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My reply was directed at the scenario of a domestic producer trying to take his business abroad or "go offshore." The problem with this is that, to the extent an American national is involved, the "foreign" producer will fall under the statute and records will need to be maintained and custodian statements affixed.
The issue of a domestic webmaster dealing with a 100% foreign company, i.e. absolutely no domestic investment whatsoever, either through a holding company or any other ancillary device, is more complex. Opinions vary whether the completely foreign producer is responsible for the record keeping provisions. The statute has never been tested and although the general rule is that non-citizens are not subject to the rule of US legislation, the jurisdictional question is unsettled, extremely complex, and subject to a number of variables.
One thing that is clear, however, is that the domestic webmaster would still be responsible for the affixation of the custodian of records disclosure, since they are clearly placing the depictions in interstate commerce. The problem arises, of course, that they may receive incomplete documentation or no documentation at all from a foreign provider.
Secondly, depending on the type of content, there is the issue of how "close" the webmaster is to the production of the content. That is, in the case of custom ordered, exclusive content from a foreign source, the webmaster is more likely to be deemed a producer of the material and subject to the statute.
Third, separate and aside from a 2257 analysis, even if a webmaster's content source is not subject to any record keeping regulation, it is a terrible idea to display content for which there is no age verification procedure. In the case of foreign content, you may get little or nothing in the way of records. What if just one of those images contains an underage model? It is extraordinarily dangerous to use content in that instance, and yet another reason webmasters should only license content from a reputable source.
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