Very informative 2257 details from this AVN article

[The Adult Broker]

from AVN...

http://www.avnonline.com/index.php?P...tent_ID=228409

2005-05-27

Understanding Personal ID Documents Requirement Under Section 2257 and Regulations
By: J.D. Obenberger
Posted: 5:10 pm PDT 5-27-2005

[Editor's note: J.D. Obenberger, founding partner of J.D. Obenberger and Associates, is a Chicago-based attorney who practices in the areas of First Amendment and entertainment law, among others. He wrote the following explanation of the personal identification document requirements contained in Title 18 U.S.C. §2257 and associated regulations in order to clarify some misconceptions following the Justice Department's May 23 publication of revisions to the regulations. "This material is very hard even for very bright people to follow without the help afforded by formatting," he noted in a cover letter, adding that adult webmaster chat boards seem to be awash with incorrect and misleading information because some of the language in the statutes and associated regulations is technical and confusing. "That's why I wrote this," he said.]

The Constitution and Statutes are the primary source of law in the United States. The authority of any administrative agency or department to issue regulations derives only from authority granted by statute. To understand a regulation, one must first read its authorizing statute.

1. Start with the statute to find the duty under the statute:

18 United States Code Section 2257

a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which-

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.
(b) Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct-

(1) ascertain, by examination of an identification document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;
(2) ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and
(3) record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation. . . .

(h) As used in this this section-
(2) "identification document" has the meaning given that term in section 1028(d) of this title;


2. Determine what "identification document" means to determine what the law requires the producer to examine. Section 2257 tells us to look to Section 1028 (d):


18 United States Code Section 1028
. . . d) In this section and section 1028A-
(3) the term "identification document" means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals;


3. Read the Regulations to determine any additional duties.

Sec. 75.2 Maintenance of records.
(a) Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that contains a depiction of an actual human being engaged in actual sexually explicit conduct that is produced in whole or in part with materials that have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce and that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made after July 3, 1995 shall, for each performer portrayed in such visual depiction, create and maintain records containing the following:

(1) The legal name and date of birth of each performer, obtained by the producer's examination of a picture identification card. For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card. . .


4. The first term used, identification document, has previously been defined by Statute that the Regulation implements and possesses the meaning given to it by that Statute. The Attorney General does have specific statutory authority to prescribe the recording of "other identifying information" and the AG has done so in the case that the identification document does not contain a recent and recognizable picture of the performer. In that case a legible copy of a picture identification card must be contained in the records the producer maintains.


Sec. 75.1 Definitions.
(b) Picture identification card means a document issued by the United States, a State government or a political subdivision thereof, or a United States territory, that bears the photograph and the name of the individual identified, and provides sufficient specific information that it can be accessed from the issuing authority, such as a passport, Permanent Resident Card (commonly known as a ''Green Card''), or other employment authorization document issued by the United States, a driver's license issued by a State or the District of Columbia, or another form of identification issued by a State or the District of Columbia; or, a foreign government-issued equivalent of any of the documents listed above when both the person who is the subject of the picture identification card and the producer maintaining the required records are located outside the United States.


5. As you now can see, the producer only has an obligation to deal with a picture identification card if he has not examined and copied (or received a copy of) an identification document that contains a recent and recognizable picture of the performer. If the producer has examined a birth certificate (without a picture and certainly without a recent picture) or a 1972 driver's license of a mature model (certainly not a recent picture) or perhaps a driver's license showing a model before cosmetic surgery (not recognizable) or before a male model grew a beard (not recognizable), only then does the regulation impose a duty to obtain and maintain a coy of what it calls a picture identification card, the special characteristic of which is that it can be accessed from a U.S. issuing authority, presumably for verification of authenticity.


[Emphasis, color, and formatting applied to statutes and regulatory provisions for clarity]


Copyright 2005, J. D. Obenberger and Associates

[cyber_ninja]

[kernelpanic]

interesting.....

