If you Sell Porn, you should read this Thread!

[chadknowslaw]

This morning at the XBiz conference we were treated to a truly astounding seminar-- an FBI Agent supervisor involved in 2257 inspections addressing adult webmasters and taking questions!

At the end, the attorneys who were sitting up there with him were quick to point out that what the Agent said was not legal advice and some of what he said contradicted the regulations. They also basically said you still need to retain them at enormous cost to keep yourselves protected:jerkoff:

I was there and took plenty of notes. Most lawyers would charge you for a consultation but as you know I am NOT like most lawyers!

First, the agent told us the procedure they go through to conduct an inspection. They have a list of 1200 producers [and adding to that list all the time] and randomly select a producer from that list. If your number comes up, they first order some product from you, such as ordering a DVD.

Then they take that product and review it for obvious compliance --does it have the 2257 statement on it and do any of the models look underage. This first phase is looking for 2 things -- if you at least appear to be in compliance and if you have obviously underage models. They make a list of all the models that appear in the video, either by stage name or some other reference if there is no stage name. For example, if you have a scene where you never see a models face but only see his ass getting pounded they might call that "Ass Man #1" The Agents prepare a spreadsheet with the models and plan a little visit to you.

They take a photograph of the exterior of the address listed and then photographs of the room where your records are kept and a 3rd photograph of the work area they are assigned. The Agent specifically said they appreciate a quiet work area where they can spread out, such as a conference room, although you can have them work anywhere. My advice is make them comfortable so they can do their work and go away..

Next, they look through your records and make copies. They check your system to make sure it is indexed by model's legal last name and can be cross-referenced. If they are looking at your video Butt Bangers Ball #45 and there are 15 models in that video, they should be able to see a record for each model in that video and that record should show that the model appeared in that video. They look at the copies of ID's and want to see the model's name and date of birth. The Agent said that he does not consider an ID that is redacted to cover the address and other personal information a violation.

The Agent in charge will then prepare an unofficial courtesy report and give that to you. That report states any violations that they noted. If you have a missing model ID or the records are not cross-referenced, that is a violation and that will be on the unofficial courtesy report.

The Agent then said you have one week to respond to his unofficial report. So, if there was a missing ID for Ass Man #1, and within that one week you locate the ID and send the ID to the Agent, the Agent will note that although initially in violation that you have taken steps to correct. The Agent said that "it is good if you can show resolution of violations". He also said that if there were any violations that were not resolved in that unofficial grace period "You will see us again"

He repeatedly stated that their intention was to find evidence that models are not underage and that the producer is making a good-faith attempt to comply.
In an unabashed plug for myself, having had an adult industry attorney familiar with 2257 review your record-keeping procedures does help to show a good-faith effort to comply. :-)

Of the 10 inspections so far, he said only 2 had no violations noted. The most common violations were:

Failure to cross-reference legal names, stage names, and all the movies that the model appeared in

Missing Photo ID

Photo ID that was not legible or could not tell who the person was in the ID because of poor copy quality. He said a good ID has a clear face shot, the face shot matches the model in the video, and the date of birth is legible.

The Agent also said that one thing they do not like is deception on a website, such as a false address or PO Box. He said "We will find you" He also said that if you really are a US company using an off-shore 2257 address is not a good idea.

The Agent also addressed the "hours of business" requirement. He stated "If we show up and you have a sign on your door that says 'Gone for 3 weeks on vacation' they will simply come back. However, you cannot be on vacation forever and you do need to be there at some time. He said posting your business hours on your 2257 statement is a good idea, and they have no problem with webmaster's business hours. He said that if you do not want to post your hours, you can contact the FBI and tell them your business hours privately.

The Agent summed it up by saying that if you show a good faith intention to comply that the likelihood of prosecution is nil. THAT is great news!!

[TropixxxStudios]

Chad,

Thank you very much for this summary. It was a true pleasure meeting you during our poolside chat at the GayPhoenixForum, and I knew then that you were one cool cat.

