Every Webmaster’s Primer on 2257 Compliance

 

By Attorney J. D. Obenberger

OUTDATED AND SUPERCEDED: Revised Third Edition (Rev. +1)
MMIV J. D. Obenberger. All rights reserved.
This Article appeared in the September, 2004 edition of AVN Online


NOTICE: This Article is OUTDATED and has Been Superceded By a New Edition.

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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 September, 1984 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. From the beginning, she appeared with all of the biggest names in porn video and 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 end in 1987.

In the first place, her 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 crossed the threshold of the United States Supreme Court. Tens, if not 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 Traci Lords calliope crashed to the ground. For years afterwards law enforcement agents 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. (However, it is highly debatable whether, had the law presently expressed in Section 2257 existed in 1984, it would have made any significant difference in this story: 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 person'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. 1.

Traci Lords was never marketed to the pedophile fringe. Instead, she was portrayed as an 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.

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 reasonably believed her to be of age, what emerged was legislation designed to combat the creation and commercial exploitation of pedophilic pornography, in part, by regulating the production of general pornographic materials by requiring the identification of performers, regardless of their age.

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. 2. 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 Part 75, the validity of some portion of which have been rejected by the federal courts considering them. More recently, in June, 2004, the Attorney General has published proposed, newly amended Regulations which change some of the existing duties and which squarely address the Adult Internet for the first time. These Regulations have been published for comment; The comment period ends on August 24, 2004, after which changed Regulations may be promulgated.

The reader is cautioned that this article contains a summary treatment of the law, that it is the law itself that should be consulted for legal guidance, with the guidance of an experienced lawyer, rather than this or any other summary of the law, and that this article does not constitute legal advice or guidance.


The Obligations of Section 2257 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 sexually explicit conduct, made after November 1, 1990. 3. It does so under penalty of criminal prosecution and the imposition of a criminal sentence.

It imposes no record-keeping or inspection obligations on persons who are not producers. More about that later.

It imposes no obligations on producers of material that does not include actual, sexually explicit conduct. Thus, there is no obligation under this provision regarding graphic representations of mere erotic nudity or of simulated sex. But it does cover the waterfront of actual, sexual 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 any other reason. (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 whether, strictly speaking, required by the Statute, or not, and should maintain them as though covered by the Statute.)

Failure to comply with the obligations of the Section is a felony upon the first conviction, punishable 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, 4. sells or otherwise transfers without a "custodian of records" statement, any of the material specified in the statute and required to have such a statement. It is also a crime to remove any of the compliance statements attached to the matter.

Those 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 which depict actual, sexually explicit conduct are required to obtain and examine an identification document containing the performer's name and date of birth and to record and maintain that information as individually identifiable. Under the Regulations, a legible copy of the identification document examined shall be made and maintained with the other records which must be maintained. They are also required to ascertain, apparently from the performer, though this is not clear in the statute. 5. any other name ever used by the performer, including maiden name, alias, nickname, and stage or professional names. Under the existing Regulations, one of the approved, government-issued, official identification documents mentioned or described 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 examined, copied and maintained under the existing Regulations. June, 2004 Proposal. The draft Regulations proposed in June, 2004 seemingly shrink the universe of acceptable photo identification documents to the kind of document which provides sufficient, specific information that enable it to be "be accessed from the issuing authority" [sic]. 6. The proposal mentions several examples of what it means, including foreign passports, but the kind of access and speed of access required by the proposed regulation is not actually defined; Verification and authentication are simply not mentioned as such. Under the existing regulatory/statutory definition of acceptable identification, a birth certificate is acceptable identification, at least if coupled with a photo identification card. 7. It is a wiser 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. In the limited and remote experience of this author, underage drinkers typically don't possess more than one fake ID.

