Handbook on Section 2257 Compliance - Revised 5th Edition


USDOJ Inspected Prime Meat

Handbook and Primer on Section 2257 Compliance - Revised 5th Edition (2012) 

By Attorney J. D. Obenberger 

Revised Fifth Edition © 2002-2012 J. D. Obenberger. All rights reserved. 


History: This work originated in 2002 . The previous 4th Edition was written for and appeared in AVN Online's print Summer Show edition, August, 2006.

This Fifth edition was newly and entirely revised during 2011-2012 for XXXLAW.COM.

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This Handbook (or Primer) is intended to be a practical guide for adult industry professionals and a background briefing for those new to the adult industry. By no means is it a formal "academic" treatise but I hope that lawyers, judges, regulators, and students will find value in this Primer, at least for its refrences and citations to cases, statutes, and regulations, and for its historical overview about how all of them have changed over time. I also hope that it reaches those who shape the formation, interpretation, and enforcement of the law in order to encourage more just and sensible regulation. The author has no loftier goals in mind than these. 

The reader is cautioned that this article contains a summary treatment of the law and that it is the law itself that should be consulted for actual legal guidance, with the assistance of a lawyer experienced in Section 2257. No summary of the law should never become anyone's sole tool for legal navigation, especially when a navigation error can result in a serious criminal penalty. Naturally,  this article does not constitute legal advice or establish any attorney-client relationship. 

We may be reached  at 312.558.6420 or obiwan@xxxlaw.net.



Table of Contents

Chapter I - The Story of How the September, 1984 Penthouse Pet Got to Capitol Hill: Historical Background to Section 2257

A Short Legislative and Regulatory History of Section 2257

The (Nonexistent) Role of Section 2257 In Abating Child Pornography

Why the Regulations Have Misfired

Chapter II  -  Minors Who Use Fake ID -  The Importance of Backup ID and Other Solutions

The "Bieyanka Moore" Case As a Report Card About How Well Section 2257 Works

Chapter III -  The General Obligations of Section 2257

A. Scope and Topicality, Simulations, Nudity and Section 2257A, Videos,  and Penalties for Violation

1. Sweet Dreams Are Made of This

2. But What Does "Lascivious" Mean?

3. Simulation vs. Actual

B. Section 2257A - Simplified Compliance for Simulations and Lascivious Depictions

C.  Penalties

D. Who Must Comply With the Affirmative Duties of Section 2257? Who "Produces?" Who is a "Producer"?

Chapter IV - The Affirmative Obligations of Section 2257

A. The Duties to Identify, Inquire, and Copy

B. The Duty to Create, Cross-Index, and Maintain Retrievable Records.

C. The Duty to Make Disclosure, in the Work, of the Location of Records and the Identity of the Records Custodian.

D. The Duty to Make the Records Available for Inspection by the Attorney General.

1. Inspections Generally - Who Inspects and When They May Knock

2. Section 2257 Administrative Inspections and Search Warrants - Contrasted

3. How to Handle a Section 2257 Inspection

Chapter V - Particular and Special Issues and Concerns 

A.  Sundance and Its Regrettable Progeny

B. The Fine Print About "Managing the Sexually Explicit Content" of a Website

C. Argumentative Section 2257 Notices That Hurt the Webmaster - and the Inevitable Dilemma of Tube Sites

D. Remote and Streaming Banners, Popups, Images and Live Feeds 

E. Does the Law Require a Notice for Each Distinct Video Included in a Website?

F. Foreign Content

G. General Advice About Third Party Custodians and Undocumented Content

Chapter VI - Practical Advice for the Webmaster

Aftermatter 

About the Author

Contact Information

Footnotes


Chapter I

The Story of How the September, 1984 Penthouse Pet Got to Capitol Hill: Historical Background to Section 2257

 The September 1984 issue of Penthouse Magazine was particularly controversial even before it hit the newsstands.  For starters, it contained a nude pictorial of the reigning Miss America, Vanessa Williams, engaging in simulated interracial lesbian acts, taken from a shoot conducted before she won the crown.  This was all over page-one news in 1984, and the ensuing outcry compelled Miss Williams to turn the Tiara back in to the pageant. 

But seeds that would grow into far greater controversy, with far greater societal and legal effects in the adult entertainment industry, existed elsewhere in the same issue, though scarcely noticed for what they were at the time. 

The Pet of the Month in that September, 1984 of Penthouse was a newcomer to modeling who had just recently been “discovered” by a talent agency while sunbathing at Malibu Beach.  She reportedly carried a driver’s license identifying her as the twenty-two year old Kristie Elizabeth Nussman, but, the reports go on, she sometimes called herself Christie Lee Nussman. 

She immediately became something of a phenomenon in the world of glamour photography. In 1984 and 1985, she appeared as the centerfold or in a major pictorial feature at least once in nearly all of the men’s magazines that counted: Penthouse, Oui, Hustler, High Society, Swank (photo credits to the renown Suze Randall), and Club, and she made multiple appearances in some of them as a result of her amazing popularity with the readers. 

During the same year, Miss September was paid $10,000.00 for a four-day shoot of her first hardcore adult video, What Gets Me Hot. The 1985 Adam Film World Directory of Adult Films described her performance with Tom Byron as “erotic and compelling”, and called her an “overnight sensation” in the adult film business. It contained a rapidfire, reload, and fire again scene (with no edit or break in continuity) featuring both performers atop an outdoor, daylight picnic bench that remains legendary. From the beginning, she appeared with all of the biggest names in porn video and she rapidly became a reigning porn starlet of the first rank with an intense national following. Those who saw the tapes say that to describe her performance as merely “enthusiastic” would be to risk serious understatement: Though her looks were a significant factor in her popularity with the viewers, it was her blazing sexual performance on camera that propelled her to AVN award nominations and undisputed status at the top of the heap. She went on to appear in at least 107 hardcore adult tapes before it all came to a sudden and precipitous end in May, 1986. 

Why did the Traci Lords caliope instantly crash to the ground? 

In the first place, her actual name was neither Kristie Elizabeth Nussman nor Christie Lee Nussman, but Nora Louise Kuzma. 

In the second place, she was only fifteen years old when this story began. You would probably know her better as Traci Lords. 

The fallout from the Traci Lords story came fast and furious, and included a round of criminal prosecutions of video distributors, the appeal of at least one of which went to the United States Supreme Court in United States v. Excitement Video, 513 U.S. 64 (1994), a case that established that a child pornography conviction requires proof that the defendant knew that the material depicted a minor. Hundreds of thousands of dollars worth of adult tapes were hurriedly pulled from the shelves of adult bookstores all across America so fast that you could almost hear a collective “thump” as the entire Traci Lords catalog hit the floor in porn stores all across America. For years afterwards, law enforcement agents at every level across America regularly trolled the shelves of adult bookstores looking for stray Traci Lords tapes that the owners had missed. 

The aftershocks reached the Halls of Congress and the outcry was that something had to done. As the old adage goes, when your only tool is a hammer, all of your problems become nails. And inasmuch as Congress had to do something, and all that Congress can do is to investigate and pass laws, investigate and pass laws is what it did. Waiting in the wings coincidentally was an initiative inspired by the Meese Commission that found a timely opportunity for enactment as the Traci Lords debacle hit the fan. The Meese Commission had conducted hearings around the country about the adult industry and issued a Report in July, 1986 recommending the enactment of a statute requiring the "producers, retailers, or distributors of sexually explicit visual depictions to maintain records containing consent forms and proof of performers' ages". Attorney General's Commission on Pornography, Final Report, July 1986, p. 617, Recommendation 37.  

Though she was the centerfold attraction in magazines aspiring to meet the sexual tastes of as large and mainstream an audience as possible, and though those who photographed her and published her images and video reasonably and quite sincerely believed her to be of legal age, what emerged was legislation designed to combat the creation and commercial exploitation of pedophilic pornography, by requiring the inspection and copying of performers’ ID cards, regardless of their apparent age.  No one in Congress or the media seemed to have realized the irony that, had such a law existed when Traci Lords was shooting, because she did possess and use valid (but illegitimately issued) ID, such a law would have had no effect whatsoever as a barrier to such a career as she created for herself. Traci Lords, by her own admission, obtained a valid identification card at the Torrance office of the California Department of Motor Vehicles by using an older, adult woman’s birth certificate. When asked for ID at the time of her first adult professional modeling gig, she produced it to the photographer for copying as casually as she presented it at liquor establishments during the same period.[1]

Traci Lords was never marketed to the pedophile fringe. Instead, she was portrayed as an adult object of sexual fantasy to the mass of American men.  Her age was given as 22 in Penthouse and 23 in Oui at the beginning of her adult career in 1984. She socialized with a very grown-up crowd and had a grown-up boyfriend or two. Innocence, reticence about matters sexual, and inexperience are the exact opposite of what she projected. Very simply put, no one could tell from her looks or performance that she was underage. She came across as a voracious horndog ever on the prowl.

As an epilog to this story, my Associate, Reed Lee, and I stopped in a sports bar restaurant in Baton Rouge for dinner some time in 2007 or so, en route to a case in St. Martinville, La., maybe five years after the first edition of this article was published online, about twenty years after the Tracy Lords matter broke. The décor featured men’s magazines from the past several decades encased and sealed in thick Lucite frames, like framed works of art on the wall. These were full magazines, not just the covers. I noticed the September, 1984 issue of Penthouse. above the booth in which we were sitting. Obviously, no one had any idea that it contained what the law calls "child pornography", material that possessed the potential of putting the operators in a federal prison for five years. What we saw in that sports bar is the essence of the Traci Lords story: she acted like an adult, she was found only in places where consumers expected adult models and performers to be depicted (at least once in a rare while she still does) and that’s why her age flew under everyone’s radar.

A Short Legislative and Regulatory History of Section 2257

Title 18 United States Code Section 2257 was enacted on November 18, 1988, imposing certain obligations on the producers of graphical representations of actual, explicit sexual conduct. The earliest version created no direct and actual crime for a producer's violation of its strictures, but instead,  it attempted to create a presumption that the performers were underage in child pornography prosecutions brought against producers who had not complied with its obligations. Litigation attacking its constitutional basis immediately followed which was brought by the American Library Association; the first version was struck down, and this early success precipitated substantial changes by Congress, resulting in a statute that introduced and still contains stiff criminal penalties for producers who fail to comply with its strictures. [2] The statute has been significantly amended over time [3], chiefly in reaction to further litigation. 

After the early cases involving the American Library Association, a second, later round of litigation followed, brought by the Free Speech Coalition and Connections Distributing, Inc., challenging again the constitutional validity of the scheme; The constitutionality of the core requirements has survived each of the three principal challenges. [4] 

The Attorney General, directed by Congress in the statute to establish regulations for the enforcement of the Section, has three time promulgated a series of regulations found at 28 CFR Part 75. At least once, it  disingenuously claimed that the law could not be enforced at all - even with respect to magazine and videotape works - until it took account of the Internet and digital publication. But the Department of Justice has also significantly amended its Regulations and interpretations in reaction to litigation to save it; in a delayed reaction to the Denver Case, discussed in footnote 4, DOJ ameliorated the early burdensome requirement that necessitated the expensive retention of a full copy of all webcam transmissions and the necessity of disclosing the actual name of even a sole proprietor camgirl/camboy-producer in a Notice, and it ultimately made allowance for hired third-party hired custodians so that small operators need not disclose his or her business address (which was typically also the home address of these small operators who ran their businesses at the kitchen table), as well as other changes. In an apparent reaction to an initial adverse decision of the Sixth Circuit in the Connections Case, discussed also in the same footnote, it authoritatively construed the scheme to apply only to images created for commerce or trade, and not for purely personal purposes. DOJ's efforts to save the scheme can be most dramatically seen in its most recent promulgation of changes to the Regulations and  the official commentary which accompanies them in the Federal Register,  Vol. 73, No. 244, Thursday, December 18, 2008, Rules and Regulations - which announces the exclusion of images made for purely personal purposes for the first time at page 77456

In short, the history of the entire scheme after its initial enactment - the statute and the regulations - has been a constant history of government reaction to litigation. The long periods in which the validity of the 2257 package has been up in the air, including the present period, explains much about why it has never been seriously enforced. 

Textual confusion about the effective date has existed in various editions of the Regulations and even today the Regulations actually conflict with the terms of the statute concerning the effective date. [5]

The (Nonexistent) Role of Section 2257 In Abating Child Pornography

It makes no sense to say that a statute which has been enforced as often and as regularly as lightening strikes can be said to have had any appreciable effect of the suppression and abatement of child pornography.

Commercial distribution of child pornography has all but disappeared from the United States  -  and Section 2257, which has never been earnestly enforced (and which has lead to only an erratic collection of a small handful of convictions - as DOJ admitted it its response to my FOIA request) is entitled to take no credit for that development. The original statute enacting Section 2257 provided for two years imprisonment and it is now punishable by up to five years imprisonment. (Congress raised the penalty from two to five years by the Protect Act in 2003 out of pure spite against the adult industry in the wake of the decision in the Sundance Case, determining that DOJ's "secondary producer" regulations were invalid, increasing that penalty without any history of enforcement or failed deterrence whatsoever.) It was the far more draconian punishments provided in law for the creation, distribution, and possession of child pornography (starting at ten and going to forty years imprisonment on subsequent convictions) and aggressive prosecution of child pornography by all levels of law enforcement that actually accomplished that result in the United States. There also seems to have been an essentially world-wide diminishment of the commercial distribution of child pornography that, from this vantage, seems to closely approach its essentially total elimination as a business; this was undoubtedly accomplished by means of international co-operation among governments and grass-roots law enforcement personnel. But no statute resembling Section 2257 exists anywhere else in the world, and so the approach and inspiration of Section 2257 really can take no credit whatever. 

Because the production and distribution of actual child pornography have always been far more seriously punished than violations of Section 2257, it naturally appears that its only necessary use is to punish people who have made pornography depicting exclusively adults. Moreover, to the extent that child pornography continues to be made and distributed, reported cases tend to suggest that it appears (as an intended product) almost exclusively outside of the commercial sphere, in the purely private sphere, outside the apparent ambit of Section 2257, as the Department of Justice last explained it. 

However, having said that, and without any intended offense to those who toil to have it declared unconstitutional, it does foster a legal and cultural climate in the commercial adult world that at least imperfectly deters some inadvertent production and distribution of child pornography and it collaterally assists innocent webmasters charged with child pornography - and a few innocent downloaders - to defend themselves.  

Why the Regulations Have Misfired

Many factors have conspired to create a miswritten and manifestly impractical scheme that still lies miles away from smart and effective regulation. At the core, it's hard to create sensible regulations for an industry when the authors completely misunderstand that industry and come into the process afraid of ghosts long gone. The Section 2257 scheme still seems especially clumsy because its procedures fit the techniques of Internet operations poorly. 

First, it is obvious that the earliest versions of the statute (1988 and 1990) and the Regulations (1992) were written without any anticipation of digital publication or the advent of the Internet as a medium of distribution. Movies, magazines and videotapes - all expensive to produce and to take to market, and all relatively simple in their structure - were at the center focus of the initial regulations and these simple media framed the approach, structure, and procedures of the Regulations. By contrast, digital production and internet distribution is cheap but complicated, the same material is often distributed and published at the same time to similar markets, the Internet uses nonlinear organizational connections that allow jumps via links in a manner totally unlike the straightforward running of movies or the reading of a book or magazine, and - beyond simple html-driven websites - the Internet uses a wide array of specialized devices for communication, from pop-ups and revolving banners and live feeds at the shallow end of the pool to distributive file sharing networks, social networking sites, twitter, and a myriad of newly developed tools at the deep end - so many, emerging so rapidly, as to make any listing of technologies here instantly outdated before I will see this Primer completed and published. Much of the reason why at least two subsequent versions of the regulations have still so poorly fit the technical structures of Internet distribution is that their core, foundational, and conceptual notions remained unchanged; the approach is still simple and linear. The very simplest example of technical nonfit would be the apparent  requirement [Sections 75.6 (a) and 75.8 (f)] that every individual .jpg image, distributed or transmitted as such, contain a prominent Compliance Statement, a result that is absurdly impractical, which has never, never been enforced in any manner, a violation of which has never prosecuted, and which is almost certainly unconstitutional because of aesthetic intrusion. (cf. the final paragraphs of the District of Columbia decision in American Library Association v. Reno cited below). The DOJ's purposes and its statutory mandate could simply be handled by metadata that is unobtrusively encoded in any .jpg or video file without aesthetic insult, but which is rapidly readable by any image- reading program such as Irfanview or the Microsoft equivalent viewer. If such a solution ever was imagined at Justice, there's no sign of it in the Regulations or commentary. Apparently, over at DOJ, it's never dawned on the Regulators that, if their words were literally applied, each .jpg would require two Notices, one for the discrete image itself and one for the web page as a whole. More about that later. The Regulations simply ignore dynamic allocation of IP addresses in their URL retention requirements - and many other examples of regulations enacted without a thought to the actual media in commercial use can easily be discerned in a moment of reflection comparing the Regulations with how the Internet works. The reality is that digital production and record keeping has been grafted onto the circa-1992 scheme in a manner that seems like an afterthought. The serious and very real danger is that these clumsy regulations may put people in prison for no good reason.

Second, the approach of both the statute and the regulations, from the start, have assumed large-scale commercial production and distribution and ignored the more typical, small-scale Internet operator running a site or cam operation part time from his or her home. But at the same time, it was not clear until very recently, from the official comments of the DOJ accompanying the last batch of revisions in December, 2008 (reacting to the decision of a three-judge panel of the Sixth Circuit in Connections, a decision now vacated.) that the Regulations were meant only to reach materials intended for commerce or trade. Many of us assumed that to be true from the beginning, but it was an untested hypothesis for many years: the text of the regulations was written with so broad a brush as to apparently impose the scheme even on private couples filming themselves. The author of each successive batch of amendments to the Regulations - apparently without much understanding that the economy of adult content distribution had shifted during the Internet years, away from large production houses with deep pockets and towards part-time Mom and Pop low-cost startups, individual camgirls and camboys, and small custom content fulfillment operators - has assumed far deeper pockets to fund elaborate compliance and less of a genuine and legitimate need for privacy than have actually existed. The Department of Justice seemed oblivious to the implications of the Internet for low-cost production and distribution; its regulators seemed to be unaware of a transformation that created many thousands of new, very small businesses in a short time, many of them serving narrowly-defined niche markets composed of relatively small numbers of consumers. I really don't think they ever imagined the real plight of a nineteen-year old camgirl living alone in a trailer, supporting her child, and the real impossibility of compliance regarding the Compliance Statement/Notice, the mandatory hours of inspection, and the vast financial expense of records retention. I don't know that they even suspected that such people exist. I mentioned it to the Chief of the White Collar Crime Section in a brief, chance and random Chicago meeting a few years ago during the Bush Administration - and his response at the time was chilling and hostile, but provides a deep insight into the attitudes behind the Regulations: When I suggested stalkers of such a camgirl and the real risk of death or injury, this Republican appointee asked me, "What makes you think we care?" This DOJ regulatory ignorance - or indifference when confronted with facts that might easily turn tragic - about the industry and the real human beings Justice was charged with regulating explains the formerly-required mandatory disclosure of the custodian's name in the Compliance Statement and the onerous inspection regulations which, at first, required 40 hours, full time availability of the records for inspection, only on the producer's premises, the later 20 hour availability option, and finally, the begrudging and inadequate allowance for third-party custodians off premises and the elimination of the disclosure of personal names in the Notice. In fact, the Regulations required that the location at which the records to be made available for inspection must be a business address of the entity, which in the case of small operators, could only be a home address: the law required that this, too, be listed in the published Section 2257 Notice. Their ignorance at DOJ about the economic realities also explained the original regulatory requirement that full copies of each such webcam girl's programs be expensively maintained for years and years; the magnitude of the cost and its entirely unnecessary burden were clear enough for a trial judge in Denver to recognize, and only then did Justice begrudgingly change the regulation to allow shorter, representative portions to be maintained.  In one particularly ludicrous/bizarre/tragic regulatory moment, once upon a time, the Justice Department assembled a private meeting in Washington, D.C. of a relatively small handful of persons it considered to be the adult industry to explain its efforts to enforce Section 2257; not one of them was a producer using the Internet alone; one important FBI representative at the meeting was reported to have said that his Bureau knew "all 1,200" of the adult producers in the United States! They thought the Industry was basically Porn Valley with a few scattered amateurs. Apparently, no one at that meeting told the FBI that tens of thousands of successful website operators made a living - but had no employees, no office, and operated their sites alone from home. So, DOJ continued to regulate without actual knowledge, like a pilot flying through the fog.

