Section 2257 Record Keeping Requirements for Adult Entertainment Producers

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By Richard J. Greenstone and Alexander Lai

Executive Summary

I. 18 U.S.C. §2257

18 U.S.C. §2257 is part of the United States criminal code and imposes certain obligations on producers of actual, sexually explicit material. The statute requires producers to obtain proof of age of every model they shoot and retain those records for periodic inspection by the government. Any producer who violates the provisions of this statute is subject to a fine and can face up to 5 years imprisonment for a first offense and between 2 to 10 years for any repeat offense.

Section 2257 has recently been updated by the enactment of the Adam Walsh Child Safety and Protection Act on July 27, 2006. The updates are reflected in the annotated code for the statute. See, 18 U.S.C.A. §2257 (Lexis 2008). The most significant change involves the definition of the word “produces,” which now includes re-producing sexually explicit material. This change to the definition reinvigorates the term “secondary producer” used by the Department of Justice in 28 C.F.R. Part 75. In addition, the Act resolved an anomaly in the definition of “sexually explicit conduct.” It now points to the correct section in the statute for the definition and adds to the definition “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C.A. §2256(2)(A)(v) (Lexis 2008).

Furthermore, the Act created a new section in the statute, Section 2257A, which imposes obligations for producers of simulated sexual conduct. See, 18 U.S.C.A. §2257A(a) (Lexis 2008). This new section primarily affects Hollywood productions; however, there is a peculiar opt-out provision within this section which relieves these producers of the burden of keeping stringent records as long as they certify to the Attorney General that they keep similar types of records as part of their normal business practice. See, 18 U.S.C.A. §2257A(h) (Lexis 2008).

II. 28 C.F.R. Part 75 (May 24, 2005 – Current Official)

Section 2257 provides that the Attorney General “shall issue appropriate regulations to carry out this section.” 18 U.S.C. §2257(g). In accordance with the statute, the Attorney General and the Department of Justice issued 28 C.F.R. Part 75 which are the Code and Federal Regulations that enforces Section 2257. See, Inspection of Records Relating to Depiction of Sexually Explicit Performances, 28 C.F.R. Part 75.

III. 28 C.F.R. Part 75 (July 12, 2007 – Proposed Rule)

On July 12, 2007, the Department of Justice published a proposed amendment to 28 C.F.R. Part 75 in the Federal Register.Revised Reglations for Records Relating to Visual Depictions of SexuallyExplict Conduct, 72 Federal Register No. 133, July 12, 2007. The amendments were in direct response to the enactment of the Adam Walsh Child Safety and Protection Act. The Act made a number of changes to 18 U.S.C. §2257. As a result, the proposed amendments to Part 75 reflect the changes to the statute, as well as clarifying certain rules. Furthermore, the amendment to Part 75 indicates that the Department of Justice will implement a new rule to enforce section 2257A that deals with producers of simulated sexual conduct. Written comments to challenge the proposed amendments were to be received by September 10, 2007. As of April, 2008, the proposed amendments are still pending finalization.

IV. Challenges to the Statute

In June 2005, the Free Speech Coalition brought suit against the Attorney General and the Department of Justice in United States District Court in the District of Colorado. On December 28, 2005, an injunction was granted by the District Court protecting secondary producers who are members of the Free Speech Coalition. See, Free Speech Coalition, et al. v. Alberto Gonzalez, 406 F. Supp. 2d 1196 (D. Colo. 2005). On March 30, 2007, the District Court issued an interim ruling, which dismissed some causes of action and allowed others from the initial 2005 case to proceed in light of the Walsh Act amendments. The actual trial phase has not yet begun. See, Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007).

On October 23, 2007, the Sixth Circuit in Connection Distrib. Co. v. Keisler, 505 F.3d 545 (6th Cir. 2007), found 18 U.S.C. §2257 to be unconstitutionally overbroad and facially invalid. However, in April 2008, the 6th Circuit U.S. Court of Appeals granted the federal government’s request for a rehearing of the case. David Sullivan, 6th Circuit Grants Rehearing in 2257 Case, April 10, 2008, http://www.avn.com/video/articles/29557.html.

Furthermore, the U.S. Supreme Court began examining the constitutionality of the PROTECT Act of 2003 to determine whether the child-pornography law’s language is overly vague and broad.  The Court is expected to take the case under advisement after oral arguments and issue its opinion before its current term ends in June 2008. Justin Bourne, Free-speech Advocates Call Laws Too Broad, Unconstitutional, October 31, 2007, http://www.freespeechcoalition.com/FSCview.asp?coid=1093&keywords=28+cfr+part+75.

