The Law and the Skin Trade in the Windy City

Everything You Always Wanted to Know About “Custodian of Record” Disclosures on Adult Materials Under Section 2257. And Then Some.

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

If you’ve watched any adult video tape in the past decade, you’ve probably noticed a blurb or a series of blurbs at the beginning of the tape that disclose of the date of creation, a location where records are kept, and the name of a person who is the custodian of records. You may have wondered what that was all about and why all that information was put there. And knowing you, yeah, you, you probably wondered if you could go to the address listed, talk to the custodian, and demand the phone number of some porno starlet who caught your eye. Or some other part of your anatomy.

The short answer to that question is “No”, unless you are the Attorney General of the United States or her designated agent to inspect those Section 2257 records.

The laws establishing the legal obligations discussed here arise from laws and are found in the United States Code at 18 U.S.C § 2257. Additionally, the Attorney General, directed by Congress in that law to establish regulations for the enforcement of the Section, has promulgated a series of regulations found at 28 CFR Ch. I, Part 75. (The validity of a part of the definitions of that Regulation important to webmasters and magazine publishers, and attempting to impose compliance requirements on them for record-keeping and disclosure, has been rejected as invalid by the only federal courts directly considering the language. More about that later.)

The whole point of Section 2257 is the abatement of child pornography. That’s why the Section was enacted, directly in the wake of the Traci Lords scandal. It’s a law designed to prevent underage persons being used in “adult” material. It calls on the producers of adult material to make inquiries about name and age, identify the performer by examining documentation of identity, , record it, disclose in adult materials where those records may be inspected, and to open them to government inspection on request. You should understand that the penalties for the making of child pornography start at fifteen years in prison and go up rapidly, and that federal laws in this area are as serious as federal laws ever get. Theses laws operate even outside the United States. Only people with a death wish and other mental aberrations would get within eight counties of anything coming close to this. The 2257 scheme of regulation attempts to build a wall and moat around the possibility. This is how the law works.

What Duties Are Imposed?

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

  1. The Duty to Identify and Inquire. The producers of visual images with explicit sexual conduct are required to obtain and examine an identification document containing the performer’s name and date of birth. They are also required to ascertain, apparently from the performer, though this is not clear in the statute, any other name ever used by the performer, including maiden name, alias, nickname, and stage or professional names. Under the regulations, one of the approved, government-issued, official identification documents mentioned at 18 U.S.C 1028 (d) suffices if it contains a photo. If it does not bear the holder’s photo, a copy of a picture identification card must be produced under the Regulations. (Under the Regulations, a legible copy of the identification document examined shall be made and maintained with the other records which must be maintained.)
  2. The Duty to Create and Maintain Retrievable Records. The producers of the graphic materials covered within the ambit of Section 2257 must create certain records of the name and date of birth of the performers, those records must permit the retrieval of information by the various names of the performer and by the name or number of the work, and those records must be maintained at the producer’s place of business and for a period of five years after the dissolution of any business. 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 a duplicate off premises copy 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. There are special regulations concerning a duty to modify or amend the records when the material is released in another form.
  3. The Duty to Make Disclosure in the Work of the Location of Records and the Identity of the Records Custodian. Each copy of a work covered by the law must contain a statement of compliance which identifies the title of the work, the date of production, the identity of the custodian of records (always a real person) and the address where the records are maintained. There are specific provisions in the regulations concerning where that disclosure statement is to appear in books and magazines and videotapes and films. There are specific rules on matter exempt from the law because of its date of creation. There are no such specific requirements specifying where the disclosure or exemption statement is to appear on a web page or other computer image, and a person seeking to comply with the law can only look to guidance for the provision in Section 75.8 of the Regulation stating that the disclosure should be “prominently displayed consistent with the manner of display required” in books, magazines, films, and tapes; in other words, up front and prominent. (In a book or magazine, the disclosure must be printed on the cover or copyright page, and in a videotape, it must appear in the first minute, before the first scene, or during the closing credits, and it must appear long enough to be read by the average viewer.)
  4. 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 at all reasonable times.

Who Has the Duty to Comply With Section 2257?

