23 Important Points About Section 2257

The New Section 2257 Amendments

 
by Attorney J. D. Obenberger

 January, 2009

 

 

Introduction

 

Last week, on January 20, dramatic changes became effective in the laws which regulate adult content producers, publishers (including web publishers) and distributors. Some of the Justice Department’s changes go to very fundamental issues that have been at the heart both of both industry complaints about the implementation of Section 2257 and the litigation brought on behalf of industry interests to invalidate it, and one senses that an important purpose of the Justice Department was to strengthen the constitutional defensibility of the scheme by making it more reasonable and less obviously obnoxious. Overall, the changes go in the directions of lightening some of the economic costs of compliance, remedying many privacy concerns, and limiting the scope of the regulations to the commercial sphere. The regulations also implement Section 2257A, creating a less burdensome regime for producers of material outside of the hardcore space.  

By their own terms and the date of publication, the amendments were to take effect on January 20, 2009, inauguration day. It is hard to see how any executive memorandum or order issued on or after January 20 could, consistent with the statutes that govern the process, delay or prevent the regulations from having coming into effect on that date. Nevertheless, confirmation is being sought by the Free Speech Coalition, inquiring of the Justice Department its position as to whether the amendments are now in force and effect. Accordingly, the prudent Producer and Publisher will consider the regulations as effective unless or until the Justice Department announces otherwise.  

It is virtually certain that further litigation challenging the validity of the Section 2257 scheme of regulation will ensue. I expect challenges based both on the perceived unconstitutionality of the scheme as an unreasonable burden on freedom of expression and upon more technical objections related to the procedures employed in the promulgation of the regulations. As relates to the constitutional arguments, the pressure of prior litigation alerted the Justice Department to the most constitutionally obnoxious effects of the prior regulations and now many of them are textually gone from the regulations. This does give any litigation team less to work with, and it forces the course of litigation to the core issues concerning whether the scheme unreasonably burdens lawful expression. It would be a mistake to expect any rapid and dramatic injunction against its enforcement, as welcome to the Industry as that would be. The prudent Producer and Publisher should move with all deliberate speed toward certifiable compliance with the regulations as amended and support litigation challenging it.

 

I. The Context of the Changes in Litigation and Legislation 

a. The Free Speech Coalition’s Denver Lawsuit and Adam Walsh 

 

After the last round of regulatory changes on June 23, 2005, the Free Speech Coalition brought a lawsuit in Denver broadly challenging both the statute and amended regulations on Free Speech and Privacy grounds, and particularly challenging the “Secondary Producer” provisions of the regulations which imposed a duty on re-publishers to maintain and make available for official inspection records concerning the identity of the original producers and the performers and to affix a compliance statement. Denver was chosen because it sits in the Tenth Circuit, which had already ruled in the 1998 Sundance decision that the Secondary Producer regulations issued by the Justice Department improperly expanded the scope of the regulations to a class of persons outside the congressionally authorized reach of the statute. The invalidation of the Secondary Producer provisions of the 2005 changes was thought to be a sure judicial thing by the Free Speech Coalition, and a long series of other constitutional attacks came along for the ride.  

The Denver court did what it was mandated to do in the 2005 Free Speech Coalition Case: It ultimately restrained enforcement of the then-invalid the Secondary Producer provisions, not on any constitutional grounds, but simply because, in those regulations, DOJ went further than the statute reached. This kind of invalidation could be undone by Congress by passing a law to expand the power of the Justice Department, and Congress did that in July, 2007 by the Adam Walsh Act – and more. In the Adam Walsh Act, Congress not only declared its intent to have the Justice Department regulate Secondary Producers in the wake of the Denver litigation, it dramatically increased the kind of images that were subject to such regulation – bringing into regulation the previously unregulated depictions of merely simulated sex and images depicting genitals and the “pubic area”, as well. The law also included each page of a website containing covered material within the definition of “copy”, thereby requiring it to present a disclosure statement. It is inescapable that the most dramatic consequence of the Denver litigation was a dramatic increase in the industry’s burden of regulation under the Adam Walsh Act. This is reflected in the recent amendments.  

The federal trial court judge in Denver granted summary judgment to the Justice Department and against the Free Speech Coalition in the lion’s share of constitutional issues brought to court. The court had reservations concerning a small group of constitutional issues. It considered the expense of maintaining a full copy of live video programming (which it called “internet chat rooms”) to amount to an economic burden of dubious constitutionality. It also determined that a constitutional issue (precluding summary judgment for the government) existed as to whether the then-recent regulatory changes mandating official picture ID raised an ex post facto issue, now criminalizing conduct that was lawful when transacted. Finally, it saw a constitutional issue in the URL retention provisions because they did not appear to be limited to URLs actually under the control of the producer required to maintain records. Each of these issues has found its way into the newly promulgated regulations.  

