Under a federal law, 18 U.S.C. § 2257, producers of a “visual depiction of an actual human being engaged in actual sexually explicit conduct” are required to keep records showing the ages of the models. It does not cover images produced before July 3, 1995, or depictions of virtual sexually explicit conduct not involving action human beings.
The Adam Walsh Child Protection and Safety Act, codified at 18 U.S.C. § 2257A, extended record keeping requirements to “simulated sexually explicit conduct” and “lascivious exhibition of the genitals or pubic area of any person” beginning March 18, 2009. Section 2257A also creates a safe harbor certification process for television and movie producers of simulated or lascivious depictions. The certification does not apply to other types of depictions covered by § 2257. New regulations issued December 8, 2008 cover these changes.
The current regulations are available at http://www.zei2257.com/FR-28CFR75-20081218.pdf
Producers are required to maintain records of the legal name and date of birth of each performer, any other name ever used by the performer, a copy of photo identification issued by a government entity, a copy of the depiction, the date of original production, and the URL associated with the depiction if it is published online. Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct; Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performance, 73 Fed. Reg. 77,470 (Dec. 18, 2008) (codified at 28 C.F.R. pt. 75).
The records must be indexed by name and cross-referenced to other names used and title or identify number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, picture, URL, or other matter. Id. at 77,470.
A statement of the location of the records must be affixed to every copy of depictions that fall under the record-keeping requirements. For online publishers, the statement must appear on every webpage that contains a depictions, but can be 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.'” 73 Fed. Reg. at 77,471.
Producers must keep copies of these records for seven years, and maintain them for five years after the producer is out of business. Id. at 77,470.
Producers must allow Attorneys General or their agents to enter their business premise and inspect the records or keep the business records at with a third party custodian that provides for access during regular business hours or at least 20 hours a week with no advanced notice and no requirement of suspicion. Id.
18 U.S.C. § 2257(f) makes it a crime for a person fail to create or maintain records, “knowingly to sell or otherwise transfer” any sexually explicit material that does not have a statement affixed, or refuse to permit inspection. Violations are punishable by up to five years for a first offense and 10 years for subequent offenses. 2257(i). Violations of 2257A are punishable by up to one year in prison. 2257A(i).
Litigation Over 2257
The initial iteration of 2257, first passed in 1988, mandated that producers keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalities for noncompliance, the statute created a rebuttable presumption that the performer was a minor. Pub. L. 100-690. This version was struck down as unconstitutional in American Library Association v. Thornburgh on First Amendment grounds. 713 F. Supp. 469 (D.D.C. 1989) vacated as moot 956 F.2d 1178 (D.C. Cir. 1992).
After Thornburgh, Congress amended 2257 to impose direct criminal penalities for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accommanying regulations, but the new version was upheld by American Library Ass’n v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation’s distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity “does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.” 18 U.S.C. § 2257(h)(3).
In 2005, the Department of Justice issued regulations that expand the definition of a “secondary producer” of sexually explicit material. As of June 23, 2005, federal regulations apply the 2257 record-keeping requirement to these secondary producers, and defines them as including anyone 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.” 73 Fed. Reg. at 77,468.
However, the regulations clarify that those who merely provide general services to producers, such as distribution, film-processing, or web-hosting are not producers and are not covered by the regulations. Id.
In Free Speech Coalition v. Gonzales, representatives of adult entertainment companies challenged the 2005 regulations, and the plaintiffs obtained a preliminary injunction for some aspects of the regulations, including application of the record-keeping requirements as to secondary producers, as mandated by the holding in Sundance. 406 F. Supp. 2d 1196 (D. Colo. 2006).
The DOJ argued that ALA v. Reno “implicitly accepted that the distinction between primary and secondary producers was valid” and that “the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech.” See 33 F.3d at 91.
However, after 2257 was amended in 2006 by the Adam Walsh Act, the court ruled that Sundance’s restrictions no longer applied to the amended statute and generally ruled in the government’s favor on its motion for summary judgment. Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2006).
The regulations imply that secondary producers are limited to those involved in commercial operations. This would seem to limit the recording requirements of secondary producers to material intended for commercial distribution and exclude noncommercial or educational distribution from the regulation. 73 Fed. Reg. at 77,469.
The Attorney General has also stated that the statute is “limited to pornography intended for sale or trade,” 73 Fed. Reg. at 77,456, though the text of the statute does not make this distinction. The Attorney General stated before the 6th Circuit en banc panel in Connection Distributing Co. v. Holder that the regulations “does not apply to images that an adult couple produces of its own intimate activity for the couple’s private enjoyment at home.” 557 F.3d 321, 339 (6th Cir. 2009) (en banc), cert. denied 2009 U.S. LEXIS 6926 (Oct. 5, 2009). The comment section of the regulations makes the same conclusion. 73 Fed. Reg. at 77,456. The Sixth Circuit accepted this interpretation and ruled for the government.
However, the regulations do state that recording requirements for primary producers do apply to those who create depictions for non-commercial purposes, and in response to comments, implied that individuals who take pictures of themselves to post on a dating website or trade pictures with potential partners must adhere to the record-keeping requirements by taking down their own information, making a photocopy of their own driver’s licenses, and opening their homes to inspection without notice or paying a third party to hold onto everything. See 73 Fed. Reg. at 77,459. Furthermore, such a individual would have to either disclose his home address publicly or pay another business to store records in order to maintain privacy. The Attorney General affirmed this interpretation in briefing in Free Speech Coalition v. Holder. Defendant’s Reply in Support of Motion to Dismiss at 15., No. 2:09-cv-04607 (E.D. Pa. filed Feb. 22, 2010).
In 2009, along with several individual artists, journalists, educators, and performers, Free Speech Coalition challenged 2257 and 2257A on primarily First Amendment and Fourth Amendment grounds, and the case is ongoing. Free Speech Coalition v. Holder, No. 2:09-cv-04607 (E.D. Pa. filed Oct. 7, 2009).
Chapter 2 – Content And Speech Regulation Obscenity · Communications Decency Act – Obscene Materials · Children’s Online Protection Act (COPA) · Children’s Internet Protection Act (CIPA) · State Attempts At Regulation · First Amendment · Anonymity · International Content Regulation