Discussion

I. 18 U.S.C. § 2257

18 U.S.C. §2257 is part of the United States criminal code and imposes certain obligations on producers of actual, sexually explicit material.

a. To whom does the statute apply?

Subsection (a) of Section 2257 specifies that the statute applies to the producers of any matter that contain depictions of “actual sexually explicit conduct” that were made after November 1, 1990. The statue requires these producers to create and maintain individually identifiable records pertaining to every performer portrayed in the sexually explicit conduct. 18 U.S.C. §2257(a). Furthermore, the definition of producer has recently been expanded to include anyone who reproduces such sexually explicit material. See, 18 U.S.C.A. §2257(h)(2)(A)(ii) (Lexis 2008). This reinvigorates the term “secondary producer” as it is used in the code of federal regulations. See, 28 C.F.R. §75.1(c)(2).

Subsection (h) of Section 2257 defines the term “actual sexually explicit conduct” to mean actual but not simulated conduct as defined in subparagraphs (A) through (D) of paragraph (2) of section 2256. This seems to be a mistake since Section 2256(2) has only sections (A) and (B). However, the annotated code has remedied this mistake, and subsection (h) of Section 2257 now provides that the term “actual sexually explicit conduct” to mean actual but not simulated conduct as defined in clauses (i) though (v) of section 2256(2)(A). See, 18 U.S.C.A. §2257(h) (Lexis 2008).

Section 2256(2)(A) clauses (i) through (v) defines sexually explicit conduct as follows:

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person.

The addition of “lascivious exhibition of the genitals or pubic area” to section 2256(A) was in response to the enactment of the Adam Walsh Child Safety and Protection Act on July 27, 2006. While the annotated code has revised the statute to reflect the change, the Code of Federal Regulations has yet to finalize the proposed new rules to coincide with the Act.

b. What Obligations are Required?

Generally, Section 2257 imposes four affirmative duties on producers of actual, sexually explicit materials: (1) duty to inquire of a performer’s name and age, (2) a duty to maintain records of the performers, (3) a duty to disclose where the records will be located, and (4) a duty to make the records available for inspection.

i. Duty to Inquire

Subsection (b) of Section 2257 describes the information that shall be maintained by the producers of sexually explicit conduct. First, the producer must ascertain the performer’s name and date of birth by examining an identification document. See, 18 U.S.C. §2257(b)(1). Second, the producer must ascertain any name ever used by the performer including a maiden name, alias, nickname, stage, or professional name. See, 18 U.S.C. §2257(b)(2).

ii. Duty to Maintain Records

The statute requires producers of sexually explicit material to create and maintain individually identifiable records pertaining to every performer portrayed in the sexually explicit conduct. See, 18 U.S.C. §2257(a). Specifically, the statute requires the producer to create and maintain records of the name, date of birth, and any other names of the performer. See, 18 U.S.C. §2257(b)(3).

iii. Duty to Disclose the Location of the Records

Subsection (e) of Section 2257 provides that the producer must affix on every “copy” of any matter that contains the sexually explicit material a statement describing where the records may be located. Due to the enactment of the Adam Walsh Child Safety and Protection Act, the statute now defines a “copy” to include every page of a website that contains the sexually explicit material.See, 18 U.S.C.A. §2257(e)(1) (Lexis 2008).

iv. Duty to Make Records Available for Inspection

Finally, the statute requires that the producer of sexually explicit material to make the records available to the Attorney General for inspection at all reasonable times. See, 18 U.S.C. §2257(c).

c. Penalty for Violation

Subsection (f) of Section 2257 provides that it shall be unlawful for a producer to fail to create or maintain the records, to knowingly make any false entry in or knowingly fail to make an appropriate entry in any record, to fail to disclose the location where the records can be found, or for anyone to sell, or otherwise transfer any sexually explicit material that does not contain a statement disclosing the location of where the records can be found.

