Jace

copied and pasted from another board

by Steve Workman

Section 2257 of the federal criminal code is, at its core, a law enforcement tool. The statute identifies certain classes of persons in the pornography industry who must create and maintain records by which law enforcement can verify the names and birth dates of models and performers depicted in "sexually explicit activity."

There's a good deal of confusion out there, including disagreement among lawyers, as to the scope and impact of the age verification and record-keeping requirements of Section 2257. This confusion is somewhat understandable given the legal challenges made against this statute over the years, and the resulting legislative changes. The dust has settled, however, and for the reasons discussed below, it is this author's view that many, if not most, adult webmasters are not presently required to observe Section 2257's record-keeping requirements, assuming that the federal courts nationwide follow the well-reasoned opinion of the federal Court of Appeal in Sundance Association v. Reno(1998). Under that case, it is only those webmasters who operate sites where they are actually involved in the hiring of models, or in directly acquiring images from the performer - - as with the so-called "amateur" sites - - who are burdened by Section 2257. For those webmasters who acquire site content from one or more third party content providers, with no direct contact with the models or performers, Section 2257's record-keeping mandates are inapplicable.

Do not, however, allow this conclusion to give you false comfort. All webmasters remain well advised to take every available precaution to ensure their site's content meets legal age requirements, not the least of which are the severe criminal penalties attaching to even the inadvertent display of underage model images. Website display of underage models carries a 15-year prison term. And if you are caught displaying underage models on your website, the prosecutor (and the court) will likely care little, if at all, that your content license agreement warranted that all models were of legal age. Therefore, this author strongly recommends that webmasters outside Section 2257's mandate nevertheless voluntarily comply with its provisions, or effect comparable age verification procedures.

In order to understand my conclusions, a brief review of the history of this record-keeping legislation may be helpful.

Title 18 contains the federal government's criminal code. Section 2257 of that code is one in a series of laws designed to combat the child porn industry. The Child Protection and Obscenity Enforcement Act of 1988 (the 1988 Act), as amended by the Child Protection Restoration and Penalties Enhancement Act of 1990 (the "1990 Amendments"), is directed towards persons involved with production, assembly an distribution of certain pornographic materials. These laws represent the most recent in a series of legislation which began in 1977 with the Protection of Children Against Sexual Exploitation Act.

The 1988 Act was enacted in response to the Attorney General's Commission on Pornography, which found that producers and distributors of child porn were able to avoid prosecution on a claim of ignorance or deception as to a model's true age. To combat this problem, the 1988 Act imposed age verification and record-keeping requirements on "producers" of materials containing explicit sexual activity. Several parties immediately challenged the constitutionality of this initial version of Section 2257, arguing that its provisions violated the First Amendment. The federal trial court agreed, and struck down various portions of the statute. While the matter was under appeal to the D.C. Circuit, Congress recognized its error, and so adopted the 1990 Amendments which significantly altered the "scope and burden" of Section 2257.

Following the 1990 Amendments, Section 2257 reads, in pertinent part:

"Whoever produces any book, magazine, periodical, videotape or other material which contains one or more visual depictions made after November 1, 1990* of actual sexually explicit conduct. . . shall create and maintain individually identifiable records pertaining to every performer portrayed in such visual depiction."

The meaning of "actual sexually explicit conduct" can be found by reference to Sections 2256 and 2257, and includes non-simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse. (While this definition is, of course, subject to debate over interpretation, it's beyond the scope of this article, so we'll move on.)

The crucial issue, from the pornography industry's point of view, is the meaning of the term "produces," because it is only this class of activity which triggers the statute's record-keeping obligation.

Although the statute itself provides a definition of the term "produces," Section 2257 expressly authorizes the Attorney General to issue "appropriate regulations to carry out this section." Pursuant to this authority, the Justice Department promulgated an implementing regulation that includes an expansive definition of "producer" for purposes of Section 2257. The regulation states:

"A person, including any individual, corporation or other organization, who is a primary producer or a secondary producer.

(1) A primary producer is any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct.

(2) A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depiction of sexually explicit conduct.

(3) The same person may be both a primary and a secondary producer.

(4) Producer does not include persons whose activities relating to the visual depictions of actual sexually explicit conduct are limited to the following:

(i) photo processing;
(ii) distribution; or
(iii) any activity, other than those activities identified in paragraphs (1) and (2) of this section, that does not involve the hiring, contracting for, managing, or otherwise arranging for participation of the depicted performers."

28 C.F.R. Section 75.1(c) (emphasis in original).

Based on this expansive definition, there is no doubt that Section 2257's record-keeping obligations would extend to virtually all webmasters who acquire sexually explicit content directly, or from a third party source, and incorporate that content into their website. The only webmasters spared under this definition might be those whose content derives exclusively from links, such that their role in disseminating content is essentially limited to that of a distributor.

The Justice Department's expansive definition of producer would appear to comport with the purposes of the legislation. The stated rationale, proffered by both Congress and the Commission, was that unless all persons in the chain of production and assembly of pornography were charged with age verification and record-keeping, offenders would remain free to avoid criminal liability through claims of ignorance or mistake as to underage performers.

But Congress apparently wasn't concerned with fully effectuating the purposes of the legislation when it drafted the 1990 Amendments. For reasons unstated (but on speculation, probably have to do with the prior wave of constitutional challenges to the statutory scheme), Congress curtailed the class of persons covered by Section 2257 by expressly excluding activity which "does not include distribution or any other activity which does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 2257(h)(3).

Compare this statutory limitation with the Justice Department's regulation. The latter does not exclude such activities if they fall within the terms of a primary or secondary producer. This is no small matter of semantics. In fact, the Justice Department's regulation renders this entire class of excluded activities utterly meaningless and without effect.