Corpus Juris: Filming in California?
In July, a federal judge largely upheld Congress’ most recent changes to 18 U.S.C. § 2257, the highly burdensome record-keeping regime that requires adult content producers to verify the age of performers by inspecting identification documents and maintaining cross-referenced records of those identification documents. The regulations set forth the type of identification documents producers must inspect in order to comply with 2257. Early versions of the regulations gave producers wide flexibility. Producers could rely on documents issued by government or private entities, as long as the document contained the name, age, and photograph of the individual. Driver licenses, foreign passports, or even school ID cards were sufficient.
In 2009 the federal government updated the regulations, severely limiting the type of identification documents upon which producers could rely. Under the new regulations, only documents issued by the U.S., a state government, or a political subdivision of a state qualify. There is an exception that allows producers to rely on similar identification documents issued by foreign governments, but only when the performer is a non-U.S. citizen and the production takes place outside the U.S. Under the regulations upheld last summer, producers filming inside the U.S. cannot rely upon a foreign issued passport to prove the age of a performer filmed in the U.S.
When the regulations limiting the types of qualifying documents went into effect in 2009, it created a dilemma for producers who had previously relied on a worldwide talent pool. U.S. producers could no longer import beautiful Czech women, extremely feminine Brazilian transsexuals or German bottom boys with amazing talents for making large objects disappear. To be clear, hiring these individuals without a proper work visa has always been, and still remains, illegal. However, the consequence for hiring an undocumented foreign worker carries a $250 to $2,000 fine per undocumented employee for the first offense, whereas violating 2257 can result in up to five years in jail for the first offense; 10 for the second.
Producers have always had the option of applying for an O-1 visa. To qualify for an O-1 visa, the performer must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered. The performer must be recognized as outstanding, notable, or leading in the motion picture and/or TV field. Various guidelines are in place for determining if a performer meets this standard. I am not familiar with any adult film performer who has applied for or obtained an O-1 visa. Certainly, there are arguments to support an O-1 visa application and it would be interesting to learn how the government would respond to such an application. However, if an O-1 visa or other work visa is not practical, some producers may be willing to risk the monetary fines associated with illegally hiring foreign talent, but unwilling to risk the jail time associated with a 2257 violation. Therefore, in order to comply with 2257 regulations, producers have looked for ways for foreign performers to obtain U.S. issued identification documents.
In California, many performers addressed the new ID requirements by obtaining a California identification card from the Department of Motor Vehicles. California DMV issues identification cards to individuals who can verify that they are in the U.S. legally by presenting their passport along with a “Record of Arrival/Departure (form I-94).” However, in 2010 U.S. Customs and Border Protection (CBP) began updating its system to process entries into the U.S. electronically.
When visitors enter the U.S. by air or sea, CBP no longer provides a copy of the form I-94. State and federal government agencies did not coordinate the implementation of these new procedures. Although CBP no longer provides a copy of the I-94, California continues to require a copy of form I-94 in order for a foreign national to obtain a California identification card. Although arrival and departure information is available the CBP’s website, antidotally California DMV continues to require an actual form I-94.
Now, new California legislation slated to go into effect in January 2015 significantly changes California law relating to the issuance of driver licenses to foreigners.
Gov. Jerry Brown recently signed the legislation that repeals many provisions of a 1997 California law requiring proof of legal status before obtaining a driver license.
The new legislation requires the DMV to issue a driver license to anyone who meets all the other driver license qualifications — even if they cannot provide proof that they are in the U.S. legally. Unfortunately, there may be many unanswered questions about the consequences of this new law.
One of the problems is that the law appears to repeal some of the provisions providing for identification cards in lieu of a driver license. In many instances the provisions replacing the repealed provisions only address driver licenses, leaving the status of identification cards uncertain. Performers visiting the U.S. may not want a driver license or may not qualify for one. Individuals seeking a driver license must live in California and must turn over his or her foreign driver license.
At least under the former law, individuals merely seeking a state identification card were allowed to keep their foreign license and only needed to establish that they were visiting California for an extended stay. This allowed foreigners to obtain an alternative form of ID so they did not have to risk carrying and perhaps losing their passport during their stay.
The stated purpose of the new law is to make sure drivers are properly licensed in order to increase road safety and to allow illegal immigrants to travel to and from their jobs —even if those jobs are illegal.
Since an identification card has nothing to do with driving, it is unclear that the changes to California law will apply to identification cards.
This leads to another aspect of the new California law. In order to gain the political support required to pass the law, legislators included a provision that would require any driver license issued to an individual who did not provide proof of legal residency to contain the following notice:
“This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.”
Thus, California law appears to state that this type of driver license could not be relied upon for verifying a performer’s age for the purpose of 2257 compliance. However, under the Supremacy Clause of the U.S. Constitution, federal law preempts state law.
If federal 2257 regulations say that a producer can rely on a state issued driver license, it is unclear that California’s attempt to legislate otherwise is valid.
If filming in the U.S., producers should never rely on a foreign passport to satisfy 2257 requirements.
Producers should consult with a qualified attorney to discuss options and evaluate risks associated with relying on other forms of identification.
D. Gill Sperlein is a San Francisco-based attorney who represents many adult entertainment industry clients.