Third, the Justice Department - and Congress - have displayed signs for a long time that, in judging the Adult Industry, they think they are still looking at the late Reuben Sturman and the spectre of organized crime as it was in the Seventies. (If you don't know how the adult industry started on a large scale, read the disturbing story of Sturman's professional life in Reefer Madness by Eric Schlosser, Houghton-Mifflin, 2003.) On some level, the DOJ, has been quite late to understand the rapid and fairly spontaneous grassroots explosion of the adult Internet, a result of its near-simultaneous exploitation by many thousands of independent, smart, savvy, and hard-working individuals financed on a shoestring out of their kitchens. Congress and the FBI and the DOJ lawyers apparently assumed the infusion of Mob cash because they could not otherwise posit how this meteoric rise was accomplished without crime (or the involvement big time criminals). In fact, they were seeing fictive ghosts. The Outfit had established its own pattern of using sex to make money decades years earlier, it was sitting pretty as the Internet era dawned, none of its traditional rackets involved sophisticated computer commerce skills, and there is no evidence - that I've ever seen - that anyone in the Outfit ever possessed enough vision to see  the potential economic rewards of the Adult Internet - until it was too late, after unconnected and largely self-capitalized individuals already had created dominating empires online. Once the Adult Internet and its economy and methods were established, it was too late for organized crime to get a toehold. It's hard to set fire to a website. It would be logistically difficult to send hundreds of semi-anonymous webmasters scattered in widely dispersed geographic locations to sleep with the fish, especially because the Outfit has mainly operated on a local geographic basis limited by its ability to enforce its will. In other words, the traditional means of Outfit control and intimidation were ill-suited to a takeover of this dispersed industry whose operators lived mainly in the shadows without interconnections to other traditional Outfit businesses. This misperception of mob involvement, too, has affected the stringency of the provisions, creating unnecessary burdens on producers - and it also explains incidental references to criminal conspiracies in the text of the regulations [See Section 75.1 (c) (2)]. The existence of this attitude contributes something also to an understanding of the Congressional mood of retaliation and its spirit of hostility, expressed in the Adam Walsh Act, after the Free Speech Coalition lawsuit in Denver, bringing regulation to mere simulations and solo lascivious nudity. The increase in the penalty for Section 2257 violations to five years imprisonment, from two years, in a statute which had almost never been enforced and whose penalties had never been demonstrated to be inadequate for the purposes of deterring violation tends also to document the same hostility and suspicion.

Fourth, the statute and regulations have never limited their scope to regulation of the purely commercial sphere; when Section 2257 was first enacted and when the Justice Department first wrote regulations, they wrote against a historical backdrop of film technology in a world where home video cameras and videotape cassette recorders/players were fairly new, a world in which digital image technology mainly lived in the imaginations and laboratories of engineers, and in which the consumption of pornography was mainly limited to those who visited seedy adult bookstores or ordered by mail. When technologies emerged that liberated consumers from prying and judgmental eyes at photo processing laboratories, when web cameras began to be routinely deployed on laptop computers and in cellular phones, when the possibility of the Internet emerged as a vehicle for relatively anonymous posting and transmission, and especially as our culture was influenced by the dramatic and high-profile rise of ubiquitous online pornography, eventually free and conveniently available to anyone with a computer and Internet connection, a substantial torrent of home made pornography was the result, one never foreseen in Congress in 1988 nor at the Justice Department in 1995. The statute does not directly limit its application to the commercial sphere in its text, though it is arguable that such an intent is vaguely inferable. Issues arising from personal and private domestic production have been a matter of substantial concern to federal judges sitting in Ohio and Pennsylvania who suppose that the stiff penalties provided in Section 2257 may apply to materials made by intimate couples for noncommercial use and thereby impermissibly invade the zone of privacy protected by the Bill of Rights. Only in a very tardy manner, and after federal judges in Ohio articulated their concerns in 2008, did DOJ begin to address these concerns in the Preamble to the promulgation of new regulations in December, 2008, disclaiming an intent to regulate material "intended" for no purpose of "sale or trade"; that this pretended limitation was tactical and addressed to litigation positions alone was made clear by the Justice Department's advocate before the Third Circuit, who, on January 11, 2012 told the Court of Appeals that once such a private video leaves the home it is fully subject to prosecution - suggesting that the intention when it was made is not really relevant after all. And that, of course is nonsensical, because important Section 2257 obligations must be met before production - whereas now DOJ suggests that its applicability depends on conduct that may occur years after production. All of this is even more troubling because the large majority of actual child pornography is made for noncommercial purposes, as even the Meeese Commission acknowledged at pages 604-9 of its Report - and that casts a huge shadow of doubt over the publicly articulated purposes of Section 2257, posing serious questions about its constitutionality.

Finally, part of the explanation of the unnecessary complications and burdens of Section 2257 is that the regulatory scheme was inspired by and arose (at least in part) out of frustration by legislators (and maybe regulators  - in the early years, this motive seemed patent at DOJ) who simply possessed a generalized hostility to pornography as a matter of morality and who wished to create a system of harassment that might succeed when obscenity prosecutions had been less trustworthy means to obtain that result. Fear of that motive, more than anything, inspired litigation by industry groups aimed at Section 2257: most adult industry voices did  not perceive Section 2257 as a legitimate tool aimed at abating child pornography as much as an onerous set of traps designed to harass and catch even the wary and sincere. Whatever may be the real motives behind this scheme, the fears of the industry have not been   irrational in view of the serious complications and near- if not actual impossibility that any operator faces in trying to comply with a scheme that so ill-fits the real technology - and the enormous economic and man-hour burdens implicated  in Section 2257 now and in prior versions of the scheme. 

When the FBI first announced and conducted its short-lived pilot program of about twenty Section 2257 inspections in 2006-7, it asserted that, having no prior statutory mandate to inspect business records, it had turned to the Treasury Department for guidance in how it administered the inspection of records of federally licensed firearms dealers. I am such a former federally licensed firearms dealer. As such, I learned and complied with all of the statutes and regulations on the books. None of them were as costly or impractical to comply with as those now, and in the recent past, imposed on the members of the adult Internet community, none of them were so vaguely and abstractly worded as to require the impossible, and none of them were written in a manner anticipating that firearms dealers were actually a bunch of criminals with ties to other criminals. No Justice Department figure was ever quoted as saying that the market in firearms was one vast criminal conspiracy; but one prominent DOJ official described the adult Internet as one vast, criminal conspiracy. 

It is for all of the reasons set out above that the adult community has surmised the Regulations to be a charade aimed precisely at impossibility of compliance from the start, designed to provide a basis to convict and imprison the best-intentioned - and that is what lies behind the litigation which has ensued.

The sense emerges, especially in the latest round of revision and their accompanying comments from the DOJ authors, that the Justice Department has learned something from the litigation and that it is now, finally beginning to write regulations that anticipate the limited economic and time constraints of small operators - fifteen years too late. If the scheme survives the current round of litigation brought by the Free Speech Coalition in Philadelphia, I anticipate that the government will continue to learn from the defenses, constitutional and otherwise including as-applied challenges, interposed by the defense bar, continuing to amend and reinterpret in line with the decided cases. A stronger and more bulletproof Section 2257 seems to be the inevitable result - if it survives now. Unless or until DOJ and the Congress gut the present structure of the scheme, based on antique technologies, and writes flexible and elastic regulations that address the development of new technologies in a manner that permits reliable and economical compliance, it will be litigating the constitutionality of its regulations, one case at a time, as each new technological development is implemented and as the economic structure of the Adult Internet changes, for the rest of my life and beyond.

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Chapter II

Minors Who Use Fake ID -  The Importance of Backup ID and Other Solutions

To the (unknown) extent that underage minors appear in commercial pornography in the United States, it is almost exclusively because they or others in collusion with them deceive content producers with fraudulent identification documents, just as Traci Lords did. Whether readers of this Primer like or dislike the morals of pornographers, it is a fair observation that no rational businessman, moral or otherwise, will risk fifteen years in prison (where he will be treated by the other inmates as the lowest of the low along with child rapists), risk having his name enrolled on a child sexual predator registry (by which he will be consigned to living in remote trailer parks and under bridges and through which he will lose any chance of living a normal and happy life, so that no knowledgeable adult woman is ever likely to sleep with him again for the rest of his life) and, incidentally, risk his absolute and permanent financial ruination.

In the areas where Section 2257 applies, commercial production and distribution, sufficient deterrents exist to stop businessmen dead in their tracks at the first mention that a performer may be underage. It is not the commercial videographer and webmaster that anyone mainly needs to be concerned about, to abate child pornography in the commercial sphere - it is the aspiring underage porn actresses who come looking for fame, notoriety, or maybe just a quick buck. The one who, like the supermarket cashier in Animal House, like the fast food cashier in Fast Times at Ridgemont High, plans her own sexual molestation. It happens every day in the United States - but only rarely are cameras and videotape involved. It happens far more often in the ordinary conduct of everyday life and romance because underage girls are frequently attracted to an older guy, and so they lie about their ages. The story is as old as the hills and it never ends. 

 A scheme such as Section 2257 does nothing to suppress that because its axe falls only on the neck of the deceived adult content producers, and never on the neck of the deceptive minors, who are always treated as victims. Even when their conduct is frankly criminal and shows signs of great planning and calculation, they remain treated perpetually as the victim. It is unheard of for such a criminal minor to be punished, and that frankly is the direct cause of whatever underage performers appear in commercial adult video. It seldom requires much more calculation and planning than getting into a bar with fake ID. The addresses of the porn companies are all right there on the Section 2257 Notices, courtesy of the law in question. Those Notices and the videos that feature them are freely available to people of every age, courtesy of the Tube Sites, and the pirate boards. 

For five years in the Eighties and Nineties, I was an Alderman, that is a City Council member, of a small city in Chicago's North Shore which then issued 29 liquor licenses annually; my city granted licenses to the only bars between Evanston and Waukegan; so, as Chairman of its License Committee, I learned a few things about ID and underage, largely female, bar patrons; I learned from the police that many underage drinkers simply use ID that was legitimately issued to someone else of legal age who resembles the minor, often an older adult sister or cousin; it's easy enough to get a duplicate by claiming that the original ID was lost or stolen. A certain, smaller percentage of the ID is counterfeit; and some significant number of ID is actually issued to minors on a false claim of being another person of lawful age by use of birth certificate and other confirmatory information associated with an adult. This latter technique was employed by Traci Lords - and "Bieyanka Moore" - more about her, later..

I was told by our local police, during that era, that it was quite uncommon for such an illegal, underage drinker to have more than one ID document identifying her as an adult, but that the large majority of actual adults possessed more than one document confirming who they were. Yet, in one of the more stupidly written parts of the current regulations implementing Section 2257, it is actually unlawful - a crime that can be punished with up to five years imprisonment - to retain copies of more than one identification document (even if it bears a photograph) in a 2257 compliance records. The regulations require one and only one identification document ("picture identification card") if it bears a photograph [28 CFR Part 75, Section 75.2 (a)(1)] and another provision makes it unlawful to include any document in the records not required by the regulations. 28 CFR Part 75, Section 75.2 (e). It is as though some bureaucrat went out of his or her way to interpose a regulation that gets in the way of sincere and authentic verification of age and identity.

In the creation of erotic and pornographic works, establishing proof of adulthood and identity can never become a mechanical reaction to the input of any particular document. The criminal and civil consequences of a mistake - beyond the penalties provided for in Section 2257 - are too great to risk in a casual manner. Instead, establishing adulthood and identity is a considered judgment made by the totality of all of the evidence, using the kind of ID prescribed in the law only as a minimum. This judgment requires a mature evaluation of proof. Beyond the minimum requirement of the law, an evaluation should also 1) take secondary or backup ID into account (and it is the best practice, by far, to always require, inspect, copy, retain, and keep track of additional backup documentary confirmation beyond the ID required under the Regulations) as well as 2) the fact of the existence or nonexistence and availability or nonavailability to produce it when backup ID should seem to exist in the performer's possession, 3) the appearance and demeanor of the performer, 4) the practical ability to know and confirm the appearance and form of ID from seldom-seen jurisdictions (and when suggested by practical doubt, a call to the issuing authority on the ID and examination of the U.S. Identification Manual or an email to a lawyer who possesses a copy, like this firm), and 4) the circumstances of the performer’s life to the extent that a photographer can practically learn them in a reasonable, businesslike manner. I am not suggesting any unreasonable microscopy or proctology nor any footnoted academic research project, just the application of plain common sense and attention to detail commensurate with the very serious trouble for everyone concerned that this kind of mistake can bring - based on a particularized and never mechanical determination.

In making that judgment, the photographer need not operate in a vacuum. This office maintains a bulky binder containing a serial-numbered copy of the hard to get (proof of a legitimate purpose required for purchase) U.S. Identification Manual (that is updated quarterly) and which minutely describes and  illustrates essentially every form of official ID used in the United States and Canada. Our clients get the benefit of its contents. Timely phone calls to state Secretaries of State or other issuing authorities as evidence of your due diligence may have an enormous effect on a photographer's future.

If the goal of preventing the depiction of underage minors is actually to be furthered, the government should do nothing to discourage photographers from collecting, inspecting and retaining copies of a superabundant number of identity-confirming documents. Until this gets changed, I've suggested that photographers should require more than one identification document before shooting, but that the superabundant documents be filed in an "administrative file" exterior to the actual 2257 records. But as you'll see, sometimes even this isn't enough. The facts related below emerge from a series of articles in Miami New Times online, based on interviews and from court documents displayed on its site. The opinions are mine and my aim in writing about it is to get the laws changed.

The "Bieyanka Moore" Case As a Report Card About How Well Section 2257 Works

A chilling story emerged in early-2011 about a seemingly quite adult fifteen-year-old runaway using the name Bieyanka Moore who, taken in and taken off the streets by a Las Vegas exotic dancer, Tyler Chanel Evans, stole the stripper's birth certificate and social security number according to Miss Evans, and obtained a Nevada driver's Learner's Permit; somehow, "Bieyanka" got a New Jersey porn agent who promoted her with a birth date of  November 19, 1990, and booked her to do a hardcore shoot for publication on Reality King's CumFiesta at a McMansion located at 1500 Northwest 118th Avenue in Plantation, Florida on August 13, 2010. (The 4-bedroom-with-pool edifice is pictured in some of the news accounts published online in the Miami New Times; it reports that the home is owned by 1500 Plantation, LLC, registered to Jeff Goldblum, who is also the Manager of RealityKings, LLC.) She then set out to "do a Traci Lords" on a videographer (or at least went along with a plan to do so).

When she appeared for the shoot with only a Learner’s Permit in the name of Tyler Chanel Evans, but bearing her own photograph, the photographer, using more caution than is provided for in the law, required her to produce a second form of ID, which she did not possess. ("Bieyanka" displayed a tattoo; in Florida, "recreational" tattoos cannot be lawfully applied to the person of a fifteen-year-old.) The Miami New Times news accounts, based on court filings and interviews, don't say where she got the idea, but she then apparently proceeded with her agent to the Social Security Administration to obtain an Employment/Contributions Abstract whereupon she returned to the photographer at the mansion. The Nevada permit was run through the photographer's "verification scanner". (I wish I knew more about that device, but it appears to be a device that can read a magnetic strip to determine if its data matches the printed identity information.). Only then did she get to do what she came there to conclude. (As previously related, any photographer would be facing 5 years in prison under Section 2257 if he dared place the Social Security Abstract in his mandatory Section 2257 official records, a dumb law if I ever heard of one.) Even a photographer’s self-imposed requirement of two forms of ID could not deter a tattooed 15 year old juvenile runaway who was hell-bent on making some money by creating a video record of her own statutory rape. (Under the law of Florida and many other states including New York and Utah, it is not a defense to statutory rape (under whatever more politically-correct name by which that crime may now be labeled in Florida or any other state) that the assailant possessed an honest, reasonable and well-founded belief as to the majority of the victim, no matter how thorough his investigation to confirm the victim's representations of adulthood was; his good faith belief counts for nothing in the law of these retrogressive jurisdictions. Now at issue in the Florida litigation involving "Bieyanka" is whether good faith mistake will affect liability in a civil lawsuit such as was filed here.) The video seems to have been created by "LLL, LLC" and was published by Reality Kings. The edited product went live on the Internet and appeared for at least a short while on the CumFiesta site, long enough for it to be downloaded and posted to the Pirate Boards, the posters and operators of which, of course, pay not a whit of attention to Section 2257's requirement that, if they insert a video or videocap on a web page that depicts actual, explicit sex or otherwise manage its sexually explicit content, they break the law unless they are in possession of the appropriate records mandated by law, either created by themselves or obtained from the photographer. Some of them do care about child pornography laws, though, and the video did eventually disappear from most - but not all - of the Pirate Boards after the backstory hit the adult trade journals. The video capture stills took much longer to start disappearing.

According to the court pleadings of RK, a tip came in about her insufficient age shortly after the video was published; they claim that they called Nevada to verify the authenticity of the Identification document, they took the video down immediately and (smartly!) called the FBI to report their deception. We don't know when the runaway (and/or people really close to her) got the idea of creating a second revenue stream because, you see, like all minors,  "Bieyanka" was the victim of child pornography exploitation by the adult industry in the way of statutory rape, sexual battery, etc., as the grandmother's court documents relate the circumstances.  The runaway's mother, Palm Beach Shores resident Sherrita Smalley, hired a lawyer and filed suit based on the victimization of her daughter - that's how this story became public. Miami New Times also reports a lawsuit against Moniker Privacy Services for covering the identity of the owners of the pirate boards which continued to publish outlaw copies of this child porn video even after warnings about its illegal nature were posted on threads associated with its publication. It's unclear what happened to that lawsuit. Inasmuch as a minor has no capacity to enter into a contract, any releases that may have been signed are worthless, and so every publication of the CumFiesta video amounts to a violation of her right to privacy, particularly what is called the right of publicity. One will suspect that considerable coin may wind up in Sherrita's pocket, and maybe some of it will even get to "Bieyanka".  

Imagine that! A short time - perhaps only hours after the video goes live on Cumfiesta - there's a "tip"; and then, shortly after, when it appears on pirate boards, there's a "warning" out of the blue that she's underage. Geez, one wonders who might have been watching all of that so closely, and one wonders who had something to gain by waiting until it was published and then establishing a point about "Bieyanka's" true age. I do hope that the IP's of those "warnings" were logged and that the FBI devotes some attention to the identity of the phone tipster, too. And the uploaders, too, who seem to have been watching Cumfiesta's updates with unusual attention; and it's sure possible that one of them just maybe could or might have had an interest in establishing damages to be awarded in litigation. Any good investigation might include an FBI pen register request or judicial warrant or an administrative order for records of outgoing calls from certain telephone numbers that just might possibly confirm the identity of the tipster. Might there just be, maybe, possibly, way down in the shadows, a criminal conspiracy behind this story, one that does not include RK or LLL as knowing participants. Do you think? At this point, it's no more than a series of questions, but they are questions that really deserve an answer. (I wish to note that it is neither easy nor inexpensive to remotely gain access to the litigation file in Miami. The Court has dismissed the Complaint and leave - that means permission - was given to the Plaintiff to replead within 90 days - and I can find no online indication that this has been accomplished in a timely fashion. The actual status of the case now is a bit murky as I write and it may already have played out behind closed doors.)

You can see comparative photos of Tyler Chanel Evans and "Bieyanka Moore" (as depicted in a picture of the runaway provided by her grandmother to Nevada Child Seekers and the Bieyanka Moore Myspace Page) to assess the resemblance here and here

I should add that no one is reporting or alleging that "Bieyanka" was depicted with any appeal to pedophilic interests or that she appeared with pigtails in a schoolgirl costume nor that the action took place in an oversized playpen filled with stuffed animals, and as the old saying goes, if the ad doesn't mention a two-car garage, you can safely conclude the advertised house doesn't have one. You can bet that if she was even arguably portrayed in the video as underage, it would be alleged in every page of the Complaint.

