What exactly was the Justice Department thinking when it signed new 2257 regulations targeted at the adult entertainment industry? They sure seem designed to make life more difficult for online adult businesses – and more broadly, for online erotic expression in general. Do the rights of adult webmasters and erotic performers not count because they take an open approach to human sexuality? Are we criminals because our view of sexual morality differs from the fundamental conservative Christian teachings championed by the current administration in Washington?Most of us would like to think that our government has our best interests in mind, that its intentions are noble, and that it would not seek for purely political purposes to make criminals out of those people who would like to follow the law – but with the failure of the Justice Department to consider much of the adult industry’s comments about 2257, one can’t help but be a little cynical. Will the DOJ once again be a tool of the religious right, as it was in the 1980’s and early 1990’s? Will it be used by the intolerant to punish those who are not sexually repressed?

Most industry observers reject the DOJ’s public claims that the new 2257 regulations are meant to protect children. Many industry professionals speculate that the 2257 regs will be used not to keep children out of adult industry productions, since the legitimate industry hasn’t had a problem with underage performers since a 17 year-old Tracy Lords used a fake ID to con her way into an adult film back in the 1980’s, but rather to harass the adult industry and hinder its regular operation and continued development. Considering that even a simple paperwork filing mistake on the part of an adult webmaster could lead to a significant federal prison term, it indeed seems logical that the regulations are designed to give the DOJ ammunition in a possible witch hunt against adult entertainment companies. Could 2257 be one of the “tools” that Attorney General Alberto Gonzales had in mind when he made the following comments to a group of prosecutors and law enforcement officers in Tennessee?

“I have directed Department officials to carefully review federal laws to determine how we can further strengthen our hand in prosecuting obscenity,” Gonzales said. “Our goal is to assess all the law enforcement methods we use – and identify the tools we may still need to more effectively investigate and prosecute these crimes.”

Those comments by Gonzales were dug up by First Amendment attorney J.D. Obenberger of xxxlaw.net, whose informative chronology of recent DOJ and government anti-porn activities was recently published here on YNOT. Obenberger has been a passionate defender of the adult industry’s right to exist for as long as I can remember myself a member of this industry, and while his warnings about obscenity laws and the urgency of 2257 compliance have often been ignored, he hasn’t stopped providing the adult professional community with important insights about the anti-porn activities of the more conservative members of our government.

“For five years I’ve been preaching this stuff,” Obenberger told me in a recent phone conversation. “And you know, a very limited number of people pay attention.”

Now that the new 2257 regulations have been published, more industry professionals are taking notice. Obenberger today created a detailed comparison chat that tracks the changes in the 2257 regulations. The chart shows the original regulations, the changes proposed by Ashcroft last year, and the changes that were published Tuesday morning. A color scheme makes it easy for viewers to note the differences between the various versions of the 2257 regulations. This chart was offered as a courtesy to the industry.

Understanding 2257 has never been easy for adult industry professionals, and webmasters without the legal guidance of an industry attorney have been especially confused in the past. Sometimes it seems that 2257 regs purposefully try to make compliance as difficult as possible. Could that be because the 2257 regulations themselves were written by the people who prosecute the adult entertainment industry?

“Can you think of any other crime where the prosecutor gets to write it? That is very bizarre if you think about it,” Obenberger said. “Here the prosecutor gets to write the law that people go to prison on.”

So what was the DOJ thinking? Child protection? Or witch hunt?

In addition to the new regulations themselves, the DOJ also published some extensive commentary about the regulations. The commentary appears to be signed by Attorney General Alberto Gonzales, but Obenberger thinks it provides more of a look into the mind of Drew Oosterbaan, who is Chief of the Child Exploitation and Obscenity Division of the Justice Department – or as some of us prefer to call it, the “God Squad.” According to Obenberger, the commentary provides a rare glimpse of what these guys were thinking when they were crafting these burdensome changes to 2257 regs.

“There’s a huge chunk of personality in it that I don’t normally see,” said Obenberger about the commentary. “I kind of look at this as Drew Oosterbaan’s open letter to the webmasters, and if you read it in that light it takes on a whole new dimension.”

The adult industry has rightly pointed out that should work-from-home webmasters or amateur performers be forced to list their home address on the front page of their websites, as the new regulations seem to require, that information might be used for harmful purposes by stalkers or other undesirables. There’s a good reason why most artists seldom give out their home address to fans. But according to Obenberger, the commentary provided by the Justice Department shows that DOJ officials were not swayed by these arguments.

“Drew Oosterbaan is calling us on it,” Obenberger said. “He talks about the exaggerated claims of fear that the webmasters have. Go through and read this thing. He’s saying you guys are a bunch of bellyachers. You’re telling us we can’t regulate you as we don’t care about you, but you’re just making it up because you don’t want to be regulated. That’s exactly what Drew is saying.”

Obenberger said he anticipated this kind of reaction from the Justice Department and had previously sought in vain for real world examples of adult industry performers being stalked or harmed by fans.

“I asked the world for examples and nobody gave me anything,” said Obenberger.

It’s uncertain whether the lack of response was due to general industry apathy or a lack of real instances of physical harm – after all, most amateurs have not provided their personal information to fans in the past, so there may not be many previous cases appropriate to this issue…. yet. But Obenberger wonders why the adult industry took so long to be concerned about 2257 in the first place. Even though the regulations have been just recently amended, they have existed in some form since 1994.

“These new regulations are not the major problem. The major problem is the regulations period,” Obenberger said. “And the natural question, why weren’t they challenged … why was it that some little swinger magazines had to challenge it when all of the wealth and the power and the prestige of the huge adult programs didn’t find it convenient to challenge these provisions until now?”

Obenberger is rightly frustrated that it took the adult industry so long to find unity for the common good of the industry. The Free Speech Coalition, the industry’s trade group, is expected to challenge both the new regulations and the old regulations. Many grateful webmasters have finally started to rally around the Free Speech Coalition, undoubtedly the industry’s best hope at fighting back against government-led attacks on adult entertainment and erotic expression. But what happens if the Free Speech Coalition’s challenge is not successful? There is still plenty of confusion about 2257.

Some webmasters have wondered whether they can keep their records with their attorneys, or with some third party record-keeping service. Not an option, according to Obenberger.

“The regs have been clear forever,” said Obenberger. “They have to be maintained at the producer’s place of business. My dentist’s office is my dentists’ place of business. My lawyer’s office is my lawyer’s place of business. I have no claims to do business at my dentist’s office. I have no claims to do business at my lawyer’s office. What makes these people think for a second that they can evade a requirement of federal law by snapping their fingers and saying, oh that’s my place of business even though I don’t rent it, I’m not on the lease, and I don’t do anything there except come and visit. Those people very simply are going to be in a position where the government has the option of putting them in jail. It’s the government’s call.”

And if Obenberger is right, arrests are about 30 days away for some businesses that are not compliant with 2257.

“In 30 days, they’re going to start arresting people and locking them up,” said Obenberger bluntly. “I think they have a list of the people they want to hit. I don’t know anything from the inside, but everything they’re doing looks so carefully planned out and orchestrated.”

The new regulations won’t go into effect until June 23rd, although the old regulations are already in effect. Those webmasters who dismissed the warnings of attorneys like Obenberger may now find themselves in a compromising position.

“The time for 2257 compliance work is now done,” Obenberger said. “Now is the time to start planning criminal defense of 2257.”

It seems the Justice Department is prepared to bring the offense.