Mike AI
08-03-2005, 09:57 AM
http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=235650
DENVER - After a three-hour plus hearing in front of Judge Walker D. Miller of the United States District Court for the District of Colorado, Department of Justice trial attorney Samuel Kaplan was hard-pressed to defend many of the allegations made by the government in favor of maintaining the record-keeping and labeling law 18 U.S.C. 2257. What seems likely at the conclusion of the hearing is that portions of the government’s regulations dealing with “secondary producers” will almost certainly be part of a preliminary injunction that the court is expected to issue “with all due speed.”
The government attempted to argue that between the U.S. Court of Appeals for the District of Columbia circuit decision in American Library Assoc. v. Reno, coupled with certain changes to the 2257 statute contained in the PROTECT Act of 2003, plus Congress’ requirement therein that the attorney general report within one year on the status of the Justice Department’s 2257 investigations, that the totality of that collected Congress’ attempt to negate the destruction of the secondary producer concept in Sundance Assoc. v. Reno. However under questioning by the judge, Kaplan responded that there had been no federal case specifically dealing with the secondary producer concept other than Sundance and that no act of Congress had made any specific reference to the Sundance decision.
But Sundance represented just one third of the plaintiffs’ arguments in the case. After attorney Michael Gross completed his analysis of Sundance and how it applied to the instant proceeding, and after Kaplan was allowed to respond Gross’ points, Free Speech head counsel H. Louis Sirkin took the podium and began to explain several of the other Constitutional infirmities in the regulations.
These included the fact that the regulations were not narrowly tailored to achieve the government’s stated objectives to present child pornography; that it restricted more protective speech than is legally allowable, and that compliance with the regulations was physically impossible. Sirkin stressed the incredible burdens placed upon the industry in being forced to protect its Constitutionally protected products, in a complete reversal of the normal burden of proof in legal proceedings.
Later associate counsel Paul Cambria elaborated on several of those points. Cambria presented mathematical calculations, based on the testimony of the government’s expert witness, computer expert William Schmidt, that just to record one 40-hour week’s of streaming video from one performer at decent resolution would require, on an annual basis, over 150 40-gigabyte hard drives – and that data, under the regulations, would have to be maintained for seven years. Cambria also delved into the violations of privacy inherit in a typical mom-and-pop webcam operation, where the performer would be required under the regulations to reveal her legal name as custodian of records, and her home address where the records were kept.
Look for a more complete analysis of the proceedings on AVN.com Wednesday
DENVER - After a three-hour plus hearing in front of Judge Walker D. Miller of the United States District Court for the District of Colorado, Department of Justice trial attorney Samuel Kaplan was hard-pressed to defend many of the allegations made by the government in favor of maintaining the record-keeping and labeling law 18 U.S.C. 2257. What seems likely at the conclusion of the hearing is that portions of the government’s regulations dealing with “secondary producers” will almost certainly be part of a preliminary injunction that the court is expected to issue “with all due speed.”
The government attempted to argue that between the U.S. Court of Appeals for the District of Columbia circuit decision in American Library Assoc. v. Reno, coupled with certain changes to the 2257 statute contained in the PROTECT Act of 2003, plus Congress’ requirement therein that the attorney general report within one year on the status of the Justice Department’s 2257 investigations, that the totality of that collected Congress’ attempt to negate the destruction of the secondary producer concept in Sundance Assoc. v. Reno. However under questioning by the judge, Kaplan responded that there had been no federal case specifically dealing with the secondary producer concept other than Sundance and that no act of Congress had made any specific reference to the Sundance decision.
But Sundance represented just one third of the plaintiffs’ arguments in the case. After attorney Michael Gross completed his analysis of Sundance and how it applied to the instant proceeding, and after Kaplan was allowed to respond Gross’ points, Free Speech head counsel H. Louis Sirkin took the podium and began to explain several of the other Constitutional infirmities in the regulations.
These included the fact that the regulations were not narrowly tailored to achieve the government’s stated objectives to present child pornography; that it restricted more protective speech than is legally allowable, and that compliance with the regulations was physically impossible. Sirkin stressed the incredible burdens placed upon the industry in being forced to protect its Constitutionally protected products, in a complete reversal of the normal burden of proof in legal proceedings.
Later associate counsel Paul Cambria elaborated on several of those points. Cambria presented mathematical calculations, based on the testimony of the government’s expert witness, computer expert William Schmidt, that just to record one 40-hour week’s of streaming video from one performer at decent resolution would require, on an annual basis, over 150 40-gigabyte hard drives – and that data, under the regulations, would have to be maintained for seven years. Cambria also delved into the violations of privacy inherit in a typical mom-and-pop webcam operation, where the performer would be required under the regulations to reveal her legal name as custodian of records, and her home address where the records were kept.
Look for a more complete analysis of the proceedings on AVN.com Wednesday