According to the same news source, when the articles were written, "Bieyanka" was languishing in Nevada custody facing charges arising from, at least, possession of false ID. Before getting to South Florida and becoming victimized by the porn industry, as her mother would tell the story, the runaway who became “Bieyanka Moore” got arrested for possession of a stolen vehicle and grand larceny. But Florida law teaches us to keep in mind that she’s the victim of sexual predation whether or not she stole from Ms. Evans, whether or not she lied at the Nevada DMV, whether or not she was guilty of PSMV and grand larceny, whether or not she lied at the Social Security Administration, whether or not she sported a recreational tattoo that only adults can obtain in Florida, and whether or not she lied at the mansion in Plantation. This matter, please remember, will not play out in a court of justice, it will play out in a court of law.

This tells the story of just how well Section 2257 works when honest people with no desire to create child pornography actually exceed the requirements of the regulations - and risk a write-up from the DOJ and maybe a criminal conviction - for their diligence if the extra records wind up in the compliance file. Section 2257 failed here even with superabundant effort surpassing what the law requires. It's clear that those who wrote Section 2257 and its regulations were thinking only of the conduct of adult photographers and producers; these laws are written to make sure that the adults had a duty to inquire about age and identity and to document that inquiry and tie it to all product. So far, so good. But no federal law addresses the other half of the problem, the problem of aggressive, deceptive minors who themselves engineer the illegal creation of child pornography. As the United States District Court for the District of Columbia observed long ago,  in 1989 in striking down the first version of Section 2257: 

[T]he record-keeping requirements . . . do little to alleviate the problems associated with the incentive of both producers of pornography involving minors and performers under the age of 18 - such as teenage prostitutes and runaways - to falsify the age of the performers through false identification and other means. The requirements do nothing to stop publishers and film producers from being fooled by false identification . . .

American Library Association v. Thornburgh, 713 F.Supp. 469, 479 (D.DC., 1989) (Later held moot after Congress amended the statute.) Any scheme of laws designed to effectively abate child pornography must address the misconduct of minors, too. Section 2257’s system of disclosure statements, records, and inspections betrays a short-sighted view of the prevention and abatement of child pornography because it has no impact on underage models driven to create images of their private parts and sexual conduct; no one in 1988 dreamt that these underage kids might reach a world-wide audience, alone and live from the privacy of their bedrooms in 2012, but they do reach that audience today on the roulette chat sites and otherwise. The practice of underage boys and girls, armed with digital cameras, laptops, and an Internet connection, making and transmitting graphic and explicit sexual performances has become so widespread, so common, that numerous state legislatures have now amended their child pornography statutes to make special allowances for them. Seemingly, the fastest-growing segment of child pornographers is the kids themselves. Government-produced public service spots on radio seem to be the only conspicuous vehicle used by government to deal with it. 

Section 2257 does nothing to stop fraudster underage models sophisticated enough to carry a fake ID. No one knows the number of young women and girls who, using fake ID or ID that does not belong to them, get served liquor and beer in American bars every night - and no one knows how many of them are fifteen, sixteen, or seventeen year olds - and no one knows how many of these underage girls are drinking in the bar to cap off a day making porn and paying the tab with porn money. Nobody knows how many of them are going home with guys in their twenties or older, or why girls of every generation seem to do that, but it's been going on for a long time. We may never know those things, but neither the Traci Lords story nor the “Bieyanka Moore” story does much to inspire confidence that the system comes close to effectiveness in accomplishing its articulated purpose - because of what it ignores, the conduct of minors - conduct, including deception, that has become a substantial enough part of the world of child pornography to regularly appear in the news. On January 6, 2012 the story of a fifteen year old runaway, an American citizen, who used a false ID identifying her as a 21 year old illegal alien when she was arrested for shoplifting, and who was then turned over to ICE and deported to Columbia, was all over the news. It's a plain fact that underage kids use fake ID on a regular and unremitting basis for a myriad of reasons, and they always likely to do so. The enactment of Section 2257 ignores reality, it ignores the misconduct of minors, perceiving them only and exclusively as victims even when these underage criminals are the only fraudsters responsible for the creation of child pornography. The law ignores that side of the issue entirely.  The technical way of saying that is that the statute is seriously underinclusive and that may have implications about the constitutional validity of the scheme. 

It is hard to discern the mind of the bureaucrats who wrote these regulations. Until the latest revisions became effective in January 2009 (only after this author had earlier submitted comments when a proposed rule change earlier was pending,) these regulations did not anywhere require anyone to record the actual date of photography, making the mandated records semi-useless to establish whether child pornography was knowingly created. At a bare minimum, the regulations associated with Section 2257 should not act as a barrier or impediment to obtaining as comprehensive a set of documents establishing age and identity as it is possible to create, and if the scheme survives litigation, the regulations should be amended to permit a producer to file and retain as much evidence as he/she can obtain to establish these important matters. Moreover, if the scheme endures litigation, a federal crime carrying a five year penalty should be enacted against the use of false identification by a minor performer to secure employment or engagement in depictions of actual or simulated sexual conduct. 

The creation of such a crime will also serve to deter adult models who, after doing a shoot and getting paid, falsely claim to have been underage in an effort to extort  photographers into taking down or abandoning plans for content that these young adult models regret later. That adult photographers sometimes become victims of predatory models simply does not appear on the DOJ radar, but people who are serious about abating child pornography need to start to understand the causes of the problem in three dimensions. 

The very best that Section 2257 can ever accomplish is to deter the knowing creation of child pornography by adults. There is something positive to say about Section 2257 from the perspective of content producers, however. It’s unlikely in the extreme that anyone from RK or LLL will be indicted on federal child pornography statutes and that’s because, in complying with the law and by actually going further than what Section 2257 required, they established easily- and rapidly- retrievable documentation establishing their honest and well-founded belief that “Bieyanka” was adult. That belief is a whole and entire defense to the federal child pornography statutes; the existing system functions well to coerce photographers to regularly produce and retain good evidence of innocence, a point that should not be neglected among the complaints about the burdensome nature of this system. It has been my experience that, at least from time to time, there have been serious, potential child pornography charges that were been nipped in the bud when law enforcement came knocking on the door, without any prior notice, to inquire about a minor; one Illinois Deputy was quoted as saying in astonishment, when he was shown an organized three-ring binder created for Section 2257 purposes, “Damn. You mean there are federal laws about making this stuff?” Good records can save lives and careers, and one of them may be your own.

(The Bieyanka Moore case may also suggest that a best industry standard should be the mutual examination of ID documents among the performers, too. In many, but certainly not all, of the states, a reasonable and well-founded, sincere belief of adulthood may amount to a full and complete defense to a criminal charge based voluntary sex with a juvenile. That defense is certainly strengthened by the defendant's examination of his co-performer's ID establishing his or her adulthood.)

Everyone understands that minors lack the capacity to enter into contracts. But, in general, they are liable for their torts. And it makes me wonder why a counterclaim for fraud and conversion by false pretenses against "Bieyanka Moore" has not been filed. Maybe it's in the pipeline.

It's time that lawmakers display a grown-up understanding of the real world and recognize that only in Nineteenth Century fantasy fiction are the females all exploited victims and the males all exploitative predators. A real and three dimensional recognition of how child pornography gets created will understand the role of late-teen criminals who defraud honest videographers for quick cash and who sometimes victimize them further by blackmail and unjust lawsuits. There is no room for that reality in the two dimensional, jingoistic, morality-play distortion of reality in which the lawmakers and bureaucrats think, legislate, and administer laws.

One might also observe that this case should inspire the legislatures in Florida, New York, Utah, and other jurisdictions to conform their statutory rape statutes in line with basic fairness and decency. Our prisons were not built to punish men who have sex with females who say they are adults, look like they are adults, display tattoos legally applied only to adults, get charged with possession of a stolen car and grand larceny, and use two government issued-documents to misrepresent their age and identity to men whom they are scamming for money under false pretense.

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Chapter III

The General Obligations of Section 2257

A. Scope and Topicality, Simulations, Nudity and Section 2257A, Videos,  and Penalties for Violation

Title 18 USC Section 2257 is a part of the United States criminal code and imposes certain obligations on the producers of material containing depictions of actual and simulated "sexually explicit conduct". The statute states that it applies to images made after November 1, 1990, the regulations provide for an effective date of July 3, 1995 and they provide an even later effective date of March 18, 2009 for works covered under this scheme only because they contain depictions of simulations or lascivious depictions of the genitals or pubic area. Such mere genital or pubic depictions were not subject to Section 2257 regulation before that date. [6] (Anyone publishing material with a claim of exemption because of its prior date of creation should possess evidence of the date of creation. The regulations provide for an "exemption statement" but its use is not mandatory.)I use quotation marks around the expression "sexually explicit conduct" because it is a term of art that includes the lascivious exhibition of the genitals and pubic area, a notion that probably would probably not arise in most people's minds from those words. 

Section 2257, defines the significant term "actual sexually explicit conduct" at Section 2257 (h) (1) to mean "actual but not simulated conduct as defined in clauses (i) through (v) of section 2256(2)(A)". Section 2256 (A) (2) lays it out:

(2) (A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;



1. Sweet Dreams Are Made of This

The argument that (iv), "sadistic or masochistic abuse" is unconstitutionally vague has been raised in opposition to the statute and has been roundly rejected by the courts. My own attitude is to recommend compliance whenever these terms are psychologically implicated, even when the videography depicts only verbal abuse or humiliation, because it will not be difficult for the US Attorney to find a truthful psychiatrist or psychologist able to testify as to the sexual or quasi-sexual stimulation verbal abuse can afford an individual sensitive to it. But I really wonder about the absurdity of this definition when I ponder what might amount to simulated verbal masochistic abuse, or for that matter, a simulated lascivious display of the pubic area.

2. But What Does "Lascivious" Mean?

The definition provided in (v) is particularly dangerous, because, the same language, in the context of child pornography, has been construed to include depictions that show no nude view of the genitals or of the "pubic area", but in which the videographer concentrated his field of view on this part of an underage performer's fully clothed anatomy in upholding a child pornography conviction. United States v. Knox, 32 F.3d 733 (6th Cir., 1983). The decision of the Sixth Circuit does not even allude to "camel toe" or any other patent external evidence of the genitals. The Justice Department is fully aware of Knox and cited it during the most recent promulgation of regulatory amendments in December, 2008, at pages 77433, 77438, and 77440. What is the "pubic area"? It would probably not be overconservative to understand the term to include that portion of the body ordinarily covered by the bottom of a swimsuit. It is not a firm certainty that the words "lascivious exhibition of the genitals or pubic area of any person" will be given the same reach outside the context of child pornography, especially because this tortured reading would seemingly require the Section 2257 or Section 2257A regulation of many billboard advertisements for travel, tanning lotions, and sportswear and because, frankly, society has differing tastes concerning what may be lascivious in regard to adults and children, but until some hapless soul gets prosecuted under this interpretation for non-nude pictures of adults that contain no sexual depictions and prevails, abundant caution in the direction of compliance should be applied, even for non-nude swimsuit imagery, as absurd as that appears to me. If the Justice Department is writing about it, it is thinking about it, and if they are thinking about it, as crazy as it sounds, they just might prosecute a photographer for failure to comply with Section 2257 in connection with an adult fully clothed in a swimsuit.

Indeed, it is relatively unclear what a "lascivious exhibition" means even when adult pubic area or genitals are patently visible

In the context of child pornography, to which this language was originally addressed, and then borrowed for application to define the scope of Section 2257, there are a loose and elastic set of tests in the case law; the six factors set out in the Dost case have received the widest recognition and the "Dost Test" of the District Court for the Southern District of California has been adopted and widely cited in many, if not all, federal circuits. United States v. Dost, 636 F.Supp. 828 (S.D.Ca., 1986). As you will see, not only do the factors explicitly mention the context of a child, but some of the factors themselves seem far more informative about the issue of lasciviousness or the absence of it when children are involved than they do concerning adults: 

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.

What insight would 3) provide when applied to an adult? What would 5) mean concerning a 25 year old? And think about 6) and what it would mean to the swimsuit edition of a well-known sports magazine. In fact, given the healthier attitudes that prevail today concerning the wholesomeness of our sexuality, and greater open recognition of the naturalness of sexual attraction, I think that it is quite difficult or impossible to know what "lascivious" actually means. It is difficult to see how these factors inform the decision as to the lasciviousness of adult imagery even as approximately as they can for judging alleged child pornography; in that context, perhaps only conventional family baby pictures (at least in some families, I guess), classic nudist images, and the art books published in Europe by Taschen and sold by at least one large chain bookstore enjoy much security from prosecution. (The FBI spent a long time looking at two highly respected photographers of adolescents and kept them in suspense for at least a decade, though charges were never brought.)  Is the range of adult fare quite that restrictive before Section 2257 applies? That's unclear. My feeling is that even should the Dost Factors be rejected by the courts  to judge lasciviousness in adult imagery, it is unlikely that any court will hold that the statute is unconstitutional on account of vagueness because the term is not specifically defined in the statute or the case law; I believe that courts will be inclined to consider that the concept is incapable of precise definition, but its meaning is plainly known among us - in the same way "prurience" is handled in the obscenity context when due process vagueness challenges are asserted. Sure. That really helps in making multimillion dollar commercial plans! Despite what Congress has said, they may in fact have used a term that is actually meaningless as to adults. However, the only safe course is to handle all erotic nudity which is an object of commerce in the adult sphere, and which displays even the pubic area, as material that is covered by Section 2257's regulatory machinery - to play games about whether the images are truly lascivious or "merely artistic" may be a desperate move to be saved for last-ditch, final defense when few other defenses, if any exist. Simply treat all of the images as covered. Indeed, given the fact that the lascivious depiction of the breasts of a minor amounts to child pornography, a very serious crime, it is prudent to comply with Section 2257 or 2257A even when nothing below the navel is depicted. In consideration of the cautionary object lesson taught by the Knox case,  it's wise to keep the records and otherwise comply even in swimsuit photography.

3. Simulation vs. Actual

Section 2257A diverts works to a milder regulatory system if they contain at least one depiction of only simulated sex or lascivious genital/pubic nudity (and no other kind of included depiction )and certain specified conditions are met. They each work under penalty of criminal prosecution and the imposition of different criminal sentences. 

Neither of these provisions imposes any record-keeping or inspection obligations on persons who are not producers. More about that later. They do impose a labeling/disclosure requirement on both producers and distributors. More about that later, too.

They cover the waterfront of all works containing at least on depiction of actual or simulated “sexually explicit conduct”: those expressions include all varieties of sexual intercourse, vaginal, anal, or oral, straight or gay, and bestiality, masturbation, and sadistic or masochistic abuse. Works containing merely simulations of those things and/or merely lascivious genital and pubic nudity are regulated under Section 2257 if they were made after March 18, 2009 unless the procedures of Section 2257A can be and are complied with.

The determination of whether Section 2257 applies to images that do not clearly display penetration or the other covered activities seems simple: If it was really “going on”, the Section applies, even if the actual sexual conduct can’t be seen in the image, due to obscuring, covering, or any other reason, because it is an image of humans doing the things mentioned in the statute. (There are compelling and eminently practical reasons why that the wise content provider should harvest identity documents and information in every graphic depiction of erotic nudity or semi-nudity, whether, strictly speaking, required by the Statute, or not, and should maintain them as though covered by the Statute. One of the chiefmost reasons is that, once a performer is paid, some of them demand a takedown of their images with the false claim that they were underage at the time of photography and that their signed release was executed without capacity to contract. Moreover, the FBI and state authorities have prosecuted numerous "teen model" photographers who exploited underage girls in non-nude but lascivious images. It pays to obtain and acquire evidence that you only shoot grownups.) It does not include text, cartoons, or animations of any kind that are made entirely without the depiction of actual human beings. 

Actual” means just what it does in everyday English. What amounts to a “simulation” is tightly constrained in the regulations; it requires more than the suggestion of sexual conduct; it means “conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so.” Sec. 75.1 (o).


B. Section 2257A - Simplified Compliance for Simulations and Lascivious Depictions

Title 18 United States Code Section 2257A and Section 75.9 of the Regulations establish a much simpler regulatory scheme for producers who shoot only simulations and covered nudity. If they can comply with the requirements laid out in those provisions, they are excused from the onerous requirements of record keeping, inspections, and Notices. But if they cannot comply, their activities are governed by Section 2257 and they face the same criminal penalties to which any producer of actual, explicit hardcore depictions is subject. If the content is intended for the purposes of commercial distribution and its production is part of a commercial enterprise, and - either the work is subject to the indecency rules of the FCC or it is not distributed or produced in a manner that suggests it is child pornography - and the chief executive or another executive of the business in charge of the production certifies in a written letter to the Attorney General - that it maintains a regular system of individually identifiable records that reflects identity, name, address, and date of birth, pursuant to tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, and that it has taken reasonable steps to confirm that the performers in any depictions that may potentially constitute simulated sexually explicit conduct or lascivious exhibition of the genitals or pubic area of any person were not minors at the time the depictions were originally produced, then it need not comply with the more complicated records and notice and inspection requirements of Section 2257 and the Regulations from Section 75.2 through Section 75.8. “Reasonable steps” for purposes of the certification to the Attorney General  may include, but are not limited to, a good-faith review of the visual depictions themselves or a good-faith reliance on representations or warranties from a foreign producer. The Certification must include a recitation of facts explaining the basis for proceeding under Section 2257A.


C.  Penalties

Failure to comply with the obligations of Section 2257 is a felony punishable upon the first conviction by up to five years confinement and a fine, and five to ten years and a fine on a second conviction. A person may be convicted for violation of the statute because he or she fails to comply with the affirmative duties of identification and inquiry, record keeping, and disclosure imposed by statute or regulation, or because he or she knowingly makes any false entry in those records, or in interstate commerce or foreign commerce, sells or otherwise transfers without a “custodian of records” statement, any of the material specified in the statute which is required to bear such a statement. It is also a crime punishable in the same manner to remove any of the compliance statements attached to the work or to refuse an inspection conducted under the statute. Finally, it is a crime  to produce false records to an inspector who knocks on the door to conduct a Section 2257 Inspection.

At five years per violation, and many possible violations arising from any particular image, video, record keeping scheme, or inspection, it is easy to imagine the operator of several sites facing multiple charges that, if proven, would keep him or her in prison for the rest of his or her natural life. This is true even if the performers are all in their fifties or older. In the appropriate case, an argument may someday prevail that this amounts to unconstitutional cruel and unusual punishment because of the disparate and lesser punishment that the law provides for those who knowingly create and publish actual child pornography.

A simple violation of Section 2257A is punishable by up to one year confinement. A violation with an intent to conceal an underlying offense “causing, transporting, permitting or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of this title, or to conceal a substantive offense that involved trafficking in material involving the sexual exploitation of a minor, including receiving, transporting, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic” can be punished by up to five years imprisonment. A repeat offender under that latter language can be sentenced up to ten years imprisonment with a minimum incarceration of two years. Any violation of this Section can also be punished by a fine. Title 18 U.S.C. Section 2257A (i), subparagraphs (1), (2), and (3).

D. Who Must Comply With the Affirmative Duties of Section 2257? Who "Produces?" Who is a "Producer"? 

Title 18 United States Code Section 2257 (h) defines the term "produces". These include persons who actually create an image or video depicting an actual human being or digitally manipulate it (think Photoshop), (2)(a)(i), "digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing, a book, magazine, periodical, film, video tape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct", (2)(a)(ii), or inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct, (2)(a)(iii). 

Thus, one produces by 1. creating or doctoring up such an image, 2. digitizing or publishing or manufacturing one of the described items with an intendment of commercial distribution and an interest in it, or 3. inserting one of the covered images on a website or other Internet service.

Then, certain exceptions follow. They include certain technical contributions such as digitizing and photo finishing and copying with no other financial interest in the product, (2)(b)(i),  distribution (2)(b)(ii), other activities that do not involve contracting or arranging for the performers (2)(b)(iii), providing a cell phone, Internet, or search engine service (2)(b)(iv),  hosting or transmitting content without alteration, though this exception is not lost for removing indecent content under Section 230 (c) of the Communications Act. This provision does not particularly provide protection if material is removed for copyright violation. More about that below. "Distributing" a covered image or "Disseminating" (without creating, altering, or selecting) are not activities that make one a producer. Section 75.1 (c) (4) (ii) and (iv). It is not by any means clear what the difference between these terms is, and while it seems clear that what a social networking site does is exempt from the obligations - and the DOJ said so in the Comments accompanying the promulgation of the Regulations in December, 2008, as is detailed here elsewhere - it looks as though the language concerning dissemination may be a backdoor attempt to qualify and limit the scope of Congress's exemption of those engaged in distribution. 

