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					Republicans Save US Jobs                                                         http://www.xbizlive.com/article_print.php?cat=40&id=8939




          Republicans Save US Jobs
          By Marc J. Randazza
          Tuesday, May 31, 2005

          Since George W. Bush was elected, hundreds of thousands of American jobs have flowed
          overseas – where labor costs are lower. On Tuesday, May 24, 2005, the federal government
          took a stand to help stop cheap foreign labor from competing on an uneven playing field
          with our local workers. What industry was protected? Automobile factory workers? No.
          Textile workers? No. Software developers? Wrong again. So who was it? Adult industry
          actors and actresses are the beneficiary of this governmental largesse.

          Yes, that's right. The party of "moral values" and its Attorney General who stated that
          prosecuting obscenity was his number one priority has issued a new regulation that makes it
          very difficult (if not impossible) for US-based producers of erotic content to use foreign
          talent. While hundreds of thousands of Americans are losing their jobs to outsourcing to the
          Third World, erotic talent is receiving a protectionist gift from the federal government.

          In light of the new regulations implementing 18 USC § 2257, there is a lot of confusion in
          the industry as to what identification requirements are truly required, and how they will
          affect producers who wish to use foreign talent. Upon first blush, the regulations appeared
          to be quite onerous for these producers. Upon additional examination, they appear to be
          even worse for stateside producers.

          " The new regulations define "Picture Identification Card." But
          they do not define "identification document." "

          One opinion circulating is that the new regulations require either a foreign passport or a
          specified "picture identification card." While this may be one possible interpretation, it
          appears that the true requirement is that both are necessary.

          If the "either/or" theory were correct, it would lead to a far more reasonable result. The
          alternative theory leads to a very unreasonable result. Accordingly, the author recognizes
          that the entire industry would much prefer the "either/or" theory to be correct.
          Nevertheless, what we want to be true and what is true are often unconnected.

          The "either/or" position is based upon the fact that "identification document" referenced in
          the new regulations is different than "Picture Identification Card" and that the regulations
          provide that either one or the other is required. It is true that the two terms are different and
          mandate the use of two different kinds of documentation. However, it is an incorrect
          conclusion that only one or the other is required.

          The "either/or" theory is based on the second sentence in §75.2(a)(1). However, that theory
          only passes muster if the first sentence in that section is ignored.

          The first sentence in §75.2(a)(1) of the new regulations states that any producer of sexually
          explicit content must create and maintain records containing "[t]he legal name and date of
          birth of each performer, obtained by the producer's examination of a picture identification
          card." (emphasis added). Therefore, according to this sentence, a "picture identification
          card" is strictly required. Parenthetically, this sentence is new, and was not contained in the
          proposed version of the regulations published in June, 2004.


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          The second sentence in §75.2(1) (and the sentence upon which the "either/or" theory relies)
          states: "For any performer portrayed in such a depiction made after July 3, 1995, the
          records shall also include a legible copy of the identification document examined and, if
          that document does not contain a recent and recognizable picture of the performer, a legible
          copy of a picture identification card." (emphasis added).

          To further illustrate the issue and to demonstrate the confusing language in the new
          regulations, we should turn our attention to the definitions of these two terms. The new
          regulations define "Picture Identification Card." But they do not define "identification
          document." (that term is defined in the statute).

          Picture Identification Card is defined by naming a laundry list of U.S. Identification
          documents such as a passport or a green card, or a driver's license issued by any state. See
          §75.1(b). However, this section allows for foreign equivalents as long as the talent and the
          producer are both located outside the United States. Id.

          This leaves us searching for a definition of "identification document." Fortunately, we can
          find this definition in 18 U.S.C. § 1028(d), the identification fraud statute, 18 U.S.C. §
          1028. Unfortunately, while 18 U.S.C. § 1028(d), defines "identification document," it also
          limits its definition to "this section and section 1028A."

          Therefore, it would appear the definition of "identification document" that is contained in
          the Identification Fraud statute at 18 U.S.C. § 1028(d) is limited to that section and its
          companion section (1028A). However, §2257(h)(2) contains the following: "'identification
          document' has the meaning given that term in section 1028(d) of this title."

          This is certainly somewhat confusing, as we can travel in circles by looking at 1028, which
          says that its definition only applies to itself, but then look at 2257, which says that it is
          importing this definition, which (by definition) is limited to only Section 1028. Ultimately,
          the balance of the analysis is likely to tip in favor of the 1028 definition being properly
          imported into 2257. Accordingly, we have our definitions of Picture Identification Card
          and Identification Document – although there is a weak argument against the importation of
          the 1028 definition into 2257.

          The comments to the new regulations further illustrate why there is so much confusion on
          this point currently in the industry.

          At Page 29616 of the Federal Register, in the comments discussing the new 2257
          regulations, 18 USC § 1028 is discussed explicitly.

                "One commenter commented regarding a minor drafting error in which
                s75.2(a)(1) of the proposed rule incorrectly referenced the definition of an
                identification document in 18 USC 1028. The department has eliminated
                entirely the reference to 18 USC 1028, which is redundant in light of the final
                rule's defined term picture identification card."

          If we examine the proposed regulations and the final regulations, it appears that the intent
          was to delete any reference to 18 U.S.C. § 1028(d). It also appears that the regulations
          might have intended to do away with the 1028 definition. This is unclear, and ultimately
          the regulations cannot change the fact that 2257 mandates the use of that definition. The
          regulations cannot subtract from the statute, although they may add to it, so long as the


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Republicans Save US Jobs                                                        http://www.xbizlive.com/article_print.php?cat=40&id=8939



          Department does not exceed its authority given by Congress. Given the comments, it
          appears that the Justice Department may have been improperly attempting to merge the
          terms Picture Identification Card and Identification Document. Nevertheless, this is far
          from certain, and may not be clarified until the courts address the issue.

          As mentioned above, the result that the industry would like to see is more logical than what
          the regulations seem to create. Accordingly, a court may eventually agree with the
          interpretation developed in this article and dispense with it under the "absurd result
          doctrine."

          Allowing the use of foreign-issued ID only when the producer and talent are outside the
          United States is certainly unwise, as it will cause great difficulty for the industry, drive
          much money out of the economy, and ultimately mean that the new regulations will serve
          as the only steps that the Bush administration has ever taken to stop American jobs from
          being lost to cheaper foreign workers. Nevertheless, a bad result from bad law does not trip
          the wire to activate the absurd result doctrine – and the threshold for the employment of this
          doctrine is quite high.

          In conclusion it appears that a picture identification card, as defined in the regulations, is
          strictly required to be examined by the producer, and this definition does create difficulty
          for American producers using foreign talent (whether on US soil or abroad). Although
          there are alternative theories to interpret the rest of the regulations, the more conservative
          position is that a legible copy of the identification document (as defined in section 1028)
          must be kept, but if it does not contain a recent and recognizable picture, then a legible
          copy of the picture identification card must also be kept with the required records.

          Marc J. Randazza, Esq. is an attorney with the law firm of Weston, Garrou, DeWitt &
          Walters, which maintains offices in Orlando, Los Angeles and San Diego. Nothing
          contained in this article constitutes legal advice. Please consult your personal attorney for
          information on specific legal issues. Mr. Randazza can be reached at
          mrandazza@firstamendment.com or at his office; 407.389.4529.

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