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 and copies of documents by the various names associated with the performer and by the name or number of the work. 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 under the existing Regulations. 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 a web site without the required records. There are special regulations concerning modification or amendment of the records when the material is released in another form or re-released. June 1994 Proposal. Under the June, 2004 proposal, an important "may" becomes a "shall" for content made after its effective date and thereby appears to impose a duty to update the records when the producer publishes new matters containing the images. 8. The proposed Section 75.4 contains some element of misfit concerning the duration for which records must be maintained. There would be a plenary obligation to maintain the required records for seven years. However, there is also an obligation upon dissolution of a business to maintain the records for five years thereafter, suggesting a duty to maintain the records as long as the producer remains in business. 9. The proposed Regulation addresses computer generated images, digital images, pictures, and URLs in a confusing manner that has naturally led to some confusion and perhaps misunderstanding in the adult webmaster community. There are two dimensions to this confusion. First, the proposal imposes (or at least assumes) a duty to uniquely associate each covered content element created after May 26, 1992 with its required records, a requirement which some of us have long believed to exist under the current regulations. In the practice of some smaller sites and many megasites, the same file names are used redundantly for different images located in different galleries and file directories. The new Regulation provides that the records may be associated with images by title, file name or URL; That provision would avoid imposing a duty of uniquely re-naming all file names on webmasters of such sites; However, this treatment of non-unique filenames can lead to a morass of a different kind, because directories and URLs can and do change over the course of time, sometimes by reorganization and perhaps by automation. Second, with respect to images created on and after the effective date of the Regulation (thirty days after publication in the Federal Register) the producer of Internet content must include a copy of the depiction in the Section 2257 Records and a "copy of the URL associated with the depiction". Proposed Section 75.2(a)(1)(i) and (ii). This latter provision may be read to impose the unwieldy and nearly-impossible burden on primary producers to account for every use of their content in the blazingly mercurial adult internet. It is my suspicion that such a reading would impose an unreasonable burden on protected expression and would render the regulation unconstitutional; No producer should be responsible to maintain records concerning the publication of images by another person. Given the definition of "URL" as the uniform resource locator itself in Section 75.1(h) of the Proposal (rather than the page it locates), the Proposal seems to require that the associated URL be recorded in the mandatory records; It would appear that the use of "copy" as a noun in the Proposal is probably a misnomer. Finally, Section 75.2 (e) of the proposal requires that the set of required records be maintained as a discrete entity, apart from others, included in to others, and contained in no others.

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. 10. There are specific provisions in the existing Regulations concerning where that disclosure statement is to appear in books and magazines and videotapes and films. (There are also specific rules on matter exempt from the law because of a date of creation or publication.) There have been no such specific requirements in the existing Regulations specifying where the disclosure or exemption statement is to appear on a web page or in other electronic media such as computer images on disc, in newsgroups, or in computer games. The Statute in question and the regulations which were promulgated to implement them were all written before the modern world wide web took shape, form, and substance in the manner as we now know it. The existing Regulation and the current Statute are written broadly enough to encompass all of these kinds of images in computer formats, but a person who has sought to comply with the law has found no direct and positive criteria in the existing implementing Regulations for images in electronic media: He or she can only look for 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.) June, 2004 Proposal. Sections 75.6 and Section 75.8(d) of the proposed Regulation discuss digital images, the world wide web, and how notices must be provided. It seems that images standing on their own - such as those posted in newsgroups, shared in P2P and displayed on banners - are addressed in Section 75.6 as though in the cross-hairs of a gunsite. Though it is not as clear as it might be, it appears that one proper notice for a web site may suffice and is provided for; For the first time addressing the location of such a statement on a web site with specificity, the proposal requires the notice (not a link to a notice) to appear on its homepage or principal URL. As an electronic display, it would appear that a web site notice "must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer" under Section 75.6 (e) and that other language purporting to specify type font size and background may not be intended to apply to the Internet, though this, too, is less than clear.

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. Neither the incumbant, John Ashcroft, nor any prior Attorney General has ever gotten around to designating anyone for the purpose of conducting 2257 inspections, and so, from the time of the first Regulations implementing Section 2257 to this point in time, only the Attorney General, personally, has been empowered by law to knock on the door under the Section. It is reported that one or more local police agencies actively lobbied without success for such authority. It is not unreasonable to suppose that John Ashcroft may find one or more federal, state, or local law enforcement agencies that he finds competent to conduct these inspection before his tenure in office comes to an end. June, 2004 Proposal. Under the proposed Section 7.5, the focus shifts noticeably from a simple articulation of a duty by a person maintaining records to the authorization and empowerment of agents deputized for that purpose by the Justice Department. On their face, they would impose an obligation to make the records available for inspection from 8:00 a.m. until 6:00 p.m., local time, and at any other time that the custodian may conducting business concerning covered adult depictions. See Section 7.5 ( c ) (1). This provision, too, brashly imposes a heavy, crushing burden on nonobscene, constitutionally protected expression as now exercised by small web sites and content houses, run frequently as a part time enterprise by individuals during casual moments of a day filled with the other responsibilities of life. When coupled with the existing notice requirements, requiring individual campersons of limited means, operating out of their homes as they often must, to identify that address to the world, the Justice Department here creates an impossible barrier to free expression that should fall as an unreasonable and unconstitutional. The proposal limits inspections to once in a four-month period unless more frequent inspection is justified by suspicion. The proposal also empowers the agents to copy any document subject to inspection. It also positively asserts that "plain view" seizures of any evidence of a felony may be seized.