The pressure of litigation against the Justice Department did require it (by way of administrative interpretation) to ameliorate some hardships in the law and to reduce the level of ambiguity in order to preserve its constitutionality.  Among the most important, 1) The Justice Department conceded that a US producer may accept foreign ID outside the United States and lawfully maintain them as records domestically; and 2) The Justice Department also conceded that a Primary Producer may lawfully redact certain personal information, including name, from the copy of an identification document that may lawfully be accepted and maintained by Secondary Producers. These, too, have been reflected in the amendments.

 

b. Connections in Cincinnati 

 

On October 23, 2007, the a three-member panel of the Sixth Circuit sitting in Ohio, invalidated Section 2257 and its supporting regulations, determining that they violated the First Amendment. None of the judges saw the case quite the same way, but two of them agreed that it was wholly unconstitutionally and that they could not fix it by interpretation. The third judge, too, who dissented from the determination of invalidity, agreed that serious constitutional defects existed, but he felt that the court could fix the statute by limiting it to commercial situations. (Even that dissenter proposed excising out language applying to Secondary Producers in the statute to save its constitutionality, thereby undoing an important part of the Adam Walsh Act.) The others disagreed with the dissenter for a variety of reasons, including a legislative history that plainly shows that Congress intended to reach non-commercial distribution, because that’s where the bulk of child porn is made and moved. Were the statute limited to commercial photography and commercial distribution, it seems to me that this panel would have come to a different result upholding Section 2257, because the most serious unconstitutional obnoxiousness they found in the statute related to personal and private images that enjoy an expectation of privacy in the home. They were concerned with the chilling effect upon the creation of noncommercial images when the age of the model was actually known by the photographer. The court seemed appalled that a government inspector could come in under the law to view video records of the most intimate moments of a married couple. 

The government responded: On April 10, 2008, the Government’s Petition for rehearing en banc was granted by Sixth Circuit. This means that all of the active judges of the Sixth Circuit will reconsider the three-judge panel’s result. While they might affirm, the granting of en banc review suggests that a number of the other judges were troubled by the decision. The granting of a petition for rehearing en banc had the legal effect of vacating the opinion and judgment, which now has no legal effect (6th Cir. Rule 35 (a.), but the decision clearly had an effect in the United States Justice Department. First, since the Connections decision was announced, the FBI has suspended records inspection. Second, the official commentary accompanying the most recent changes expends great energy in demonstrating internal evidence that the regulations were never intended for application outside the commercial pornography industry, and it directly states that the regulatory scheme does not extend to images which are not intended for sale or trade. This language is clearly aimed at influencing the Sixth Circuit in the Connections case.

[Editor's note: On rehearing en banc, the Sixth Circuit reversed the three judge panel discussed here and affirmed the constitutional validity of Section 2257. The United States Supreme Court was petitioned for review and declined to grant certiorari. Since then, FSC commenced another round of litigation against Section 2257 in Philadelphia and lost again. This matter is now on review in the Court of Appeals for the Third Circuit at the time that this update is written, June, 2011. Reed Lee of this office, who also serves on FSC's Board of Directors, wrote large portions of the Reply Brief for the Free Speech Coalition as was reported in AVN by Mark Kernes and appears "Of Counsel" on the title page of that brief.]

  

II. Highlights of the Changes 

 

a. The Promulgation of the Amendments 

 
On December 18, 2008, in the dark, declining days of the Bush Administration, the Federal Register printed DOJ’s amendments to the regulations implementing Section 2257, which by law became effective thirty days later. (Certain particular provisions specify other critical dates for their effectiveness. In case of any doubt, clients should contact us for particular guidance as to effective dates.)  

For convenient review and reference, I have posted a “redline” breakdown comparing the text of the former regulation promulgated in 2005 with the new text, striking through text which is now deleted and underlining newly added text at http://my.execpc.com/~xxxlaw/2257.Redlined.htm It is a difficult, intricate, and painstaking task to create such a table in regard to a regulation of this length and complexity, lawyers preparing such a table may disagree on how best to graphically render a change, especially in regard to punctuation and spaces, and so it is all but certain that some minor errors or confusions exist in my redline rendition. If your own careful examination discloses what you think may be an error in the table, please bring it to my attention.  