The Regulations provide for two kinds of producers - the first of these are the Primary Producers, those who create covered content. (The Regulations, at 75.1 (c) (1), define a Primary Producer as  "any person who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.")  The Regulations go on to specify that when a corporation or other business organization is the Primary Producer of any covered material, then no individual employee or agent of the entity will be considered to be a Primary Producer of that content.

The second kind of producer under the Regulations is the Secondary Producer. His or her or its involvement with the content is in the nature of mere publication or use and the expression includes those who merely contract or otherwise arrange for its creation. (The Regulations, at Section 75.1 (c) (2) identify a Secondary Producer as a person "who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing" and similarly goes on to provide that when a corporation or other business organization is the Primary Producer of any covered material, then no individual employee or agent of the entity will be considered to be a Primary Producer of that content." 

A Primary Producer is required to comply with all of the provisions of the Section 2257 regimen, and his obligations are distinguished from those of a Secondary Producer mainly in only three respects: First, only the Primary Producer is obliged to inspect the original Identification Document; second, the Secondary Producer need not create the records, but may, in lieu of creating them, accept them from the Primary Producer; and third, the Secondary Producer has an obligation to maintain a record of the name and address of the Primary Producer (Section 75.2 (b)).

In official comments promulgating the last revisions to the Regulations, in December, 2008, at page 77472, DOJ explained the duties of Secondary Producers: 

A secondary producer is not required under the rule to check identification documents. That is a responsibility only of the primary producer. A secondary producer may  risk child pornography offenses, however, if he does not take steps to assure himself that the performer is actually of legal age. Nonetheless, the secondary producer is required by the final rule only to retain records. [Author's Note: That's of course without prejudice to the Secondary Producer's other obligations, including publishing a Notice, retaining a record of the Primary Producer's name and address (Section 75.2 (b)), and to make the records available for inspection as the Regulations and Statute provide.] 

A person may be both a Primary and Secondary Producer. Section 75.1 (c) (3).

[There is a full discussion of the now-irrelevant Secondary Producer issues that arose from the Sundance Case below, in the Chapter V, Section A. and C.  of this Primer, and at footnote 10 for historical purposes.]

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Chapter IV 

The Affirmative Obligations of Section 2257

The affirmative obligations of 2257 are four in number and may be summarized as follows: 

A. The Duties to Identify, Inquire, and Copy

The producers of visual depictions which depict or simulate "sexually explicit conduct" (as defined) made within the United States (or offshore when U.S. citizens are depicted) are required, "prior to production of the depiction" [§75.2 (a)(1)], to obtain, examine copy, and retain a legible, valid picture identification card [7] issued by the United States (or under the authority of one of the states) bearing each performer’s recent and recognizable photograph, name and date of birth (and such information necessary for the issuing authority to confirm its authenticity), and to make a record of and maintain  the name and date of birth of each performer as derived from that document before photography commences. When the production occurs outside the United States, exclusively in the case of non-US performers, any governmentally-issued picture identification card from any government may be accepted which bears the same information and photograph. Foreign nationals present here in the United States are not exempt from the requirement that US identification may be used, but at least in some cases, an American visa may meet the requirements; no document issued by a foreign government is ever sufficient for videography taking place in the United States.  Please note that the producer must examine the document himself, not a copy, and that is raises special difficulties for remote producers - which must be handled in order to comply with the law. Under the Regulations, a legible copy of the picture identification card examined shall be made and maintained with the other mandatory records. The copy can be, and probably should be digital, to assure that the information is legible and the photograph recognizable, as further discussed below. Producers are also required to ascertain, apparently from the performer, though this is not clear in the statute [8], any other name ever used by the performer, including maiden name, alias, nickname, and stage or professional names and to record that information. The Regulations, at Section 75.2 (a) (2), now make it explicit, as well, that a producer may rely in good faith on the information provided by the performer. .

Historical Note: Under the (former) 1992 Regulations and the pre-Adam Walsh Act Section 2257, any one of the approved, government-issued, official identification documents mentioned or described at 18 U.S.C 1028 (d) sufficed if it contains a photo. (Section 1028 is an identity-theft statute that listed the whole gamut of important identity documents in use, including birth certificates and some state driver's licenses that, at least historically if not now, did not bear a photograph.) If the identification document did not bear the holder’s photo, as for example in the case of a birth certificate, those former regulations provided that a copy of a “picture identification card” (not then defined) needed to be examined, copied and maintained. Producers of visual depictions made after July 3, 1995, and before June 23, 2005, may rely on picture identification cards that were valid forms of required identification under the provisions of the regulation in effect during that time period. Section 75.2 (c).  

 A loose understanding of the regulation, at least in part, explains why producers historically have asked performers for two kinds of identification. It is a wise course to follow the practice of most prudent content providers and obtain the multiple forms of identification with the best chances of reliability, including at least one driver’s license, passport, or state identity card. As mentioned above, in the limited and remote experience of this author, underage drinkers typically don’t possess more than one fake ID and this practice will aid in eliminating deceptive juveniles from any photographer's list of problems. Also, as mentioned above, the backup ID must not be filed or maintained in the mandatory records system, but must be kept separately, perhaps in an "administrative file" that will be preserved securely and will always be easily accessible. 

A photographer should not create sexually explicit images with any reasonable doubt about the adulthood and identity of the performers. Certainty about these things starts with validation of the identity documents tendered. Phone calls or emails to the authority issuing the ID and a comparison of the questioned ID with the images and detailed descriptions contained in the serial-numbered, restricted access, quarterly-updated U.S. Identification Manual (which is available in my office) can help the photographer with unfamiliar forms of identification. Machines that can read magnetic strips and aid in validating the authenticity of identity documents are available for purchase. None of these things concludes the inquiry, which must be as thorough and mature as the critical issues and circumstances demand. 

Who is a "performer"? " Section 75.1 (a) states that "Terms used in this part shall have the meanings set forth in 18 U.S.C. 2257, and as provided in this section." The Regulations, at Section 75.1 (r), define the term to mean "all performers who appear in any visual depiction, no matter for how short a period of time". The statute, at (h)(3) defines "performer" to include "any person portrayed in a visual depiction engaging in, or assisting another person to engage in, actual sexually explicit conduct. I read that to mean that records need not be created for any person who is not portrayed in the work and that no records need be created unless the performer is portrayed engaging in the defined conduct (that includes lascivious genital or pubic nudity) or helping another person do that. And so, a person who undresses another performer to create a lascivious exhibition of the genitals or who chains a performer or applies a mask in a BDSM production would be a performer so as to require records. That having been said, a curious misfit in the statute emerges: Section 2257A, dealing with simulations, by its terms, adopts the definitions of  "performer" and "producer" contained in Section 2257 at Section 2257A (g). But, as quoted above, the definition contained in Section 2257 is limited to those "engaging" in "actual sexually explicit conduct" (emphasis added). Ergo, there is no textual statutory basis by which a producer is required to maintain records about performers who only simulate sexually explicit conduct. Whether the duty exists under the statute or not, given the totality of the risks, a prudent producer will create and maintain these records. 

A brief note about "privacy" and the privacy of the information acquired in Section 2257 compliance. It has been suggested (in some of the litigation challenging Section 2257) that the scheme of compliance mandated by law massively offends the privacy of the performers, and that it may, in fact, endanger their safety. I am personally unfamiliar with any circumstance in which any performer has been hurt or injured as a result of the records that are required. It will probably happen though, someday, if it has not happened so far, to someone. It has also been suggested that no content shot in the European Union may lawfully be licensed in the United States because of the differing laws concerning privacy. Insofar as I have been able to assess the source documents, it appears to me that European law takes account of the fact that the nations of the world treat privacy differently, and so long as the performer understands that there will be a diminished privacy in his or her personal information when it is exported outside Europe, and consents to such a disclosure for export to the US knowing about Section 2257 and its requirement that the records follow the content in the chain of distribution, the European laws are not violated. The purpose of this article is clearly not how to draft model release agreements, but I think it wise that every Release created for use in the adult industry address the loss of privacy inherent in Section 2257 compliance, and that the model, as a condition of engagement, must agree to the dissemination of all the information and documents she provides, in the normal course of commerce in images, as it may be required by law, or as part of any bulk sale of the producer's business or its assets. Given the model's consent to publication of her depiction in what normally amounts to the most intimate activities of personal life, and of the very-personal noises and facial expressions that he or she makes during these moments, indeed showing the entire world whether the subject has freckles or not in the most tender parts of his or her anatomy, it may be unusual to find a model who draws any line at passing on his or her ID and alias names when the content is sold or licensed or digitized by someone with a financial interest. Assignments and licensing agreements may surely provide for the limited and exclusively appropriate further use of the Section 2257 materials and this may be of some protection against inappropriate use for the performer's benefit as well as that of the producer. All of these steps are reasonable and prudent and they may well protect the producer from an opportunistic lawsuit brought by a later-disgruntled performer looking to hurt the producer or exploit a possible secondary-gain.

To summarize, a photographer needs to see the original of at least one of mandatory forms of ID, to examine it and compare it with the performer's appearance before photography commences, to copy it so that all of its information is legible and its photograph recognizable, and to inquire of the performer every name that the performer has ever used or under which the performer has ever been known. He must also record the date of videography. I also recommend that the identity documents of each be shown to all of the performers and crew, not because of Section 2257, but to give each a reasonable basis to believe the age of the performer.

B. The Duty to Create, Cross-Index, and Maintain Retrievable Records.

The producer's records concerning the identity of the performers (copies of Identification Documents and the names and dates of birth derived from them as well as alias names) and the very fruit of their performances (the content itself and the date of its videography) are the heart of Section 2257 records-keeping, a topic covered at Section 75.2 (a) of the Regulations. Everything else is, in essence, a means to get to them. 

Works, documents, and information must be retained and an index system must be created and maintained that functions (unexplained and unaided) as the Regulations specify. First and really foremost, a copy of the depiction itself must be retained in the system, but this provision is ameliorated in the case of live video to require only the retention of representative portions from which all of the players can be associated with their identity information and ages. Section 75.2 (a) (1).

A legible copy of the picture identification card examined - before production - must also be made and retained, and the photograph in the retained copy must be recent, clear, and recognizable. The card's information must be legible (subject to provisions allowing certain redactions of information on documents provided for Secondary Producers, as described below.) Section 75 (a) (1). These records may be hard copy or scanned, except that in an apparent allowance for the kind of identification that was acceptable under prior regulations, some of which did not necessarily bear a photograph, if the primary form of identification which is retained does not bear a recent, clear and  recognizable photograph of the performer, a hard copy of the picture identification card that was examined must be retained; when digital copies are maintained, a producer must assure that its custodian can authenticate the records. Producers of visual depictions made after July 3, 1995, and before June 23, 2005, may rely on picture identification cards that were valid forms of required identification under the provisions of part 75 in effect during that time period. Regarding the class of images that were unregulated before March 18, 2009 because they depicted only nudity or simulations, there is no obligation to maintain records, though any producer availing itself of this exemption should be prepared to prove the exempted date of production, by the date on an original distribution disc or otherwise. 

The producer must record the title or other designation of the work, the name and date of birth of the performers extracted from the picture identification card and also he must record each name that was ever used by the performers ("Any name, other than the performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name" [75.2 (a)(2]), though his obligation is no more than to inquire of the performers in good faith and to record the information they provide - but I would surmise that if additional information is known to him, as sometimes it might in the case of a prolific (and profligate!) performer who can't remember as much about his or her filmography as the producer does, it would not be "good faith" to leave that information out. [8]  Section 75.2 (a) (2).

The producer must also record the date of actual photography together with all of the URLs (at least those under his or her control) at which the images are published. (The comments associated with the 2008 promulgated of the Regulations get specific about shoots that take place over several days and involve a model who turns 18 after the first day. In that case an "alternate" date may be recorded.).The latter obligation does create an unresolvable dilemma in the case of dynamically allocated URLs, once that might, under the right facts, lead to a claim that the statute in unconstitutional as applied in some cases. In a small but probably ineffectual attempt to solve this problem, the following text was added at Section 75.2 (a) (1): "If no URL is associated with the depiction, the records shall include another uniquely identifying reference associated with the location of the depiction on the Internet."

The Regulation is specific that names be indexed by family or first names first, and first names afterward. The Official Comments make it clear that the Regulations mean that all the records must be created before photography commences, not later. (Section 75.2 (a) (1), Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations, page 77442). This includes personal identity, date of birth, alias names, and date of production information.

A Secondary Producer is required to maintain the same records which a Primary Producer is required to create and maintain. However, he may discharge his obligation by accepting those records from the Primary Producer. The records he maintains may be substantially redacted by the Primary Producer to obscure the personally identifying information not necessary to confirm the name and age of the performer, but it may not redact the identification number of the picture identification card. Nothing in the text suggests that the actual photograph on the copy can be redacted and it should not be altered; in fact, the Secondary Producer should take great care to assure that the copy's photograph is of good quality to associate the performer with her depiction. In addition, a Secondary Producer is required to maintain a record of the name and address of each Primary Producer from whom it obtained copies of the original records by Section 75.2 (b) of the Regulations. While there is no regulation requiring this to be cross-indexed to any other record, it apparently must be associated with the name(s) or other designation(s) of each of the works to which it relates

The main structure of the indexing obligation is the creation of two lists: an alphabetical list of each performer (by "real" and alias names) and, just as important, an alphabetical or numerical list of each work. At the core of the system are the identity documents and the produced works to which those two lists point and the information concerning each which must be recorded and maintained. A producer of the materials covered within the ambit of Section 2257 must create an index system that internally leads an inspector to the retrieval of all of the identity information and documents, to the work itself, to its date of production, and the to the URL's at which it has appeared, when the inspector is armed with the title of the work, the real or assumed name of any performer, or any URL.

The records may be kept in physical, hard-copy form in files, binders, or the like, or they may exist only digitally in such media as magnetic or optical technologies, or in any hybrid of those means. [Section 75.2 (f)]. A producer may create a physical "Performer Binder" which alphabetically lists each performer by the creation of pages for each "real name" and each fictitious or assumed name. The assumed or fictitious pages point to the "real name" and the page created for the real name lists the alias names, the work or works in which the performer appears, and the date of birth. He or she may also create a "Work" binder in which the pages are numerically or alphabetically filed according to the name or numeric designation of the work, recording the date of production, the full cast listing, and the URLs at which the work appears. But all of that can easily be handled by Excel or any other moderately robust relational data base program, together with a link to the actually retained digital copies. In a physical scheme of compliance, the individual file folders for performers and copies of the actual works can be filed in file cabinets, with the caution that because of the provisions in the regulations mandating nonintegration with non-Section 2257-records, you must keep documents not required by law outside those folders, such things as payment receipts and most releases. It would be prudent to start an "administrative" file along with a Section 2257 File for each performer to keep those financial and administrative documents apart in line with the Regulations. If the records are maintained digitally, it would be most prudent to keep them on a separate computer or at least a separate hard drive. The mandated records must be segregated from all other records and may not be contained within any other records. See Section 75.2 (e). Perhaps it needs no emphasis, but only one picture identification card is required of any performer at the time of any shoot, no matter how many works in which he or she performs. When old cards expire, new cards should be added to the system of records, but no card upon which you have relied should be removed. Should you discover that any performer was underage at the time of photography, immediately contact an attorney with substantial experience in Section 2257, adult industry videography, and the defense of child pornography cases.

The law does not address what is to happen should the records be destroyed or taken, as for example in the execution of a search warrant by local officials. The prudent content producer will maintain redundant, duplicate off premises copies of all required records so that he or she is not compelled to blaze a new trail in litigation concerning the unexplored frontier of Section 2257 or to alternatively risk criminal sanction by publishing or continuing the publication of a web site without the required records. Should the records be taken away by any kind of cop, you should contact a lawyer experienced in Section 2257 immediately and cease the publication of sexually explicit images for which you have no legally-required records. It will become time to talk with a prosecutor and, perhaps, to take a trip to court.

How long are records to be maintained? It's convoluted. The text of Section 75.4 of the Regulations reads as follows: 

Any producer required by this part to maintain records shall make such records available at the producer’s place of business or at the place of business of a nonemployee custodian of records. Each record shall be maintained for seven years from the date of creation or last amendment or addition. If the producer ceases to carry on the business, the records shall be maintained for five years thereafter. If the producer produces the book, magazine, periodical, film, videotape, digitally- or computer manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services) as part of his control of or through his employment with an organization, records shall be made available at the organization's place of business or at the place of business of a non-employee custodian of records. If the organization is dissolved, the person who was responsible for maintaining the records as described in Section 75.6 (b), shall continue to maintain the records for a period of five years after dissolution.

C. The Duty to Make Disclosure, in the Work, of the Location of Records and the Identity of the Records Custodian. 

I use the terms "Notice" and "Compliance Statement", and "statement of compliance" interchangeably here because they all mean the same thing. Under the Statute, each copy of a work covered by the law must contain a statement of compliance which identifies the title or designation of the work (unless it is prominently set out elsewhere in the work), in the case of an organization, the identity of the custodian of records at least by title, and the address where the records are maintained. Sections 75.6 and 75.8 lay out the requirements of the mandated Notice. Of primary importance is that the title or another designation that makes the work uniquely designated shall be disclosed in the Notice (or in a prominent fashion elsewhere in the work) together with the street address at which the associated records may be inspected; a post office box is obviously not such a place. The most recent changes in the Regulations eliminated any need to identify any custodian by name. [9] If the producer is an organization, the notice shall disclose the title and business address of the "person" who is responsible for maintaining the records and this appears to mean the name of the legal entity. Should a non-employee custodian be engaged, the name and business address of that third-party custodian may be disclosed in lieu of the street address and identity of the "person" who is responsible for maintaining the records. A great deal more about third-party custodians (mainly of a cautionary nature) is set out below in this Primer at Chapter V., Part G.  Nothing contained in the Regulations has ever required any producer to certify that all of the performers were 18 years or older on the date of production, but it harms nothing to say so. Because the law required that the Notice contain the date of production and the name and title of a custodian until January, 2009 but no longer does, a Notice that provides a date of production, these days, fairly screams to the inspectors that the notice has not been altered in more than two years or that the producer does not understand the law, and both of these situations should tend to increase the confidence of an inspector, surveying Notices, that he's likely to hit paydirt, that is lots of violations, by selecting this producer for inspection. Ergo, take out the date of production. (The law requires that the date of first photography be recorded as to all works within your system of records, but the Notice is not where it should go.)

 Section 75.8 (d) addresses websites and requires the Notice to be published  on every page of the site that contains covered images. However, it suffices if there is a display from a link or as the result of a mouseover associated with the following text: ``18 U.S.C. 2257 [and/or 2257A, as appropriate] Record-Keeping Requirements Compliance Statement.". For media whose specific method of compliance is not laid out in the regulations, the method of compliance should be fashioned by comparison with the means provided for in the regulations for the medium most closely analogous or otherwise similar in line with Section 75.8 (f). With respect to newsgroups, peer to peer publications, pop-ups, and other technologies, there are no specific methods of compliance given, and so the operator aspiring to compliance should do so in association with an experienced attorney toward the goal of a notice that is prominent, sharply contrasting with its background, of sufficient duration to be read, and containing the necessary disclosure. 

Section 75.8 (b) and (c) regulate the placement of the required Notice in "films and videotapes". [Emphasis added.] 

(b) In any film or videotape which contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement referred to in Sec. 75.6 or Sec. 75.7 shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer. 

(c) Any other film or videotape shall contain the required statement within one minute from the start of the film or videotape, and before the opening scene, and shall display the statement for a sufficient duration to be read by the average viewer.

Clearly, the videos that appear online are not tapes. Moreover, if they are composed into a web page, they would appear to be "covered" by the Notice which must be given on the page where they are inserted - inasmuch as the Statute, Title 18 United States Code Section 2257 (e) (1) calls for "a statement" rather than multiple statements. The issue of how many Notices must be provided for an online video is discussed below in Chapter V., Section E.

