23 Important Points About Section 2257
The New Section 2257 Amendments
by Attorney J. D. Obenberger
week, on January 20, dramatic
changes became effective in the laws which regulate adult content
publishers (including web publishers) and distributors. Some of
Justice Department’s changes go to very fundamental issues that have
the heart both of both industry complaints about the implementation of
2257 and the litigation brought on behalf of industry interests to
it, and one senses that an important purpose of the Justice Department
strengthen the constitutional defensibility of the scheme by making it
reasonable and less obviously obnoxious. Overall, the changes go in the
directions of lightening some of the economic costs of compliance,
many privacy concerns, and limiting the scope of the regulations to the
commercial sphere. The regulations also implement Section 2257A,
less burdensome regime for producers of material outside of the
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
consistent with the statutes that govern the process, delay or prevent
regulations from having coming into effect on that date. Nevertheless,
is being sought by the Free Speech Coalition, inquiring of the Justice
Department its position as to whether the amendments are now in force
effect. Accordingly, the prudent Producer and Publisher will consider
regulations as effective unless or until the Justice Department
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.
The Context of the Changes in
Litigation and Legislation
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
the “Secondary Producer” provisions of the regulations which imposed a
re-publishers to maintain and make available for official inspection
concerning the identity of the original producers and the performers
affix a compliance statement. Denver was chosen because it sits in the
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
class of persons outside the congressionally authorized reach of the
statute. The invalidation of the Secondary
provisions of the 2005 changes was thought to be a sure judicial thing
Free Speech Coalition, and a long series of other constitutional
along for the ride.
Denver court did what it was mandated to do in the 2005 Free Speech
Case: It ultimately restrained enforcement of the then-invalid the
Producer provisions, not on any constitutional grounds, but simply
those regulations, DOJ went further than the statute reached. This kind
invalidation could be undone by Congress by passing a law to expand the
of the Justice Department, and Congress did that in July, 2007 by the
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
– bringing into regulation the previously unregulated depictions of
simulated sex and images depicting genitals and the “pubic area”, as
law also included each page of a website containing covered material
definition of “copy”, thereby requiring it to present a disclosure
statement. It is inescapable that the most
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
federal trial court judge in
Denver granted summary judgment to the Justice Department and against
Speech Coalition in the lion’s share of constitutional issues brought
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”)
amount to an economic burden of dubious constitutionality. It also
that a constitutional issue (precluding summary judgment for the
existed as to whether the then-recent regulatory changes mandating
picture ID raised an ex post facto issue, now criminalizing conduct
lawful when transacted. Finally, it saw a constitutional issue in the
retention provisions because they did not appear to be limited to URLs
under the control of the producer required to maintain records. Each of
issues has found its way into the newly promulgated
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.
October 23, 2007, the a
three-member panel of the Sixth Circuit sitting in Ohio, invalidated
2257 and its supporting regulations, determining that they violated the
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.
judge, too, who dissented from the determination of invalidity, agreed
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
applying to Secondary Producers in the statute to save its
thereby undoing an important part of the Adam Walsh Act.) The others
with the dissenter for a variety of reasons, including a legislative
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,
to me that this panel would have come to a different result upholding
2257, because the most serious unconstitutional obnoxiousness they
found in the
statute related to personal and private images that enjoy an
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
by the photographer. The court seemed appalled that a government
could come in under the law to view video records of the most intimate
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
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.)
convenient review and reference, I have posted a “redline” breakdown
comparing the text of the former regulation promulgated in 2005 with
striking through text which is now deleted
newly added text at http://my.execpc.com/~xxxlaw/2257.Redlined.htm
It is a difficult, intricate, and painstaking task to create such a
regard to a regulation of this length and complexity, lawyers preparing
table may disagree on how best to graphically render a change,
regard to punctuation and spaces, and so it is all but certain that
errors or confusions exist in my redline rendition. If your own careful
examination discloses what you think may be an error in the table,
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.
1. “DATE OF ORIGINAL PRODUCTION” DEFINED TO BE THE DATE OF PHOTOGRAPY.
“Date of Original Production” for
Primary Producers is now the first date of sexually explicit
are now, for the first time, required to create and maintain a record
date. Primary Producers must also create a record of the first date of
photography/videography of any performer who turns 18 during the time
production and specially maintain a record of that performer’s first
sexually explicit performance. A Secondary Producer may not use the
without obtaining these dates and maintaining the record in conformity
regulations. (In the past, Date of Production has meant a variety of
many of which are irrelevant to the age of any performer when he or she
stood in front of a camera for a sexually explicit performance. Now,
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
having recorded another variety of the Date of Production.
Producer clients of this office who are using our Section 2257 Data
forms correctly have been recording that relevant date from the time
was created. While minor changes to the form to more perfectly track
nomenclature of the regulations should be made, and will be made on
clients, the existing form, when used as directed, establishes and
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.
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.
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.
Pages 77437, 77445.
DISCLOSURE STATEMENT TO BE
INCLUDED ON EVERY PAGE OF A WEBSITE THAT INCLUDES SEXUALLY EXPLICIT
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.
6. RECORDS MAY BE MAINTAINED BY THIRD PARTIES.
the new changes, both Primary Producers and Secondary Producers may
their obligation to maintain records and make them available for
the offices of an independent custodian. It is my opinion, based on a
reading of the commentary and regulations, that this obligation is not
a Secondary Producer merely points back to a Primary Producer’s
that such a practice amounts to a crime.
partial explanation, the new provisions do not eliminate the obligation
“maintain”. At least one court has held that the statutory scheme is
to preserve multiple copies of records to avert destruction. The DOJ
also praises inspection by Secondary Producer to effectuate goal of the
elimination of secondary markets for child pornography (Pages 77438,
and points to specter of criminal prosecution in the case that
records actually disclose the existence of child pornography, so
said to be the lawful maintenance of records that would preclude the
access to the records. Such words as “keep” and “retain” and “accept
are also peppered through the relevant discussions in the DOJ
term, “third party”, also used in the Commentary, though not in the
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.
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.
8. REDACTION OF RECORDS TRANSMITTED TO SECONDARY PRODUCER.
Page 77443, 77454.
9. MODIFICATION OF HOW MUCH OF A LIVE VIDEO DEPICTION MUST BE MAINTAINED IN THE RECORDS.
10. DOJ MAKES IT CLEAR THAT A PRODUCER NEED NOT KEEP RECORDS OF URLS OVER WHICH HE HAS NO CONTROL.
11. EFFECTIVE DATES CONCERNING SECONDARY PRODUCERS, SIMULATED SEXUAL IMAGES, AND DEPICTIONS INCLUDING GENITALS AND PUBIC AREA.
The Factors articulated in Dost follow:
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.
13. THE SCOPE OF SECTION 2257 IS LIMITED TO IMAGES CREATED FOR COMMERCE OR TRADE.
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.
15. DOJ CLARIFIES: PIXILATING AN IMAGE IS THE CREATION OF AN IMAGE AND CREATES OBLIGATIONS AS A PRODUCER.
16. DOJ STATES THAT THERE IS ONLY ONE PRODUCER.
17. NECESSARY FORMS OF ID IN OVERSEAS SHOOTS:
18. THE ISSUE OF WHAT CONTENT ELEMENTS REQUIRE THEIR OWN NOTICES IS ONLY PARTIALLY ANSWERED – AND NO CONCEPTUALLY CONSISTENT APPROACH IS PROVIDED.
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.
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.
21. OBLIGATIONS OF TUBE SITE OWNERS
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.
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.
* * *
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.
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 firstname.lastname@example.org.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.