The amendments were promulgated with extensive commentary that actually dwarfs the changes themselves, in more ways than one. An age-old legal principle is that administrative interpretations of statutes and regulations by the agency charged in law with their enforcement are entitled to great deference by the courts. Certain critical changes in the application and meaning of the regulations (and indeed, the entire scheme of regulation) are found nowhere at all, textually, in the regulations themselves, but only in the commentary. (The limitation of their scope to matters intended for commerce or trade is an apt example of a significant clarification of scope which is referred to in the official comments and only barely and incompletely alluded to in the regulations.)  Accordingly, a “redline” rendition of textual changes in the regulations tells only a partial (and misleading) part of the story.

 

b. Summary of Changes and Issues

 

1.DATE OF ORIGINAL PRODUCTION” DEFINED TO BE THE DATE OF PHOTOGRAPY.

 

The “Date of Original Production” for Primary Producers is now the first date of sexually explicit photography/videography. Producers are now, for the first time, required to create and maintain a record of that date. Primary Producers must also create a record of the first date of actual photography/videography of any performer who turns 18 during the time of production and specially maintain a record of that performer’s first date of sexually explicit performance. A Secondary Producer may not use the material without obtaining these dates and maintaining the record in conformity with the regulations. (In the past, Date of Production has meant a variety of things, many of which are irrelevant to the age of any performer when he or she first stood in front of a camera for a sexually explicit performance. Now, the date actually relevant to the protection of children must be recorded.) This obligation only works prospectively because to do otherwise would be to criminalize the distribution of material that was legal when made, the Producer having recorded another variety of the Date of Production.  

Primary Producer clients of this office who are using our Section 2257 Data Acquisition forms correctly have been recording that relevant date from the time that form was created. While minor changes to the form to more perfectly track the nomenclature of the regulations should be made, and will be made on request of clients, the existing form, when used as directed, establishes and certifies compliance.  

In a compilation production, the date of original is the first date of photography/videography of the oldest content in the compilation. 

Pages 44439 and following.

 

2. THE DATE OF ORIGINAL PRODUCTION MUST BE RECORDED WHEN THE FIRST IDENTIFICATION DOCUMENT IS EXAMINED, BEFORE IMAGES ARE CREATED.

Records must be created on the date of original production: The date of original production must be recorded when the first ID document is examined and copied. The identification documents must be examined before production begins.

 

Page 77442. 

 
3. PERFORMERS OF MINOR SIGNIFICANCE ARE ALL PERFORMERS.

 

All performers in a production including a depiction of sexually explicit conduct are covered, even performers with minor and arguably non sexual roles, and records concerning them must be maintained in no less formal manner than performers who clearly are depicted in sexually explicit roles. No provision in the regulations specifically precludes an application of this principle retroactively.

 

Page 77442.

 

4. CONTENT OF SECTION 2257 COMPLIANCE STATEMENT: FEWER DISCLOSURES REQUIRED: NEITHER THE DATE OF ORIGINAL PRODUCTION NOR THE ACTUAL NAME OF THE CUSODIAN NEED BE SET OUT IN THE STATEMENT.

 It is no longer necessary to disclose the Date of production in a Section 2257 Disclosure Statement. Additionally, the name of the individual who is the custodian of records is no longer necessary in such a statement, merely his title. Clients should seek particular guidance regarding rewriting their notices. Neither of these changes affects the nature of records which must be maintained.

 

Pages 77437, 77445.

 

5. DISCLOSURE STATEMENT TO BE INCLUDED ON EVERY PAGE OF A WEBSITE THAT INCLUDES SEXUALLY EXPLICIT DEPICTIONS. 

Implementing the provisions of the Adam Walsh Act, every page that contains sexually explicit depictions must have its Disclosure Statement. This may be affixed to the page by a hyperlink or mouseover.

 

Page 77437.
 

6. RECORDS MAY BE MAINTAINED BY THIRD PARTIES.

 

Under the new changes, both Primary Producers and Secondary Producers may discharge their obligation to maintain records and make them available for inspection at the offices of an independent custodian. It is my opinion, based on a close reading of the commentary and regulations, that this obligation is not met when a Secondary Producer merely points back to a Primary Producer’s records, and that such a practice amounts to a crime.  