Section 75.6 (e) provides that "For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer."

The simplest and most beneficial word of wisdom for a webmaster's Section 2257 risk avoidance is to post a clear, logical, and legally compliant Notice of minimalistic dimension, without argumentation or attempts at fine legal distinctions. I believe that other kinds of Notices will attract the FBI like the scent of raw meat to a ravenous beast. 

What about Secondary Producer Notices? Can they point back to the Primary Producer? The most recent changes to the Regulations made at least one very peculiar change leading to an ambiguity that is not explained or mentioned in the official comments. Formerly under the text of the Regulations, a Secondary Producer, who certainly had the obligation to maintain compliant regulations at his business premises, might lawfully have provided the name and address of the Primary Producer alone in his or her Section 2257 Notice. The text at Section 75.6 (b) (3) formerly included the sentence, "The street address may be an address specified by the primary producer or, if the secondary producer satisfies the requirements of Sec. 75.2(b), the address of the secondary producer." which was deleted, effective January 20, 2009. It's no longer in the text of the regulation. What remains is the obligation to provide a Disclosure Statement that provides: "A street address at which the records required by this part may be made available." [Emphasis added.]. Id. I wish to emphasize that a Notice is compliant if it lists "A" street address where the records are located, and I wish to distinguish that language from the possible expression, "The street address at which the producer or its non-employee custodian may make the records required by this part available" which the Department of Justice did not say, but might have said. Attorneys practicing in this area, whom I respect, have made the suggestion that this deletion amounted to a substantive change in the regulation, so that secondary producers may no longer "point back" to the primary producer in their Notices. They suggest that the new availability of third party custodians made it practically unnecessary to do so in conjecturing why the option of Secondary Producers to point back was textually eliminated. Until the Justice Department clarifies this in the contrary direction, it is my opinion that the change merely deleted redundant text and foreclosed no option otherwise made available in the text. 

The phrasing of the former text was unfortunate from a DOJ perspective because its construction ("if the secondary producer satisfies the requirements" especially when read in conjunction with Section 75.2 (b)'s suggestion that a secondary producer "may" receive records from the primary producer) tended to blunt the intent that Secondary Producers are actually obliged to maintain records; the mixed signals that these words transmitted very probably contributed to a decision to delete them more than any other factor. If the deletion intended a substantive change, at least tens of thousands of Notices would have become immediately illegal, creating crimes if the Notices were not immediately changed; I suspect a change of this dimension would have been noted by the official comments, and that some grandfathering would have expressly been provided in the text of the Regulations for the old Notices, as is done for images of images covered only for their genital or pubic area content, pre-1995 content, simulations, and non-photo Identification Documents that were harvested when it was lawful to do so. Instead, not even a comment was made about it; That DOJ made no official comment about this change and gave the sentence a silent death tends to suggest some embarrassment about the former wording.  Moreover, what remains after the deletion is text that applies to both primary and secondary producers and requires each to provide an address where the records are actually located. Thus, a Primary Producer may use his own business premises address if that's where the records are located or else the address of his non-employee records custodian, inasmuch as either one or the other will be "a" street address at which the records are located. A Secondary Producer may, in his or her notice, point to  his own business premises if that's where records are located, to his own third party custodian if that's where they are located, in my opinion to the Primary Producer's business address if the records are located there (remember, a Secondary Producer must maintain a record of the Primary Producer's address), or the Primary Producer's non-employee custodian, if that is "a" street address where the mandated records are maintained. 

I do not believe a substantive change was intended by the hand of DOJ as a result of this deletion. This issue is not financially insignificant to the Secondary Producers who, if they cannot point back to the Primary Producer, may be required to hire a non-employee custodian in order to protect their privacy in Disclosure Statements. None of the foregoing is intended to suggest that Secondary Producers are relieved of the obligation to maintain records, a common misconception: they are required to maintain the same records which Primary Producers are obliged to maintain. They must do so only at their own business premises or those of a non-employee custodian. Section 75.4. A final caution is that if your Notice points to a place not under your control, where records actually may not be "available", a place where records may suddenly cease being "available" without notice to you, your Notice fails its most critical legal function, and you may be indicted for a violation of the Notice requirement of Section 2257,  Title 18 United States Code Section 2257 (f), punishable, as previously noted here, with five years imprisonment. It is therefore far safer for a Secondary Producer to disclose its own address in its Notice and riskier for it to do anything else.

A word or two regarding the dangers of argumentative and "old" Notices that are written as if the Adam Walsh Act was never written, using the argument that prevailed in the now-moot Sundance Case, are set out below in Chapter V. at Parts A and C and in [10]. A fair, candid, and balanced reading of random Section 2257 Notices online discloses a huge number of Notices that tantalizingly invite the attention of the FBI because they are argumentative, illogical, betray signs that the operators do not understand the Adam Walsh Act, misstate the law in ways that amount to an admission of criminal conduct, and/or otherwise are stupidly written. It's always a bad idea to argue in a Section 2257 Notice, and its worse to make a losing argument that only draws unwanted attention to a webmaster. If the Justice Department were to simply assess sites for inspection potential based on the Notices that operators post to the world I suspect that it would consistently find what it is looking for. 

There are also specific rules at Section 75.6 regarding an exemption statement for matter exempt from the law because of a date of creation or publication.

There are obviously a myriad of issues that must be explored, risks reduced, and problems solved whenever you publish content that you did not create or otherwise provide a venue for its transmission or distribution  You must certainly know whether the law considers you a Producer of either character, because that triggers all of the obligations concerning records and a statement of compliance, and the answer is not always crystal-clear - as this discussion establishes. Those who facilitate the publication of user submitted content, who publish swinger and escort materials, who carry live feeds and banners and other materials originating on other servers, including popups and targeted advertising, must take particular care.

Did I mention that you shouldn't write a Section 2257 Notice as an argument with the Justice Department?

D. The Duty to Make the Records Available for Inspection by the Attorney General.

The producer of works within the scope of the law must make the required records available for inspection, by the Attorney General or those the Attorney General appoints, at the producer’s business premises or elsewhere as the Attorney General may prescribe by regulation at all reasonable times and without delay. A failure to do so is now a federal crime. 18 United States Code Section 2257 (f) (5), punishable by five years' imprisonment.

 1. Inspections Generally - Who Inspects and When They May Knock

Attorney General Alberto Gonzales designated the FBI for purpose of inspections in 2006. (I have obtained and examined an expurgated copy of the designation under the Freedom of Information Act) Thereafter, the FBI met with some representatives of the Porn Valley community and their attorneys and conducted inquires with other agencies conducting federal inspections (such as ATF) to formulate a preliminary protocol, and began a trial or test program of inspections which, to this point in time, after about two dozen inspections, mainly targeted against traditional DVD houses rather than exclusively Internet operators, have directly led to no original prosecutions, though an inspection was used to bolster a prior-exiting investigation and turn it into a prosecution at least once. The pilot inspections were conducted by one FBI Agent with the assistance of other Agents, included retired Agents. This Agent visited the Adult Internet and spoke at one trade show in Los Angeles, amiably answering questions. It was his conclusion that virtually none of the inspections demonstrated compliance without fault or error. The pilot inspection program seems to be in abeyance at present, pending resolution of the pending case brought by the Free Speech Coalition in Philadelphia which asserts that the Section 2257 scheme is unconstitutional. 

Inspections are to be conducted during "normal business hours" which are defined as 9:00 a.m. until 5:00 p.m., local time, and at any other time that the producer may conducting business concerning covered adult depictions. See Section 7.5 (c) (1). The same provision allows the producer to limit the hours of inspection to no less than 20 hours per week of his selection, provided that the inspecting agency is notified. The regulations are not clear concerning how the notice is to be given, but it's been informally stated that a card posted at the entrance providing for inspections during twenty hours per week will suffice. The Regulations limit inspections to once in a four-month period unless more frequent inspection is justified by suspicion. 

When an agent arrives to conduct an inspection, the custodian can be expected to act professionally in all regards. There are no reports to the contrary. The custodian should examine the credentials of the Agent or Agents, copy the names, and secure a card from the Agent with his contact information. If the person standing in front of you is not an FBI Agent, there is something fishy going on and you should immediately contact both your attorney and the local FBI Field Office. It was reported that one or more local police agencies also actively lobbied without success for authority to inspect during the years in which Section 2257 has been on the books. It is to be emphasized that Attorney General Gonzales only designated Agents of the FBI and no other law enforcement agency, and apart from the incumbent Attorney General  himself and the FBI, there is no known authorization empowering any other kind of badged authorities to inspect records under this system. If any other kind of law enforcement personnel seeks to inspect records, the custodian may refuse in the absence of evidence that the Attorney General has authorized this person to act. Should records be seized by any law enforcement agency, with or without a warrant, a producer should immediately contact an attorney versed in this area as well as criminal law because those records are essential to his or her lawful right to publish and their seizure has dramatic First Amendment implications. However, in no case should anyone offer physical resistance to someone acting under color of law.

2. Section 2257 Administrative Inspections and Search Warrants - Contrasted

A word about the interplay between Section 2257 inspections and the execution of search warrants. They are very different things managed in very different ways. In the case of an inspection, you are not in custody and you are free to come and go. The inspection is limited to your records and is not intended as a nosy snoop around your premises. It should not include opening cabinets, drawers or boxes. Unless you consent, the Agent should not be using your computers which are not employed in your records keeping protocol. It is targeted at records. (But do read below to understand that it can be used as a venue to question you, that objects in plain view which are the fruits, evidence, or instrumentalities of crime can be seized, and that if there is probable cause to arrest someone at that time or place, they may be arrested. That probable cause can emerge from the inspection process, from things seen in plain view, or from statements that anyone makes.) 

You should ask the agent whether he also possesses a search warrant or an arrest warrant, and if he does, you should ask to see it. There is no harm in asking about a warrant when an inspection is announced, though there is no certainty that you will be told the truth. If there is no warrant, you may be chuckled at and you may get a friendly lecture on the difference between an administrative inspection and the execution of a search warrant, but there is no harm in the asking. It is not inconceivable that an inspection may be conducted by an Agent who also surreptitiously possesses a search warrant, and that the "inspection" will simply provide a venue for some targeted questions as a prelude to an all-out assault on the privacy and security of your premises by means of the lawful (or unlawful) execution of a search warrant. His team may be waiting in trucks around the corner when he comes in alone to inspect your records. 

A Section 2257 inspection may also provide the Agent with enough information to lead to a fair belief that the fruits, evidence, or instrumentalities of crime exist on your premises, so that, by means of his affidavit, a full blown search warrant may be huriedly issued by a judge, state or federal, and you may rapidly have a swarm of federal agents or state or local police taking your place apart.  

In common law enforcement practice, if there is a warrant, your request to see the document may be deferred until the search is completed and you may be patted down (or searched!), handcuffed, removed from the premises, and interrogated in a nearby vehicle while a search warrant is executed. This detention is for the purpose of securing the premises, protecting its contents, and preventing you from interfering with them or tipping off other persons if coordinated warrants are simultaneously executed elsewhere. Your detention and questioning may be unreasonable and unlawful, and you may not be read any Miranda rights if the law enforcement agents think you have not been formally arrested. No matter,  In fact, discoveries made during the execution of the warrant often give rise to probable cause of an arrest, and so your stay in handcuffs may become more than very temporary as things develop, as I mention above. Whenever a warrant is executed, you should ask to phone your lawyer for immediate advice. Talk to your lawyer at the first possible moment.

A search warrant names the items to be seized "with particularity" (it must, to be valid) and enables the executing Agents or cops to search the premises in a manner consistent with locating the identified items. The search is meant to be limited and constrained by the words of the warrant, so that a search that exceeds the authorization of the warrant is invalid. The search and seizure of computers is a complicated matter and far beyond the scope of this discussion. No matter the legalities, offer no physical resistance to those who claim to be acting under a search warrant, even if they refuse to show it to you. When they finally leave your premises, if you do not leave with them under arrest, read the warrant, take stock of the situation and take abundant photographs demonstrating the condition of the premises.

3. How to Handle a Section 2257 Inspection

Once the producer is assured that the Agent's presence is for an administrative inspection under Section 2257, he should get the Agent started without delay, but should immediately next contact an attorney well-versed in Section 2257 compliance with whom he has established a professional relationship and with whom he has made financial arrangements for this contingency. That phone call should be made privately, out of earshot of the Agent. 

 Presumably, the premises will be clear of any evidence of any crime, because it is stupidity of the highest order to mix any kind of crime with the conduct of any business, but it is especially stupid in an adult business. 

The Agent should be led to an area you have designated for the records inspection, an area that should be isolated from the routine activities of your business; it should be well lit and ventilated, heated or cooled according to the season, and it should be physically large enough to permit copying by a portable copying device; it should be acoustically isolated from the rest of your premises to avoid interference with the Agent's inspection and to avoid his interference with ongoing activities; by regulation, the Agent is required to conduct his inspection so as not to interfere with lawful business. He has no authority to generally snoop in the premises, to examine documents or computers aside from those used in compliance, or otherwise to look around in a nosy fashion unrelated to his compliance function under the law. (Obviously, if he and his team are executing a warrant, there may be no reasonable expectation that activities will not be disturbed.)  If the custodian is asked to do so, he or she should certify that the records shown to the Agent are authentic in line with the apparent requirement of Section 75.2 (f), with respect to each individual record about which he may ask. They should be so prepared that they are indexed in a self-explanatory fashion that neither requires nor should cause anyone to enter into any conversation about the records. 

The inspection is likely to take hours in many cases, and it may actually go on for several days or parts of several days. The regulations empower the agents to copy any document subject to inspection without cost to the inspectee. It also positively asserts that “plain view” seizures of any evidence of a felony may be seized. It may be prudent to designate a particular enclosed area for such inspections to discourage official snooping. It is important for the producer to understand that he is not in custody, not under arrest, when this inspection takes place. There is no reason for a person not in custody to be advised of Miranda rights, and accordingly, no rights will be read. Nevertheless, whatever the producer may say will be admissible evidence at the option of any prosecutors down the road. The agent is permitted to discuss his findings with the producer, who may feel an instinct to answer any accusations or to justify or defend any violations which are alleged against him. The Agent is highly trained about how people react to accusations, it's standard stuff in cop schools at every level, and cops are known to use accusations they know to be false in order to jump start a suspect into talking, truthfully denying the untrue allegation, but, importantly to the cop, to start making admissions that rope him into admitting guilt or responsibility about something that is never directly mentioned. The Agent is likely to hand the custodian a document which may identify problems he believes to have been uncovered in the inspection, and he may invite a conversation with the custodian. Under most circumstances, this will be a serious mistake. Any discussions with the Agent should be made through an attorney, so that they are not admissible in evidence against the producer. Beyond identifying the records - and in fact "certifying" them as seems to be required by Section 75.2 (f), if asked - the producer should usually say nothing. The Bureau of Prisons is full of people who explained their way into a conviction, and each of them thought they were smart enough to avoid an incriminating statement. Unless the producer is a really good mindreader, though, he or she may never know what's really on the cop's mind until it's too late.

Perhaps the most dangerous aspect of talking to a cop is the risk of being prosecuted for lying to him. If you say nothing, you don't risk that; but if you do make statements, and if the cop's notes and memory are different, it will not be just your words against his in your criminal prosecution, it will be your word against him and his notes. All sorts of pressures can be applied to a person to later restate or to even testify against someone in conformity with a cop's notes. This potential alone should discourage people from voluntary conversations with a cop. And no, it is not "obstruction of justice" to refuse a law enforcement interview. If you are the suspect, you have a right against self-incrimination. If you are not the suspect, what you have to say may still incriminate you. If neither of those things is true, believe it or not, this is still a free country, and you cannot be ordered to submit to questioning except by a judge. Hard as it may seem to believe, ordinary street cops frequently threaten people with arrest for obstruction when those people have every right to ignore the question with impunity, and they do so raising their voices and making threats. Intimidation is never called that by name in police training, but it gets lots of mileage on the streets. There is no duty of a custodian beyond making the records available and certifying their authenticity. If the law has been complied with, the records and the indexing will explain themselves. If they don't, you are in serious trouble and explaining your violation of the law tends to dig you in deeper. 

The Regulations make it abundantly clear in two paragraphs,  75.5 (f) and (g), that the inspector remains a cop at all times. He can do anything a cop with a right to be present can do, which includes observing and recording evidence of crime, questioning/interrogating suspects about it, seizing the fruits, evidence, or instrumentalities of crime, and making arrests. Many FBI Agents are highly intelligent, charming, interesting, personable people who you'd like in real life. Really. However, none of them got sworn in because they are nice guys. When you become a part of their job, they are not your friends. If you let your guard down, freely converse with them as though they were friends and confidants, very simply put, you are putting yourself, your liberty, your future, and the safety and security of your family for decades to come in the hands of a stranger whose job it is to discover and arrange the evidence of crime, to thereby make a case, and to apprehend those who can be proven to break the law. They regularly get rated on how effectively they do those things. Enough said.

Have I convinced you yet that you need a designated Records Inspection Area?

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Chapter V

Particular and Special Issues and Concerns  

 

A.  Sundance and Its Regrettable Progeny

In prior editions of this Primer, a great deal of discussion was given over to the validity of the Regulations' provisions roping "secondary producers" into obligations to comply, which had been decided adversely to the regulations in one US Circuit. Unlike the battle still being fought at the time of this writing in January, 2012, the battle was not about Free Speech and the First Amendment, it was merely about what the Statute authorized the Department of Justice to do in regulating adult content production.  In a nutshell, the validity of the then-existing Regulations' "secondary producer" requirements was challenged in Denver by a swingers' publication, named Sundance Associates, who prevailed in the Federal District Court, overturning the secondary producer obligation; on the government's appeal, the Tenth Circuit Court of Appeals affirmed the determination that those "secondary producer" regulations exceeded  the regulatory mandate - the power - given to the Justice Department under the statute, Title 18 United States Code Section 2257 itself, by dragging those secondary producers into the system. Again, the issue was not the constitutionality of the regulations or the statute, but merely whether the definition of "produce" in the statute authorized the Justice Department to include persons who composed works using merely acquired content that they did not create. The losing Department of Justice did not ask the U.S. Supreme Court for review, and so the decision stayed limited in its binding effect to the ten states of the Rockies region which comprise the Tenth Circuit. Another case from the DC Circuit pointed in the same direction.  The validity of the "secondary producer regulations" was confirmed by Congress in the Adam Walsh Act in 2006 when it inserted the language of those then-controversial regulations into the statute, as detailed in Footnote 4, above. That provision in the Adam Walsh Act effectively reversed or mooted the decision in Denver and ended the issue. [10]. The detailed discussion of Sundance is reduced to a footnote in this edition of the Primer to preserve a record of its one-time importance in the minds of the adult community. 

Relics of the debate are still found everyday in badly written Section 2257 Compliance Statements that haven't been examined or edited since the issue was finally resolved. Sometimes those Compliance Statements amount to arguments as to why the secondary producer requirements don't apply. They were ill-advised when written, and in light of how and when the issue was legislated away, they are a red flag that announces that a website doesn't comply with the law and that its owner has neglected to keep on top of the issue for many years. 

The following current Section 2257 Notice for an operating, sexually explicit website was located in seconds on January 3, 2012:

18 U.S.C. ' 2257 compliance notice. [sic]

All models, actors, actresses and other persons that [sic] appear in any visual depiction of actual or simulated sexual conduct appearing or otherwise contained in or at [sic] were over the age of eighteen (18) years at the time of the creation of such depictions.

Some of the aforementioned depictions appearing or otherwise contained in or at [sic] contain only visual depictions of actual sexually explicit conduct made before July 3, 1995, and, as such, are exempt from the requirements set forth in 18 U.S.C. '2257 [sic] and C.F.R. 75 [sic]. With regard to the remaining depictions of actual sexual conduct appearing or otherwise contained in or at , [sic] the records required pursuant to 18 U.S.C. '2257 [sic] and C.F.R. 75 are kept by one of the custodian [sic] of records listed below.

[Name, address, and telephone number in Cyprus deleted to avoid further embarrassment of the website.]

In fulfilling its obligations under Section 2257, [sic] relies on the plain language of the statute and on the well-reasoned decision of the Tenth Circuit Court of Appeals in Sundance, which states that entities who[sic] merely distribute content, and have no role in procuring models or producing content, are exempt from on-site record keeping requirements.

