Jace

75.2(1)(i): The Requirement Of Maintaining A Copy Of Each Depiction Is Vague, Confusing and Onerous: The proposed regulations impose a new requirement of maintenance of a ?hard physical of electronic copy? of every depiction subject to the statute. For some Websites this could mean literally hundreds of thousands or, in some cases, millions of copies of depictions which must be separately associated with the other data required by the regulations. (Indeed, it is not clear what a ?hard electronic copy? is: If the authors intend by this language to mean CD-ROM or DVD, the meaning is more properly expressed as a digital file in optical media, and if tape, a digital file in magnetic media.). The manpower necessitated in creating copies of all imagery for all erotic Websites is enormous, tedious, and complex, and in the case of Websites featuring live streaming video, the task is physically demanding on the original provider, but absolutely impossible for the kind of Webmasters called ?secondary producers? under the proposal who manage Websites carrying streaming content furnished by the original providers.

The adult Internet includes myriad examples of sites containing three to five thousand models in depictions perhaps sixty times as numerous. In the normal commerce of the adult Internet, Webmasters, including Webmasters publishing Websites of this size, license or buy images from many photographers and, as the existing regulations contemplate, they rely on the photographer to examine and copy all required age and identity documents and to maintain records associated with the creation of all images. To require Webmasters to obtain and maintain more than information associating the imagery with the original producer places a cumbersome burden on protected expression that adds absolutely nothing of effective value to deter commerce in child pornography.

Compliance with this new requirement will probably impose a crushing financial burden on my site and every other site so situated and will so impermissibly act to burden protected expression as to stifle it at the risk of prison. None of this will provide one whit of effective regulation to protect against the sexual exploitation of children.

In addition to imposing an unfair and onerous new requirement on my ability to publish lawful erotic materials, the new requirements pertaining to the maintenance of a copy of each depiction are vague and confusing. For example, do the regulations require that a new file be created whenever a depiction is modified or moved? Will multiple sets of records, each including a separate copy of the depiction, need to be created and maintained for each such derivative work or whenever the depiction is used in a different Website? Will new files, including copies of a subject depiction need to be generated each time a new banner advertisement or search result containing the depiction is generated? Is a photograph, edited to exclude explicit portions, a new ?depiction? independently subject to the file maintenance requirements? If so, would a duplicate set of records, including additional physical or electronic copies of each such depiction need to be generated?

Burdensome Records Retention Requirement: The record keeping requirements contained in the proposed regulations are Herculean in nature and impose a burden on Webmasters and content providers that are essentially impossible to accomplish.

For example, the proposed regulations appear to require photographers to maintain a copy of each depiction for years. Especially in the case of multimedia works such as digital movie files, and in the case of live streaming video, which often operates continuously around the clock, the digital storage requirements will be massive and continuously ongoing. While this requirement may be handled with ease by large-scale commercial enterprises, the burden will be insurmountable for Websites operated by individuals and more modestly staffed and equipped Web operations.

§75.3 Overly-Complicated Indexing Requirement: The proposed regulations require that all records be retrievable in the following manners: 1) alphabetically; 2) numerically; 3) by legal name; 4) by alias; 5) by maiden name; 6) by nickname; 7) by stage name; 8) by professional name; 9) by title; 10) by number; 11) by ?similar identifier of the media.

The purpose of Section 2257 is to prevent child exploitation, not to create a cross-index database for law enforcement. The statute requires gathering specified information, but grants no authority to require the proposed indexing scheme.

Additionally, such an indexing requirement is overly burdensome, in that it requires the development of non-existent computer database retrieval programs and the use and purchase of same by every disseminator of protected erotic speech. Many Webmasters operate on a shoestring budget, and do not have access to the resources of a large film producer to whom the regulations appear to be primarily directed. Requiring categorization and retrieval in this manner does not further any legitimate governmental interest but instead, burdens small Webmasters with expensive database requirements, and data input obligations. A suggested remedy would be to require retrieval only by the actor?s legal name, name used in the depiction, or title of the work. Such limitation would allow for categorization using more commonplace database tools and filing methodology. Anything that does not serve the purpose behind the enactment of the statute and would serve only to effectively suppress the use of otherwise lawfully created expressive material.

Privacy Concerns: The so-called secondary producer provisions (which the proposed regulations perpetuate) impose a duty to obtain or maintain identity records on all persons in the chain of publication, including those with no direct contact with any of the persons depicted. The imposition of such a duty carries with it a continuing and never-ending cycle in which personal identity documents concerning models and performers will be disclosed to ever more numerous and distant persons. This obligation seriously compromises the privacy and endangers the safety of each performer and is likely to lead to such evils as identity theft, stalking, harassment, and uninvited personal sexual solicitation of the performers.

The Internet has enabled many persons of limited economic means to publish Websites to a worldwide audience, including Websites with sexually explicit themes. These persons operate Websites without any employees from their residence. There are a very substantial number of such persons. These persons do so often only as a small part of an otherwise normal life that may include regular employment in unrelated enterprises. The ?disclosure statement? provisions, as applied to individuals operating Websites from their homes will, in many cases, operate to require these persons to disclose the only address they have, their home address, together with their name. This is an incendiary mix that will lead to the same evils: Stalking, harassment, and uninvited sexual solicitation.

75.5(a)(1): Inspection Obligations are Overly-burdensome: The proposed regulations require each producer or secondary producer to make records available from 8am -6pm, 365 days per year. Authority to require all regulated businesses to be open every day of the year from 8am ? 6pm cannot be found in the statutes, and such requirements ignore the different business hours kept by the regulated businesses. This proposal seems to mandate that no one may lawfully create or disseminate sexually explicit material unless that person can afford to staff and maintain an office that is open for inspection at least seventy hours per week during the business day. However neither Section 2257 nor the Constitution limit freedom of expression to those who can afford to do it as a full time enterprise. This proposal also limits the practical ability of photographers to do ?location shoots? or to rent remote studios, to those photographers who can afford to hire a custodian who will always be present during the specified hours. All of this quite unreasonably, and quite unnecessarily, burdens the creation of images for publication.

The prior regulations simply provided that the availability be ?reasonable?, and that is flexible enough to accommodate both the government?s interest in having an opportunity to inspect and the part-time producer?s actual availability. These regulations act to put a price tag on some kinds of expression by a large group of persons, establishing by government fiat a price that is practically unreachable by large numbers of producers today.

75.2(a)(1)(ii): The ?Copy of URL? requirement is ambiguous and confusing. Given the definition of ?URL? in Section 75.1, it is especially confusing exactly what is required by 75.2(a)(1)(ii). If the text is meant to require a record of the URL, it should so state. If the text is meant to further burden expression with a requirement that a copy of a Web page featuring a depiction also needs to be kept, it should so state.