Federal Court Enjoins Attorney General from Enforcing Against Adult Entertainment Industry Producers Certain Recordkeeping Requirements Related to Live Internet Chat Rooms and Third Party Websites

Free Speech Coalition v. Gonzales, 406 F.Supp.2d 1196 (D. Colo. 2005)

In this case, plaintiffs were all involved, in various capacities, in the adult entertainment industry. Plaintiffs sought a preliminary injunction to protect themselves from any enforcement action pending the litigation. Among other things, plaintiffs challenged new recordkeeping requirements under the Child Protection and Obscenity Enforcement Act and associated regulations. Ultimately, the court found that plaintiffs had demonstrated a substantial likelihood of success in demonstrating that the amended portions of the statute and regulations created an undue burden as they related to chat rooms and to websites not controlled by the producer. The court therefore enjoined the Attorney General, pending the outcome of these proceedings or further order, from enforcing 28 C.F.R. �� 75.2(a)(1)(i) against any of the plaintiffs in their operation of an Internet chat room and from enforcing 28 C.F.R. �� 75.2(a)(1)(ii) against any of the plaintiffs or members of FSC with regards to a website that is not controlled by that plaintiff or member of the Free Speech Coalition.

With regard to new obligations required by the Act, plaintiffs objected to 28 C.F.R. �� 75.2(a)(1), which required that a producer keep: (1) a copy of the depiction; and (2) when the depiction is published on the Internet, a copy of any URL or other identifying reference associated with the depiction.

Plaintiffs asserted that the requirement that they keep a copy of each depiction was itself unduly burdensome, as it would require producers to incur substantial storage costs. They provided the affidavit from plaintiff Conners asserting that he would have to cease operation of his websites should the regulations not be enjoined. However, the court noted that the Attorney General had provided evidence from plaintiffs’ own witness that website operators generally keep a copy of each depiction they post on their website as a matter of course for business purposes. Furthermore, the defendant demonstrated that large numbers of depictions could be electronically stored by purchasing hard drives at insubstantial prices. For instance, defendant’s expert asserted that a large website, that offered 40,000 videos on its site, could comply by purchasing $600 worth of additional hard drives, and that websites that offer only still pictures could comply by purchasing one $120 hard drive. The court found “Conners’ somewhat conclusory assertions of hardship suspect in light of his demonstrated ignorance of computer technology, and refusal to seek guidance from his more computer-literate partners.”

Consequently, the court found that plaintiffs had not met the preliminary injunction standard to show a substantial likelihood that the requirement to keep a copy of each depiction was overly burdensome – but with two exceptions.

The first exception was “the so-called live Internet chat rooms.” The court explained that these involve a performer on the Internet who engages in printed or telephonic dialogue with a customer while a simultaneous video image of the performer is transmitted; the performances usually involve actual sexually explicit conduct. The court found that a primary producer may operate scores of different rooms or channels for 24 hours on every day of the year.

Prior to the new regulation, the plaintiff took the position that the chat rooms were not covered by �� 2257 or the previous regulation. Without deciding the particular issue, the court assumed that the chat room would fall within the definition of a “matter” covered by �� 2257. The court noted that the requirement that the producer keep a copy of the depiction was not present in the previous regulation and hence the apparent practice of not recording each chat room would not otherwise be violative of the regulation. “It is a reasonable reading of the new regulation, however, that it requires the producer of the ‘digitally-or computer-manipulated image, digital image, picture or other matter that contains a depiction of actual human being engaged in actual sexually explicit conduct’ maintain a ‘copy of the depiction.'” Plaintiffs asserted that to do so would involve extraordinary computer capacity of terabytes (1 trillion bytes) and petabytes (1 quadrillion bytes) on an annual basis which could cost as much as $15 million dollars annually. The Attorney General did not present any contravening testimony concerning chat rooms.

The court concluded, without deciding precisely how such a regulation may be constitutionally tailored at this juncture of the litigation, that plaintiffs had established a substantial likelihood of success on this particular issue.

The court also found that plaintiffs had met their burden to the extent that producers were required to keep a copy of any URL (or other identifying reference) associated with a depiction published on the Internet, regardless of whether the producer has control over the website which posts the depiction. Consequently, the court determined that, to the extent �� 75.2(a)(1)(ii) requires a producer to maintain records of URLs or other identifying information from websites outside of the producer’s control, plaintiffs demonstrated a substantial likelihood that the requirement was overly burdensome.