Section 2257 - Will the Fourth Amendment Privacy Claim Survive?
Update on the Free Speech Coalition Litigation in Philadelphia
UPDATE - During the afternoon of November 26, 2012, XBIZ is reporting that, earlier today, Judge Baylson DENIED the government's motion for partial dismissal of the case relating to the Privacy/Fourth Amendment complaints, ruling that it is the law itself that is on trial, not what the Government says about its plans or what it says about its capability to enforce the law. Having so ruled, the Government's sneaky ruse seems to have failed. Now, the only thing standing between the adult community and renewed inspections may be the only the Government's own fear that the scheme is - in fact - unconstitutional - and that it leaves its Agents open to some possibility of civil liability for the inspections if the courts ultimtely so determine. - JD
By J. D. Obenberger, Attorney at Law
© MMII J. D. Obenberger, All Rights Reserved
This article was adapted from a piece exclusively published by XBIZ in its November, 2012 XBIZ World. My Associate, Reed Clayton Lee, assisted in the drafting of three paragraphs contained in this article; that and his help in obtaining original source court documents is appreciated.
The issue is "fully briefed", meaning that all of the legal arguments on both sides have been reduced to intricate documents by those lawyers, containing quotations from and citations to hundreds of prior cases, mostly involving other litigants and different facts, but articulating general principles of law germane to the issues here. Each of those briefs also point to the decision of the United States Court of Appeal for the Third Circuit last April 16, a decision which determined that Judge Baylson had made a series of critical mistakes in this case and which remanded the case back to him for further consideration. What remains in this regard and what will occur on November 26 is Oral Argument on the Government's Motion to Dismiss in Part, during which Judge Baylson, who has read the briefs and who has had the benefit of this own law clerks' research, will come into the courtroom armed with a list of questions that he will put to the attorneys, questions which will be likely to sharply challenge the reasoning of each side. He is certain to be strongly influenced in whatever he does by the mandate of the Third Circuit not only because that is his duty as a trial-level judge but because he knows that the Third Circuit will eventually exercise oversight over his decisions again in appeals yet to come; he now has feedback from the Third Circuit and now he knows something more about how his reviewing court views the issues than he did when he dismissed this case in its entirety on July 27, 2010.
[Should you click on the links in this paragraph, be prepared for a bit of a wait; they are quite lengthy Acrobat documents that you will be ordering up for your perusal.] On August 20 just past, the Department of Justice filed its Motion to Dismiss in Part and a supporting memorandum arguing that the Fourth Amendment claims about 2257 inspections are not "ripe" for consideration now; it contained a most curious attachment, about which much more will be said, below; the Government's opening salvo was followed by the FSC's response and opposing memorandum on September 14, and then, because the Government is the moving party and gets the last word, by the Justice Department's Reply Memorandum, filed on October 5. Oral argument will be conducted on November 26 and then, sometime probably months later, Judge Baylson will render his written memorandum opinion and order deciding the issue.
Regardless of which side prevails, there will be an appeal of Judge Baylson's decision. And even should the FSC ultimately lose this issue and even should all of the Fourth Amendment issues be removed from this lawsuit, the case will go forward centering on other constitutional arguments against the validity of Section 2257 and its regulations, arguments arising from the First Amendment and principles of Free Speech. The remaining First Amendment challenges, which the Government is not presently moving to dismiss will go forward immediately with discovery and further motions after Judge Baylson has ruled.
But regardless of how this issue will be determined by Judge Baylson, some very significant news lies nearly hidden in the Government's pleadings. On August 20, 2012, the DOJ attached to its Memorandum the apparently faxed August 17 affidavit of Special Agent Alan S. Nanavaty, the FBI's Crimes Against Children Unit Chief, in which he swore that the Department of Justice's Section 2257 Inspection program was terminated on October 24, 2007, the day after a three-judge panel of the Sixth Circuit - which was later reversed by a panel of all of the Sixth Circuit judges sitting en banc - had determined Section 2257 to be unconstitutional in the Connections Distributing case. Agent Nanavaty goes on to swear that the inspection team was disbanded that very day, its two agents reassigned, its four to eight contract inspectors terminated, and its funding cut off; it states that from that date forward until the present, no funds have been made available to the FBI to conduct any Section 2257 Inspections and there is no funding now to conduct Inspections.
The Government argues now that because no inspections can be called imminent at the present time, and because any rules of engagement used in the past are so old that they would have to be re-written in light of intervening changes in the statute and the regulations, the court could not rationally pass on what it describes as the way-too- speculative prospect of further inspections. It claims that a request for an injunction is "unripe" because their actual execution is not possible anytime soon, essentially arguing that there is no palpable threat that the Inspection provisions will take place.