Subsection (i) of Section 2257 provides that violation of these record keeping requirements are criminal offenses punishable by a fine and/or imprisonment for not more than five years for a first offense and between two to ten years for subsequent offenses.

d. Section 2257A

The enactment of the Adam Walsh Act, created a new section to the statute, section 2257A, that requires producers of simulated sexually explicit conduct to maintain records documenting that performers in those depictions are not minors. See, 18 U.S.C.A. §2257(A) (Lexis 2008). The addition of simulated sexual conduct to the statute is extremely interesting because it affects many Hollywood productions that contain sex scenes. However, there is an intriguing opt-out exemption in Section 2257A(h).  The exemption gives producers of simulated material and lascivious display of images the ability to not have to keep records if they certify to the Attorney General that the producer regularly and in normal course of business collects and maintains individually identifiable information regarding all performers. See, 18 U.S.C.A. §2257A(h).

II. 28 CFR Part 75 (May 24, 2005 – Current Official Code)

Section 2257 requires the Attorney General to “issue appropriate regulations to carry out this section.” 18 U.S.C. §2257(g). In accordance with the statute, the Attorney General and the Department of Justice issued the regulations that enforce Section 2257 which are set forth in 28 C.F.R. Part 75.

a) 75.1 Definitions.

The terms used and defined in the regulation are intended to provide common-language guidance and usage and are not meant to exclude technologies or uses employed in practice or defined in other regulations or federal statutes. 28 C.F.R. §75.1(a).

The regulation defines a picture identification card (ID) as any official governmental document of the United States. See, §75.1(b). Foreign government-issued documents are allowed 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. See, §75.1(b). In Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007), the court held that domestic producers who travel outside the United States to record images of sexually explicit conduct may rely on foreign government issued passports of the performers. Id. at 1077 (“the producers can therefore take advantage of the exception even if they are only temporarily outside the United States.”). This is also reflected in the proposed amendments to the rules discussed below.

In addition, the current official regulation defines a producer as any person, including any individual, corporation or other organization who is a primary or secondary producer. 28 C.F.R. §75.1(c). A primary producer is defined as any person who actually films, videotapes, photographs or creates the image(s). See, §75.1(c)(1). A secondary producer is defined as any person who produces assembles, manufactures, publishes, duplicates reproduces, or reissues the created image(s). See, §75.1(c)(2). The definition provides that the same person can be both a primary and secondary producer. See, §75.1(c)(3). Furthermore, the regulations provides that a producer does not include any person whose activities are limited to photo and film processing, mere distribution, all activities that do not involve the participation of the performers, provider of web-hosting services, who does not or cannot manage content, and a provider of electronic communication service, who does not or cannot manage the content. See, §75.1(c)(4)(i)-(v).

Furthermore, the current official regulation provides that to “sell, distribute, redistribute, and re-release” refers only to commercial activity relating to actual sexually explicit conduct, and not to noncommercial or educational distribution or bona fide lending libraries, museums, schools or educational organizations. See, §75.1(d).

A copy is used in reference to an ID if photocopied. See, §75.1(e)(1). A copy may also be used in reference to the image itself for any created image. See, §75.1(e)(2).

b) 75.2 Maintenance of Records.

Section 75.2 specifies that for any sexually explicit matter produced after July 3, 1995, a producer must create and maintain the legal name and date of birth of each performer, which includes keeping a legible copy of the identification document examined by the producer to verify the name and age of the performer, and if that document does not contain a recent and recognizable picture, a legible copy of a picture identification card. See, §75.2(a)(1).

The producer must also create and maintain records of any name, other than each performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name. See, §75.2(a)(2). Furthermore, the records must be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last name, then given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the sexually explicit matter. See, §75.2(a)(3).

For any sexually explicit matter produced after June 23, 2005, the record must also include a copy of the depiction, and where the depiction is published on an Internet computer site or service, a copy of any URL associated with the depiction or, if no URL is associated with the depiction, another uniquely identifying reference associated with the location of the depiction on the Internet. See, §75.2(a)(1)(i)-(ii).

A secondary producer may satisfy the requirements of this section by accepting a copy of the records from the primary producer. See, §75.2(b). However, if the secondary producer accepts the primary producer’s records, the secondary producer must also keep the name and address of the primary producer in the record. See, §75.2(b).

The section further provides that the records need to be only current at the time the primary producer actually is creating the depiction. Should there be already a record for a particular performer the producer may add the information required to the existing records. See, §75.2(c)-(d).

