The inspection requirement of 18 U.S.C. § 2257A on porn actors age records fails the Fourth Amendment because there is nothing in the language of the statute that makes manufacture of pornography “highly regulated” for administrative inspections. The record keeping requirement, however, is constitutional under the First Amendment. Free Speech Coalition v. Attorney General of the United States, 2015 U.S. App. LEXIS 7941 (3d Cir. May 14, 2015):
We turn to the merits of Plaintiffs’ as-applied Fourth Amendment claim. In FSC I, we directed the District Court to consider whether an inspection under § 75.5 “was a ‘search’ under the Fourth Amendment pursuant to either the reasonable-expectation-of-privacy test set forth in [Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)] or the common-law-trespass test described in [United States v. Jones, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)].” FSC I, 677 F.3d at 544. After developing a thorough record, the District Court concluded that the warrantless inspections conducted pursuant to regulation were searches under both tests. As to the Katz analysis, the inspections invaded areas to which the public did not have access and in which there was a reasonable expectation of privacy (e.g., private offices, storage rooms, and residences). FSC II, 957 F. Supp. 2d at 602-03. And the physical presence of law enforcement officers in those areas also constituted trespasses under the Jones framework. Id. at 603-04. The Government does not contest this analysis, and we see no reason to reach a different conclusion.
The constitutionality of the warrantless searches under the Fourth Amendment thus rises and falls with the administrative search exception to the warrant requirement applicable to closely regulated industries. “Searches conducted absent a warrant are per se unreasonable under the Fourth Amendment, subject to certain exceptions.” United States v. Katzin, 769 F.3d 163, 169 (3d Cir. 2014) (en banc). “[T]he few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and the burden is on those seeking the exemption to show the need for it.” California v. Acevedo, 500 U.S. 565, 589 n.5, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (quoting Arkansas v. Sanders, 442 U.S. 753, 759-69, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), overruled on other grounds by Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619) (internal quotation marks omitted).
But as we explained in FSC I, “[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist.” 677 F.3d at 544. Under these circumstances, “the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, have lessened application.” New York v. Burger, 482 U.S. 691, 702, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987) (citation omitted). Thus, “where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.” Id. Even if a business is determined to be part of a closely regulated industry, we must then consider whether the warrantless searches themselves are reasonable. This requires examining whether “the following criteria are met: (1) the regulatory scheme furthers a substantial government interest; (2) the warrantless inspections are necessary to further the regulatory scheme; and (3) the inspection program, in terms of certainty and regularity of its application, is a constitutionally adequate substitute for a warrant.” FSC I, 677 F.3d at 544 (citing Burger, 482 U.S. at 702-03).
To determine whether an industry is closely regulated, factors to consider include the “duration of the regulation’s existence, pervasiveness of the regulatory scheme, and regularity of the regulation’s application.” Id. Here, the Government points to the fact that since 1978, Congress has criminalized the commercial use of children in sexually explicit materials. See FSC I, 677 F.3d at 525. Since 1988, Congress has imposed recordkeeping requirements similar to those currently embodied in § 2257. Id. Some regulation of sexually explicit images, even those not depicting children, has therefore been in place for some time.
But the regulations in this area are not as pervasive as in other industries previously deemed closely regulated. For example, in determining whether the Pennsylvania funeral industry was closely regulated, we looked to the “broad range of standards that funeral directors in Pennsylvania have long been required to comply with,” including licensing requirements, health standards, funeral home services requirements, federal pricing disclosure requirements, and OSHA safety standards. Heffner v. Murphy, 745 F.3d 56, 66 (3d Cir. 2014). Similarly, in finding the New Jersey horse-racing industry closely regulated, we looked to the industry’s licensing requirements for all employees in the industry, prohibitions on employing individuals convicted of certain crimes, and the creation of the New Jersey Racing Commission with broad rulemaking authority. Shoemaker v. Handel, 795 F.2d 1136, 1141 (3d Cir. 1986).
The Supreme Court has required a similar degree of pervasive regulation, with “the closely regulated industry … [being] the exception,” not the rule. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978). For example, in New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987), the Court considered whether automobile junkyards were part of a closely regulated industry. In finding them closely regulated, the Court observed that vehicle dismantlers were required to obtain a license, register with the state for a fee, and prominently display a registration number at the junkyard, on business documentation, and on any parts or vehicles passing through the business. Id. at 704. These regulations were backed by civil and criminal penalties. Id. Moreover, junkyards had been regulated for at least 140 years. Id. at 707.
In contrast with these industries, the Government fails to identify any similar requirements for producers of sexually explicit images. Nor are the regulations that the Government does identify sufficient. First, the prohibition of child pornography is a broad proscription of a class of images and does not directly target the industry in which Plaintiffs’ are engaged. Nor could it. Plaintiffs’ expression is constitutionally protected, while child pornography is not. See Ferber, 458 U.S. at 764. Indeed, enforcement of the ban is not limited to only those engaged in the business of producing sexually explicit images. The ban on child pornography is therefore more appropriately considered a generally applicable criminal law, not the targeted regulation of any legitimate industry. Although the nature of Plaintiffs’ businesses enhances the chance that they might run afoul of these laws, that alone does not justify deeming the entire industry closely regulated.
Second, the Statutes themselves do not justify classifying producers of adult images as closely regulated. To be sure, the Statutes require recordkeeping and labeling. Yet no one is required to obtain a license or register with the Government before producing a sexually explicit image. An artist can pick up a camera and create an image subject to the Statutes without the knowledge of any third party, much less the Government. Nor has the Government identified any regulations governing the manner in which individuals and businesses must produce sexually explicit images. The creation of sexually explicit expression is better characterized by its lack of regulation than by a regime of rules governing such expression.
The Government also cannot rely on the regulation’s provision for warrantless searches to itself establish that the industry is closely regulated. The creation of sexually explicit images is not a “new or emerging industr[y]” to which the Government must respond to ensure public health and safety. See Donovan v. Dewey, 452 U.S. 594, 606, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981) (noting that some new industries, at the time including the nuclear power industry, can be subject to warrantless searches despite “the recent vintage of regulation”). We are doubtful that the Government can create the reduced expectation of privacy of a closely regulated industry to justify warrantless inspections by simply mandating those inspections, particularly where that industry existed long before the regulation’s enactment. See Burger, 482 U.S. at 720 (Brennan, J., dissenting) (“[T]he inspections themselves cannot be cited as proof of pervasive regulation justifying elimination of the warrant requirement; that would be obvious bootstrapping.”). And in any event, as the Government readily acknowledges, no inspections have taken place since 2007. This is hardly the “regularity of the regulation’s application,” FSC I, 677 F.3d at 544, that we would expect of a closely regulated industry. For these reasons, we conclude that producers of sexually explicit images are not currently part of a closely regulated industry, and this exception to the warrant requirement does not apply.
This alone is sufficient to conclude that the warrantless searches authorized by regulation violate the Fourth Amendment as applied to Plaintiffs. In the interest of completeness, we also address why those inspections are unreasonable, even if producers of sexually explicit images were closely regulated. …