Title 18 USC Section 2257 imposes certain obligations on the a person who “produces” material containing depictions of actual sexually explicit conduct, made after November 1, 1990.

It imposes no obligations on producers of material that does not include actually sexually explicit conduct; Thus there is no obligation under this provision for graphical representations of mere erotic nudity or of simulated sex. But it does cover the waterfront on actual conduct: It includes all varieties of sexual intercourse, vaginal, anal, or oral, straight or gay, and bestiality, masturbation, and sadistic or masochistic abuse. The determination of whether the act applies to images that do not clearly display penetration or the other covered activities is 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 for any other reason.

However, the obligations that it does impose on the persons who are reached by the statute and who are producing the kind of material specified in the statute are enforced though the imposition of a criminal sanction: Failure to comply with the obligations of the Section is a felony upon the first conviction, punishable by up to two years confinement and a fine, and two to five years and a fine on a second conviction. A person may be convicted for violation of the statue 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 sells or otherwise transfers without a “custodian of records” statement any of the material specified in the statue and required to have such a statement. These penalties reach any person, not just producers, who falsify the records or who transfer the adult material or move it in interstate commerce without the required notice.

What visual images are covered? Books, magazines, films and videotapes are just the start. Web pages, live streaming video, posts on the Usenet, ftp sites on the net, are all within the ambit of the Statute and the Regulation. Everything that contains a visual image of actual explicit sex is covered.

While Congress did not define the term “producer” in the Section, it uses the term “produces” in legislating the scope of the Section and in describing its reach. As most recently amended, subparagraph (h)(3) of Section 2257 defines 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 are imposed on “Whoever produces . . .matter” and on no other persons. [Emphasis added.] While perhaps not a model of good, simple, English expression, the meaning of the definition Congress gave to the word “produces” seems plain enough. In American Library Association v. Reno, 33 F.3d 78, 93 (D.C. Cir., 1994), 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 known decision of any court in this nation hold to the contrary.

Now, in fact, the regulations promulgated by the Attorney General go beyond the kind of persons involved with hiring performers and taking pictures and videos of them. Those regulations sought to include virtually anybody who used the images, including webmasters and magazines that buy the pictures from photographers. Are these regulations valid? Do they go beyond the intent of Congress? The only case on point says that the Attorney General went too far in extending the scope of the duties to persons who do not have direct or indirect contact with the performers.

It was indeed necessary for a United States Court of Appeals to take this issue head on 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 court answered that, indeed, the Regulation had gone too far.

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 sought 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 added activity and persons to the reach of the law.

The trial court ruled for Sundance and invalidated the “secondary producer” provisions and the Attorney General took an Appeal to the Tenth Circuit.

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 gets 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.

Strictly speaking, the decision of the Tenth Circuit does not bind inferior courts except in the Mountain States of its territory. Strictly speaking, the Court of Appeals for the District of Columbia does not bind inferior courts west of the Potomac. However, the Tenth Circuit opinion is remarkably strong, clear, and well reasoned in rejecting a government position that it concluded was ill-founded, poorly reasoned and contrived to defend regulations that were promulgated not so much to implement the law as to do what she thought Congress should have done. Given the agreement in understanding of the definition by the D.C. Circuit and the Tenth Circuit, it is unlikely in my view that the “secondary producer” provisions will stand in any federal court, and until and unless Congress changes the definition in question, it is probably unlikely (but not impossible) that there will be any attempts to enforce that clause of the regulations declared invalid in Sundance. See generally Workman, The Record Requirement as Applied to Webmasters: Section 2257, Klixxx, Issue 5, 115, 119.

Finally, two cautions are in order. First, you should understand that this has nothing to do with obscenity. When a work is determined to be obscene, that is the same thing as saying that it has no protection under the first amendment, and in Illinois, possession of obscenity with intent to distribute is a crime. Transporting obscene articles in interstate commerce is a federal crime. 2257 compliance is no defense to obscenity. Secondly, child pornography has no protection under the constitution, and as mentioned previously, it is a most seriously punished crime. With respect to obscenity and child pornography, the date or place of creation is never a defense.

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 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com