WASHINGTON, DC — As the year draws to a close, it is interesting to note how many significant developments there have been in the evolution of the federal record-keeping scheme articulated under 18 U.S.C. § 2257 and 28 C.F.R Part 75 – regulations commonly referred to, collectively, as “2257 regulations.”Most striking, of course, is the fact that as of January 1st, 2006, there had never been a single 2257 records inspection conducted; but as we enter the year’s final weekend, there have been at least nine known inspections.

Apart from the inspections, substantial changes were made to the federal record-keeping statutes themselves, by way of the Adam Walsh Child Protection and Safety Act of 2006, which is also commonly referred to by its legislative designation from the U.S. House of Representatives, HR4472.

Here’s a very brief (and highly simplified) look back at 2006, viewed in terms of significant 2257-related developments:

January: The year opens with cautious optimism, following the December 28th, 2005 ruling by Judge Walker D. Miller in granting in part the Free Speech Coalition’s motion for preliminary injunction in Free Speech Coalition v. Gonzales.

At the time, attorney Greg Piccionelli told YNOT Miller’s order was “read appropriately as a tremendous victory.”

February: Less than a week prior to Judge Miller’s order in the case, attorneys for the U.S. Department of Justice filed an amended motion to dismiss or (in the alternative) for summary judgment in the case. In February, the FSC legal team filed its response to that motion.

In its response the FSC notes that, in light of Judge Miller’s order, “much of the Government’s motion is simply not operative….implicit in the Court’s ruling on the merits of the motion for preliminary injunction is that Plaintiffs have, in fact, stated valid claims for relief in the Amended Complaint.”

The response also reiterated FSC claims that portions of the challenged statute are unconstitutionally vague, over-broad, and violate privacy rights, among other arguments.

March – June: Mostly quiet on the 2257 front, although Congress continues debate of HR4472/Adam Walsh Act, with an eye towards passing the bill in July to correspond with the date of Adam Walsh’s abduction – July 27, 1981

July: In a year that saw many significant events on the 2257 front, no month was more “action-packed” than July.

July 21: The Senate passes the Adam Walsh Act, which included sweeping changes to section 2257, including a new section 2257A, entitled “Record Keeping Requirements for Simulated Sexual Conduct.” The new section extends, for the first time, record-keeping requirements to depictions of simulated, as opposed to actual, sexually explicit conduct.

2257A states, in part, that “Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally-or computer-manipulated image of an actual human being, picture, or other matter that (1) contains 1 or more visual depictions of simulated sexually explicit conduct; and (2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.”

The excerpt above from 2257A has a virtually identical corollary in section 2257, the only differences being occurrences of the word “simulated”, and omission of the words “made after November 1, 1990” between the terms “visual depictions” and “sexually-explicit”.

July 24: Five FBI agents conduct a 2257 records inspection of Diabolic Video, the first-ever inspection of its kind.

The FSC issues a press release stating that the “Federal Government has initiated the first of the long-awaited 2257 inspections.”

July 27: President George W. Bush signs the Adam Walsh Act into law.

Then-Communications Director for the FSC Tom Hymes tells YNOT that the FSC met the signing of the bill with “mixed feelings,” saying that while the FSC “applaud the provisions of the legislation that deal with the menace of child predators…. we are disappointed that Congress has once again made the mistake of equating the legitimate adult entertainment industry with child pornographers by inserting Title V into the bill.”

Title V is the portion of the Adam Walsh Act containing substantial revisions to 18 USC 2257.

“We state once again, without reservation, that this industry is opposed to child pornography, does not make child pornography, and has done more to fight child pornography than Congress will ever give it credit for,” Hymes said at the time, adding that what was “most distressing about Title V is that it will not live up to its promise. It is a lie to the American people, a lie that will give them a false sense of security as it simultaneously makes criminals of people who have done nothing wrong. This is more than a shame. It is a frontal assault on the American people, and we intend to do all we can to make sure that they do not get away with it.”

July 28: The home/office of Sebastian Sloane Productions in Bethlehem, PA, is searched by FBI agents. Although the search includes inspection of some of Sloane’s identification documents, the search reportedly stemmed from the execution of a more general search warrant and was not solely an inspection of age-verification documents.