Finally, the section requires that the records must be segregated from all other records, and shall not contain any other records, nor shall they be contained within any other records. See, §75.2(e). The records must be kept either in hard copy or digital form. See, §75.2(f). If in digital form, they must include scanned copies of the forms of identification and that there is a custodian of the records who can authenticate each digital record. See, §75.2(f). To “authenticate each record” can be very broad. The custodian cannot truly authenticate a photograph of a piece of identification without seeing it for his or her self.

c) 75.3 Categorization of Records.

Section 75.3 provides that the records must be kept alphabetically or numerically and retrievable to all name(s), alias, maiden, stage or professional name and nickname, of the performer and to all titles of the depictions. Only one copy of the photo ID is required as long as the copy is categorized and retrievable.

d) 75.4 Location of Records.

Section 75.4 provides that the records must be made available at the producer’s place of business and kept for seven (7) years after creation or last entry/amendment. If the business ceases to exist, the records must be kept for five (5) years after the termination of the business. If the producer is an employee of an organization, the records need to be made available at the place of business of the organization. After dissolution of the business the individual responsible for maintaining the records shall continue to maintain them for five (5) years.

The last requirement can be extraordinarily burdensome. For example, a large producer of adult entertainment content could file for bankruptcy. The employee last listed as the custodian of records could be stuck with thousands of files to care for.

e) 75.5 Inspection of Records.

Section 75.5(a) provides that investigators may show up at the place of business where the records are kept during regular working hours or other reasonable times. The investigators are not required to provide notice and most likely will not provide notice of an inspection.

Section 75.5(c)(1) provides that normal business hours are defined as being from 9 a.m. to 5 p.m. local time, Monday through Friday, or any other time during which the producer is actually conducting business. If the producer does not maintain at least 20 normal business hours, the producer must provide the agency with notice of the hours during which the records are available, in no case may it be less than 20 hours per week.

Section 75.5(d) provides that the inspection may take place once every four (4) months. However, additional inspections within the four month period are permitted if a violation is found. Keep nothing in plain view since the enforcement officer may seize any evidence of the commission of any felony while conducting an inspection.

Section 75.5(e) provides quite explicitly that an investigator may copy, at no expense to the producer, during the inspection, any record that is subject to inspection. Don’t even give the investigator a piece of paper.

f) 75.6 Statement describing location of books and records.

Section 75.6(a) provides for all depictions created after July 3, 1995 as well as all duplications after July 3, 1995 a statement of the location of the required records needs to be affixed to each depiction regardless of its format.

Section 75.6 (b) provides that every statement shall contain a title of the depiction, date of production, and a street address where the records are made available.

Section 75.6(c) provides that a if the producer is an organization the statement shall contain a name, title and business address of the individual employed by organization, and the individual who is responsible for maintaining the records.

Section 75.6(d) provides that information as to the date of production or reproduction of the depiction has to be accurate.

Section 75.6(e) provides that the required statements must be displaying in typeface that is no less than 12 point type or no smaller than the second largest typeface on the material and in a color that contrasts with the background.

g) 75.7 Exemption Statement

Section 75.7(a)(1) provides that any depiction made or reproduced/reissued before July 3, 1995 does not need to provide a statement for location of the records.

Section 75.7(a)(2) provides that simulated depictions need no statement. Note that it will be hard to convince a jury that a simulated depiction is not actual.

h) 75.8 Location of the Statement

Section 75.8(a) provides that for books that contain depiction of sexually explicit material, the location of the statement must be on the first page after the front cover or page with copyright information.

Section 75.8(b) provides that for films/videotapes which contain end credits for production, the statement must be provided at the end of the end titles or final credits for enough time to read.

Section 75.8(c) provides for any other film/videotape to provide the statement within a minute from the start and displayed for sufficient duration to be read by the average viewer.

Section 75.8(d) provides that a computer site or web address must provide the statement on the homepage, any known major entry points or principal URL or in a separate window that opens upon clicking on hyperlink with the text “18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.”

Section 75.8(e) All other depictions must provide the statement prominently displayed according to the aforementioned categories.

III. 28 CFR Part 75 (July 12, 2007 – Proposed Rule)

On July 12, 2007, the Department of Justice published a proposed amendment to 28 C.F.R. Part 75 to the Federal Register. The amendments were in direct response to the enactment of the Adam Walsh Child Safety and Protection Act. The Act made a number of changes to 18 U.S.C. §2257. As a result, the proposed amendments to Part 75 reflect the changes to the statute as well as clarifying certain rules. Furthermore, the amendment to Part 75 indicates that the Department of Justice will implement a new rule to enforce section 2257A that deals with producers of simulated sexual conduct.

a. Clarifications

The proposed amendment to section 75.1(b) clarifies that domestic producers who travel outside the United States to produce sexually explicit material may rely on foreign government issued passports for any non-U.S. citizen performers. Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. 38033, 38038 (proposed July 12, 2007) (to be codified at 28 C.F.R. pt 75).

