By: Lawrence Walters, Gregory Piccionelli, and J.D. Obenberger
08-12-2004
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The following is a collaborative effort of Lawrence Walters, Gregory Piccionelli, and J. D. Obenberger:
Proposed changes to the regulations implementing Title 18, USC §2257 were published June 25, 2004 in the Federal Register at 69 F.R. 35547. The proposed new 2257 regulations can be found here; a primer on 2257 compliance, written by J.D. Obenberger, is online here.
Public comments on the new regulations are due on or before August 24, 2004.
Please select from the following suggested official comments pertaining to the proposed 2257 amendments. Select as many topics as pertain to your particular circumstance and copy and paste them into the body of your e-mail. When selecting a topic for inclusion in your e-mail, you should include all paragraphs pertaining to that topic.
You must provide your name, corporation (if applicable), and e-mail address, which will be used to identify the sender of the selected comments.
The comments should be sent to [email protected]
Nothing below constitutes legal advice or a legal opinion of any kind:
Suggested Comments to the DOJ Re: Amended 2257 Regulations
Records Keeping Requirement for Webmasters Is Invalid and Illegal; §75.1(c)(2): The proposed requirement that secondary producers, including Webmasters who license images from photographers, obtain and keep age and identity records imposes an immense, complex, and sometimes impossible burden on Webmasters, a burden of a nature never intended by the Congress, and a burden that will inevitably cause a not inconsiderable number of lawful images, of persons well over the age of eighteen, to be withdrawn from the Internet. The new regulations will require many Webmasters to go back and obtain age records for all their content, which in some cases can number in the hundreds of thousands of images. However, the case of Sundance Assocs. Inc. v. Reno, 139 F.3d 804 (10thCir. 1998) says that the Justice Department does not have the authority to impose this requirement.
Incorrect Effective Date: The new regulations impose effective dates of November 1, 1990 and May 26, 1992. These effective dates are contrary to the commonly-understood effective date of July 3, 1995, which the industry has used for compliance thus far. Enforcement of 18 U.S.C. § 2257 and the regulations thereunder promulgated by the Department was enjoined from the outset until July 3, 1995. The Justice Department later agreed, in response to threatened litigation, that the effective date of the statutory obligations under Section 2257 would be July 3, 1995, rather than the dates specified in the statute itself. Because enforcement was enjoined until July 3, 1995, producers and distributors of materials made before then should not be forced to comply with the statute and regulations retroactively.
75.8(d) Statement Location Requirement is Counterproductive: The statute requires a conspicuous disclosure statement. Where Website content provided by multiple content producers is concerned, it would be impossible and illogical to require all disclosure statement information to be contained on the home page or main url. The records custodian for each group of content must be designated on the interior pages to avoid confusion as to which custodian maintains the records for which content. Webmasters should be allowed to place portions of the disclosure statement, tying specific records custodians to specific content, in the interior pages of the site, or wherever necessary to avoid confusion.
75.6(e): Type Size Requirement is Illogical: Requiring an 11 point type disclosure statement for Websites is nonsensical. The display size of any particular type contained on a Website depends on the size of the monitor or screen on which it is displayed. Webmasters have no control over what the display size is on any particular screen.
75.5(g) Seizure Power During Inspections is Invalid and Unconstitutional: The new regulations grant law enforcement officers, who can be anyone designated by the Attorney General, broad authority to seize any evidence of the commission of any felony during the course of an inspection. Nowhere in 18 U.S.C. § 2257 is such a broad regulation authorized. Moreover, evidence of a felony could include evidence of violation of an obscenity statute, and seizure of media materials under those circumstances without a judicial determination of obscenity would offend the First Amendment. Moreover, this provision runs afoul of the established statutory scheme found in the Criminal Code and the Federal Rules of Criminal Procedure, and the Fourth Amendment, relating to searches and seizures.
75.1(c)(4)(iv) Host Exclusion is Under-inclusive: The new regulations exclude from the definition of a producer, ?a provider of Web hosting service who does not manage the content of the computer site or service.? This exclusion is vague, and does not clearly exempt all hosts and other service providers who merely allow for access to some form of online content, without exercising editorial decisions over the content. For example, some hosts or service providers may exercise editorial or managerial control over some forms of content online, such as free hosts who include banners on the display of various Websites, as their means of revenue generation. Other hosts may, to a certain extent, control the way in which content is displayed, thus, potentially removing those hosts from the scope of the exemption. This would apparently contradict the presumed intent of the exemption: Every Web host is called upon to examine into copyright infringement claims, and his non-liability for infringement may depend on his decision whether to delete hosted content from servers under the provisions of the Digital Millennium Copyright Act. Thus, it would appear that all Web hosts ?manage the content? whenever they decide to delete or retain content, thus rendering this so-called exclusion a sham. Any proposed regulation should contain an easily understandable, precise definition of the kind of conduct that excludes a host from the exemption here proposed.