I appreciate all the posts you make to clarify erroneous threads, gossip, etc. You are truly an asset to our community.

- Michael

[chadknowslaw]

A post Script to my thread :

Another industry attorney who I recall said on more than one occasion, that "if you have model releases contained in your 2257 documents, you will go to jail" was sitting in the front row. I have been saying all along that "the sky is falling and you will go to jail if you have even the most minor infraction" crap is just bullshit talk to scare you into hiring those lawyers. The direct question was asked about whether or not having model releases in 2257 documents is a violation [model releases are NOT part of 2257 documentation BTW] and the agent said that he would not fault a producer for having too much information in the file.

Take that, chicken little. Producers and webmasters, do the right thing, keep good records, treat your models with dignity and respect, keep up with changes in the law, and spend your time and energy complying with the law instead of coming up with crafty and suspicious ways to get around it!

[LavenderLounge]

I sat behind Chad, and he's right, it was a historic meeting. I drove 6 hours to attend and even if there wasn't all the other amenities of the Xbiz convention, that one seminar was worth the trip.

I had kind of given up hope that "full" compliance was even possible, but I now feel that it is do-able.

The agaent said over and over that they are not in the business of playing "get ya".

[Lee]

Well, that would certainly explain 1 part of this email i just received from our attorney today LOL

Thanks for keeping those of us who werent in attendance up-to-date on this issue Chad

Regards,

Lee

[CamCruise]

Thank's Chad for giveing all of us this info. You have done us all a great servise. And you got a dinner or lunch on us the next time we see you!!:heart:

[IntenseCash.com]

Thanks Chad for the post and info. You are the most honest lawyer I have ever met, I love you man. :luke:

Mark

[basschick]

i read this post and i read an artciel that came last night.

maybe i'm missing the point here, but it seems to me that the FBI is the gatherer and sorter of the information for the inspections but they are not the body that will make the ultimate decisions about prosecution - the DOJ is that body.

also i read quotes of the agent who spoke and he said something that goes against what the law says in one instance where he said that smaller webmasters who work at home may keep the paperwork at their lawyer's.

as far as i know, not only is none of what the agent said binding but that none of the stuff the DOJ has said in talks is binding unless it is made official. i keep in mind that nearly every inspected company says that they were been told by agents that they did great right after their inspection yet i read an article that only one company passed, so it's obvious that all those companies didn't really do great.

some iobsceneity and cp nvestigations take 2 years, so no one really knows what the FBI will recommend or what the DOJ will decide to prosecute for a while - or am i wrong?

[chadknowslaw]

Basschick you are correct. The decision to prosecute or not is up to the US Attorney's office, not the FBI.
According to the agent, the FBI sends a report to the US Attorney's office for each inspection regardless of the results of the inspection. If there was a violation, then the decision is made whether or not to prosecute. What is very important to know is that the prosecution decision is made from the FBI Agent's report-- so if the report says "no violations" it basically ends. If the report says "there was this particular violation but the producer corrected the violation prior to the submission of this report" then, in my experience, no prosecution will take place. I know there are the attorneys that say "you will go to jail if you have ANY violation" but they are living in fantasyland. In my experience with federal prosecutors, they only take cases that are important. In the jurisdiction where I prosecuted, the federal prosecutors had a very high threshold for drug prosecutions -- a certain number of pounds of marijuana or a certain number of grams of cocaine, for example. The federal prosecutors passed on a case where a 17 year old brought a gun to school that I referred to them for federal firearms violation. That was an open and shut case but they declined to take it because they had more important cases to prosecute. You must understand that prosecutor's offices at every level have heavy caseloads and the federal court system in particular is under very heavy loads. Filing a criminal charge against a producer who did not have an ID on file but produced it 2 days later is not worth the time, effort and money it takes to prosecute a criminal case. There are serious drug traffickers, weapons traffickers, human slavery traffickers, and money launderers that are more pressing and involve real victims.

