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Legal Reality: Cliff Notes on 2257

Legal Reality: Cliff Notes on 2257

June 17, 2014
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" Most types of live and recorded visual depictions of actual or simulated explicit sexual material are potentially subject to the 2257 regulations. "

Unlike producers of nonsexual content, adult content producers must comply with a complex and burdensome set of federal criminal regulations known as the 2257 regulations. For those who are not familiar with the 2257 regulations, they are a pair of statutes (18 U.S.C. § 2257 and 18 U.S.C. § 2257A) and associated regulations (28 CFR 75 et seq.) that require producers of sexually explicit content to create and maintain very specific kinds of records in precise accordance with certain specified requirements. The law also requires that certain specified compliance statements must be affixed to content subject to the 2257 regulations indicating where the records are available for unannounced inspection by the FBI.

Most types of live and recorded visual depictions of actual or simulated explicit sexual material are potentially subject to the 2257 regulations. Consequently, knowledge of, and compliance with, the 2257 regulations are mandatory requirements for every adult content producer. Underscoring the importance of these obligations is the fact that failure to scrupulously comply any one of the numerous provisions of the 2257 regulations can subject a producer to severe penalties.

For example, it is a federal felony for a person who fails to create or maintain records, “knowingly to sell or otherwise transfer” any sexually explicit material that does not have a statement affixed to such content. 18 U.S.C. § 2257(f). Violations of 18 U.S.C. § 2257 are punishable by huge fines and up to five years for the first offense and ten years for each subsequent offense. Violations of 18 U.S.C. § 2257A are punishable by fines and up to one year in prison for each offense. It is also illegal to aid or abet another party’s violation of any of the 2257 regulations.

A person or company can become a “producer” of content subject to the 2257 regulations, and thus be required to comply with all of the 2257 requirements, in a number of ways. If a party is the initial creator of the content, that party is termed a “primary producer” under the law. Specifically, 28 CFR 75.1 defines the term “primary producer” as

“any person who actually films, videotapes, photographs, or creates a digitally- or computer- manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.”

Examples of parties that are usually primary producers are persons or entities that shoot adult content scenes or photographs, and persons that perform in live cam shows depicting genital nudity, masturbation or other sexual acts specified in 18 U.S.C. § 2256.

A person or company is also deemed to be a “producer” under the 2257 regulations if one or more of their activities in relation to subject content fit within the definition of a “secondary producer” under the regulations. That definition (also set forth in 28 CFR 75.1) states that a secondary producer is

“any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.”

The 2257 regulations also provide some specific activity exceptions that are outside the definition of “producer.” Specifically, the regulations state that the term “producer” does not include persons or companies

“whose activities relating to the visual depiction of actual or simulated sexually explicit conduct are limited to the following:

(i) Photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;

(ii) Distribution;

(iii) Any activity, other than those activities identified in paragraphs (c)(1) and (2) of this section, that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;

(iv) The provision of a telecommunications service, or of an Internet access service of Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231));

(v) The transmission, storage, retrieval, hosting, formatting, or nation thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or alteration of the content of the communication; or

(vi) Unless the activity or activities are described in section 2257(h)(2)(A), the dissemination of a depiction without having created it or altered its content.

Unfortunately, I have found that there is a great deal of misinformation and misunderstanding about the 2257 regulations throughout the adult entertainment industry. To help address some of the confusion, here are answers to 10 frequently asked questions about the 2257 regulations.

1) Since there have not been any 2257 inspections under President Obama and since the law has been challenged in court, is compliance with the 2257 regulations something I have to worry about right now?

Despite a number of attempts to invalidate the 2257 regulations on constitutional grounds, the law has so far withstood each challenge. The 2257 regulations are, therefore, the completely valid and fully enforceable law of the land. As such, full compliance with the 2257 regulations is mandatory, and any violation of the 2257 regulations will continue to be a very serious federal crime.

But while required full compliance with the 2257 regulations is a legal reality, it is also true that the 2257 records inspections commenced under the Bush administration have been suspended by the current administration. Many adult entertainment attorneys, myself included, have stated that there also is a relatively low probability of recommencement of 2257 inspections or of any new 2257 prosecutions under the current administration. Many in the industry have misinterpreted these views, however, as downplaying the importance of continued full compliance with the 2257 regulations believing that any current lack of compliance does not put them in jeopardy. This is an unfortunate and erroneous view because it fails to account for the fact that the government has up to five-years from the date of a 2257 regulations violation to commence criminal prosecution of the violator. This means that any current noncompliance with the 2257 regulations is already subject to prosecution by the next administration.