In partial explanation, the new provisions do not eliminate the obligation to “maintain”. At least one court has held that the statutory scheme is intended to preserve multiple copies of records to avert destruction. The DOJ commentary also praises inspection by Secondary Producer to effectuate goal of the elimination of secondary markets for child pornography (Pages 77438, 77442), and points to specter of criminal prosecution in the case that uninspected records actually disclose the existence of child pornography, so nothing can said to be the lawful maintenance of records that would preclude the Secondary’s access to the records. Such words as “keep” and “retain” and “accept copies” are also peppered through the relevant discussions in the DOJ Commentary. The term, “third party”, also used in the Commentary, though not in the regulation itself, implies someone other than an original producer.  

Any errors or defects by such a custodian have the potential to lead to criminal charges against the producer using that custodian. When such a custodian is used, the title of the custodian and the address at which the records may be made available for inspection must appear on the Disclosure Statement.

 

Page 77445. 

 

7. IN GENERAL, RECORDS MAY BE MAINTAINED IN EXCLUSIVELY DIGITAL COPY FORMATS.

There is no obligation to maintain records in any hard copy, though to do so amounts to compliance. DOJ warns, however, that a failure of the digital system of retrieval or maintenance does not excuse compliance.

 

Page 77443.

 

8. REDACTION OF RECORDS TRANSMITTED TO SECONDARY PRODUCER.

 Records maintained by a Secondary Producer may be redacted. However, they may not be redacted to eliminate references necessary to show the authenticity of the identification document nor to confirm the age of the model on the date of production should doubt exist because of her youth – accordingly, only sometimes is it necessary to render the full date of birth, but it is always necessary to render the year of birth.

 

Page 77443, 77454.

  

9. MODIFICATION OF HOW MUCH OF A LIVE VIDEO DEPICTION MUST BE MAINTAINED IN THE RECORDS.

 With respect to live video, only enough running time need be maintained as is necessary to identify the performers.  It is not my impression that a still image videocapture still is contemplated within the language of the official comments.

 

Page 77466.

  

10. DOJ MAKES IT CLEAR THAT A PRODUCER NEED NOT KEEP RECORDS OF URLS OVER WHICH HE HAS NO CONTROL.

 

Page 77441.

 

11. EFFECTIVE DATES CONCERNING SECONDARY PRODUCERS, SIMULATED SEXUAL IMAGES, AND DEPICTIONS INCLUDING GENITALS AND PUBIC AREA.

 Secondary Producers need not maintain records for depictions created before the effective date of the Adam Walsh Act on July 23, 2007. Private, nongovernmental ID is sufficient if it was permitted at the time of production, before the last batch of regulatory changes in 2005. The regulations are complex in fixing the required dates of compliance for images regulated exclusively because they contain images of genitals, pubic areas, and simulations, and we should be closely consulted regarding your obligations should your content include only these kinds of images.

 

 12. GUIDANCE CONCERNING LASCIVIOUSNESS OF IMAGES

 Not all depictions of genitals and pubic areas are regulated under this scheme, only those that are “lascivious”. So, for example, neither a typical gynecology textbook nor Discovery Channel programs depicting indigenous nudity would be expected to be regulated under the changes which the Adam Walsh Act brought to Section 2257. The DOJ Commentary speaks at length in setting out the standards it will apply in determining the relevancy of the Statute to certain such images. DOJ absorbs its criteria for determining whether 2257 embraces particular  images depicting crotch areas because they are “lascivious” from the factors outlined in another child pornography case, US v. Dost, which was a trial court case from Los Angeles in which the court articulated certain factors to judge lasciviousness. Those same standards will be used to evaluate whether images depicting adult crotches will be subject to the Section 2257 regulatory scheme because they are lascivious displays: DOJ will use the factors articulated in that case in investigations and in making charging decisions under Section 2257. It is Important to observe that context, as well as content, may determine lasciviousness.

 
The Factors articulated in Dost follow:

 (1) Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

 (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

 (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

 (4) whether the child is fully or partially clothed, or nude;

 (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

 (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

 
The official DOJ Commentary makes much mention of US v. Knox, a federal child pornography case coming out of Ohio that sustained a CP conviction under circumstances in which the juvenile model was fully clothed, but dancing in an erotic setting with camera angles centered on her crotch. This case has always been viewed with concern by Industry attorneys as opening a Pandora’s Box in which the laws against the sexual exploitation of children may be twisted in such a way as to reach material that comes nowhere close to actual child pornography, including mainstream advertising. The concern here is that a producer might face prosecution under 2257 for images in which no one’s unclothed genitals or public area is directly visible. Knox has always seemed like a strange and unbalanced case because it applies a statute which criminalizes certain displays, when really nothing is actually displayed under the ordinary understanding of what “display” means. DOJ regards the apprehension of the Industry about Knox to be misplaced.  Page 77433 and following. DOJ notes that a pixilated image may be a lascivious image, notwithstanding the pixilation.