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


Much controversy and much dispute have arisen in the adult internet community over recent years concerning the issue of whether non-content-producing adult webmasters have any affirmative obligations under Section 2257 to create, index, and maintain records. The question is whether the webmaster who buys all of his or her content without any special arrangement for its production must comply with the affirmative obligations mentioned to the extent possible. 11. The degree of misunderstanding is so grave that numerous posters on the webmaster boards have misunderstood the requirements imposed under the "secondary producer" requirements to be new, appearing for the first time in the June, 2004 proposal; To the contrary, the secondary producer requirements and the issue they create have existed from the start of the world wide web as we know it..

The Attorney General's only authority to promulgate regulations concerning Section 2257 is that Section itself: In any conflict between the regulations issued by the Attorney General and published in the Code of Federal Regulation and the laws of Congress appearing in the United States Code, it is obviously the laws of Congress which must prevail.

The Regulations which the Attorney General issued under the authority of Section 2257 are found in 28 Code of Federal Regulations Ch. I, part 75. To this point in time, the most controversial part of those regulations has been a definition of "producer" that is far more expansive, covers far more territory, and includes far more persons with the scope of the regulation than would fall within the scope of the term "produces" as used in Section 2257. The long-existing Justice Department scheme breaks producers down into what it calls primary and secondary producers. What it calls primary producers are the persons who actually film, videotape, or photograph the explicit conduct; These persons are plainly within the coverage the Statute through its definition. The 2004 Proposal adds persons who digitize images to the list of primary producers at Section 75.1( c ) (1).

The real controversy arises in the second category mention in the existing and proposed Regulation, the definition of "secondary producers". (28 CFR Ch. I, Part 75, Section 75.1 (c) (2) and (4)). The existing Justice Department regulations aspire to reach any person who "publishes, reproduces, or reissues" explicit material, and some others. The persons who would be exempted under the regulations are chiefly photo processors and mere distributors. So, the existing definition covers just about anyone who uses such images, or contracts or arranges for their creation. The 2004 Proposal adds to the list of secondary producers those persons who use covered images for publication for a commercial purpose, and without respect to commercial purpose, expands the scope of the Regulation to those persons who insert an image on a computer site or service and those who manage the content of a computer site or service, and anyone who contracts or otherwise agrees to do those things.

Section 2257 certainly applies to those webmasters who create graphic images depicting actual sexual conduct and who publish those images to internet web sites. Under the existing law, if any matter contains one or more "visual depictions" of actual sexually explicit conduct made after November 1, 1990, it is brought within the ambit of the statute. Under Section 2256, a visual depiction has long included data stored on a computer disk or by electronic means which is capable of conversion into a visual image. Those webmasters who are content producers of visual images depicting actual sexual conduct, who come into contact with the performers for the creation of the images, are certainly required to comply with the affirmative duties provided for in that Section and summarized above. Webmasters who "custom order" or contract for the production by others of material depicting actual sexual conduct may arguably also be producers of the content under the statutory definition because they have contracted for its creation. Thus a webmaster can be a producer under 2257, but this arises, under a proper reading of the statute and the cases, which explain it, not because he is a webmaster who publishes such images to the internet, but because of a deeper and stronger connection with the creation of the images or with the performers involved.

The issue at hand, though, is whether it is the duty of a non-producing webmaster to obtain the documents and information required by law to maintain and index them and to make them available for inspection.

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) 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 known decision of any court in this nation holds to the contrary. [This case is not presently available online from a free source. A scholarly casenote treating it is found at 3 Vill. Sports & Ent. L. J. 589 (1996).]

It was however 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.

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 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.

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. (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 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 outside the District. 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 the Justice Department 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 as they exist identically in the existing and proposed Regulations will stand in any federal court. 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. Apparently, this issue is still alive in that case: 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)).

The issue really is not whether a webmaster is obligated to maintain records as a secondary producer under the Regulations - he is - but whether the secondary producer regulations are valid and whether their duties may lawfully (or constitutionally) be imposed upon a webmaster. My own opinion is that of the Tenth Circuit: I believe them to be invalid.