The Agent said that if you are making a good faith effort at keeping your records in order and you have all your ID's that the likelihood of prosecution is nil. He also said that if you meet those standards, he will not send a report of a violation to the prosecutors office, even if technically and under strict interpretation of the law you had violated the law.What the FBI agent basically said, and what I have said before, is that if you are going 58 MPH in a 55 zone you will not get a ticket.

[gaybucks_chip]

The other thing I have heard from a number of people that do criminal defense at the federal level is that the Feds have a phenomenally high conviction rate (over 90%, was the number I think was quoted) for cases that actually go to trial, and that is basically because of the resources involved in prosecuting cases; they won't go after a case that they don't feel is pretty much beyond a shadow of a doubt they can win, because there are just too many cases to go after.

It would seem to me that if there's a choice between prosecuting a webmaster who is 97% in compliance, has records in order, has made a good faith attempt to comply, and seems to be running a pretty clean operation, and prosecuting someone else who took an "I can get away with it" attitude, had sloppy or missing records, etc., that both the FBI *and* the prosecutors at Justice will simply go for the easiest conviction. Of course, if someone at Justice *wants* to nail a specific webmaster for some reason, I'm sure they would find a way... but at that point, you probably could not be in 100% compliance if you spent all the time and money in the world.

Also, while I'm sure it's technically true that statements made by the agent as well as correspondence between a Justice attorney and the FSC don't actually have the force of law, I would suspect there'd be a detrimental reliance or apparent authority issue that Justice would not want to put before a jury if they tried to go against the advice or information provided.

In other words, if you as a webmaster rely on the words of an FBI agent at a formal seminar sponsored for the purpose of providing information, and you rely to your detriment on this person's information in a good faith belief that he had the apparent authority to tell you what was or was not OK, it would be a hard argument to sell to a jury that you should be punished, provided that you were otherwise acting in good faith, and a reasonable person would have come to the same conclusion you did. It's just another situation where Justice probably isn't going to go after someone in that situation, because there's too much risk the jury might side with the defendant.

As always, taking the safest, most conservative approach is certainly best, but I would think that reasonable reliance on this sort of information would not be imprudent.

As always, my standard disclaimer: I'm no attorney and what I say could be completely full of shit.

[basschick]

yet if there is a site that the DOJ doesn't care for, they could still prosecute. higher profile sites or sites in niches they want to get rid of might easily still have problems. and of course, again, the fbi told all those producers that their records looked find but their report said only 1 passed inspection.

besides, inspections have only just started happening. i do not believe that you, i, the fbi agent or anyone else really knows how these will turn out as not one case has had time to even lead to further investigation.

chip, i agree that if you convince a jury that an fbi agent said these things, you are very very unlikely to be found guilty. but not that many people can afford the HUGE amount it would cost to pay a legal defense team enough to get them that far in a trial. most people would have no choice but to either plea bargain or plead guilty with the agreement of less or no jail time.

the mike jones case has convinced me that you neither need to look guilty nor be guilty to be prosecuted in adult.

[SPACE GLIDER]

Good looking out

[shelmal]

Thanks so much Chad. This was very helpful. I always love it when i see you started a thread cause i know ill learn something i need to know.

[gaybucks_chip]

chip, i agree that if you convince a jury that an fbi agent said these things, you are very very unlikely to be found guilty. but not that many people can afford the HUGE amount it would cost to pay a legal defense team enough to get them that far in a trial.

We are in complete agreement. My point was that unless Justice specifically wants to go after site so-and-so.com, they are going to go after somebody else if they run into a situation where the site owner was basically in compliance and relied on what an agent or Justice official said, simply because Justice knows that it would be hard to sell a jury on convicting someone who was making a good faith attempt to comply. They will most likely pass on prosecuting that case and go after a different one that's an easier sell. The "low hanging fruit" theory.

But if they want you, they will charge you and make it so painful that you will take a deal... and they can do that no matter how perfect your records are if they really want you, because the regulations are so Byzantine that they are nearly impossible to comply with 100%.

[kcwebwerks]

Great info Chad! Thanks for sharing!