75.2(1)(ii): The Requirement Of Maintaining Of Records Indicating Where Each Depiction Is Published On An Internet Computer Site or Service Is Vague, Confusing and Onerous. The proposed regulations require the creation and maintenance of records to include data specifying where each ?depiction is published on an Internet Computer site or service, [and] any URL associated with the depiction.? This requirement is vague and confusing. The regulations are unclear about what comprises an ?association? between a URL and a depiction. Moreover, even the most reasonable interpretation of the requirement would impose extremely onerous and economically crushing obligations upon nearly all online publishers of erotic materials, including our site. This is primarily, but not exclusively, because a depiction can be, and often is, ?associated? with a vast number of URLs, sometimes a large number of URLs, and the type and manner of such ?associations? can be numerous and varied. Such ?associations? can also be dynamic, transitory or ephemeral in nature, and such interstitially changing URLs are fundamental to the technical functionality of certain established means of expression on the Internet: To require a substantial technical change in the dynamic functioning of Websites to eliminate such interstitially changing URLs will directly and impermissibly work to the prejudice of protected expression in a manner kindred to ?compelled speech.? To require cross-indexing by URLs that are used one time only for one Web transaction creates an impossible record-keeping burden of gargantuan size and complexity. Moreover, because depictions can be, and often are, accessed by deep linking from other locations on the Internet, sometimes without authorization, a party may not know, or even be able to ascertain, all the URLs that are ?associated? with a particular depiction.
Therefore, in my opinion, the proposed changes to the regulations impose extremely burdensome and costly obligations upon our company and other publishers of otherwise lawful erotic materials protected by the first amendment and the free speech provisions of each of the states. It is very likely that compliance with the proposed new requirement of indicating where each depiction is published on the Internet and any URLs associated with the depiction will be economically prohibitive for my company. The imposition of such a vague regulation, impossible or nearly impossible with which to comply, the violation of which caries the potential of five years imprisonment, will so confuse and scare law-abiding Webmasters publishing lawful erotic imagery that their publication of this material will cease as a consequence of the chill imposed on speech through this provision.
08-12-2004
----------------------------------------
The following is a collaborative effort of Lawrence Walters, Gregory Piccionelli, and J. D. Obenberger:
Proposed changes to the regulations implementing Title 18, USC §2257 were published June 25, 2004 in the Federal Register at 69 F.R. 35547. The proposed new 2257 regulations can be found here; a primer on 2257 compliance, written by J.D. Obenberger, is online here.
Public comments on the new regulations are due on or before August 24, 2004.
Please select from the following suggested official comments pertaining to the proposed 2257 amendments. Select as many topics as pertain to your particular circumstance and copy and paste them into the body of your e-mail. When selecting a topic for inclusion in your e-mail, you should include all paragraphs pertaining to that topic.
You must provide your name, corporation (if applicable), and e-mail address, which will be used to identify the sender of the selected comments.
The comments should be sent to [email protected]
Nothing below constitutes legal advice or a legal opinion of any kind:
Suggested Comments to the DOJ Re: Amended 2257 Regulations
Records Keeping Requirement for Webmasters Is Invalid and Illegal; §75.1(c)(2): The proposed requirement that secondary producers, including Webmasters who license images from photographers, obtain and keep age and identity records imposes an immense, complex, and sometimes impossible burden on Webmasters, a burden of a nature never intended by the Congress, and a burden that will inevitably cause a not inconsiderable number of lawful images, of persons well over the age of eighteen, to be withdrawn from the Internet. The new regulations will require many Webmasters to go back and obtain age records for all their content, which in some cases can number in the hundreds of thousands of images. However, the case of Sundance Assocs. Inc. v. Reno, 139 F.3d 804 (10thCir. 1998) says that the Justice Department does not have the authority to impose this requirement.
Incorrect Effective Date: The new regulations impose effective dates of November 1, 1990 and May 26, 1992. These effective dates are contrary to the commonly-understood effective date of July 3, 1995, which the industry has used for compliance thus far. Enforcement of 18 U.S.C. § 2257 and the regulations thereunder promulgated by the Department was enjoined from the outset until July 3, 1995. The Justice Department later agreed, in response to threatened litigation, that the effective date of the statutory obligations under Section 2257 would be July 3, 1995, rather than the dates specified in the statute itself. Because enforcement was enjoined until July 3, 1995, producers and distributors of materials made before then should not be forced to comply with the statute and regulations retroactively.
