FBI agents will be assigned to the case as investigating agents.
The Discussions
The balance of the meeting comprised a candid and sometimes lively discussion across a broad range of topics pertaining to the 2257 compliance inspection process, including the problems posed by ambiguities inherent in the regulations themselves. For example, the industry attorneys were able to pose numerous questions regarding specific situations we have encountered where it is difficult to know in advance what would and would not be considered by the inspectors to be a violation. It was clear by these discussions, however, that there is a substantial variance of opinion between the FBI agents conducting the inspections and the DOJ regarding several key provisions of the regulations.
For example, Jeffrey Douglas, Paul Cambria, and I emphasized to the FBI representatives how the exponentially larger number of parties required to maintain 2257 data by recent changes in the law inescapably increases the likelihood of performer identity theft and the risk of harm from stalkers. We also suggested to the group that the vulnerability of personal data in 2257 record systems might be diminished by allowing producers to store identification documents with addresses redacted. When I asked the supervisory special agent if such redacted identification documents would be viewed as a violation of the regulations, the answer was that it would not.
I was personally very happy to hear that response, as it is at once reasonable, ethical and legally supportable. I had to explain to the agent, however, that unfortunately, I could not advise my clients to maintain redacted identification documents unless and until the DOJ indicated that it too agrees with that interpretation, as its current official position is that such redacted identification documents would not comply with the regulations.
The Future
As the meeting drew to a close, Burrus reiterated his sincere desire to establish a dialogue with the industry. To that end, he invited our continued input and mentioned that he was considering the possibility of establishing a website that could provide a simple means for the inspection unit to communicate to the adult industry and vice versa. He also seemed genuinely enthusiastic about a participant's suggestion that he directly communicate with XBIZ, AVN and YNOT.
By the end of our unprecedented meeting, I felt that we had engaged in an unexpectedly constructive and candid exchange of information and ideas. Needless to say, I was relieved that our initial concerns about ulterior motives and hidden agendas never materialized. But perhaps the most important product of the meeting will be hope, specifically the hope that the adult entertainment industry has turned a corner in its relationship with at least part of the government and that the meeting is not just a "one-off," but that it truly will be the beginning of an ongoing dialogue.
Many people in the adult entertainment business complain about the government and its persecution of the industry. The adult entertainment lawyers have raised this practice to a high art. Rightfully so, in my opinion, because the legitimate adult industry has been unfairly treated. But every now and then the government gets it right, and the appropriate response is simply to say, "Thanks, good work." I sincerely believe that such a response is due to Burrus, the SSAs and others who broke with the past, took a chance and reached out. Thanks, good work.
Gregory A. Piccionelli, Esq. is an Internet and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375.