This is a most-curious argument in my judgment, especially troubling because it arises purely and exclusively from choices made at the defendant Department of Justice, decisions which can evaporate at any time and without notice to anyone and result in the resumption of inspections without the opportunity to litigate the important constitutional arguments concerning Inspections in advance. It is an argument suggesting that because DOJ has unilaterally decided not to enforce a statute and a mandate entrusted to it by Congress, whose purposes it has described in several federal courts as a "compelling" interest in protecting children, and while it vigorously defends the validity of the statute by alleging its necessity, the means of enforcement prescribed in statute cannot be reviewed by the courts as a result of its own ephemeral administrative and budgetary decisions. DOJ is surely allocated funds for defense of the statute, else this argument would not be taking place - and someone has made a decision to fight for the defense of the statute while choosing not to enforce is most constitutionally weak terms: It seems plain to me that the Government is again speaking two contradictory messages on the two sides of its face, it has consciously chosen this course of conduct for cynical, tactical reasons, and the only question in my mind is whether Judge Baylson will see past the transparency of this set of contradictions and understand the clear import of DOJ's conduct as unvarnished gamesmanship.
- It is not to be neglected that tens of thousands of content producers expensively create and maintain records at this very moment, enduring hardship and great cost in order to keep ever vigilant - against the prospect of an FBI Agent knocking at the door, and the certain risk that failure to be present when that knock comes or to admit the Agent and show him the records may result in five years in prison and the loss of certain civil rights, such as the right of armed defense of home and person, forever.
- It is not to be neglected that despite the mandate of Congress for annual reporting in 18 United States Code Section 2257A (k) as to the number of inspections, the number of open investigations, the number of charges brought, and the dispositions of the ensuing prosecutions, it does not appear that DOJ has reported any of those things to Congress since the first term of George Bush in 2003, nine years ago. (I've inquired of the Attorney General by use of the Freedom of Information Act and his personnel have responded to me that no such reports can be located in the Executive Secretariat of the Attorney General nor in the records of his Legislative Affairs Office; they suggested that I also make inquiry of the Criminal Division, and several months later, after it denied my request for a fee waiver because it disagrees the disclosure would be in the public interest, I am still awaiting those probably chimerical Annual Reports to Congress.)
(One wonders whether their apparent neglect of the statutory mandate and their apparent violation of Section 2257A (k) for nine years running makes the present and prior Attorney Generals the most flagrant violators of Section 2257 in the United States.)
- It is also not to be neglected that, on March 26 of this year, DOJ published in the Federal Register its notice of Information Collection, calling for public comments, and asserting that it could not possibly make a precise estimate of the cost of compliance with Section 2257A (and of Section 2257 for those who can't make the kind of certification necessary under 2257, by necessary implication) as is required by Reagan-era laws designed to control the power of our federal bureaucracy. They had the testicularity to claim this inability to know this "precisely" (or even approximately!) despite owning the FBI and its vast investigatory resources.
- It also is not to be neglected that nothing in Section 2257 limits the Attorney General in his selection of whom he might deputize to conduct the Inspections called for in the statue; stories abound that the LAPD petitioned the Attorney General for exactly this designation without success. Even were the Attorney General unable to allocate funds, even if the money was not there to be used in his discretion - and there is no reason to believe that his funding is so tight to make this the case - or that Congress would deny him an appropriation for the purpose of protecting children through the enforcement of this law if they were asked - he can still tomorrow designate anyone he chooses to make those inspections because Congress has not limited his absolute discretion in any way. Should he wish to have records in Cyprus or Panama inspected, it is probable that he might designate United States consular officials, employed in the State Department, to conduct such onsite records inspections, without any necessary cost to the DOJ budget. Were he to be curious about a certain model's age in Pensacola, Florida, it takes little imagination that he might commission the Sheriff in that county to go take a look at her records maintained there. Mr. Holder simply chooses not to do so and the validity of laws under our Fourth Amendment does not pivot about his discretionary choices, but rather the validity of the law under which he makes those decisions stands or falls on its own words.
The Justice Department's present policy of conducting no inspections and keeping its eyes well-closed as to the costs (both economic and personal to millions of Americans), even as it articulates that the statute at issue serves a "compelling" purpose of the government, strikes me as more than slightly disingenuous. I suspect the purpose of all of this is to avoid creating a factual predicate that will convince judges that the scheme of inspections is alien to American values, especially when applied to Internet operations that are conducted at home around the kitchen table, a very healthy share of the total - and to avoid the creation of this kind of evidence when the overall validity of the statue lies in the balance. In other words, if nothing at all happens, nothing "bad" will happen that might show how abusive and obnoxious this law truly is.
Few think about it, but the right to inspect under the statute empowers the Government agents to demand entry not only at times designated in the implementing Regulations or at times other times amounting to twenty hours per week, notice of them provided by notice to the Justice Department, but also whenever work on sexually explicit work is being conducted. That means even at 3 a.m., in a private house with spouse and children present. And if entry is denied, the five year penalty is a risk; "reasonable" timing of the inspection is not a requirement of the law: the knock may legally come in the middle of the night; the Fourth Amendment, however, protects against all unreasonable searches. The decision of the Third Circuit implies - and the express words of the DOJ's attorney before the Third Circuit compel the conclusion - that the Government's right would extend to those videos made with a cell phone in a motel, in a car, or in a park. On January 11, the Government's advocate said in open court at the Third Circuit, that the moment those covered depictions leave the "front door", they are fully subject to the law no matter who made them or what their purposes were when they were created. The implications if someone is making copes or editing in the wee hours and refuses to admit the inspection Agent defy every tradition of Liberty in America. DOJ's tactical plan of standing down while the litigation is pending in some ways reminds me of a battle in a place called Troy, now in Turkey, where an opposing force appeared to disappear and go home, but quietly infiltrated behind the city walls by stealth and attacked at night when the people of Troy perceived the risk to be gone. It was their fatal mistake, as the Iliad recounts. This is the hour of maximum danger - the present generation of producers and the present generation of all Americans and every subsequent generation - precisely because the Government is not conducting Inspections as it labors to sweep this issue under the rug and take it away from scrutiny by the federal courts.