August: The FBI’s 2257 inspections continue, as agents arrive at the offices of Robert Hill Productions on August 1st for an inspection of the fetish video producer’s records. In mid-August, agents visit Sunshine Films, where the inspection team was reportedly interested in records pertaining to All Good Video, a production company purchased by Sunshine, but that has not produced a new title in several years.

September: 2257 Inspections continue, with a search of Darkside Entertainment on September 12th, and Evasive Angles on September 27th (these inspections were not publicly acknowledged until October).

Also in September, Mantra Films (creator of the Girls Gone Wild video line) pleads guilty to violations of 2257 record keeping regulations and agrees to pay fines totaling $2.1 million dollars for three counts of failing to keep the required records, and seven labeling violations with respect to its DVD and video series. Later in the month, Mantra owner Joe Francis officially entered his own guilty plea, agreeing to pay $500,000 of the fines personally.

October: The FBI conducts what may turn out to be the most controversial inspection of its initial round of enforcement; the October 10th inspection of Legend Video. Legend is both solely a “secondary” producer and a member of the FSC, two facts that are supposed to prevent the company’s records from being searched by the FBI, per Judge Miller’s order in FSC v. Gonzales, according to FSC chair and attorney for Legend, Jeffrey Douglas.

Shortly after the Legend inspection, Douglas told YNOT that he spoke to the FBI agent in charge during the inspection and told the agent “I thought he was inviting a contempt citation.” Douglas added that while he could not provide specifics, “the FSC litigation team will be responding appropriately,” to what they deemed a violation of the court’s order.

Two days after the Legend inspection, Douglas, along with fellow attorneys Paul Cambria and Greg Picionelli and other representatives of the adult industry met with officials from the FBI to discuss inspections and to promote better communication between the adult industry and the FBI.

At the time, Douglas told YNOT the fact that James “Chip” Burrus, Assistant Director of the FBI’s Criminal Investigative Division recognized that “you cannot regulate an industry that you are not in communication with” was the most significant development to come out of the meeting.

“The fact that [Burrus] acknowledged that is incredibly important for a long term change in the relationship between this administration and the industry,” Douglas said at the time, adding that the meeting was a “very positive development.”

November: Pure Play Media is the next company inspected, in another search that raises the ire of Douglas and the FSC. Pure Play Media is both a primary and secondary producer, and FBI agents reportedly search both types of records during their inspection on November 16th.

Following the Pure Play inspection, the FSC issued a press release stating that the FSC was “gravely concerned about the apparent violations of the injunction issued by Federal District Court Judge Walker Miller in FSC’s challenge to the lawfulness of 18 U.S.C. § 2257. “

“We believe that at least three members have had ‘secondary’ producer records inspected despite the language of the injunction,” stated the release, dated November 17th.

The FSC added that it is “engaging in good faith negotiations with the Justice Department to see if an agreement can be reached whereby the rights of the members under the injunction can be protected,” in accordance with court rules.

“The current situation is untenable and the FSC and the government are engaged in discussions to establish a procedural framework whereby the FBI can determine whether a producer is a ‘primary’ or ‘secondary’ producer for the purposes of the preliminary injunction prior to a records inspection,” the FSC stated in the release, adding that if an agreement cannot be reached, the FSC would “return to Judge Miller seeking relief from these prior violations and a means to prevent further violations.”

December: FBI agents arrive at the offices of K-Beech Inc for a 2257 records inspection, reportedly seeking documentation pertaining to 10 titles from another defunct producer, Erotic Angel. The K-Beech document search marked the ninth such inspection known to have occurred this year.

December also saw the sentencing of Mantra’s Joe Francis in connection with his admission of guilt in violating 2257 regulations. In addition to the half-million dollar fine that Francis had agreed to previously, US District Judge Richard Smoak added the requirement that Francis and several other Mantra company executives perform eight hours of community service per month for the next 30 months.

Judge Smoak reminded Francis at the time that he could have been sentenced to 10 years in prison under the statute and told him that he would drop the community service requirement for the other Mantra executives if Francis would voluntarily increase his own community service output

No doubt, the coming year will see more developments with respect to 2257 – including, perhaps, a substantial revision of the legal challenge to the federal statutes, in response to the substantial revisions made to the statutes, themselves.

Regardless of what 2007 holds in store, 2006 will always stand out as the year in which enforcement of 2257 regulations ceased to be a possibility, and became reality.