[Spunky]

Interesting read..more info/opinions out there the better

[Babagirls]

not that i dont care about 2257 (because i do!) but...

[The Adult Broker]

Originally Posted by Babagirls

not that i dont care about 2257 (because i do!) but...

LOL, love it. I agree, but I am working on a content library that is 'compliant' but compliant is so ambiguous right now thought this info from an attorney helps shed some light on it.

[Babagirls]

to be honest, i dont even know what the fuck the "new" 2257 requires who to do what, exactly.

theres so many people on GFY that are acting like they are lawyers & then other people saying "No, you are wrong...this is what it means.." and etc etc

giving me a fuckin headache.

[The Adult Broker]

Originally Posted by Babagirls

to be honest, i dont even know what the fuck the "new" 2257 requires who to do what, exactly.

theres so many people on GFY that are acting like they are lawyers & then other people saying "No, you are wrong...this is what it means.." and etc etc

giving me a fuckin headache.

agreed, but what I posted from AVN was written by a lawyer so forget the bullshit and listen to an attorney.

[GatorB]

Originally Posted by Babagirls

to be honest, i dont even know what the fuck the "new" 2257 requires who to do what, exactly.

Is it safer to assume you do have to comply with 2257 or assume you don't? At worst you did at lot of work for nothing. The other way you go to jail if you are wrong.

So the WHO part of your question is answered.

The WHAT part can easily be answered by READING the rule.

Unless you are involved with actually shooting content you are the "secondary producer" just read what is required of those. Primary prodcuers already deal with 2257 so they already know WTF they are doing. Or at least they should.

Not to sound rude, but I feel most people with questions haven't even READ the rule. If you have sexually explicit content on your site and you are "confused" on whether or not you have to comply with the new 2257 rules your problem isn't with comprehending 2257. Your problem is you don't WANT to comply( and who really does, because it's a retarded rule ) so you are trying to find a loophole around it, which doesn't exist. And if it does let your lawyer find it.

[Babagirls]

Originally Posted by The Adult Broker

agreed, but what I posted from AVN was written by a lawyer so forget the bullshit and listen to an attorney.

good things!

and GatorB..Thanks for the info (didnt think it was rude at all!)

[GatorB]

Originally Posted by Babagirls

good things!

and GatorB..Thanks for the info (didnt think it was rude at all!)

Gee thanks. Most people here tell me to fuck off and that I'm not a lawyer. I guess it's kill the messenger time for these people. Hell I post stuff the the DOJ themselves and they still say I'm wrong. How can I be wrong it's coming straight from the Attorney Gerneral's mouth? If he's wrong( and hell I think he is ) well that will have to be proven in a court of law and unless they've got a boatdload of money to shell out for a lawsuit and get an injunction for themselves then people are just shit out of luck.

[Series]

You wasted your 1000th post on that boring mumbo jumbo

[GatorB]

Originally Posted by Series

You wasted your 1000th post on that boring mumbo jumbo

You wasted your 394th post telling them they wasted their 1000th post.

[TheDoc]

I posted this yesterday, only had like 8 people respond. It's an important find that I think many people are over looking.

[Series]

Originally Posted by GatorB

You wasted your 394th post telling them they wasted their 1000th post.

Nope... it was my 397th... I wouldn't waste my 394th so carelessly

[Fetish]

Great info....... thanks!

[The Adult Broker]

Originally Posted by Series

You wasted your 1000th post on that boring mumbo jumbo

so funny you said that, when I hopped on just now,. I was wondering what my post count was and if I was close to 1,000 and here it is! LOL. I think it was a valuable post about forgetting the bullshit ;)

And just fyi, I probably have like 2,000 posts but my Name changed on the board awhile back so I started at 0 again.

So I'm at 1k what do I win? A 2257 reprieve?