So full compliance with the 2257 regulations should continue to be a high priority for every adult entertainment business.

2) Is it really necessary to make and maintain separate copies of the works in our 2257 system? For example, can the copy of the content on our web server function as our 2257 records system copy?

28 CFR 75.2(a)(1) requires that “the records shall 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.” 28 CFR 75.2(e) states that “[r]ecords required to be maintained under this part shall be segregated from all other records, shall not contain any other records, and shall not be contained within any other records.”

Taken together the two sections of the 2257 regulations make it clear that separate and independent copies of depictions of content subject to the regulations must be maintained in the producer’s record-keeping system. In fact, for copies of depictions published on the Web, a separate additional requirement to maintain the URLs associated with the copies must also be included in the record-keeping system.

3) Could I go to jail for even what appears to be a minimum violation of the 2257 regulations? For example, could I be prosecuted for not cross referencing the names exactly as required in the 2257 regulations (28 CFR 75.2(d)) or if I use a link to my webpage 2257 compliance statement that is labeled “2257” instead of “18 U.S.C. § 2257 Record-Keeping Requirements Compliance Statement “ as required by 28 CFR 75.8(d)?

The answer to both questions is, sadly, yes. The U.S. Department of Justice’s longstanding position is that any violation of the 2257 regulations, no matter how minor, is a chargeable offense.

4) Do the 2257 regulations require that I include a writing sample for each performer in the records I maintain under the 2257 regulations?

No. In fact, since the 2257 regulations require that the records to be maintained “shall not contain any other records,” a good argument could be made that including such a record could in and of itself be a punishable violation of the 2257. Remember even minor violations of the 2257 are punishable violations.

5) Do the 2257 regulations apply to live cam shows and require the creation and maintenance of 2257 records for such live cam show content?

Yes. Many live cam business operators, live content aggregators and live cam performers simply do not know that the 2257 regulations apply to live content and those that produce and exploit it.

The party that initially creates live 2257 content will generally fall under the 2257 regulations’ definition of a “producer.” In fact, the party that originally creates a digitized image of “an actual human being engaged in actual or simulated sexually explicit conduct” is defined as a “primary producer” under 28 CFR 75.1. As such, the live content producer has an obligation to create and maintain the records required by the 2257 regulations in precisely the manner the law prescribes. In the case of an independent live chat performer providing live content for use by a cam company, this would almost always impose the record-keeping and labeling obligation on the live cam performer.

The 2257 regulations also impose an obligation upon non-producer distributors of live 2257 content. The so-called “2257 distributor obligation” set forth at 18 U.S.C. § 2257 (f)(4) and 18 U.S.C. § 2257A(f)(4) applies to non-producer sellers and distributors of adult content even though they are not obligated to maintain records as a primary or secondary producer. Specifically, 18 U.S.C. § 2257(f)(4) and 18 U.S.C. § 2257A(f)(4) each sets forth the 2257 distributor obligation stating that it is unlawful for any person to knowingly sell, offer for sale, or transfer, any content that is subject to the 2257 regulations which does not have a compliance statement describing where the records required to be kept by the producer of the content are located.

This express prohibition against advertising, selling or transferring “2257 content” if it does not have a proper compliance statement is, unfortunately, not nearly as well-known as the record-keeping and labeling requirements imposed on primary and secondary producers. It is, in fact, a third type of obligation under the 2257 regulations in addition to the record keeping and labeling requirements. It is an obligation applicable to a person or entity that transfers the content regardless of whether they initially produced the material (i.e., as a primary producer) or merely uploaded the content to, or manage the content on, a website (i.e., as a secondary producer). Thus, an aggregator and distributor of content subject to the 2257 regulations, including live content, produced by others should take care to be sure that such content contains appropriate compliance statements.

6) Are 2257 record creation and maintenance of the records required for distribution of content via mobile phones and other devices such as an iPad?

Yes. The 2275 regulations are not limited to any particular media or media device. 28 CFR 75.2(a) makes it clear that the 2257 regulations apply to “[a]ny producer of any book, magazine, periodical, film, videotape, digitally or computer-manipulated image, digital image, picture, or other matter that is produced in whole or in part with materials that have been mailed or shipped in interstate or foreign commerce, or is shipped, transported, or 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 ... “

Because 28 CFR 75.2(a) makes it clear that the 2257 regulations apply to foreign commerce as well, content transmitted from the U.S. to foreign countries is also subject to the law.