All license agreements reflecting the location of the custodian of records for any material appearing at one of the sites listed above are kept by a [business name deleted]. representative
__________ an ongoing work originally produced from March 01, 2004 to PRESENT TIME [sic] and first released on Octorber 01, 2004.

I can't help but imagine that Compliance Statements such as this, replete with ten grammatical, syntax, and citation errors, and arguing a point that is legally moot, will draw Section 2257 Inspection agents like a magnet. There are hundreds of thousand, if not millions, of adult websites with Notices similar to this one. If you disbelieve me, Google and significant string of words from its third paragraph and count the hits. By no means is this example the worst, In fact, it was merely the first one located on a Google search for "2257" and "Sundance". Given its high placement on the search engine, it must be very popular, and you'd imagine that the operators might be able to afford to have a lawyer update if for the first time in eight years.

B. The Fine Print About "Managing the Sexually Explicit Content" of a Website

It's clear that creating content, contracting or arraigning for its creation, digitizing or modifying it are each activities that that transform the actor into a "producer" of one flavor or the other. But, of course, in the words of Ron Popiel, wait . . . there's more.

The bottom line is that the person responsible for making a decision to insert content on a website becomes, thereby, its producer as much as the person who created the images. An obligation under Section 2257 inheres whenever a person manages the sexually explicit content of a website. Even, in each case, if the ultimate source of the content was another producer and even if it is user-submitted content.  However, as I have illustrated elsewhere in this Primer, when the owner of site neither inserts and covered image nor manages the covered content, except to delete for indecency such as is done in a true social networking site, one cannot be said to produce images managed by site or server users. It should be added that Section 75.1 (k) of the Regulations purports to define the "management" of the sexually explicit conduct so as to exclude from that function those "who manage solely advertising . . . [and] compliance with copyright law . . ", which would, on its face, exclude from the kind of "management" that makes one a producer, those who must deal with DMCA issues; however, the definition adds a needless ambiguity to the language by continuing: ". . .or other forms of non-sexually explicit content." So, does one who handles copyright compliance by taking down sexually explicit material because it infringes a copyright, in line with the Digital Millennium Copyright Act, thereby "manage" sexually explicit conduct or not? It appears to have been outside the thinking of DOJ that sexually explicit material might be taken down for any reason but indecency under Section 230 (c), and this does not comport well with reality. Taken together, the text of Section 75.1 (k) reads as follows, making the confusion clear:

(k) Manage content means to make editorial or managerial decisions concerning the sexually explicit content of a computer site or service, but does not mean those who manage solely advertising, compliance with copyright law, or other forms of non-sexually explicit content.

It would be hard to imagine that the Justice Department intends that people who knowingly handle sexually explicit content for a website are somehow exempted from the responsibilities that are associated with that role just because they only take material down in response to DMCA complaints. Though I wish I might truthfully report to the contrary, you cannot go to the bank on the proposition that if your only involvement with sexually explicit materials is to remove submissions on the basis of copyright infringement, that you are not a producer of the sexually explicit conduct, and to remove content solely on account of copyright violation creates at least some risk that you thereby establish that you are managing the sexually explicit content that remains, and are its producer. This obviously creates an uncomfortable misfit between Section 2257 and the DMCA. Until this is resolved, it may be of some questionable benefit to the operator, whenever material is taken down for reasons of copyright violation to [also?] note that it is removed under Section 230 (c) because it is indecent.  Clearly, when user submitted content is rejected for reasons of aesthetics or marketing or space limitations, giving the axe to some content and displaying other content, one is managing the sexually explicit content.

C. Argumentative Section 2257 Notices That Hurt the Webmaster - and the Inevitable Dilemma of Tube Sites

Sad to relate, a large number of Section 2257 Compliance Statements look almost like willful attempts of the site operators and their lawyers to shoot themselves in the foot. Here's a genuine notice grabbed today from the 2257 link from a well-known Tube Site featuring what appears to be user-submitted content (let me make it clear that I do not recommend that anyone emulate its text or intent!):

18 U.S.C. 2257 - Record Keeping Requirements Compliance Statement

This service is an interactive computer service as defined under 47 U.S.C. § 230(f), as well as an Internet access service as defined under 47 U.S.C. § 231(e), that is statutorily exempt from being considered a producer under 18 U.S.C. § 2257(h)(2)(B).

Section 2257 Exemption Statement

Content Produced by Third Parties: The operators of ____ are not the “producers” of any depictions of any actual or simulated sexually explicit conduct. To the extent that any such content appears on this site, the operators’ involvement with respect there to is limited to the transmission, storage, retrieval, hosting and/or formatting of depictions posted by third party users, on areas of the website under the users’ control. _____ Performs, the third party “producers” of actual or simulated sexually explicit conduct, are responsible for maintaining the age verification documentation required by Title 18 U.S.C. 2257. A 2257 Form can be found here. Pursuant to Title 18 U.S.C. 2257(h)(2)(B)(v) and 47 U.S.C. 230(c), the operators of this website reserve the right to delete content posted by users which operators deem to be indecent, obscene, defamatory or inconsistent with their policies and terms of service. Questions or comments regarding this Exemption Statement should be addressed to our staff. http://www.Motherless.com/contact

The site from which that Notice was taken in December, 2011 is huge and seems to be hugely successful. One would anticipate that it could afford the best legal talent out there. But the result is amateurish and self-destructive. I will not be nasty enough to baste this Notice for bad syntax and grammatical lapses and leaps from logic into oblivion ("there to", "Performs, the third party 'producers' of actual or simulated sexually explicit conduct,") but I can't avoid mentioning its fatal leap into darkness: the words, "the operators of this website reserve the right to delete content posted by users which operators deem to be . . . inconsistent with their policies and terms of service." [Emphasis added.] Bingo. Whatever exemption the site operators may be given from the role of producer goes down the drain rapidly when they stray from Section 230 (c) (protecting nonproducer status for those who merely take down content for reasons of indecency and obscenity). Whatever argument they might put forward with a straight face - that they do not lose immunity by enforcing the copyright law - clearly goes down the drain when they delete content just because that content violates some othre arbitrary terms of their TOS: it is beyond all rationality for a webmaster to make public spectacle of it and display such a thing in precisely the first place that federal agents will examine. The tubemasters have a fundamental dilemma:

No Tube Site aspiring to meet the tastes of a general audience would long survive if it were to literally post each submission as it is submitted in queue. The tubemasters must select content and reject for reasons that are obvious to anyone who thinks about if for thirty seconds. If operators review videos from a pool of submissions each day and manually select some number to go live on the site or if they select some arbitrary number of video clips that go live without individualized selection, and even if they just cull some few out, in each case they can be fairly said to mange sexually explicit content; it is hard to imagine a credible claim that they are not thereby producers of the content appearing on Tube Site, as the expression is defined in the Regulations. The inevitable selection process itself invokes their responsibilities as producers because successful large-scale operators invariably chose what content will be inserted onto their web pages. Section 230 (c) does not accomplish an end-run around the responsibility that follows management and selection, but 180 degrees away from that contention, it gives only cover to service providers for taking copyright and infringing and immoral content down, never for moving it from a queue to online publication. Sooner or later, some tubemaster will get charged and will try to defend on the grounds that he was merely "removing" indecent content and should be exempt, when, in reality he was picking and choosing the flavor of indecency to publish, the attractiveness of the indecency, and using "indecency" as a mere pretext for culls based on orientation, attractiveness, production values, volume of submissions, and repetitiveness

 

D. Remote and Streaming Banners, Popups, Images and Live Feeds  

Explicit streaming video, live feeds, leased galleries, and popups are almost certainly among the kinds of material generically described as “other matter” in the Statute. Therefore, the producer of explicit feeds must in every respect comply with the provisions of Section 2257. Special practical difficulties arise that are distinctive to live feeds and links with respect to a location for the mandated disclosure statement and for the name or number of the work. The information acquisition and record keeping must go on continuously. Because an approved method of compliance is described neither in the Statute nor in either the existing nor proposed Regulations, the scheme of compliance for those who produce such feeds or links should be designed in close consultation with a lawyer and a technical expert, and provide for notice all the way through to the destination subscriber. 

It is not necessarily the case that a particular image, banner or live, streaming video - which seems to be displayed on a web page - is actually is actually inserted into that page so as to render the publisher of that side its "producer". If the owner of the website was not involved in its creation, if he has not contracted or otherwise arranged for its production, his status as a producer will hinge on whether he has "inserted" the material on a web page; one can easily envision to placement of a link which directs to servers outside that publisher's control, the content of which is entirely in the hands of others. 

E. Does the Law Require a Notice for Each Distinct Video Included in a Website?

A pretty common question asked by webmasters is whether each individual video clip contained in a website requires its own Section 2257 Compliance Statement to be encoded into its continuity. (The mechanics of where the Notice goes in a particular video is covered below. The question at hand, here, is whether it's mandated for each and every video on a site.) When I get that question, I answer by saying that the webmaster should provide a compliant Notice in each video that is part of a website - that's what I say because the real answer is unclear in the statues and regulation and it's better to steer people in the direction of caution and prudence than to invite a prosecution. I've talked with lawyers on both sides of this issue and everyone seems to agree that the only safe course is to do so because most think that's what the Justice Department thinks is required. But is it really required under the text of the law? Not to get too almost-theological (this discussion sometimes reminds me of arguments about the Trinity), but the true answer may be that such a Notice is really not required by the law. (I should clarify that I speak of a "Notice", a "Statement" and a "Compliance Statement" interchangeably in this and every other discussion about this obligation.) 

The statute never mentions websites at all. It describes the things to which it does apply by defining a class of people who make, use, or modify certain things, with this language (and by a definition of "produces" which follows later in the statute):

(a) Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which--

   
 

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;


 

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Presumably, websites are included because they are "other matter" which includes one or more covered depictions under (a)(1). The statute mandates "a statement" (not two or more) for covered material at (e), because the duty to publish a Notice, defined below, applies to the class of persons described above:

(e)    
 

(1) Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described in paragraph (1) of subsection (a) of this section, in such manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located. In this paragraph, the term “copy” includes every page of a website on which matter described in subsection (a) appears.

The Regulations go the point and directly regulate compliance for websites as a whole. For example, in regulating the location of a Compliance Statement, Section 75.8, treating of the mandated location of the Statement, provides as follows:

(d) A computer site or service or Web address containing a digitally- or computer-manipulated image, digital image, or picture shall contain the required statement on every page of a Web site on which a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct appears. Such computer site or service or Web address may choose to display the required statement in a separate window that opens upon the viewer's clicking or mousing-over a hypertext link that states, “18 U.S.C. 2257 [and/or 2257A, as appropriate] Record-Keeping Requirements Compliance Statement.”

It would not be reasonable to assume that a statute requiring "a statement" for a work containing "one or more" covered visual depictions actually calls for two Statements, just because the Attorney General thinks so. But if each page containing one or more covered images requires such a Statement, and each image included in the page requires its own Notice, then the simple deduction would be that each depiction must be covered by at least two Statements while the statute imposes a criminal punishment if it does not contain "a statement". While statute says that the Attorney General may prescribe the form and manner of such a Statement, the law does not authorize him to require two or more Statements for any particular depiction.

Many of the specifically-named kinds of covered works listed in (a) of Section 2257 are composites that contain multiple visual depictions, such as a book or magazine. Indeed, a film is a continuous composite of sequential frames, separate images each created at slightly different times, usually 1/25th or 1/30th of a second apart. Each is a "picture" or a "visual depiction". Indeed, the statute addresses the covered items as containing "one or more" covered depictions, and this makes it clear that Congress meant to regulate not each depiction, one at a time, but in bulk when they appeared in composite works. Any other reading would make the words "one or more" meaningless. It is unimaginable, given the language that Congress used, that it intended that each such frame in a film or image in a magazine or book contain a separate Compliance Statement and I don't think anyone has ever done so. A web page is a composite work (or "matter" in the words of (a)) no different than a film, book or magazine, works that are compliant when, because they contain "one or more" visual depictions, they display just one Statement. In reality, I think the law is directed to how the matter is taken to market; if a videotape contains three segments, only one notice seems to be required for the whole and it simply makes no sense to suggest that every image in a sexually explicit magazine must contain its own Notice together with another for the entire work. Even video, digital or analog, contains information that connects a series of discrete frames that create the illusion of motion when played as they are intended. It matters not a bit, I think, that any image can be clipped out of a magazine, that a frame can be extracted from video to stand on its own, or that a particular online video can be downloaded from the website on which it is published; the typical link and videocap image integrate its composition into the page that offers it and create a composite. (For what it's worth to illuminate, lexicographically speaking, composites are things that are composed.) No doubt, if an individual clip is offered for sale, a la Hotmovies or Clips for Sale or the like, it must contain its own Notice because it is marketed as a discrete work (or "matter"). Were the regulation to mean that each video on a web page requires its own notice, there would be no logical reason to avoid the conclusion that each covered still image, each .jpg, must also require its own notice. All of that strikes me as absurd. I've heard one lawyer (for whom I have profound respect) contend that a "video", though not mentioned by name at (a)(1) is like a "film", and therefore is mandated to have its own Statement, however it is used and wherever it is part of a composition. To him, I reply with respect that that a "film" is composed of many "pictures" and no rational mind could accept that each of those pictures must be treated as a separate work or "matter" for Compliance Statement purposes. The only sensible reading of the law treats composite works as a unit for Notice purposes. When the Attorney General mandated Notices for web pages containing one or more covered images, as was his right under the statute, he administratively elected to treat those pages as composite works that require just "a statement"; inasmuch as he cannot require more than "a statement" for any particular covered matter, it is no crime to publish a video or .jpg that does not contain a discrete Compliance Statement when it is composed into a web page that bears its own Notice in the manner directed by the Regulations.

It should also be noted that, though Section 75.8 meticulously describes the placement of notices in films and videotapes, it has not a specific word to say about "videos". It does go on to provide a general catchall provision for other "categories" of depictions, and while it does call for consistency with the categories actually specifically addressed, one must bear in mind the rule that the specific must govern over the general, and that the method of compliance for a "computer site" and a "web address" is quite specifically described. All in all, the situation is confusing, but I think the better end of the argument is that videos composed into a website do not require their own discrete notices if the site in which they are contained complies with the Section 75.8 regulations with respect to web sites.

I told you that it's like talking about the Trinity and the discussion bears a resemblance too, to certain criticisms of the proofs of God's existence as First Cause and as Unmovable Mover. 

That having been said in explanation for my opinion, I still tell people to encode each and every video with its own Compliance Statement because I know that DOJ charges people with obscenity on the basis of discrete videos downloaded from composite websites, treats them in court as "works as a whole" and it gets away with it. (They may not always be able to get away with it if I can get my hands on the defense of such a case!) However, if anyone is charged criminally because their videos, taken from a page with its own Compliance Statement, did not contain their own respective Statement, he or she might want to go back to this discussion before pleading guilty.

I'll leave my theory about videotape and disc covers for the next edition of this Primer. 

F. Foreign Content

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.


G. General Advice About Third Party Custodians and Undocumented Content

A remarkable and positive change in the fundamental operation of Section 2257 was inaugurated in changes to the Regulations in January, 2009 that, for the first time, permitted the maintenance of Section 2257 records off the premises of the producer, in the hands of a non-employee custodian; this change solved a very difficult issue for those whose budgets had no room for employees to man the records at least twenty hours per week and for those who had no place at which to maintain the records apart from their own residences; the former scheme worked to require camgirls to disclose where they lived, something that always seemed reckless, inappropriate, and maybe dangerous.

While no one can or should doubt the practical utility of third party records custodians, their use should always be a last resort decision of the web operator because of the uncontrollable dangers that their use creates. The neglect of a third party custodian can put you in prison because the legal obligation you have under Section 2257 remains with you constantly and can never be contracted away. Let me repeat, the neglect of the custodian can put you in prison, and it is unlikely that any non employee custodian faces any criminal penalty for neglect. It is for this reason, uncontrolled risk, that my office never recommends the use of a non-employee custodian, and for that reason when we identify to our clients the names of people who undertake that role for a fee, it is always with a caution that we recommend against their use. They will never go to jail in your place. A close reading of the terms and conditions of any such third party custodian is in order before you hire one. You are likely to learn that if their screw-up puts you in prison, destroys your reputation, shatters your family, and bankrupts you, their liability to you will be capped at the equivalent of the fees you have paid them for one month. Any doctor whose negligence might hurt you in an equivalent manner would be overjoyed to have his liability for malpractice to you limited to such an amount. Think long and hard and explore every other option before you put your whole life in the hands of a third party records custodian. See Section 75.3 (h) of the Regulations.

There are those who suggest a cute little game which seems to be good to be true, that I would be able to designate the original producers as my third-party custodian - to maintain for me records that I don't own or control nor have ever seen. I do believe it is far too cute to be lawful compliance.

Were I an adult webmaster, I would not place any content on my site for which I could not comply fully with Section 2257. This includes banners that show actual, sexually explicit content, produced by others and directing to their sites. I would not place my faith in those producers, even if I though they were good guys, honorable, virtuous, decent, fair, and all the rest. I would not leave my own compliance to my trust in them, because my trust in them is no defense; even their own honorable, literal, and total compliance with Section 2257 does not discharge my responsibility to maintain my own records. The essence of compliance is to maintain records (meaning that you control those records, personally or through an agent or employee under your control),  to index them by several means, among them, the URLs under your control which display the content, and to make them available for inspection without notice. It is precisely in this context, that of a scheme of cute avoidance, that I would first expect to see very technical violations prosecuted; I think such a practice will invite close inspection for other kinds of violations; I believe that if the FBI were to perceive an operator relying on a hypertechnical contrivance for the purpose of avoiding clear obligations, neither it nor the US Attorney would feel that a prosecution based on a strict and technical application of the regulatory provisions would amount to an injustice. I think it's likely that a scheme of evasion that pretends a webmaster's control over records that he does not actually control leads to the Bureau of Prisons. The entire system has been intended from its start to require that the mandated records be maintained by each person with significant commercial involvement in the content at each point of distribution, the obvious purpose of which is to create multiple, redundant copies of the records so as to minimize the chances of their total disappearance should any producer fold or any calamity destroy a particular cache. Anything that reduces the number of caches is unlikely to meet the spirit, intent, or letter of the 2257 scheme. Why would operators be inclined to this method? For the licensed user of the content, it reduces his work and the time spent in compliance. The interest of the original producer is to keep as secret as possible the actual identity of his model, so as to decrease the chances that another producer might pay better or treat the performer better, "steal" her away and eliminate the performer's exclusivity. This interest of the original producer can be handled by the regulatory provisions which allow redaction of the records [Section 75.2 (b)] even permitting the redaction of the photographic ID document almost completely, including redaction of the performer's name, leaving only the photograph and information necessary to confirm the ID, such as the name of the issuing authority and the card number. Where the original producer and the webmaster have a licensing agreement, and in which talent identity information is provided to the webmaster, nothing in the law would prohibit the enforcement of a license term requiring that the information disclosed for this purpose shall remain confidential except to those authorized to conduct the inspections, and that the information will not be further distributed nor commercially exploited. As for the licensed user, it is simply part of his job description to comply with the statute in creating a redundant cache of records.

The webmaster should know that he invites unacceptable risk whenever he uses content of any character for which no one has assumed 2257 obligations, and that this risk is heightened, in my view, when he contracts for their creation and imminent supply. The webmaster who does not consider these issues is blindly walking into a potential mine field. 

