GoFuckYourself.com - Adult Webmaster Forum - View Single Post - Section 2257: the Record Keeping Requirement as Applied to Webmasters

Jace · 08-24-2004, 10:46 AM

This disjointed result was not lost on the federal courts. As stated by the Court of Appeals for the Tenth Circuit: "The regulation conditions its exclusion of those 'not involved in the hiring, contracting for, managing, or otherwise arranging for the participation of depicted performers' to persons who are not a primary or secondary producer. The statute makes no such distinction." Sundance.

Criticizing the Justice Department's regulation, the Sundance Court observed: "This is not a case of verbal ambiguity presenting accepted alternative meanings; it is one of an agency twisting words to reach a result it prefers." The Court went on to strike the conditional language contained in the regulation, so as to give full effect to the plain meaning of the statute.

While federal judges outside the Tenth Circuit are not bound to follow the Sundance decision, it is this author's opinion that the reasoning in that case is so sound, and the Justice Department's implementing regulation so patently improper, it is difficult to imagine any federal court outside the Tenth Circuit reaching a contrary result.

However, given the intensity of political pressure against online pornography in general, and the proper public outrage against child pornography in particular, some federal prosecutors may be tempted to assert the stricken regulation (28 CFR 75.1(c)iii) against webmasters. Such prosecutorial efforts should, in my view, ultimately fail unless Congress were to repeal the class exclusion set forth in 2257(h)(3). But prevailing in a Section 2257 prosecution seems a Pyrrhic victory, as it will not spare the targeted webmaster from the expense, humiliation and potential loss of liberty occasioned by the prosecution. In other words, while I believe courts outside the Tenth Circuit will rule consistently with Sundance, that does not guarantee prosecutorial forbearance from hauling webmasters into court.

Even more importantly, any webmaster who fails to review age verification records relating to content acquired from a third-party provider takes the huge, and very real, risk of unwittingly violating Title 18 U.S.C. Section 2252, the federal criminal statute pertaining to child pornography on the Internet. A first time violation of this statute carries a prison time of up to 15 years. And while guilt under Section 2252 is conditioned upon a "knowing" transmission of child pornography, the federal courts disagree as to what level of knowledge is required. More than one court has concluded that the criminal intent element of the statute is satisfied even if the defendant was not aware that minors were depicted; it was sufficient that the defendant was aware of the sexual nature of the material.

Bottom line: if you are not involved in the hiring, contracting, managing or otherwise arranging for a model's performance of sexually explicit conduct, you are probably not within the class of persons obligated to maintain age verification records under Section 2257. However, given the extreme risks of unwittingly posting images of underage models, webmasters whose activities fall outside the statute remain well advised to have in place a standard procedure by which they review and confirm the age verification records maintained by their content providers. Voluntary compliance with Section 2257 serves this end, and stands as an important insurance policy against prosecution.

Disclaimer: This article should not serve as a substitute for attorney review of your specific website operations, and Section 2257's potential application thereto. Please consult with your attorney for specific counseling on all Title 18 matters.

-- Steven W. Workman, Esq. Mr. Workman is a media, entertainment and intellectual property attorney specializing in the adult Internet industry.

08-24-2004, 10:46 AM
Jace FBOP Class Of 2013 Industry Role: Join Date: Jan 2004 Location: bumfuck, ky Posts: 35,562	This disjointed result was not lost on the federal courts. As stated by the Court of Appeals for the Tenth Circuit: "The regulation conditions its exclusion of those 'not involved in the hiring, contracting for, managing, or otherwise arranging for the participation of depicted performers' to persons who are not a primary or secondary producer. The statute makes no such distinction." Sundance. Criticizing the Justice Department's regulation, the Sundance Court observed: "This is not a case of verbal ambiguity presenting accepted alternative meanings; it is one of an agency twisting words to reach a result it prefers." The Court went on to strike the conditional language contained in the regulation, so as to give full effect to the plain meaning of the statute. While federal judges outside the Tenth Circuit are not bound to follow the Sundance decision, it is this author's opinion that the reasoning in that case is so sound, and the Justice Department's implementing regulation so patently improper, it is difficult to imagine any federal court outside the Tenth Circuit reaching a contrary result. However, given the intensity of political pressure against online pornography in general, and the proper public outrage against child pornography in particular, some federal prosecutors may be tempted to assert the stricken regulation (28 CFR 75.1(c)iii) against webmasters. Such prosecutorial efforts should, in my view, ultimately fail unless Congress were to repeal the class exclusion set forth in 2257(h)(3). But prevailing in a Section 2257 prosecution seems a Pyrrhic victory, as it will not spare the targeted webmaster from the expense, humiliation and potential loss of liberty occasioned by the prosecution. In other words, while I believe courts outside the Tenth Circuit will rule consistently with Sundance, that does not guarantee prosecutorial forbearance from hauling webmasters into court. Even more importantly, any webmaster who fails to review age verification records relating to content acquired from a third-party provider takes the huge, and very real, risk of unwittingly violating Title 18 U.S.C. Section 2252, the federal criminal statute pertaining to child pornography on the Internet. A first time violation of this statute carries a prison time of up to 15 years. And while guilt under Section 2252 is conditioned upon a "knowing" transmission of child pornography, the federal courts disagree as to what level of knowledge is required. More than one court has concluded that the criminal intent element of the statute is satisfied even if the defendant was not aware that minors were depicted; it was sufficient that the defendant was aware of the sexual nature of the material. Bottom line: if you are not involved in the hiring, contracting, managing or otherwise arranging for a model's performance of sexually explicit conduct, you are probably not within the class of persons obligated to maintain age verification records under Section 2257. However, given the extreme risks of unwittingly posting images of underage models, webmasters whose activities fall outside the statute remain well advised to have in place a standard procedure by which they review and confirm the age verification records maintained by their content providers. Voluntary compliance with Section 2257 serves this end, and stands as an important insurance policy against prosecution. Disclaimer: This article should not serve as a substitute for attorney review of your specific website operations, and Section 2257's potential application thereto. Please consult with your attorney for specific counseling on all Title 18 matters. -- Steven W. Workman, Esq. Mr. Workman is a media, entertainment and intellectual property attorney specializing in the adult Internet industry.