The conservative approach - and the only safe practice that would avoid risk of committing a crime - would be to comply with the disputed provisions. How is this done in the case of a so-called "secondary producer" webmaster? Section 75.2 (b) of the Attorney General's regulations do provide that the "secondary producer" may comply with the regulations by accepting from a primary producer copies of the records which the law requires him or her to maintain. If he fails 1) to receive those records from the primary producer and to maintain the required information about the primary producer and 2) fails to create maintain his own records (which would be pretty tough to create and maintain), he has failed to discharge his duty under the Regulations and, if the Regulations are valid, he has committed a crime by publication of the images. Under the existing Regulations, the secondary producer must also keep records of the name and address of the primary producer from whom he received copies of the records, but nothing found in the Section nor elsewhere would require a public disclosure of the identity information of the actual producer or the talent. He may avoid publication of the name of the primary producer in his notice by assuming all of the duties of a primary producer, i.e. by maintaining the records and by identifying himself or his employee as the custodian in the notice. 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 commercially exploited.


Special Cases: Streaming Live Feeds and Foreign Content


Explicit streaming video and live feeds 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 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 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.

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. Although the American webmaster purchasing images and streams already made can argue that he is not a "producer" under the holding of Sundance (taking the associated risk that this case will not be followed outside the Tenth Circuit and that he may be convicted of a crime), and if his position is accepted by the court, it would appear that there would be no Section 2257 duty to maintain records on anyone with respect to that content. But that may not get him off the hook: The domestic distributor of the images may run afoul of Title 18 United States Code Section 2257 (f) (4) which establishes a crime when materials which have moved in interstate or foreign commerce are distributed without the notice required by the Statute. Moreover, there is cause to suspect that Section 2257 will apply to foreign producers and distributors of content aimed at the American market: In reversing the trial court and in upholding the validity of Section 2257 in 1994, the Court of Appeals for the District of Columbia rejected the plaintiff's contention that the law was unreasonably burdensome because it would apply to overseas content. Reading the Statute as though it would apply to foreign content, the court said: "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.". American Library Association v. Reno, 33 F.3d 78, 94 (C.A.D.C., 1994). Accordingly, American webmasters should have no involvement with foreign content that is not Section 2257 compliant.

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.

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.


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 twenty 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.

Each court that has tackled the issue has concluded that the Attorney General's concept of a "secondary producer" is invalid and outside the law, and I agree with those courts, but here is utterly no guarantee that the exceptionally well-reasoned opinion of the Tenth Circuit will be followed by federal courts in the Midwest or in the South. Like the risks of obscenity prosecution, any webmaster who publishes explicit images to the internet without complying fully with all of the affirmative duties of Section 2257, just as though he had created the images, runs some risk of prosecution outside the Tenth Circuit for violation of the regulation.

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 nude, erotic photography without sado-masochism and without sexual conduct (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. Finally, 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.

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.

This article is written only to generally inform the public at large, and this article establishes no attorney-client relationship. As webmaster, you should have an attorney available for consultation who knows 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 of new regulations and the new legal duties they impose, on pain of criminal penalty, suggest that the smart adult industry professional will have competent legal counsel review the sites, content, and records for compliance, and engineer a protocol of Total Compliance. He will, moreover, take advantage of the opportunity to comment before the proposed regulations, or others like them, become law, and he will keep abreast of developments concerning their promulgation and any ensuing litigation concerning them.

Certainly, if you have a legal question or a case, get in touch with an attorney and retain him. Or her. If you are arrested, do so at once and say nothing and consent to nothing until you have consulted with him, offering no resistance, however.


Footnotes

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

2. An era of litigation and reactive amendment concerning Section 2257 followed enactment: In American Library Association. v. Thornburgh, 713 F.Supp. 469 (D.D.C. 1989) the original Statute [Section 7513 of Public Law 100-690] was declared invalid as unconstitutional by the U.S. District Court for the District of Columbia 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 the 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 "effective date of the requirements" of Section 2257. Dewitt, "Ask the Lawyers", YNOT News, April 3, 2003. The Statute was importantly amended by Section 511 of the Protect Act (or "Amber Alert Bill"), Public Law 108-21 (eff. date Apr. 30, 2003), which clarified that the Statute applied to all computer generated images, digital images, and pictures, and it increased the maximum penalty for violation to five years imprisonment on the first offense and ten years on subsequent offenses (from two and ten years, respectively). It also required the Attorney General to report on the history of the enforcement of this Section within one year.