75.8(d) Statement Location Requirement is Counterproductive: The statute requires a conspicuous disclosure statement. Where Website content provided by multiple content producers is concerned, it would be impossible and illogical to require all disclosure statement information to be contained on the home page or main url. The records custodian for each group of content must be designated on the interior pages to avoid confusion as to which custodian maintains the records for which content. Webmasters should be allowed to place portions of the disclosure statement, tying specific records custodians to specific content, in the interior pages of the site, or wherever necessary to avoid confusion.
75.6(e): Type Size Requirement is Illogical: Requiring an 11 point type disclosure statement for Websites is nonsensical. The display size of any particular type contained on a Website depends on the size of the monitor or screen on which it is displayed. Webmasters have no control over what the display size is on any particular screen.
75.5(g) Seizure Power During Inspections is Invalid and Unconstitutional: The new regulations grant law enforcement officers, who can be anyone designated by the Attorney General, broad authority to seize any evidence of the commission of any felony during the course of an inspection. Nowhere in 18 U.S.C. § 2257 is such a broad regulation authorized. Moreover, evidence of a felony could include evidence of violation of an obscenity statute, and seizure of media materials under those circumstances without a judicial determination of obscenity would offend the First Amendment. Moreover, this provision runs afoul of the established statutory scheme found in the Criminal Code and the Federal Rules of Criminal Procedure, and the Fourth Amendment, relating to searches and seizures.
75.1(c)(4)(iv) Host Exclusion is Under-inclusive: The new regulations exclude from the definition of a producer, ?a provider of Web hosting service who does not manage the content of the computer site or service.? This exclusion is vague, and does not clearly exempt all hosts and other service providers who merely allow for access to some form of online content, without exercising editorial decisions over the content. For example, some hosts or service providers may exercise editorial or managerial control over some forms of content online, such as free hosts who include banners on the display of various Websites, as their means of revenue generation. Other hosts may, to a certain extent, control the way in which content is displayed, thus, potentially removing those hosts from the scope of the exemption. This would apparently contradict the presumed intent of the exemption: Every Web host is called upon to examine into copyright infringement claims, and his non-liability for infringement may depend on his decision whether to delete hosted content from servers under the provisions of the Digital Millennium Copyright Act. Thus, it would appear that all Web hosts ?manage the content? whenever they decide to delete or retain content, thus rendering this so-called exclusion a sham. Any proposed regulation should contain an easily understandable, precise definition of the kind of conduct that excludes a host from the exemption here proposed.
75.2(1)(ii): The Requirement Of Maintaining Of Records Indicating Where Each Depiction Is Published On An Internet Computer Site or Service Is Vague, Confusing and Onerous. The proposed regulations require the creation and maintenance of records to include data specifying where each ?depiction is published on an Internet Computer site or service, [and] any URL associated with the depiction.? This requirement is vague and confusing. The regulations are unclear about what comprises an ?association? between a URL and a depiction. Moreover, even the most reasonable interpretation of the requirement would impose extremely onerous and economically crushing obligations upon nearly all online publishers of erotic materials, including our site. This is primarily, but not exclusively, because a depiction can be, and often is, ?associated? with a vast number of URLs, sometimes a large number of URLs, and the type and manner of such ?associations? can be numerous and varied. Such ?associations? can also be dynamic, transitory or ephemeral in nature, and such interstitially changing URLs are fundamental to the technical functionality of certain established means of expression on the Internet: To require a substantial technical change in the dynamic functioning of Websites to eliminate such interstitially changing URLs will directly and impermissibly work to the prejudice of protected expression in a manner kindred to ?compelled speech.? To require cross-indexing by URLs that are used one time only for one Web transaction creates an impossible record-keeping burden of gargantuan size and complexity. Moreover, because depictions can be, and often are, accessed by deep linking from other locations on the Internet, sometimes without authorization, a party may not know, or even be able to ascertain, all the URLs that are ?associated? with a particular depiction.
Therefore, in my opinion, the proposed changes to the regulations impose extremely burdensome and costly obligations upon our company and other publishers of otherwise lawful erotic materials protected by the first amendment and the free speech provisions of each of the states. It is very likely that compliance with the proposed new requirement of indicating where each depiction is published on the Internet and any URLs associated with the depiction will be economically prohibitive for my company. The imposition of such a vague regulation, impossible or nearly impossible with which to comply, the violation of which caries the potential of five years imprisonment, will so confuse and scare law-abiding Webmasters publishing lawful erotic imagery that their publication of this material will cease as a consequence of the chill imposed on speech through this provision.
not supposed to be on page 4.
Please keep in on page 1.
Comment