E.D.Pa.: Record keeping requirements for porn producers does not violate Fourth Amendment

The requirement of record keeping of sexually oriented performers to avoid child pornography, 18 U.S.C. §§ 2257 & 2257A, is a reasonable record keeping requirement and inspection of those records does not violate the Fourth Amendment. Three decades of regulation qualifies as closely regulated for the purposes of age documentation of performers. [The case also involves First and Fifth Amendment challenges.] EFF’s page for the case does not have this opinion as of the time of this posting. Free Speech Coalition v. Holder, 2010 U.S. Dist. LEXIS 75471 (E.D. Pa. July 27, 2010):

It is well established that, under the Fourth Amendment, a person’s reasonable expectation of privacy in his or her home or business exists “not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative searches designed to enforce regulatory statutes.” New York v. Burger, 482 U.S. 691, 699-700 (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13 (1978)). “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” Id. at 700 (citing Donovan v. Dewey, 452 U.S. 594, 598-99 (1981)).

This expectation is particularly attenuated in commercial property employed in “closely regulated” industries. Id. “‘Certain industries have such a history of government oversight that no reasonable expectation of privacy [can] exist for a proprietor over the stock of such an enterprise.'” Id. (citation omitted) (quoting Marshall, 436 U.S. at 313). As the Third Circuit has explained, “one who is engaged in an industry that is pervasively regulated by the government or that has been historically subject to such close supervision is ordinarily held to be on notice that periodic inspections will occur and, accordingly, has no reasonable expectations of privacy in the areas where he knows those inspections will occur.” Lovgren v. Byrne, 787 F.2d 857, 865 (3d Cir. 1986). For this reason, a warrantless inspection of commercial premises may be reasonable within the meaning of the Fourth Amendment, and the Supreme Court has correspondingly recognized an exception to the warrant requirement for searches of “closely” or “pervasively” regulated industries. Burger, 482 U.S. at 702-03.

A pervasively regulated business is one which has “such a history of government oversight that no reasonable expectation of privacy could exist.” Marshall, 436 U.S. at 313 (citation omitted). “[T]he doctrine is essentially defined by ‘the pervasiveness and regularity of the federal regulation’ and the effect of such regulation upon an owner’s expectation of privacy.” Burger, 482 U.S. at 701 (quoting Donovan, 452 U.S. at 606). As the Third Circuit has emphasized, individuals who “voluntarily engage in such [closely or pervasively] regulated businesses accept the burdens as well as the benefits of the trade.” Frey v. Panza, 621 F.2d 596, 597 (3d Cir. 1980) (per curiam).

As discussed at length above, for over three decades the creation, production, and distribution of sexually explicit expression has been the subject of extensive federal regulation aimed at protecting children from sexual exploitation. 24 As a result of this steadily strengthening web of initiatives–which include §§ 2257 and 2257A and their implementing regulations–producers of sexually explicit expression have been on notice for some time that, when it comes to ensuring the performers in their expression are adults, they will be subject to various forms of government oversight, including inspection of age-verification records. Indeed, the “regulatory presence is sufficiently comprehensive and defined” in this regard that producers of such expression “cannot help but be aware that their property will be subject to periodic inspections undertaken for specific purposes.” Burger, 482 U.S. at 705 n.16 (internal quotation marks omitted). Accordingly, this Court finds that, “in light of the regulatory framework governing” the production of sexually explicit expression as it pertains to age verification and the protection of children from sexual exploitation, plaintiffs have a “reduced expectation of privacy in this ‘closely regulated'” enterprise. Id. at 707.