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    Section 2257 and Foreign Webmasters

By J. D. Obenberger, Attorney at Law
© MMXII J. D. Obenberger, All Rights Reserved

As a general matter of law, the laws of Congress are not generally presumed to have an extraterritorial effect, and a law will not be construed to work outside the country unless Congress makes it clear that the effect of the law is intended to extend outside the territorial limits the United States. It would therefore appear at first blush that Section 2257 imposes no duty on foreign producers of explicit materials that are created outside the country to acquire identity information and maintain records, to make disclosures, or to make the records available for inspection.

But is that the end of the story?

A European webmaster wrote to me recently: "I already found out that american law (2257) is not applicable for europe. So I don't see 2257statements on european websites." For starters, one does see 2257 Compliance Statements on some Eurozone websites, in fact on the majority of those that I notice, even some in Russian language. Also, the US Government is likely to disagree - because it views the issue from the perspective of the regulation of the US market, without regard to the overseas origin of the content.

In the early nineties, there was a series of lawsuits challenging Section 2257 brought by the American Library Association, referred to elsewhere in this Primer. The ALA won in the early stages and the original statute was declared invalid; Congress amended the statute, and another challenge was made in the courts. The ALA lost this last round after making some very powerful and creative arguments. One of their arguments was precisely the effect of Section 2257 on foreign producers.

The court rejected their argument about foreign producers and affirmed that Section 2257 would apply to material as it is received in the United States: Here is what the United States Court of Appeals for the District of Columbia said in reversing the District Court:

Finally, we reject the district court's complaint that the Act "will effectively ban foreign produced images of sexually explicit conduct." ALA II,794 F.Supp. at 418.  Foreign producers who wish to peddle their products in the United States should be expected to abide by our laws no less than domestic producers.  Compare, e.g., 17 U.S.C. § 602 (1988) (prohibiting the importation of works that infringe on U.S. copyrights).  Although the Government may not have other than a humane interest in protecting foreign children from exploitation, it has a most definite interest in plugging a loophole that would be created for domestic child pornographers if they were able to send their wares to secondary producers abroad for reexport to the United States.

American Library Association v. Reno, 33 F.3d 78, 94, 63 USLW 2188, 308 U.S.App.D.C. 233, 249 (1994)

What the court plainly means is that this is not an example of US law being applied to people in other countries, doing things in those countries. In the court's opinion, when the pornography is imported into the United States, advertised here, and distributed here, it becomes subject to American law no less than the importation of Godiva Chocolates from Belgium or any of the fine European wines and cheeses and automobiles. (I've already received my first gift box of Godiva Chocolates of the Christmas season at the time that I write these words- and it seems to meet all of the US legal requirements for food labeling. Similarly, my German car operates on unleaded gas to meet the US environmental regulations. I have no doubt that Godiva produces chocolates and BMW produces car models intended exclusively for the European market that pay no heed to US laws. Were I a European Pornmeister, I would sell my brand of chocolates in the United States in a United States version, too, that fully complies with US law.)

There may be many Europeans who think 2257 does not apply to them when they make sales in the US market. This belief works to their advantage in the short term because it reduces work. Similarly, not so very long ago, there were some Englishmen who thought that US gambling laws did not apply to them, either, though they accumulated riches through providing online gaming to Americans. Their view was convenient in the short term because it permitted them to market gambling to Americans, an enterprise criminally prohibited to US operators. Eventually, a bunch of them were arrested on US soil in Florida when they changed planes en route to vacations, and they were prosecuted for violation of US gaming laws. At the risk of understatement, their vacations were disturbed. Those European operators who go after the US market without obeying US law are best advised to avoid traveling in or through the United States, and should even avoid the International Area of the airports of the US and its possessions, territories, and commonwealths. So far as I know, there are no extradition treaties with any other nation that include Section 2257 violations. If they park any funds or otherwise acquire assets in the United States, they do so at the risk of civil and criminal forfeiture.

 If the material is entirely used and distributed outside the US, I don't believe US law will apply to require anyone overseas to obey any of the obligations of Section 2257, and this would apply even if US-made content were exclusively distributed overseas by a secondary producer. However, if it is distributed within the US, Section 2257 will fully apply. If you were showing an American porn movie in a theatre in Brussels, and if it contained no 2257 Compliance Statement, the US has no jurisdiction and there is no crime. But on an English-language site, available and not blocked to the US market, taking sign-ups from American credit cards, selling advertising to US companies, and using email to market to US domains? That's importation, and US law applies, in the view of the US. Then the matter goes to the methods the US government will use and whether it will care to issue arrest warrants and enter them into the Immigration and Customs Enforcement computers.

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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 xxxlaw@gmail.com