That risk is high when a webmaster publishes user-submitted content. I am speaking here of genuinely user-produced-user-submitted content, not of pirated videos submitted with erasure of watermarks, though these have the potential of five years' imprisonment, as well, for each person responsible for inserting those images on a web page. The genuine content is dangerous as hell. It is never or only rarely accompanied by Section 2257 documents, performer releases, or the like, and frequently contains copyright infringement (think about the music or video in the background) and trademark infringement (think about the clothing and shoes with logos, the beverages, and other identifiable famous trademarks that some aggressive lawyer will claim are being tarnished through association with pornography). One can only guess how often or how seldom these clips are submitted for publication with the knowing consent of all of the performers depicted. Because there is no contractual release, even consent at the time may be withdrawn at will. In the case of underage performers, they lacked capacity to consent in the first place. One can only guess as to how many of them are submitted precisely for the purpose of revenge and hurt. No matter how a video is assessed in this dichotomy, its publication is part of an endless cascade that may lead to the practical destruction of a webmaster's life, his humiliation, his incarceration, and his inclusion in a sex offender registry for decades or for life; the economic consequences, even punitive and exemplary damages, may be the least of his crippling and enormous problems. Before coming to the conclusion that submitted content is exempt from regulation under Section 2257 because it was made for private purposes other than commerce or trade, an attorney fully experienced in this arena must be consulted; this is far too momentous a decision, with consequences too profound, to be made without legal guidance. It should be noted that DOJ has specifically excluded those who operate genuine social networking sites from responsibility as producers, apparently because they do not control or manage the content of their members and do not insert the images onto websites. See Federal Register, December 18, 2008, 28 CFR Part 75,  Vol. 73, No. 244, pp. 77437 and 77461.

It should be emphasized most strenuously that the possession and distribution of forbidden child pornography in the United States are serious crimes no matter where or when the image was created, that 18 U.S.C Section 2241 provides serious penalties (up to life imprisonment in some cases) for those who cross state lines for the sexual abuse of children under the age of 16, and that this law, enacted in the exercise of the “special territorial and maritime jurisdiction” of the United States can be used to prosecute offenses that take place outside the United States., including, literally on the Moon and on all other celestial bodies and on spacecraft in flight, under the definition of that jurisdiction. See 18 U.S.C. Section 7. 

Extreme caution is urged in the use of images represented by image brokers as being outside the scope of Section 2257 because they are foreign and old. A significant number of images were created depicting persons under the age of eighteen, but relatively close to that age, engaged in actual explicit sex, images created in times and countries where the making of such images and their commercial distribution were lawful. All of that is of no matter should these images be detected on your site. Here and now, those images are unlawful child pornography and may put you in an American prison.

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Chapter VI 

Practical Advice for the Webmaster

 

In former generations, it was not unless you owned a broadcast station or printing press and a widespread distribution system that you could personally control the tools of mass communication. The Internet changed all that. As a webmaster, you now stand as a publisher before a world-wide market of several hundred million. On a very small budget, you can look as impressive to a consumer with a fifteen-inch monitor as the biggest corporation in the land. You can reach sailors at sea and troops in the field where Stars and Stripes could not reach just a decade ago; you can reach from Antarctica to Mongolia, from Tahiti to Taoromina, and all destinations of commerce between them. With that amazing opportunity comes risk, for as a publisher, the same laws will now apply to you that have always applied to publishers, laws concerning defamation, obscenity, invasion of privacy, copyright, and trademark, to name a few. Neither the risks nor the best way of dealing with them may be obvious or self-evident to the new cyberentrepreneur on the block. The prudent webmaster will become aware of those legal risks and seek the best guidance practical to avoid the reefs and shoals lest he run aground. He will recognize the need for navigation around all risks, or at least for risk assessment if all risk cannot be avoided. Large commercial vessels use GPS satellite navigation systems and a series of redundant backup systems down to the time-tested sextant, chronometer, and Nautical Almanac to deal with the risks of maritime travel. Smaller vessels may not find it practical or economically possible to do all of this, but they do not and cannot disregard navigation. Neither should you. You should have a relationship with a lawyer who is knowledgeable about the risks of what you do, internet publishing. 

The adult webmaster cannot afford to pretend that the risks are not real, but many of them clearly do. A casual examination of a number of otherwise-impressive adult sites showcasing their own original content rapidly leaves the visitor with the impression that the webmasters concerned either don’t know about Section 2257, that they don’t understand it, or that they just don’t care. No names will be mentioned. But it cannot be assumed that the federal government will countenance that indifference indefinitely and the likely product of all of it will be more vigilant enforcement, more stringent regulatory laws, or both. 

The producers of adult content video have been around for forty years, long enough to remember what raids and arrests feel like, and they possess a knowledge base that many webmasters, new to adult entertainment, have yet to acquire. It is a knowledge base that gives reality to the word “risk”: It is the knock at the door, the arrival of a squad of agents to execute a warrant, it is the experience of witnessing them go though your home or studio or office rummaging for sometimes hours, and then carting off your computers and scanners and discs and papers and records and server for further inspection at their leisure while your business, income, and expression goes straight to hell. While thus far there have been few obscenity prosecutions arising from the internet; it cannot be fairly assumed that obscenity prosecutions will not resume, and a reasonably cautious webmaster will make content decisions based on an assessment of how he would defend his site against allegations of obscenity where he is located and in all the jurisdictions where his content goes, using the community standards of each. Webmasters who go beyond soft-core have decided to assume some risk of this prosecution. 

To this point we have inquired whether the webmaster who does not produce original content or contract for its production even has to try to comply with a law that does not seem to include him in its terms. The next question is whether he actually can comply. A cautious webmaster would himself ascertain the 2257 compliance of all of his contents and comply with the Regulations in question just as though he created the images himself, including the indexing and maintenance of the performer information at his place of business together with retention of the identity documentation. The practical difficulty of this is difficult to ascertain, but it probably poses at least a formidable, if not impossible, task in the real world for a webmaster. 

Though Section 2257 has been discussed as and treated by some content providers as an unnecessary burden or a trap for the unwary - in other words as an “enemy” - I believe that the significance and utility of the Section is seriously misunderstood by them: To the contrary, Section 2257 is an important tool to protect the webmaster. There exist at least two compelling reasons why the content producer of any nude or semi-nude erotic images should harvest and maintain documents and information, for his or her own protection, without regard to whether the law actually requires these records: 

First, Because the penalty for knowing publication of child pornography starts at fifteen years imprisonment on the first offense, and because even the successful defense of such a charge is likely to have absolutely catastrophic effects on any producer or webmaster, legal, economic, and emotional, the webmaster should firmly, aggressively, and resolutely take every possible step to ensure that his site does not depict persons under the age of eighteen in any manner that is arguably suggestive or erotic. Harvesting that information in every case of erotic imagery protects the content provider from taking and distributing erotic, nude images of minors, which, even without sexual activity, is among the most seriously viewed crimes. Insisting on those records from the provider keeps the webmaster reasonably far from the same harm: The maximum penalty for distribution is the same as that for creation. The five-year Section 2257 offense acts as an outer perimeter to keep the sincere and law-abiding adult content provider and webmaster far away from the more dangerous fifteen-year child pornography offense under Section 2252A. 

Second, it is my opinion that evidence of compliance is essential to credibly mount the defense of “mistake of fact” on behalf of the photographer and/or webmaster indicted for child pornography resulting from photography of a model who he believed, in good faith, to be of legal age and its distribution. Although simple bare-boob, erotic photography without sado-masochism, without real or simulated sexual conduct, and without a depiction of the genitals or pubic area (on a spectrum starting from masturbation and reaching to the limits of the imaginable) is, strictly speaking, not within the mandates of Section 2257 and inasmuch as there is no duty to harvest identification documents and information, though the photographer may not successfully be prosecuted as a violation of that Statute, nevertheless any erotic photography of a person under the age of eighteen creates the very serious potential of indictment and conviction for the far more serious child pornography offense. It is not enough in this circumstance to testify that the model looked old enough; It is not enough to testify that the model said he or she was eighteen; It is not enough to testify that the photographer saw an ID document that the defendant half-remembers - not in an age when Section 2257 compliance is the prevalent standard industry practice of competent professional adult content photographers in all erotic photography in the adult market. For “mistake of fact” to work as a defense, it must be both a sincerely held belief and a reasonable belief: Failure to examine and/or to obtain copies of documents, to harvest the other information required, and to maintain those records, will invite the conclusion that the photographer’s or webmaster’s sincere opinion of the model’s age was simply not reasonable and will, moreover, cast doubt on the sincerity of the belief. Ready access to identity information concerning each model may, at the right time, under the right circumstances, with the right investigator, stop a criminal investigation in its tracks - before an arrest takes place, and before the arrest is reported in the press to the ruination of a professional career and the destruction of a personal life. Finally, the regular maintenance of these records creates a system that forms an exception to the hearsay rule and may keep a defendant off the stand except to establish a foundation for the admissibility of the records, which will speak for themselves to the judge or jury. The foundation may be laid by an employee or agent. In an appropriate case, this may be useful.

It is simply the sign of a death wish to use images of unknown provenance. It is for far more than copyright infringement reasons that the smart webmaster will not use images plucked from the Usenet or TGP pages or clips snagged from P2P: Because he has no knowledge at all as to the origin of the images, it is comparatively more difficult and perhaps impossibly unavailing to protect himself from child pornography prosecutions by arguing that he reasonably believed the performer to be of age. Is such a belief reasonable when it is based on no information or pedigree at all, in an era where strict government regulation is designed to avert the possibility of such images being used in commerce? Perhaps not. It is far more prudent for the webmaster to use images of known origin, images he knows to have been created by a reputable photographer known to him, or known well in the trade, who does comply with Section 2257. It is smart to deal with established content businesses that also must take risk of criminal prosecution under American law into account when they sell you images. The best practice is to know the source, to ask questions, and to take positive steps to ascertain that your web content is legal by eliminating doubt. If you insert images into a web page you are the producer of those images and the law requires you to possess the required records, which you may acquire from the original producer. That's the legal minimum. As a best practice, you should obtain a written license that warrants and indemnifies you against all risks and provides you with a defense. The people who forever will be in the most danger of seeing the inside of a jail cell because of Section 2257 include the Pirates, who will have utterly no legal cover and no sympathy, and the merchants of user-submitted content who will argue, it can be expected, that the legitimately private videos they publish were not made for trade or commerce. It is precisely those persons who also will also perpetually run an enhanced risk of investigation and accusation for child pornography. I do not believe that association to be coincidental but to be related by cause and effect.  

I expect that late some night, near 3:00 a.m. local time somewhere, this Primer will come up in the frantic Google search of a photographer or webmaster who is unable to sleep because he has just discovered that his website contains images of an underage performer who has lied to him about her age and who has tendered phony or false documents to meet the requirements of Section 2257. There may be a temptation to delete and destroy every trace that this performer ever had contact with the producer, but that would only tend to complicate the situation to the serious disadvantage of the producer; there is a significant likliehood that doing that, if it is detected (and it may very well get detected!) will create an impression of guilt in the eyes of police, the FBI that will be hard to overcome, and ultimately may be the deciding negative factor to a judge or jury with quite serious consequences. It may amount to another crime, obstruction of justice. In fact, the images, including the images of identification documents, may be the best evidence of innocence. This producer should not panic, but should contact an attorney experienced in this area just as soon as the sun rises, before taking any precipitous action at all, and he or she is best advised to answer no emails and to take and make no phone calls about the situation until an attorney is consulted.

Beyond its obvious goal of explaining the law to content producers and web publishers, this Primer also is written to generally inform the public at large, the electorate, to reach the eyes of elected representatives of the people and the attorneys and agents who administer, regulate, and enforce the laws discussed above, and to precipitate change in the law. This article establishes no attorney-client relationship. As webmaster or producer, you should have an attorney available for consultation who knows you, your operation, and the issues which confront you: You should have an attorney knowledgeable in this area review your site and business operations for Section 2257 issues and for all other matters of risk: It is better to have the fire department conduct a safety inspection before the fire starts. 

The prospect that the courts may soon uphold the validity of Section 2257, suggests that the smart adult industry professional will have competent legal counsel review his sites, content, and records for compliance, and engineer a protocol of Total Compliance. It cannot be expected that any further grace period will be extended in the enforcement of a statute that is now twenty years old. 

Certainly, if you have a legal question or a case, get in touch with an attorney and retain him. If you are arrested, do so at once and say nothing and consent to nothing until you have consulted with him, but offer no physical resistance. Keep your mouth closed. The jails are filled with people who thought they could explain their way out of charges. Cops are specifically trained to exploit the natural human desire to explain one's self.

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 About the Author

 

In America Unzipped, author Brian Alexander writes that Attorney J.D. Obenberger may be the most vociferous champion of the Adult Industry in the United States. J.D. Obenberger is a popular worldwide speaker on issues of adult internet law and regulation, having spoken 71 times since 2000 before thousands of adult webmasters and content producers in the United States, Canada, Germany, Hungary, Holland, and Costa Rica, and in ten American states and three Canadian provinces. He is the author of "Pleasureboating on the River Rubicon", published in hardcover during 2007 by the Thompson-West Publishing Company in its anthology, Online Pornography, and numerous other articles which have appeared in AVN Online, XBIZ World, Klixxx, Adult Store Buyer and numerous other journals. He is deeply committed to personal liberty and privacy from the interference of government in the spirit of the American Constitution, and in the American political tradition. His personal heroes include Barry Goldwater.

J. D. Obenberger is a graduate of the University of Wisconsin (Bachelor of Arts., Political Science and History majors, 1976), the University of Wisconsin Law School (Juris Doctor, 1979), the United States Army Judge Advocate General's School (1979), and the National Institute of Trial Advocacy (1986).

Starting from the representation of brick and mortar adult book stores, gentlemen's clubs and other Adult businesses in the Chicago area in 1993, he has developed an outstanding national and international reputation for representing the interests of the online entertainment community and as an advocate of Liberty in general. He has worked to the advantage of his clients at every step of government attack, from intervention during the execution of a federal search warrant through the entire process, from charges to trial; He successfully litigated the Mike Jones criminal obscenity case and in obscenity criminal defense in St. Martinville, Louisiana. He has represented numerous clients in North America, Europe, and the Pacific Rim, providing services in all of the legal issues confronting the webmaster and content producer: The defense of content producers and retailers accused of obscenity, copyright infringement and right to privacy representation, domain name disputes, and content reviews of adult megasites are regular parts of its practice area.

A former elected municipal city council member, he also served as Mayor Pro-tem and on the Zoning Board of Appeals and Planning Commission. He was decorated for outstanding performance of duty as a criminal defense lawyer while a Captain of the US Army Judge Advocate General's Corps and was undefeated when he brought cases on behalf of the United States as a prosecutor. While a Captain in the Army JAG Corps, he lived in Germany for three years, and speaks fair conversational German. He taught Political Science for Central Texas College (1982). He often provides commentary in television and print media on issues affecting online communications and has been quoted by the Wall Street Journal, The Christian Science Monitor, the Boston Globe, Wired, AVN Online, XBIZ, YNOT News, Klixxx and numerous other publications, and has been a guest on The O'Reilly Factor.

He is an active member of The First Amendment Lawyer's Association and the Free Speech Coalition. He has handled a wide variety of criminal cases, ranging from obscenity to conspiracy, aggravated kidnapping, forgery and drug cases, both as a prosecutor and as defense counsel, at trial and on appeal, and in locations as geographically diverse as Brownsville, Texas, Vicenza, Italy, and throughout Germany.

J. D. Obenberger practices law in Chicago, Illinois, providing advice and representation regarding issues of federal and constitutional law to clients located throughout the United States, Europe and Asia. He welcomes new clients. He is licensed in Illinois and is admitted to practice law before the United States Supreme Court and numerous other federal courts.

Contact Information 

XXXLAW.COM         e-mail obiwan@xxxlaw.net          Telephone 312.558.6420

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Footnotes

[1] Lords, Underneath it All, 56-7, 69-61, 77, Harper-Entertainment trade paper edition, 2004.

[2] The first enactment of Section 2257 (P.L. 100-690, Section 7513, eff. Nov. 18, 1988) contained no direct sanction for its violation but provided for a presumption against the defendant that the depicted minor was underage in a child pornography prosecution, if the producer had not complied with its notice, record-inspection-and-keeping obligations. It also operated retroactively to the future distribution of images created long in the past, thus requiring the producer to track down performers who had been photographed long earlier, to personally inspect identification documents, to harvest alias names, and create records. An era of litigation and reactive amendment concerning Section 2257 immediately followed enactment: In American Library Association. v. Thornburgh, 713 F.Supp. 469 (D.D.C. 1989), the original Statute was declared unconstitutional by the U.S. District Court for the District of Columbia because of the presumption of guilt (and other defects) and a permanent injunction against its enforcement was issued; The United States took an appeal, and in the meantime, during the pendency of the appeal, Congress enacted a curative amendment to Section 2257 in Section 301 of Public Law 101- 647 (enacted Nov. 29, 1990). In American Library Association v. Barr, 956 F.2d 1178 (C.A.D.C., February 19, 1992) the appeal was mooted and the underlying case remanded for dismissal because of that amendment. In American Library Association v. Barr, 794 F.Supp. 412 (D.D.C., May 26, 1992) the amended Section 2257 was held to be unconstitutional and a permanent injunction was granted against its enforcement, but the Court of Appeals for the District of Columbia Circuit reversed the District Court and the Court of Appeals upheld the constitutionality of the Statute in American Library Association v. Reno, 33 F.3d 78 (C.A.D.C., 1994). The Court of Appeals denied en banc rehearing over the dissent of two judges of that court in American Library Association v. Reno, 47 F.3d 1215 (C.A.D.C, 1995).The United States Supreme Court denied certiorari at American Library Association. v. Reno, 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995). The permanent injunction issued by the trial court endured until the mandate of the Court of Appeals issued on July 3, 1995. According to at least one commentator, the Department of Justice acknowledged, in a letter to the plaintiffs, that this date serves as the general “effective date of the requirements” of Section 2257. Dewitt, “Ask the Lawyers”, YNOT News, April 3, 2003. 

[3] The Statute was importantly amended twice after the early litigation. First, by Section 511 of the Protect Act (or “Amber Alert Bill”), Public Law 108-21 (effective date Apr. 30, 2003), which clarified that the statute applied to all computer generated images, digital images, and pictures, and increased the maximum penalty for violation from two to five years imprisonment on the first offense. (The maximum penalty of ten years imprisonment on a second and subsequent violation remained unchanged.) It also required the Attorney General to report on the history of the enforcement of this Section within one year. The Section 2257 amendments contained in the Protect Act appear to have been triggered by a congressional inquiry from Jim Sensenbrenner (R-WI-9th Dist., a one-term Chairman of the House Judiciary Committee), about why the statute had been left neglected and unenforced by the Justice Department; Attorney General John Ashcroft excused his Department with the pretext that the statute was outdated inasmuch as it did not specifically address Internet and digital distribution - even though its definitional terms were quite elastic enough ["other matter" has been part of the coverage of the statute in Section (a) since the time of the statute's first enactment] to cover them, and an entire first generation of Internet producers had spent much time and effort in attempting to comply with its requirements. Ashcroft never even tried to explain why Section 2257 had not been enforced on magazine and videotape producers whose media were expressly mentioned in the existing statute. The plain reality is that neither Ashcroft nor any of his predecessors had ever paid enough attention to the statute to even appoint any law enforcement agency to conduct inspections. When Attorney General Alberto Gonzales subsequently got around to designating the FBI for inspections on October 25, 2005, he did so with so little notice that it took my FOIA request on behalf of AVN to pry the information out - and even then, the resulting disclosure was heavily redacted. The designation was made in secret - probably because of the embarrassment associated with waiting fifteen years to even set up an inspection process regarding a statute entrusted to the Department of Justice. The entire situation was a comedy of errors in Eros. That same Protect Act, Public Law 108-21, made an apparently inadvertent error in numbering that destroyed the synch between the definitions located in Section 2256 and the definitional scope described in the text of Section 2257 which gutted its intent and application. That misfit was corrected in the Adam Walsh Act, P.L. 109-248. The Adam Walsh Act, effective July 26, 2006, was clearly a reaction, I think a retributive or retaliatory reaction, to litigation in Denver commenced by the Free Speech Coalition: Adam Walsh acted to essentially reverse the holding in the Tenth Circuit Sundance Case (see fn. 10, below) by adopting definitions for “produce” that included the class of persons who had been described as “secondary producers” in the existing DOJ Regulations. It contained very significant substantive changes to the structure of the Section 2257 system in its Sections 502 and 503, bringing simulations of sex and lascivious exhibitions of the genitals and the pubic area into the scheme of regulation, establishing a new alternative for compliance in Section 2257A for works that contained simulated depictions of explicit sex (but no actual sex) or which contained merely lascivious depictions of genitals or the pubic area, it created a new felony for refusing a Section 2257 inspection, and it required the DOJ to report annually as to the number of Section 2257 inspections and of ensuing prosecutions.