3. A permanent injunction against enforcement was in place when that date arrived; Congress failed to change that date in any of its several revisions of the Statute; In fact, 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. A producer may also affix an exemption statement if covered images were created before November 1, 1990 or were produced or published before May 26, 1992. See 28 C.F.R. Sec. 75.2 (a) and (b); Sec. 75.6; Sec. 75.7 (a)(1). Those 1992 Regulations, and the draft Regulations proposed in June, 2004, do 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 identification documents listed or described in Title 18 United States Code Section 1028 (d), and somehow to record and maintain that information, but they create no duty to copy, maintain, or index the identity documents or to relate those records or the identity of the performer to 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 the 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 republishers 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).

4. The textual, if not constitutional, reach of the Statute may be broader and to include the private, home videotape a couple might make of their sexual frolics using a Japanese-made videotape.

5. 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, H.R. Doc. No. 100-129, 100th Cong., 1st Sess. 65 (1987). American Library Association v. Reno, 33 F.3d 78, 91-2 (C.A.D.C., 1994)

6. According to Congress in the Act itself, "'identification document' has the meaning given that term in section 1028(d) . . ." 18 United States Code Section 2257 (h)(2), Congress gives the Department of Justice no authority to modify this proposition of law, and accordingly, any further restriction of the category of acceptable identity documents by the Justice Department may lie outside its statutory authority to regulate. Section 75.2 (a)(1) of the new proposal articulates that Section 1028 (d) identification documents may be used, but the author of the proposal also defines "personal identification documents" more restrictively than the current regulation does, in Section 75.1 of the proposal. That author also attempts to plug a seeming loophole created by Congress in specifying the third subsection of Section 1028 (d), which in its other subsections describes fraudulent identification documents.

7. Though the author of this article, at every opportunity, loudly and colorfully rails against the acceptance of birth certificates as identification documents by content producers.

8. Compare the existing Section 75.4 ( c ) with Section 75.4 ( c) and (d) in the proposal.

9. This may be the attempt of the proposal's author to tap dance around the construction given to this provision of the Regulations by the D.C. Circuit: In determining the 1992 Regulations to be constitutional, the court set aside the onerous requirement that the records be maintained as long as the producer remains in business, imposing instead a five-year duty to retain records. American Library Association v. Reno, 33 F.3d 78, 91 (C.A.D.C., 1994).

10. Section 75.4 of the existing Regulations states that "Any producer required by this part to maintain records shall make such records available at the producer's place of business" and prohibits the use of post office boxes; The new Regulations contain the same provisions. This language probably makes it illegal to maintain records away from a place where the business activities of the producer take place, as for example in a temporary storage location, an office rented by the hour, or by an outside agent conducting his own business. While it is not difficult for medium-sized and larger adult businesses to comply with these provisions, their crushing effect is felt most directly by small, part-time producers, especially those in which one person (or just a couple) is the owner, sole employee, and online performer, and conducts all of these activities where that person lives. The right of persons to engage in constitutionally-protected expression is no less no less entitled to protection because it amounts to a part-time job or because not much money is involved. Not only do these provisions afflict the expression with an unreasonable or impossible economic burden, they also chill expression because they destroy the anonymity of adult camgirl/camcouple/camboy performers and subject them to stalking, harassment, and other effects of sexual and/or romantic obsession because, of practical necessity, the only address that can be provided is frequently the residential address of the part-time performers. It is my view that the language of the United States Court of Appeals for the District of Columbia Circuit, in upholding the constitutionality of the regulations in the pre-internet era, indirectly supports the proposition that, at least as applied to this class of persons, these aspects of the notice provisions unreasonably burden free expression and violate the First Amendment. See also American Library Association v. Reno, 33 F.3d 78, 94 (C.A.D.C., 1994).

11. Obviously, if the webmaster obtains the work product, it would be difficult to examine copy the identification documents of the model in the first instance, and the regulation provides that he may comply by accepting copies.


Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution He is a graduate of the University of Wisconsin Law School and the National Institute of Trial Advocacy. A former elected municipal Alderman, Mayor Pro-tem, and Zoning Board of Appeals member, and a decorated former Captain of the US Army JAG Corps, his practice areas include First Amendment Law, Obscenity, Defamation, Adult Entertainment Law, Criminal Law, the Law of Privacy, and Municipal Licensing and Zoning Law.

J. D. Obenberger and Associates has represented a significant portion of the Chicago region's adult entertainment for nearly a decade. His Internet practice (XXXLaw tm) handles a wide range of adult internet matters, including the defense of content producers accused of obscenity, copyright infringement representation, domain name disputes, and content reviews of adult megasites.

He is an active member of The First Amendment Lawyer's Association and the Free Speech Coalition and a frequent writer for publications serving the adult internet and speaker at national and regional adult Internet conferences on topics concerning Liberty in expression and the Internet.

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