Additionally, the proposed amendment to section 75.2(a)(1) clarifies that for sexually explicit depictions made after June 23, 2005, visual depictions performed live on the Internet need not maintain a copy of the full running-time of every such depiction. Rather, they may maintain a copy that contains running-time sufficient to identify each and every performer in the depiction and associate each and every performer with the records needed to confirm his or her age. Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38038.

Furthermore, the proposed amendment to section 75.2(b) provides that the copies of records by secondary producers may be redacted to eliminate non-essential information, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38038.

b. Additions

Prior to the enactment of the Adam Walsh Child Safety and Protection Act, the statute did not include “lascivious exhibition of the genitals or pubic area of a person.” See, 18 U.S.C.A. §2256(2)(A)(v). The Act revised section 2256 to include the “lascivious exhibition” language. Id. The proposed rule reflects this change adding §75.1(n) to the regulations which defines “sexually explicit conduct” to have the meaning set forth in 18 U.S.C.A. §2257(2)(A). Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38038. The applicability of the “lascivious exhibition” language is prospective from the effective date of the Act. The rule therefore applies only to depictions whose original production date is on or after July 27, 2006, which is codified under proposed §75.2(g). Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38038.

In addition, the proposed amendment changes section 75.1(c)(iv) to apply “telecommunication service, or of an Internet access service or Internet information location tool,” instead of merely “a provider of Web hosting services,” to be excluded from the definition of a producer. Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38038. It also changes section 75.1(c)(v) to exclude the “transmission, storage retrieval, hosting, formatting, or translation…without selection or alteration of the content of the communication.” Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38038.

The proposed rule also changes the term “copy” to include every page of a Web site. Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38035. That change is reflected in the proposed rule at §§ 75.1(e)(3), 75.6(a), and 75.8(d). The change materially affects the regulations’ labeling requirements as applied to web sites. The current regulation permits a producer to affix the label stating where the records required under the regulations are located “on its homepage, any known major entry points, or principal URL…or in a separate window that opens upon the viewer’s clicking a hypertext link.” §75.8(d). The proposed rule eliminates this portion of the current regulations, and requires that the statement describing the location be affixed to every page of a Web site on which visual depictions of sexually explicit conduct appear. Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38035.

The proposed rule also adds section 75.1(m) to the definitions and provides that the original production date means the date the primary producer actually filmed, videotaped, or photographed or created the digital matter.

c. Implementation of Rules for Section 2257A

Furthermore, the Walsh Act also added a new section to the statute, section 2257A, that requires producers of visual depictions of simulated sexually explicit conduct maintain records documenting that performers in those depictions not be minors.Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38035. The proposed rule for Part 75 indicated that there will be a separate rule to implement section 2257A. Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 Fed. Reg. at 38035.

d. Update

Written comments to challenge the proposed amendments were to be received by September 10, 2007. As of April 2008, the amendment is still pending finalization.

IV. Challenges to the Statute and Regulation

a. Free Speech Coalition

In June 2005, the Free Speech Coalition brought suit against the Attorney General and the Department of Justice in United States District Court in the District of Colorado. In December 28, 2005, an injunction was granted by the District Court protecting secondary producers who are members of the Free Speech Coalition. See, Free Speech Coalition, et al. v. Alberto Gonzalez, 406 F. Supp. 2d 1196 (D. Colo. 2005). The court agreed with the 10th Circuit and found that defining “producer” to apply to both primary and secondary producers was invalid because it clashed with the statutory definition of “produces.” Id. at 1203 (agreeing withSundance Associates v. Reno, 139 F.3d 804 (10th Cir. 1998)).

On March 30, 2007, the District Court issued an interim ruling, which dismissed some causes of action and allowed others from the initial 2005 case to proceed in light of the Walsh Act amendments. The actual trial phase has not yet begun. See, Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007).

b. Connection Distributing Case

On October 23, 2007, the United States Court of Appeals for the Sixth Circuit in Connection Distributing Co. et al v. Keisler, 505 F.3d 545 (6th Cir. 2007), found 18 U.S.C. §2257 unconstitutionally overbroad. The individual plaintiff’s in this case were persons/couples who would like to publish their photographs in a magazine, but are unwilling to do so because they do not wish to create and maintain the required records nor do they wish to provide the magazine with identification, which the magazine must keep in order for it to comply with the record keeping provisions. Id. at 550. The court found that the statute by its plain terms makes no exception for photographs taken without a commercial purpose or intended never to be transferred. Id. at 552.

