by J.D. Obenberger, Esq
XXXLAW Transmits Comments to DOJ and OMB Challenging Section 2257 and Demanding a Formal Hearing at OMB
On April 25, 2012, we filed our official Comments with the CEOS, the unit in the Department of Justice responsible for writing and enforcing the regulations which implement Section 2257. But we did a bit more.
Invoking an obscure and perhaps never-earlier-used provision of federal law, Title 44 United States Code Section 3508, I’ve demanded a formal hearing on the action in the Office of Management and Budget. The OMB provides oversight over administrative agencies to insure the intent of Congress in the Paperwork Reduction Acto of 1995 is complied with. This law was passed by Congress with the intent of keeping The Regulators at bay and has a stated congressional intention of reducing the burden on the public. Every administrative regulation must be assessed for the cost of information collection when it is promulgated, and periodically each must be reviewed for its cost. It’s often routine. My goal was to make this renewal anything but routine.
As I’ve reported before on these pages, the official application of DOJ to get the renewal of the Section 2257 regulations approved, required an assessment of costs of compliance on the public and small businesses. That assessement looked to me to be miles away from honest and candid, but quite the opposite. I laid out my reasons here previously. This time, I devoted 38 pages (with copious illustrations of billboards and magazine advertising and Paparazzi images that are all within the obvious sweep of the regulations) to a frontal assault on the uncounted costs of these regulations to society in general, to private individuals, and to small businesses struggling in the adult sphere. I called the estimate of 3 million images profoundly dishonest, and I pointed out that though the law requires thise submissions to be "certified", the Attorney General pointedly refused of failed to certify the wild guesses at the scope and cost of the burden – because they are just not true.
DOJ says only 1,974 producers are covered by these regulations. That’s rubbish and my response says so. A Google Search for Compliance Statements yields 24 million hits. Those 1,974 folks must be really busy if they are the only ones covered! In fact, the regulations now cover any hot image taken on a cell phone by anyone that includes even a fully clothed crotch. It imposes the same obligations to create and maintain records on ordinary folks using their cell phones in the bedroom that are applied to Hustler and Playboy.
Where DOJ says it can’t possibly make any precise estimate of the costs of compliance, I ask why they don’t walk down the hall and ask the FBI.
I honestly don’t know whether this will make any difference in the end, and turn what should have been a routine renewal into anything that is quite nonroutine, but I gave it every effort to upset the applecart, to tell the honest truth in the face of what looks to me like the DOJ hiding the ball (or, worse, totally blind and ignorant about the industry they are regulating and the effects of these regulations on ordinary people outside this industry) and it just may work to change things. I hope so.
They say it is better to light a single candle than to curse the darkness. I may have just lighted something more like a road flare. Time will tell.