 

Page 77438.

  

13. THE SCOPE OF SECTION 2257 IS LIMITED TO IMAGES CREATED FOR COMMERCE OR TRADE.

 The official DOJ comments state that the regulatory scheme does not apply when images are not intended for sale or trade. This is certainly intended to address the Connections decision in the Sixth Circuit adverse to the Statute because of its perceived invasion of the rights of persons who make very private home video and images for private enjoyment.  I think that an expansive understanding of “trade” is intended by the Justice Department that would include every image produced by the Industry. It would seem to go without saying that images intended for use even in a free tour area, designed as it is to lure sales, are intended for commerce because advertising and promotion are a central part of commerce. HOWEVER, one who posts on an adult social networking site may be a Primary or Secondary Producer.

 

Page 77456, 77437.

 

14. DOJ STATES: IF DEPICTIONS ORIGINATING IN A FOREIGN COUNTRY ARE MADE AVAILABLE IN THE UNITED STATES, RECORDS MUST BE MADE AND MAINTAINED.

 

Pages7749-50

 

15. DOJ CLARIFIES: PIXILATING AN IMAGE IS THE CREATION OF AN IMAGE AND CREATES OBLIGATIONS AS A PRODUCER.

 

Page 77438.

 
16. DOJ STATES THAT THERE IS ONLY ONE PRODUCER.

 Where the producer is a corporate entity, there will be only one producer, and that producer will be the corporation. However, the URLs controlled by someone in control of the corporation may be under the control of the corporation for the purposes of record keeping.

 

Page 77439.

 

17. NECESSARY FORMS OF ID IN OVERSEAS SHOOTS:

 An American producer may lawfully rely upon foreign ID if and only if the shoot takes place outside the United States and relates to a non-US national, and he may lawfully maintain the records in the US. US ID is necessary for all performers in all depictions created within the United States. HOWEVER, there is no obligation to record the location of the shoot, and this is apparently a regulatory oversight, because without a record of where the photography took place, the records on their face are inadequate to demonstrate whether a particular foreign identification document was lawfully used.

 

Page 77435.

 

18. THE ISSUE OF WHAT CONTENT ELEMENTS REQUIRE THEIR OWN NOTICES IS ONLY PARTIALLY ANSWERED – AND NO CONCEPTUALLY CONSISTENT APPROACH IS PROVIDED.

 One gets the impression that, in the view of the DOJ, all of the jpg’s on any page are adequately covered with one Disclosure Statement notice for the page, even though they are “pictures” and “images” or “other matter” as mentioned in the statute, which would make them, arguably, individually regulable matter. They are, of course, individually downloadable in ordinary practice. Nothing in the regulations or official Commentary seems to directly suggest that jpg’s require their own notice, despite the statutory language that includes them. The emphasis of the commentary is on pages rather than on individual depictions

 DVDs, in the opinion of the Justice Department, comply, no matter how many videos or “movies” they contain, with one Disclosure Statement covering the disc. 77448-9. (Though the comments and regulation are silent as to where the Disclosure Statement is supposed to go. In the absence of a regulation, prudence would seem to dictate that it be located at a mandatory place so that it cannot be bypassed, as for example at the beginning of the running continuity or printed on the menu page.)

 At the same time, it seems plain that DOJ interprets the Statute and regulations to require that every online video be treated like a “movie” and contain an appropriate 2257 Disclosure Statement of its own, even, it would seem, when it appears on a page with such a notice, thereby being covered by two.  See, for example, Page 77449.

 Thus, there is no consistent pattern that can be discerned.

Until there is further clarification, the prudent operators will separately cover each video with its own Disclosure Statement in conformity with the regulations. Some web pages contain playing videos that display online, such as streaming live video or Flash video – and their notice should be displayed in a frame as they are displayed and that, to the extent feasible, such a video also be encoded with a notice as required for movies and videotapes. Videos that do not display in the web page should be encoded with a notice in the manner provided for movies and videotapes.

 

19. THE DILEMMA OF INNOCENTLY ACQUIRED OR INNOCENTLY CREATED CHILD PORNOGRAPHY.

DOJ made clear that when the child porn nature of depictions is learned after production, even if the image itself is destroyed, the records must be maintained. In doing so, it appeared to be referring to the records as being something separate and apart from the depiction.