To analyze whether the statute is overbroad, the Sixth Circuit first determined that sexually explicit images of adults to be a form speech and not conduct. Id. at 556 (“while the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get to that conduct”). The court then found that the amount of protected speech impacted to be extensive because it can include images which amount to obscenity but are kept in the privacy of one’s home. Id. at 557. Furthermore, the court found that the statute imposes significant burdens because the people who take these images would not only be subject to creating and maintaining records for up to seven years, but they would also have to hold their home open to government agents for record inspection, and would lose their right to anonymity in the image. Id at 559. The court also found that it would prevent couples from participating in the protected speech because of such a heavy burden the statute imposes on them.Id at 560.

Due to these factors, the Sixth Circuit determined that 18 U.S.C. §2257 was unconstitutionally overbroad, and entered summary judgment for the plaintiffs. Id. at 566.

However, in January 2008, the government filed a petition for a rehearing of this case by the 6th Circuit. In April 2008, the 6th Circuit U.S. Court of Appeals granted the federal government’s request for a rehearing. David Sullivan, 6th Circuit Grants Rehearing in 2257 Case, April 10, 2008, http://www.avn.com/video/articles/29557.html.

c. Supreme Court examining language of statute for overbreadth.

The U.S. Supreme Court, in October 2007, began examining the constitutionality of the PROTECT Act of 2003 to determine whether the child-pornography law’s language is overly vague and broad. The Court is expected to take the case under advisement after oral arguments and issue its opinion before its current term ends in June 2008. Justin Bourne, Free-speech Advocates Call Laws Too Broad, Unconstitutional, October 31, 2007, http://www.freespeechcoalition.com/FSCview.asp?coid=1093&keywords=28+cfr+part+75.

Conclusion

18 U.S.C. §2257 and the rules and regulations of 28 C.F.R. Part 75 that enforces the statue, imposes certain obligations upon producers of actual, sexually explicit conduct. The law provides that these producers have a duty to inquire and verify the name and age of the performers, to create and maintain records of each performer, a duty to disclose of the location where the records can be found, and to make those records available for inspection by the government.

The enactment of the Adam Walsh Child Safety and Protection Act has made a number of changes to the statute. The statute now includes “lascivious exhibition of the genitals or pubic area” in the definition of actual sexually explicit conduct. It also expands the definition of producer to include reproductions of sexual explicit material to reinvigorate the Department of Justice’s use of the term “secondary producer.” Furthermore, the Act has added obligations for producers of simulated sexual conduct to the statute under the new section 2257A. However, there is an easy opt-out clause for these producers so that they do not have the same stringent record keeping requirements as producers of actual, sexually explicit conduct.

The annotated code for the statute reflects the changes set forth by the Walsh Act. However, the proposed amendments to the federal regulations that reflect the changes in the statute have not been finalized as of April 2008.

In addition, the District Court of Colorado in 2005 instituted an injunction against the applicability of the federal regulations against “secondary producers,” as it clashed with the then statutory definition of “produces.” The trial phase of this case has not yet begun. Furthermore, the Sixth Circuit recently ruled that 18 U.S.C. §2257 to be unconstitutionally overbroad. The court found that application of the statute to persons not of a commercial nature created a chilling effect on free speech and imposed an unreasonable burden on private individuals if they chose to participate in such speech. The Sixth Circuit in April 2008, has granted the government’s request to rehear this case.

Finally, the U.S. Supreme Court, in October 2007, began examining the constitutionality of the PROTECT Act of 2003 to determine whether the child-pornography law’s language is overly vague and broad. The Court is expected to take the case under advisement after oral arguments and issue its opinion before its current term ends in June 2008.

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Richard J. Greenstone practices copyright, trademark, trade secret, licensing, business and transactional law for the computer, entertainment and publishing industries. He is the former editor-in-chief of Entertainment & Sports Lawyer and the author of over twenty five articles, many of which you will find on this site. Alexander Lai is a graduate of the Golden Gate University School of Law.