[baddog]

Originally Posted by GatorB

Not to sound rude, but I feel most people with questions haven't even READ the rule. If you have sexually explicit content on your site and you are "confused" on whether or not you have to comply with the new 2257 rules your problem isn't with comprehending 2257. Your problem is you don't WANT to comply( and who really does, because it's a retarded rule ) so you are trying to find a loophole around it, which doesn't exist. And if it does let your lawyer find it.

Not too far off.

[Redrob]

The truth of the matter is threefold:

1. The major 1st Amendment attorneys have not yet developed a consensus concerning the exact requirements for compliance with the new 2257 Regs. If you ask two different attorneys, you will probably get two different interpretations of the regs.

2. There seems to be a major split in the goals of attorneys depending on how they view the constitutionality of the regs. Some say we can live with the regs if we are able to remove some of the worst language. Others say the regs are totally unconstitutional, cause an unreasonable burden on producers, are some kind of prior restraint on our First Amendment rights, have a presumption of guilt unless the producer can prove they are not guilty, and are not narrowly tailored as required by law to address the problem of elimination of child pornography. The regs assume any image that is not in compliance is child porn, hence, the justification for the penalties.

3. And finally, many are posturing to attract business for their law firms and seem to be creatings some havoc by denouncing other competing attorneys and their law firms. As there has not yet developed a consensus, it would be wise to wait a week or two for the attorneys to caucus and, hopefully, decide exactly what we have to do to comply with the regulations.

To that end, we as webmasters need to decide whether or not we want to get rid of the worst parts of the regs, or, do we want to see the regs eliminated totally due to their unconstitutional nature.

Personally, I abhor the idea of the presumption of guilt unless proven innocent. The regs undercut one of the pillars of our American Justice....that you are innocent until proven guilty. This seems to be the position the FSC is taking as well.

Just my opinion....

[camouflaged123]

i had seen this post yesterday... but anyways this is an important information!

[Centurion]

Originally Posted by GatorB

You wasted your 394th post telling them they wasted their 1000th post.

You wasted your 3,754th post telling..

Oh never mind!! LOL!

[Centurion]

Originally Posted by Redrob

The truth of the matter is threefold:

1. The major 1st Amendment attorneys have not yet developed a consensus concerning the exact requirements for compliance with the new 2257 Regs. If you ask two different attorneys, you will probably get two different interpretations of the regs.

2. There seems to be a major split in the goals of attorneys depending on how they view the constitutionality of the regs. Some say we can live with the regs if we are able to remove some of the worst language. Others say the regs are totally unconstitutional, cause an unreasonable burden on producers, are some kind of prior restraint on our First Amendment rights, have a presumption of guilt unless the producer can prove they are not guilty, and are not narrowly tailored as required by law to address the problem of elimination of child pornography. The regs assume any image that is not in compliance is child porn, hence, the justification for the penalties.

3. And finally, many are posturing to attract business for their law firms and seem to be creatings some havoc by denouncing other competing attorneys and their law firms. As there has not yet developed a consensus, it would be wise to wait a week or two for the attorneys to caucus and, hopefully, decide exactly what we have to do to comply with the regulations.

To that end, we as webmasters need to decide whether or not we want to get rid of the worst parts of the regs, or, do we want to see the regs eliminated totally due to their unconstitutional nature.

Personally, I abhor the idea of the presumption of guilt unless proven innocent. The regs undercut one of the pillars of our American Justice....that you are innocent until proven guilty. This seems to be the position the FSC is taking as well.

Just my opinion....

Where's the "applause" icon?
Very well said!

[John3]

no, his post is moronic

webmasters are going to get together and decide which parts of the law we want applied? LMAO
fuck it he says, trash all the regs . . .

Someone else on another 2257 post made a comment that was something like "a lot of you just seem to be deciding if you WANT to comply with the 2257 regs" - and that's all this post is

[Holly Lez!]

Great info thanks Lori

[s9ann0]

2257 is the end of the adult internet and avnonline!

[SleazyDream]

the sky is falling!!!!!!!!!!!!!!!!!!