The Empire Strikes Back: FAQs on HR 4472 for Adult Webmasters
The Empire Strikes Back:
FAQs on HR 4472 and Its Consequences for Adult Webmasters
By J. D. Obenberger, Attorney at Law
Summer, 2006 piece was written for public distribution and publication;
it's a distilled version of the Client Advisor sent to my retaining
clients. (Our ongoing, retaining clients receive timely updates via
email when legal news significant to their operations comes from the
courts or Congress. Less frequently, we send out an XXXLAW Bulletin to
those who are on our general mailing list.) This was written in the
wake of the enactment of House Resolution 4472, which had significant
repurcussions that found their way into the Regulations governing
Section 2257, issued by the Justice Department.
This Summer, 2006 piece was written for public distribution and publication; it's a distilled version of the Client Advisor sent to my retaining clients. (Our ongoing, retaining clients receive timely updates via email when legal news significant to their operations comes from the courts or Congress. Less frequently, we send out an XXXLAW Bulletin to those who are on our general mailing list.) This was written in the wake of the enactment of House Resolution 4472, which had significant repurcussions that found their way into the Regulations governing Section 2257, issued by the Justice Department.
On Thursday, July 27 2006, President Bush signed House Resolution 4472 into law, an enactment with profound effects for adult webmasters.
When does HR 4472 Take
Bills passed by both houses of Congress become effective upon signing by the President in the absence of provisions in the Bill that otherwise provide. The definition of those who produce sexually explicit content now includes the class of persons who have been called "secondary producers" in the Regulations. That change seems to take effect immediately. (It is not clear what the effect of Denver Judge Milller's injunction in favor of FSC members may have on enforceability of this provision on FSC members, but as to the other webmasters who are non-FSC members, it seems plainly enforceable now. It constitutionality is a matter that will be challenged as it is enforced, and perhaps before then.)
Section 502 (b) of the Bill provides that the provisions do not apply to the newly regulated class of images depicting the lascivious exhibition of the genitals or pubic area, if they were produced in whole or in part before the effective date of the statute, unless they were previously regulated (e.g. graphic depictions of masturbation or sexual intercourse that do include a lascivious exhibition of a penis and/or vagina.) Webmasters should create strict protocols 1) to assure that pre-4472 images are identifiable as exempt (or just taken down) and 2) to assure that images produced after the effective date of HR 4472 are included in Section 2257 record keeping and are embraced within the required Disclosure Statement.
Additionally, the provisions concerning simulation of sexual conduct (2257A) do
not become effective until ninety days after final rules implementing them are
promulgated by DOJ according to Section 503 (i) (3) of the Bill. Thus, those
provisions are not currently in effect.
Fourteen years ago, In 1992, the United States Department of
Justice promulgated regulations to implement Section 2257 which included a
class of persons called "secondary producers" who used explicit
images but who had nothing to do with their creation. They were charged with
the duty of maintain the same records as though they were a photographer, with
the obligation to provide a disclosure statement, and the duty to make the
records available for inspection. Certain constitutional objections to the
statute and the regulation were rejected by the United States Court of Appeals
for the District of Columbia Circuit in ALA v. Reno in 1995 and the
regulations went into effect shortly afterwards. Eight years ago in Denver, the
United Stated Court of Appeals for the Tenth Circuit, in Sundance Associates
v. Reno, determined that the "secondary producer" obligations
imposed by DOJ's regulations went further than Congress had authorized and that
the record-keeping obligation had been imposed by Congress only on those with a
close connection to the creation of the content. This ruling was never followed
by any other court, and as a result, it was only the certain law in the
mountain states of the Tenth Circuit. As a result of plenty of wishful (or
hopeful) thinking, many – or at least some - producers in the first generation
of adult internet commerce refused to provide Section 2257 records to
webmasters, the webmasters often - or at least sometimes – acquired rights to the
content anyway, and some tried to have it both ways by providing a disclosure
statement referring to the original producer, as was permitted under the
regulations, but not maintaining records as required by the regulations. Many
webmasters with acquired content thought they were fully in compliance with the
law and they simply did not know that the regulations required them to maintain
the records themselves. When the Free Speech Coalition responded to the
Attorney General's newly amended regulations in 2005 with a lawsuit in the
Tenth Circuit challenging the secondary producer obligations - a claim it was
bound to win in the Tenth Circuit - Congress reacted by introducing at least
three bills making it clear that Congress presently intended to impose the
record-keeping obligation on secondary producers. These bills were introduced
both before and after Judge Miller in Denver issued his December, 2005 ruling
which preliminarily enjoined enforcement of the secondary producer requirements
as a matter of authority rather than
constitutionality, following the higher court decision in Sundance. (The Free
Speech Coalition had also challenged the constitutionality of the entire
scheme, including its effects on the creating photographers and videographers.
