As Risky As It Gets -
2257 Third Party Custodians and Undocumented Content
By J. D. Obenberger, Attorney at Law
© MMXII J. D. Obenberger, All Rights Reserved
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 uncontrolable 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 to tube sites 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.
As you may have heard, in order to perform an end-run around a panel of the Sixth Circuit in the Connections case, a panel that got reversed en banc, DOJ conveniently inserted language into the preamble of its December, 2009 amendments to the 2257 Regulations exempting images made without an intention of commerce or trade. You might think that this would exempt the run of the mill self-made, private videos from regulation, because, inasmuch as Section 2257, when it applies, requires some certain things to be done before the images are created, and so one would think that ony the intention one had at that time, image creation, should count. It is impossible to fully comply after the fact as the law is written. But when this matter came before a three-judge panel of the 3rd Circuit for oral argument on January 11, 2012, the Assistant Attorney General defending the statute against the Free Speech Coalition's appeal told the court that "the minute" such a video, made in good faith as a private record, leaves the front door, it is subject to the law. This makes no sense at all and betrays a cynical intent. 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, 77456, 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.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is email@example.com