[4] The early litigation is surveyed in Footnote [2] above. In the more recent era, the Section 2257 scheme's constitutionality has been significantly challenged in three litigated cases. To the time of this writing, all of the attacks have substantially failed in the end. 

a. The first of these was the Denver Case, Free Speech Coalition v. Ashcroft, 406 F.Supp.2d 1196, 1205-06 (D.Colo., 2005). Denver was a logical choice for venue because the 10th Circuit had already determined the "Secondary Producer Regulations" to be void as ultra vires, beyond the statutory authority given to the Justice Department to promulgate regulations in Section 2257. (Footnote [10], below, provides more information about that issue and the prior Sundance Case.) The thinking may have been that it was better to start a broad constitutional assault on the scheme at least one step ahead with what was expected to be an automatic victory on that statutory issue. That's where the Free Speech Coalition and some other nominal plaintiffs brought an action for Declaratory Judgment in 2006. Paul Cambria and others did their best. I was fortunate to watch the much-delayed hearing in which Mr. Cambria attacked the copy retention requirements with respect to camgirls, which he effected with righteous fury. However, by the time the matter came for decision on Summary Judgment, the Adam Walsh Act had been enacted, Congress had adopted language to square with the Justice Department's regulatory view of the "Secondary Producer Requirements", and the issue was mooted. (It is difficult to understand Congress's action, under these circumstances, as anything but a reaction to the Free Speech Coalition's Denver lawsuit.) In his March 30, 2007 Order, Judge Miller roundly rejected all of the First Amendment, Due Process, Vagueness, Privacy, and Self-Incrimination challenges against the regulatory scheme expressed by the Industry group, with tiny exceptions, broadly granting summary judgment in the Government's favor and preserving a small handful for trial or other disposition. A scattering of fairly miscellaneous arguments met with a similar result; for example, the statute includes in the definition of sexually explicit conduct a category described as "sadistic or masochistic abuse", which is not defined. The FSC claimed that this term was impermissibly vague because it was not clear at which point "respectful sadism and healthy masochism" might become abusive. Judge Miller was of the view that indistinguishable language had been upheld in earlier cases decided by the Supreme Court against similar challenges. The lawsuit did garner some few modest results, not only from the court, but in the form of an informal letter from the Justice Department, in lieu of a formal response to discovery which clarified some ambiguities as to the DOJ's interpretation of how the scheme was to be implemented in practice and which resolves some constitutional issues. That informal letter is still of some value in order to understand how DOJ understands the statute and the regulations to function. The litigation did establish that requiring a web cam operator (the court called it a "chat room") to expensively maintain a full and complete copy of the web transmissions was unduly burdensome and chilled free speech and this resulted in a later change to the regulations providing that such transmissions need only be documented by preservation of a copy of the depiction with running-time sufficient to identify the performer in the depiction and to associate the performer with the records needed to confirm his or her age". 75.2 (a) (1). This litigation also had issue foreclosure issues down the road, and to this point in time, the Government's view that the Free Speech Coalition has had its one bite at the apple to litigate these issues has prevailed in litigation it brought later in Philadelphia and is discussed below. No appeals were filed in the Denver Case.

b. The "Connections Case". Connection Distributing Co. v. Kiesler, 505 F.3d 545 (6th Cir., 2007) [Vacated.]; Connection Distributing Co. v. Kiesler, 557 F.3d 321 (6th Cir., 2009) Attorney Mike Murray, representing swinger publications, pretty much alone and probably without much economic compensation, courageously and valiantly fought a battle against Section 2257 in Ohio on behalf of Connections Distributing that went on for more than a decade - and which went up and down from District Court to the Court of Appeals and then back down and then back up several times- and resulted in a favorable 2-1 decision of the Sixth Circuit against the validity of the statutory scheme as an invasion of personal privacy, the high-water mark of this litigation (and the only decision to this point in time ever broadly finding the provisions of the re-enacted scheme to be unconstitutional), a victory that was taken away from him by a reconsideration of the case en banc by all of the judges of that circuit; the Supreme Court refused to consider the case; and this left his clients, and the constitutional arguments against Section 2257 finally defeated. On October 23, 2007, the three judge panel of the Sixth Circuit determined, (over a dissent) that the Section 2257 scheme was unconstitutional because it was not limited to commercial producers, but invaded the privacy of ordinary people preserving memories of their private sexually explicit conduct in video and still images and because it was otherwise unconstitutionally overbroad. Connection Distributing Co. v. Kiesler, 505 F.3d 545 (6th Cir., 2007). Subsequently, the government's petition for en banc review was granted (and the earlier order vacated under the rules of court), the case was reargued, and the assembled judges of the entire Court of Appeals for the Sixth Circuit came to the opposite conclusion in Connection Distributing Co. v. Kiesler, 557 F.3d 321 (6th Cir., 2009) on February 20, 2009. Between the time that the three-judge panel declared the scheme unconstitutional and the en banc decision, the Justice Department attempted an end-run by promulgating new regulations on December 18, 2008, during the waning days of the Bush administration, expressly limiting the reach of the scheme to materials produced for "sale or trade". Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations, page 77456. The en banc panel makes no reference to the publication of the Final Regulation, but does assert that the Justice Department had argued that similar language would be used in the "preamble" to the regulation when published. The en banc panel took no square position on the privacy argument, despite the intervening attempt by the Justice Department, and seems to have dodged the issue, so important to the three-judge panel, by asserting that it had no evidence that such home made videos were common enough upon which to find that the scheme's overbreadth was substantial. It allowed that such a couple might successfully make an "as applied" challenge to the statute, if such a couple existed, which the court seemed to doubt. By so doing, they clearly ignored the very purpose for which, in First Amendment cases, exalted standing is given to parties to stand in the shoes of folks who would be too embarrassed to bring litigation in court to protect their rights. It was a decision wholly out of touch with the era in which it was rendered, an age in which people, now freed from any need for photo finishing processors, are free to create - and distribute - digital images of the most sensitive nature without the embarrassment attendant to bringing images in for development - and who do so in huge and ever-expanding numbers. The United States Supreme Court denied certiorari on October 5, 2009, and that was the end of the trail for the swingers' challenge in Ohio.

c. The "Philadelphia Case". Free Speech Coalition v. Holder, 729 F.Supp.2d 691 (E.D.Pa., July 27, 2010). In this action brought in Philadelphia by the Free Speech Coalition and an impressive cast of co-plaintiffs, supported by amicus briefs of the ACLU, comprehensively challenged the Section 2257 regulatory scheme. The trial judge denied FSC a preliminary injunction, denied its motion to amend its Complaint (because he thought the amendment would be futile, changing nothing), denied it an evidentiary hearing, and granted the Government's motion to dismiss the lawsuit. His Memorandum Order is a masterful treatise on the history of Section 2257, its historic antecedents (commencing in the 1970's), its enactment, the history of its legislative amendment, and a comprehensive summary of all of the prior lawsuits engineered to invalidate it. He considered and discussed in substantial detail each and every argument raised against the scheme from prior restraint, equal protection and the right of privacy to vagueness hitting every stop on the line before getting off the train. By the time that a motion to reconsider was filed (with some arguments added by Reed Lee of this office) and rejected, the full waterfront of all arguments with any reasonable shot had been covered. For good measure, as an alternative ruling, the court ruled that Free Speech Coalition and Dave Cummings were precluded, by their involvement in the same issues in the Denver Case, from relitigating any matters except those related to Section 2257A, which did not exist during the Denver litigation, and whose validity was not there challenged.  The mood and feel of this decision is quite different from the en banc opinion of the Sixth Circuit, even if the result is the same. This District Judge fully accepts the revisionist history of the Justice Department, first accepted in the Sixth Circuit just a few years ago, that the long period during which unconstitutional provisions were not enforced gives credence to the proposition  that the scheme will not be enforced in an unconstitutional manner in the future; both courts used the absence of prosecution to establish that any overbreadth of the scheme was not substantial - and the Sixth Circuit really, really seems to be out of touch with how commonly nude images and videos depicting sexual conduct have become in the 2000's. I don't know whether the reality about enforcement was ever explained to the judge, and it is possible that size limits on briefs precluded its full discussion in favor of other key points, but the truth is that the Justice Department has never done more than run a trial program in inspections, and has never enforced the scheme. For many years, no one was authorized to conduct the inspections; only under Alberto Gonzales was the FBI finally designated; and during most, if not all, of the time subsequent, the Justice Department was involved in litigation contesting the validity of the regulations and did approximately nothing to enforce or prosecute because of the substantiality of the possibility that any prosecuted case could lead to a determination of invalidity; it was all about risk at DOJ, and so they did nothing to rock the boat pending the actions for declaratory judgment. That, and nothing more than that, can be inferred from the pattern. There are clearly other points where untrue facts and short-sighted perceptions flaw this trial judge's conclusions, too many to list here. One that strikes me as particularly off-base is his conclusion, tentative and conditional, that producers have no privacy interest in the identity documents of performers. Has he never heard of an exclusive performance agreement? In any event, this matter came on for oral argument on January 11, 2012, and the government did not get a cozy reception from the three judges. A recording of the oral argument suggested that Third Circuit would remand this case back to the trial court to develop a factual record, that is, to receive evidence that may establish more about the merits of this lawsuit. On April 16, 2012, that is precisely what the court did, in a decision which may be read here. Either side may request hearing en banc before all of the judges sitting on the United States Court of Appeals for the Third Circuit; if neither side so reqests or if a majority of the judges on the bench fail to vote for such review, the case will be headed back to the District Court for factual discovery, the amendment of pleadings, and the possibility of some very exciting developments.. 

[5] By its text, Section 2257 still articulates (and the originally-promulgated regulations provided for) their applicability to images created after November 1, 1990. But, in fact, a permanent injunction against enforcement was in place when that date arrived; Congress has persistently failed to change that date in any of its several revisions of the Statute; The Justice Department, in promulgating its first Regulations implementing enforcement of the amended Section 2257, on April 24, 1992, set a date approximately one month subsequent, May 27, 1992, as the date upon and after which photographers were charged with the duties of copying identity documents and harvesting alias information, indexing those records, maintaining the records, making them available for inspection, and affixing a notice in conformity with the Statute and Regulations. Revised Regulations effective on June 23, 2005, first established that images made after July 3, 1995 were subject to the Regulations as further detailed in Footnote 2, above. [A producer may also affix an exemption statement and need not comply if covered images were created before July 23, 1995 regardless of the date of secondary production and also in the case of the simulations and images that would be covered merely because of lascivious depiction of genitals or pubic area that were made before March 18, 2009. See 28 C.F.R. Sec.75.7 (a).] Those 1992 Regulations did purport to reflect the duty, ostensibly established in the statute, from November 1, 1990, on producers to obtain the name and date of birth of models from an examination of the identity documents or to relate those records or the identity of the performer to the of the identification documents listed or described in Title 18 United States Code Section 1028 (d), and somehow to record and maintain that information, but they created no duty to copy, maintain, or index the name or other designation of the work if made before May 26, 1992. It seems that the intention of the drafters of the 1992 Regulations was that producers creating graphic images of actual, explicit sex were chargeable only with a duty to examine identification documents establishing legal age from November 1, 1990 until May 26, 1992, and if otherwise-exempt images were republished after that date, the primary producer might annotate the original records with information concerning the name or other designation of the work in which they were used, though none of this is a model of clarity; The Department of Justice author tried very hard to give effect to the date established by Congress, but the effect he achieved (or would have achieved, had the regulations been enforced), because of the secondary producer definitions he inserted, was an obligation on re-publishers and certain other persons distant from the photography to also themselves examine and record identity information of models in covered photography. The confusion is compounded by the failure of the Justice Department to have promulgated regulations within sixty days of the enactment of Public Law 101-647 (November 29, 1990).  The present Regulations make July 3, 1995 the general effective date of the provisions, except in the case of materials regulated only because they contain mere simulations and/or lascivious exhibition, for which the effective date is March 18, 2009. Other dates fixing the duty to create and maintain certain particular records are laid out in the current Section 75.2  (a) (1) and (2), (c), (d) and (g). Finally, Section 75.7 (b) of the Regulations provides that if the Primary and Secondary Producers are different entities, the Secondary Producer may accept from the Primary Producer a certificate attesting that the images are exempt because they were created before the applicable date when duties under the scheme commenced. 

[6] Images that are regulated by Section 2257 only because they lasciviously display the genitals or pubic area of any person first became part of the scope of the statute as a consequence of the Adam Walsh Act, P.L. 109-248, which, at that time, amended the definition of “explicit sex” in Section 2256 (which Section 2257 adopts to define its scope) to include such exhibitions. Before that amendment, mere lascivious nudity was not subject to the requirements described here. The newly revised Regulations promulgated on December 18, 2008, effective January 20, 2009 implemented that change, adding such images made after March 18, 2009 to the coverage of the Regulations. Section 502 (b) of that Act and Section 75.2 (g)  of the Regulations expressly exempt such images made, in whole or in part, before the date of enactment, from the scope of regulation. It would be prudent to securely preserve evidence of the date of creation of any such images in publication or other use.

[7] In Section 2257 as originally enacted, an “’identification document’ was required of producers in (b)(1) and was defined at (h)(2) as having the meaning given that term in Title 10 United States Code Section 1028(d). Section 1028 was a statute relating to identity theft and listed the documents protected, amounting to virtually every kind of official identification documents, some that contain no recent picture or any picture at all. That textual situation gave the Department of Justice no authority to mandate photo IDs.  (Section 75.2 (a)(1) of a 2004 DOJ proposed change in the regulations read  that Section 1028 (d) identification documents may be used, but the author of the proposal also defined “personal identification documents” in Section 75.1 of the proposal more restrictively than the then-existing regulation did in an apparent attempt to short-circuit Congressional intent. That author also attempted to plug a seeming loophole created by Congress in specifying the third subsection of Section 1028 (d), which, in its other subsections described fraudulent identification documents. This was resolved when the Adam Walsh act amended the statutory definitions contained in part (h) of Section 2257 to simply delete its reference to Section 1028 (d), leaving the language in Section 2257 (b)(1) standing which permitted the Justice Department to regulate the manner of recordkeeping. Accordingly, the next draft of Regulations mandated photo ID cards. 

[8] In upholding the Statute, the Court of Appeals for the District of Columbia construed the obligation to be a duty to inquire of the model regarding aliases, just as it was described by the President in transmitting the 1988 Act to Congress, American Library Association v. Reno, 33 F.3d 78, 91-2 (C.A.D.C., 1994). The Regulations now make this clear at Section 75.2 (a) (2): "Producers may rely in good faith on representations by performers regarding accuracy of the names, other than legal names, used by performers."

[9] The current Regulations concerning Disclosure Statements ("Notices") at Section 75.6 reflect substantial changes from the former provisions, which they superseded on January 18, 2008. The following "redlined" rendering of them shows what was eliminated and what was added by those changes.

(b) Every statement shall contain: 

(1) The title of the book, magazine, periodical, film, or videotape, digitally- or computer- manipulated image, digital image, picture, or other matter (unless the title is prominently set out elsewhere in the book, magazine, periodical, film, or videotape, digitally- or computer-manipulated image, digital image, picture, or other matter) or, if there is no title, an identifying number or similar identifier that differentiates this matter from other matters which the producer has produced;

(2) The date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter; and, [Reserved]

(3) A street address at which the records required by this part may be made available. The street address may be an address specified by the primary producer or, if the secondary producer satisfies the requirements of Sec. 75.2(b), the address of the secondary producer. A post office box address does not satisfy this requirement.

(c) If the producer is an organization, the statement shall also contain the name, title, and business address of the individual employed by such organization person who is responsible for maintaining the records required by this part.

(d) The information contained in the statement must be accurate as of the date on which the book, magazine, periodical, film, videotape, digitally or computer-manipulated image, digital image, picture, or other matter is produced or reproduced.

(e) For the purposes of this section, the required statement shall be displayed in typeface that is no less than 12-point type or no smaller than the second-largest typeface on the material and in a color that clearly contrasts with the background color of the material. For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer.

(f) If the producer contracts with a non-employee custodian of records to serve as the person responsible for maintaining his records, the statement shall contain the name and business address of that custodian and may contain that information in lieu of the information required in paragraphs (b)(3) and (c) of this section.

[10] The issue in Sundance was whether it was the duty of a non-producing webmaster to obtain the documents and information required by law of a producer and to maintain and index them and to make them available for inspection. The issue was resolved, adversely to the government, in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir., 1998). 

Congress did not define the term “producer” in Section 2257 as it was then written (it still does not),  it used (and uses) the term “produces” in legislating the scope of the Section and in describing its reach. Subparagraph (h)(3) of Section 2257 defined the term as follows: 

[T]he term “produces” means to produce, manufacture, or publish any book, magazine, periodical, film, video tape, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted; 

The affirmative duties of Section 2257 were imposed on “Whoever produces . . . matter” (and upon distributors in another context). While perhaps not a model of good, simple, English expression, the meaning of the definition Congress gave to the word “produces” seemed concrete. In American Library Association v. Reno, 33 F.3d 78, 93 (D.C. Cir., 1994) rehearing en banc denied, 47 F.3d 1215 (D.C. Cir. 1995), cert. den. 115 S.Ct. 2610 (1995), the United States Court of Appeals for the District of Columbia concluded that the “obvious purpose” of Section 2257 “is to identity those who have had direct contact with the performers.” No other court disagreed. A scholarly casenote treating the issue is found at 3 Vill. Sports & Ent. L. J. 589 (1996).

Sundance Associates published five swingers’ magazines which reprinted reader-submitted photos, some of them apparently depicting actual sexual conduct. Fearing criminal liability under Section 2257, it brought suit for declaratory judgment declaring that the Attorney General’s provisions, so expanding the scope of the Section as to make them what the Regulations called a “secondary producer”, were invalid. 28 CFR Ch. 1 Section 75.1 (c) (2) defined a “secondary producer” as any person who, among other things, publishes matter that contains a visual depiction of actual sexually explicit conduct. Sundance argued that the Regulations did not simply implement the will of Congress for enforcement and application of the statute, but, contradicting limitations on the kind of production which was controlled by the Statute, it improperly, and without congressional authority, added activity and persons to the reach of the law.  The trial court ruled for Sundance and invalidated the “secondary producer” obligations and the Attorney General took an appeal to the Tenth Circuit. In Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir., 1998), the Tenth Circuit Court invalidated language contained in Part 75 which attempted to expand the scope of Section 2257 so that it would reach the re-publishers of photographs. The Tenth Circuit held that the Attorney General’s interpretation of Congress’s definition of “produces” “flies in the face of the statutory language”. It got stronger. The Tenth Circuit observed that the Attorney General was “twisting words to reach a result it prefers” rather than interpreting any verbal ambiguity with accepted alternative meanings.  The court struck down that part of the Regulation that reached publishers who had no contact with the performers and had not contracted for the work to be produced. (To perhaps state it with too much exactitude for an article directed at a general readership, the Tenth Circuit struck the words “other than those activities identified in paragraphs (c) (1) and (2) of this section”, words which had the effect of putting all publishers of explicit material back into a definition that otherwise would have excluded all persons who “did not hire, contract for, manage, or otherwise arranging for the participation of the depicted performers”.)  Strictly speaking, the decision of the Tenth Circuit did not bind inferior courts except in the ten Mountain States of its territory and the suggestion of the Court of Appeals for the District of Columbia did not bind inferior courts outside the District. But the decisions were well-reasoned and exactly what content producers were looking for to avoid demands for the records from their webmaster customers. Large numbers of content producers and webmasters chose to disregard the secondary producer regulations.  See generally Workman, The Record Requirement as Applied to Webmasters: Section 2257, Klixxx, Issue 5, 115, 119. (The Sixth Circuit sidestepped the issue entirely in Connection Distributing Co. v. Reno, 154 F.3d 286 (6th Cir., 1998) the first time this case came to its bench by noting at footnote 3 of the decision that Connection Distributing never raised the issue of whether the Regulation exceeded the Attorney General’s power to regulate under Section 2257. After trial , on subsequent appeal, the Sixth Circuit reversed and remanded for a new trial because of evolving First Amendment jurisprudence: Connection Distributing Co. v. Reno, 46 Fed.Appx. 837, 2002, WL 31119685 (6th Cir. 2002)).  Ultimately, the debate was mooted by congressional action in the Adam Walsh Act in 2006 in which Congress incorporated the language of the secondary producer regulations into the statute.

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