With one exception relating to maintaining a copy of the
depiction of streaming content, Judge
Miller shot down every constitutional argument he reached concerning the scheme
imposed by Section 2257 and the implementing regulations. He never reached
the constitutional arguments concerning secondary
producers because he followed the authority holding of Sundance – and it’s
debatable whether the constitutional arguments of secondary producers are
different from that of primary producers in a constitutionally significant degree.
Because Congress had the power to make its designation of
authority concerning secondary producers to DOJ clear, Congress could and did
fix the problem affecting enforceability of the secondary producer obligations.
In fact, Congressional attention to Section 2257 was ripe because, through an
oversight in the Protect Act enacted in Spring 2003, the definitions of
sexually explicit conduct contained in Section 2256 were no longer in synch
with Section 2257 and needed to be adjusted. Congress took advantage of that
need for its attention, and in my view, directly responded to the Free Speech
Coalition's lawsuit, by crafting a legislative fix for the situation in the
Tenth Circuit that cleared both houses of Congress and which became law on July
The obligations imposed on Secondary Producers have been
defended by DOJ because they deny a market to child pornography and create
duplicate records in case the primary producer disappears, dies, or blows away.
The inclusion of the previously exempt “lascivious display”
images was defended by proponents as “plugging a loophole” in the Section 2257
system designed to abate child pornography. To others of us, it just looks like
a vindictive neoconservative punch in the nose of the adult industry, responding
to the litigation in
What is the Practical
Effect of the Changes in Section 2257?
The term "secondary producer" never existed in
Section 2257 and is not found in the recently amended statute, either. Instead,
Congress has included the persons who insert images depicting actual,
explicit sex and those who digitize them with a commercial interest into the
expanded definition of the persons who "produce" such conduct.
Congress has clearly legislated that secondary producers are, indeed,
producers. The obligations of the law affect them as much as the guy behind the
lens, assuming the constitutionality of the Statute. It is now clear that
licensing/assignee webmasters must maintain the records and content, publish
the notice, categorize the records, and make them available for inspection. The
essential difference between the categories of producers remains as laid out in
the regulations: The noncreative webmaster acquiring content may accept as
authentic those records tendered by the primary producer and must categorize
them and maintain them for inspection, make them available for that purpose,
and publish a disclosure statement, listing the primary producer or himself (or
herself), at his option. He or she must also maintain a record of the name and
address of the primary producer.
Stealing covered content has always been a violation of the copyright laws – but now it’s a crime to use covered content without the records.
What Should a Webmaster Do to Comply with the Amendments?
A five year prison term is nothing to trifle with.
Webmasters should consult with an attorney specializing in this area and obtain
guidance tailored to their own production and/or publication.
A webmaster should read Section 2257 as amended [which can
be found at http://my.execpc.com/~xxxlaw/18_USC_2257_text.html] carefully, and
with recourse to a graphic version
that illustrates the changes, which can be found at http://my.execpc.com/~xxxlaw/22572006_Redlined.htm.
The entire text of the Act can be found at http://my.execpc.com/~xxxlaw/HR4472_7.27.06.pdf.
Given the commencement of inspections under the Section by
trained teams of agents during the past week and their intimations of a
sustained program of inspection, and in light of the five-year penalty provided
for in the Statute, it would be foolhardy to continue the publication of
covered images that are not documented pursuant to the statute and regulations.
It would be unreasonably risky under these circumstances to license or acquire
covered content that is not accompanied by the mandated records, in view of
Judge Miller's wholesale rejection of the constitutional claims he considered.
Those who have never understood their obligations, and those who never
complied, now face the prospect of pulling content down at the risk of a jail
term. Some who did not understand now do finally understand.
It is my advice to my clients to avoid acquiring rights in
any content that does not come with its papers. Those producers who refuse to
provide the paperwork have justified their position by claiming to protect the
privacy of their models. No one seems to articulate that they are also
feathering their own nests by protecting their exclusivity concerning models
and performers – at the risk of jail time for those who purchase it. Model
releases should expressly authorize the disclosure of records required (on the
face of the law) to licensees and assignees; Acquiring webmasters should refuse
to do business with content houses that put them in jeopardy, no matter how
prominent or well-established.
