[jjacksonesq]

I wanted to add my spin to all the discussions of the Sixth Circuit’s ruling that overturned the record keeping requirements of 18 U.S.C. 2257. The court said that the record keeping requirements were overly broad. “Over broad” in constitutional terms means that while the government may have a legitimate interest in regulating behavior, in this case preventing child pornography, the government went too far regulating a constitutional right. Think of it as using a backhoe when a shovel will do.

Another question you might have is where does this ruling have effect? After all the constitution in one place is the constitution in another, right? Well that would be common sense but we are dealing with the government and the judicial system and traditional common sense does not apply. This ruling only applies in the Sixth Circuit. The states in the Sixth Circuit are Ohio, Michigan, Kentucky and Tennessee. So if you happen to be in one of these states the ruling applies to you. If you are not in one of these states the ruling does not apply to you and you MUST continue to keep records.

You may be asking yourself, “What happens now?” Well that is a good question because now there is a question of unsettled law. The “law” does not like it when there are unsettled questions. (When I say the “law” I mean the body that attorneys and other legal scholars study.) So here is what could happen immediately. Option one is that the government could appeal this to the Supreme Court. In which case, the Supreme Court could determine what the law of the land is and either overrule the Sixth Circuit Court of Appeals or uphold the Sixth Circuit Court of Appeals. Option two is that the government can do nothing and let the ruling stand. I think that the government will select option two and do nothing.

I think that the government will select option two for several reasons (1) the Supreme Court may find the law unconstitutional which would in validate the law through out the nation. (2) Not appealing the ruling to the Supreme Court buys more time to harass producers of pornography in every other state. (3) It forces the producers of pornography to comply or initiate the litigation and spend money possibly until they are bankrupt. As it stands, the government can enforce 18 U.S.C. 2257 in all states but four so I do not see why the government would risk what they got but stranger things have happened.

So what this ruling means to you is that unless you happen to be in the Sixth Circuit you need to continue to follow the record keeping requirements of 18 U.S.C. 2257. That is, of course, unless you have very deep pockets and want to give a great deal of money to guys like me.