 It is clear that DOJ has really not thought this comment through, because a copy of the depiction is part of the records that must be maintained by law. 75.2 (a) (1) (i).

 The dilemma here is what to do with images that were created or received in good faith and without criminal knowledge that an underage person is depicted. Conflicting legal duties present themselves to the custodian. First, it is a crime to knowingly possess child pornography after one knows it to be that, and generally, it is a good thing to destroy criminal contraband. However, it is also against the law to destroy evidence in a pending criminal investigation about which you are aware, or to prevent its inspection in an administrative inspection that you expect.

 The Justice Department really doesn’t provide an answer to the dilemma, it only points out that whether the image does or does not continue to exist, it is a crime to destroy the records associated with it and it ignores the issue that continued, knowing possession of the child pornography is also a serious crime.

 

Page 77465.

 
20. DOJ STATES THAT ONLINE DISTRIBUTORS HAVE NO DUTY UNDER THE REGULATIONS TO ASSURE THAT MATERIALS THEY DISTRIBUTE COMPLY WITH THE NOTICE/DISCLOSURE STATEMENT REQUIREMENT.

 “Distributor” is a term of art used in the Statute and in the regulations, and it relates to a non-producer who deals in the material. It is never a webmaster who inserts content onto a website or who manages the sexually explicit content of a site, because these individuals are defined under the regulations as at least Secondary Producers. Generally, it has been assumed that distributors of every stripe had an obligation, a violation of which was punishable under Section 2257, to assure that all of the covered material they distributed contained a Disclosure Statement/Notice.

 However, in the Official Commentary on Section 2257 (and in the DOJ online FAQ), Justice goes out of its way to state that a web site Distributor need not comply with the obligations requiring a disclosure statement. Page 77448. Indeed, a very close examination of Section 2257 (f)(4), imposing the obligation of a Disclosure Statement on distributors, shows its text to be narrower than Section 2257 (a), dealing generally with the kinds of images included in the scheme of regulation, and including digital images among them, because the former does not explicitly include web sites, while the latter certainly embraces them.

 It is hard to know whether this is an error that DOJ will later regret and correct or its actual position. The safer course is to distribute no online material that is not covered with a Section 2257 Disclosure Statement.

 
21. OBLIGATIONS OF TUBE SITE OWNERS

 The Justice Department understands that user-submitted posts without site-owner filtering or selection render the poster a Producer and the website a distributor. Page 77439. It is implicit that the Producer of covered materials must affix a Disclosure Statement. The question arises in this scenario from a commenter as to what someone should do who downloads a clip from such a site and uploads it to their own site – wondering if there should be an exception because YouTube, as a distributor, maintains no records. The DOJ answer is more than slightly silly. It notes that the material must have a Disclosure Statement, it suggests that the downloader “should be able” to obtain the records for his/her compliance from the original poster. They make that sound pretty easy. Yeah, right.

 
22. IMPLEMENTED SECTION 2257A, WITH A SIMILIFIED CERTIFICATION PROTOCOL FOR PRODUCERS OF SIMULATED SEX DEPICTIONS AND IMAGES COVERED EXCLUSIVELY BECAUSE THEY DEPICT GENITALS OR PUBIC AREA OR BECAUSE THEY ARE REGULATED BY THE FCC OR ARE DISTRIBUTED IN A MANNER DISSIMILAR FROM CHILD PORNOGRAPHY, WHEN THE ENTITY REGULARLY MAINTAINS EMPLOYMENT IDENTITY RECORDS.

 

Section 75.9

 

23. PROVIDED A DEFINITION FOR “SIMULATED SEX”.

 
“Simulated” means that the work is made with actual human beings and is intended to, and to a reasonable person does, appear as if the performers are engaging in the specified conduct.

 

75.1 (o)

 

* * *

 

The foregoing list of changes and issues demonstrates that many issues and ambiguities remain unresolved and that it contains contradictions indicative of a hasty, time-pressed hand at DOJ, or not-exactly-seamless work by multiple hands in CEOS.

No summary, checklist, or bullet point list can substitute for personal legal advice. I recommend that after reading this document and using the accompanying tools, you contact us for consultation tailored exactly to your issues so that we can help you make the smartest decisions regarding Section 2257, and work with you towards compliance and protection.

             
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Copyright 2009-2011 J. D. Obenberger. All rights reserved.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.