All of this applies to all covered images, whether they are licensed or acquired expressly on one hand or simply distributed as free content or banners or otherwise. This Act applies to bitstream torrents, to decentralized file distribution, to the newsgroups, and to other web services. It remains wise practice to affix a 2257 notice to all content elements that may independently circulate.
What Else did Congress
do in HR 4472?
Congress went a bit further in responding to the situation
The Act effectively provides that a link to the Section 2257
Disclosure Statement should appear on every
page of every website that publishes covered material anywhere. It’s now a
crime to do otherwise, and that should result in some simple site redesign for
Anyone who did not pay attention last summer, when the Attorney
General amended the regulations implementing Section 2257 should be aware that
he or she is responsible to keep a copy of each depiction and of every URL on
which he or she is publishing the images. The images must be retrievable by
URL. Judge Miller’s decision seems to find that the requirement to keep copies
of lengthy streams may be unconstitutional.
A table setting out all of the changes in the Regulations last
summer – associated with the pertinent DOJ Commentary - can be found at http://www.adultinternetlaw.com/docs/5col.table.htm.
It is best to consult with an attorney in any case – but this is especially critical if you are producing streams.
What other Changes of Interest to Adult Webmasters did HR 4472 Make?
It created a federal felony in the refusal of a producer to permit the Attorney General or his designee to permit the inspections authorized under Section 2257.
House Bill 4472 made it a federal crime to produce obscenity. Though any
competent defense to such a charge will include constitutional attacks on the
statute, this elevates content production to a matter which may implicate a
federal felony for the first time. This is the first new federal obscenity
statute in a very long time. Why did Congress enact it? Probably to give federal
agents a basis for a search warrant on producers who do not publish directly.
Section 702 of the Act creates a federal crime to deceive persons into viewing obscenity through metatags or other coding – punishable by up to ten years in prison – and to deceive minors into viewing material harmful to minors – punishable by up to twenty years in prison. It is time for webmasters to take a very close look at metatags and coding, and under the advice of a qualified attorney, to deal with such terms as “toys” in a manner that eliminates the risk associated with such words.
Finally, Congress created Section 2257A dealing with simulated depictions of sexual acts, a provision which expressly extends a wide discretion to the Attorney General in fleshing out regulations that will precisely describe duties and exemptions, and which will not become effective until those regulations are promulgated.
[Update: The 2257A Regulations have been promulated now and are on the books.]
Isn’t There an Injunction Against Section 2257 Inspections?
There is no injunction against Section 2257 Inspections of
primary producers and the government has started a program of inspections with
specially trained teams. This relief was denied to the Free Speech Coalition in
There remains a preliminary injunction against inspections of secondary producers who are members of the Free Speech Coalition. Non-FSC members are simply not covered. Whether it will long survive or whether it applies to anyone in light of the new statutory amendment remains to be seen.
Isn’t all of this
That will be for the courts to determine ultimately. With one exception noted in this article above, the few courts that have considered Section 2257 and its regulations have rejected each constitutional argument they have squarely faced. While it’s obvious that past performance is no guarantee of future yields (or the lack thereof!), a reasonably prudent webmaster should not place heavy reliance on the unconstitutionality of Section 2257 or its associated regulations generally in conducting a content production or online publishing business. Our universal hope that the scheme falls because of the unwarranted burden it places on erotic expression is no substitute for confidence in the success of that argument, and little consolation to those facing time in the Bureau of Prisons should the statutes be deemed enforceable and constitutional.
Will the Adult
Internet Attorneys Conduct any Seminars or Workshops on These Changes?
On Saturday, August 5, at the hour of 1:00 pm, Joe
Obenberger will conduct a two-hour legal workshop for content providers and
webmasters as part of the AVN Online Internext show and under its auspices, at
the Westin Diplomat Resort in
At the hour of 10:00 on Sunday Morning, August 6, he will participate in the Internext legal seminar together with other attorneys of national stature who serve the Adult Internet. Though it seemed at first unlikely that a seminar held at 10 am on the last day of Internext, a Sunday, was likely to draw a substantial audience, the present circumstances suggest that a standing-room-only audience may appear.
Copyright 2006-2011 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.