My point is not that 2257 Inspections should resume, but rather that the Government's choice in refusing to enforce the law should not act to block the courts from deciding the law's constitutionality.
In this litigation, in particular, the government is now arguing that the Fourth Amendment constitutional challenges to Section 2257’s inspection regime are not ripe for court consideration. It stresses that there have only been a very few inspections under Section 2257 and those occurred years ago. It relies on affidavits from United States Justice Department officials establishing that the government has no current plans to resume inspections and, in fact, has no funding to do so. Under these circumstances, the government argues, the courts cannot tell precisely how any future inspections would proceed and thus cannot now evaluate whether the inspections qualify as legitimate "business records inspections" which do not need a search warrant under the Fourth Amendment. Essentially, the government is arguing that the challengers must attack Section 2257 in two steps. It now concedes that the First Amendment and related challenges to the record keeping requirements themselves may proceed; but it argues that any challenges to the inspection regime will have to await the actual happening of further inspections (which likely will not resume until the First Amendment issues are finally resolved). For their part, the challengers assert that the record keeping requirements could not be valid without some inspections regime (there would be no point to keeping records which no one ever reviews) and that fundamental flaws in the inspection regime would thus independently invalidate the record keeping requirements.
If the Fourth Amendment search and seizure arguments are not dismissed, their ultimate resolution may be affected strongly by their potential effect on amateurs and on other private persons who are not involved at all in the commercial adult entertainment industry; the Third Circuit's analysis saw through the Government's self-serving posturing that the law does not apply to them. I do not believe that our constitution permits a law to jail someone for five years in federal prison for refusing an FBI Agent the opportunity to inspect a video, made in a motel room or at the beach, that depicts a man's wife performing an act of intimate conjugal kindness to her husband. If the inspection scheme created by Section 2257 is a legitimate "business records inspection" immune from the Fourth Amendment's insistence on probable cause established by sworn testimony and a warrant issued by a judge, and if it criminalizes a man from sending a warantless FBI Agent packing when he arrives at 3 a.m. to inspect such a video while a husband edits it, it would amount to the most intrusive invasion of what has, in the United States, been viewed as traditionally a zone of personal privacy ever permitted under US law - and this may ultimately prove to be the Achilles Heel of the entire scheme. Fear about which, perhaps, is the whole point of the pending motion to dismiss the Fourth Amendment privacy claims.
However Judge Baylson rules on the Fourth Amendment claims, the Third Circuit will be watching from upstairs.
Long Range Forecast
The present constitutional challenges are very elaborate in their details. Part of the reason why there are so many individual challengers-plaintiffs is that there are very many specific circumstances under which Sections 2257 and 2257A could be unconstitutional even if they are valid for the common and general cases. To take one example, how does Section 2257 apply to expression which is created outside of the United States and not particularly intended for export to the United States? Certain forms of Japanese pornography come to mind. What happens when an American importer wants to republish some of that material here—with the copyright holder’s permission—but cannot obtain copies of records required by Section 2257 because the original producer—not subject to U.S. law at all—did not create them? Among the nearly two dozen challengers, there are very many such factually detailed special circumstances. The second complicating consideration is that the Government has recently taken—as shown particularly by its dogged defense of the Child Online Protection Act (despite its obvious constitutional problems)—to defending these speech restric¬tions tooth-and-nail and inch-by-inch. It can be expected here to pitch a battle on every plausible factual issue. It is possible that a clash of expert witnesses alone will prevent the case from being resolved on summary judgment. If that happens, a full trial will be necessary, and it will likely be a couple of years before this case is ready to work its way back up on appeal.
Ultimately, if the Third Circuit upholds Sections 2257 and 2257A, the chances are very good that the present case will end there. At least some future criminal defendants will likely be able to as¬sert their own constitutional challenges if they are ever prosecuted, but it would probably spell the end of the so-called anticipatory challenges (i.e. those brought before enforcement). On the other hand, if the Third Circuit (most likely the full court, such as happened in another federal appellate court in a 2257 challenge from Ohio) ultimately invalidates the laws as unconstitutional (a process which could take two years after the trial court finishes with the case), then it becomes very likely that the United States Supreme Court will review the case, since it has always done so recently where federal statues relating to pornography have been struck down by the lower courts. Supreme Court review would likely add about a year to the overall process. If the very protracted litigation over the Child Online protection Act—which reached the Third Circuit three separate times and the Supreme Court twice—is any indication, the present challenge alone could last for several more years.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org