7) Must records be maintained for content that does not contain any depictions of actual sex but only depicts genitalia? What about depictions limited to simulated sexual activity?

Depictions that include lascivious exhibitions of the genitals or pubic area of any person made after March 18, 2009, are subject to the 2257 regulations even if there are no actual sexual acts depicted in the content. Depictions of simulated sexual activity created after March 18, 2009, are subject to the 2257 regulations under 18 U.S.C. § 2257A.

8) Can an adult entertainment business be obligated to maintain 2257 records and publish 2257 compliance statements regarding advertising materials?

Yes. For example, a company is required to maintain records for affiliate marketing materials that contain content subject to the 2257 regulations that the company inserts on its website, even if the materials were provided by a webmaster affiliate marketing program. Similarly banners and other advertising containing depictions subject to the 2257 regulations that are provided by a third party company on the company’s website will impose record-keeping and compliance statement obligations regarding such content if the company inserts the content on its server(s) or otherwise manages the content on its website.

Similarly, if a company is a provider of sexually explicit content to participants in its affiliate marketing program, the company must maintain 2257 records regarding such content and must associate appropriate compliance statements with the content provided to its affiliates. Moreover, when such content is provided to the affiliates to use on their websites, the affiliates will almost always become what the 2257 regulations define as “secondary producers” with respect to the marketing content provided. As such, the affiliates will be required to maintain 2257 records regarding such content. As a result, the company providing such content should also provide to its affiliates copies of performer identification documents, names of the performer, etc., so that the affiliates may assemble and maintain their own 2257 records regarding such content. Otherwise, the affiliate marketing company might be, in effect, inducing or aiding unlawful conduct on the part of its affiliates by encouraging and facilitating depictions in violation of the 2257 regulations.

9) Since the 2257 regulations require producers to maintain, in addition to the performer’s legal name, “any name, other than the performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name” how is a producer supposed to ascertain what such other names are?

A comment by the Department of Justice accompanying amendments to the 2257 regulations in 2008 published in the Code of Federal Regulations at page 77469 states that “[p]roducers may rely in good faith on representations by performers regarding accuracy of the names, other than legal names, used by performers.”

10) Do the 2257 regulations exclude the use of foreign passports as proper identification for a performer for the 2257 records when the shoot occurs in the U.S.?

While the 2257 regulations do not expressly state as much, the effective result is that foreign passports cannot be used as proper identification for domestic shoots involving explicit sexual activity in the U.S. Section. 28 CFR 75.1(b), which defines the term “Picture Identification Card” in the 2257 regulations, states that “Picture identification card means a document issued by the U.S., a State government, or a political subdivision thereof, or a U.S. territory, that bears the photograph, the name of the individual identified, and the date of birth of that individual, and provides specific information sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (commonly known as a “Green Card”), or employment authorization document issued by the U.S., a driver’s license or other form of identification issued by a State or the District of Columbia.”

But 28 CFR 75.1(b) then states that a passport issued by foreign government or other foreign-issued identification document equivalent to those listed above may be used only “when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the U.S. at the time of original production and the producer maintaining the required records, whether a U.S. citizen or non-U.S. citizen, is located outside the U.S. on the original production date.”

So a foreign passport may be used for 2257 record-keeping purposes for adult content performers if the shoot occurs outside the U.S., but not if the content is shot domestically.

The 2257 regulations are alive and in force. If you are creating and/or distributing content subject to the regulations you must comply with the law. Unfortunately, the 2257 regulations are numerous and complex and a comprehensive discussion of the 2257 regulations and how they may pertain to your particular business is far beyond the scope of this article. So, if you haven’t done so already, I strongly suggest that you give our office a call or engage other competent counsel experienced in 2257 Regulation matters to evaluate your company’s compliance with the 2257 regulations and your potential exposure to prosecution as soon as possible.

This article is not intended to be, nor should be considered to be, legal advice. As always, I strongly urge you to seek the counsel of a qualified and experienced adult entertainment attorney familiar with the legal matters discussed my articles.

Gregory A. Piccionelli is an entertainment and Internet attorney and free speech advocate. He can be reached at (818) 201-3955 or greg@piccionellisarno.com.


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