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'2257's Pros, Cons and Constitutional Quandaries

Q. Boyer
Editor's note: the following article first appeared in the Feb. 2009 issue of XBIZ World Magazine.

In a development that was a long time coming, the U.S. Justice Department recently released its newest revisions to the record-keeping regulations collectively known as "2257," immediately setting off a firestorm of concern, analysis (reasoned and otherwise) and speculation, just as other revisions to '2257 did in years past.

While the reviews from legal experts concerning the revised regulations are predictably mixed, there appears to be general agreement that some of the revisions are positive developments for adult producers (or, at least, less negative than they might have been), while others are not so beneficial to the industry. On a constitutional front, however, '2257 has arguably never been more problematic than it is now, thanks in large part to the structure of the regulations that pertain to section '2257A.

In preparing this article, I consulted with several experts in the field, including attorneys who specialize in federal criminal defense and constitutional law. With a subject as diverse, complex and nuanced as is '2257, it is impossible to cover it comprehensively in a brief article, so today we're focusing on just a few major points that have traditionally been a source of great confusion for webmasters and adult business owners. These sticky points include the guidelines for identification documents pertaining to foreign talent, labeling requirements for websites, the definition of "simulated sexually explicit conduct" and a brief look at the constitutional ramifications of the latest iteration of these regulations.

Foreign IDs
One of the first issues to be discussed on various industry web boards following the publication of the new regulations was the nature of the rules regarding IDs for foreign performers. Some observers read the revised regulations as holding that U.S. producers could not use foreign performers unless the U.S. producer relocated outside the U.S. or if they brought their foreign talent to the U.S. and then obtained a U.S. identification document for that performer. Happily, this view stems from a misreading of the new regulations, which require no such thing.

As the Justice Department stated in its published revisions to 28 CFR Part 75, the revised regulations clarify that "… with regard to the government issued photo identification required for records, a foreign-government-issued picture identification is acceptable if the performer providing it is a foreign citizen and the producer maintaining the records produces the visual depiction of the performer in a foreign country, no matter whether the producer is a U.S. or foreign citizen."

In other words, if as a producer you travel overseas to film a production, you can rely on the government-issued identification documents issued by the country in question. According to the Justice Department, this was always the way they interpreted the requirements; the point has merely been clarified under the revised regulations.

The confusion concerning whether American producers may rely on foreign IDs probably stems from the fact that the regulations specify that "… only a U.S.-government-issued picture identification card complies with the regulations relating to productions in the United States, no matter whether the performer is a U.S. or foreign citizen." This is very different from saying that an American producer cannot hire foreign talent, however.

Labeling Requirements for Websites, and the Definition of 'Copy'
One potential source of unwelcome news for website operators, particularly those who hand-code their sites, is the clarification of the definition of the word "copy" as it applies to '2257. The meaning of this term was actually clarified by Congress in the Adam Walsh Act, under which legislators added a new statement to section '2257(e)(1) holding that "In this paragraph, the term 'copy' includes every page of a Web site on which matter described in subsection (a) appears."

The good news is that the Justice Department has now explicitly stated that with respect to the disclosure statement that must be affixed to every webpage that displays content subject to '2257, "a hyperlink or 'mouseover' is permitted" as a means of displaying the required statement.

The bad news is that if your website is both hand-coded and rather extensive in terms of the number of pages it has that are subject to '2257, you've got some serious work ahead of you in order to bring your site "up to code," so to speak. For website operators that have a quick and easy means of updating a large number of page footers, however, complying with this particular aspect of the labeling provisions should not be too terribly problematic.

'Simulated Sexually Explicit Conduct' is Not Referring to Fornicating Cartoons
Somewhere along the line, some observers got confused about precisely what was being referred to by the phrase "simulated sexually explicit conduct," and convinced themselves that the phrase meant that '2257 regulations applied to computer-generated beings, cartoons, and other forms of virtual beings. If this were a valid interpretation of the regulations, it would indeed be a real problem for producers of such content, as beings that do not exist also do not typically possess government-issued identification documents.

In an almost humorous turn (if it is possible for comments on government-issued regulations to be funny), the Justice Department directly addressed this point in its final rule, stating that it is "important to note that 'simulated' in this context does not mean 'virtual.' For purposes of chapter 110, including sections '2256, '2257, and '2257A, and for purposes of part 75, 'simulated sexual explicit conduct' means conduct engaged in by real human beings, not conduct engaged in by computer-generated images that only appear to be real human beings."

Hopefully, this clarification will finally put to rest the notion that producers of hentai, manga and computer-generated porn should be worried about a knock on the door from an inspector demanding that they do the impossible: provide identification documents for a purely virtual being.

Didn't a Federal Court Declare '2257 Unconstitutional?
Observers who considered the issue of '2257 to be dead in light of the 6th Circuit panel's ruling in the Connection case were probably a bit surprised to see the release of the new regulations. While the government has been granted an en banc rehearing in that case, that news has been somewhat muted compared to the coverage of the panel's decision in late 2007.

The good news is that if the panel's decision is overturned by the full 6th Circuit (and most experts agree that is quite likely), the revisions to the statute under the Adam Walsh Act and the Justice Department's newly revised regulations have arguably only made the statute and regulations more problematic, constitutionally speaking.

Under the First Amendment, restricting expression is a tricky business for the government, and among the many things that legislators must be mindful of the notion of "burden," and seek a regulatory scheme that imposes a minimal burden on the "speakers" involved — the speakers in this instance being producers of sexually explicit content.

Where '2257 has gotten worse, substantially worse, from a constitutional point of view is the addition of '2257A.

Attorney Jeffrey Douglas, the chairman of the Free Speech Coalition, said that while attorneys are divided on a great many things concerning '2257, there is one point on which there is near unanimous agreement among First Amendment attorneys: the government has created a serious pickle for itself by offering producers of depictions featuring simulated sexually explicit conduct a significantly less burdensome set of regulations than it offers to producers of actual sexually explicit conduct.

"The distinction they are making between actual and simulated sexually explicit conduct is absolutely a content-based distinction," Douglas said, underlining the crux of the '2257/2257A dilemma. "Even if you accept that you can distinguish between actual and simulated intercourse, and assert that actual intercourse is more damaging to a minor than is simulated intercourse, what about masturbation? How do you split the hair with respect to the "lascivious display" of genitals?"

The bottom line, Douglas said, is that the government is in "deep trouble" in terms of defending the constitutionality of '2257 in light of the particulars of '2257A.

"They're not just skating on thin ice," Douglas said, "they are skating on water."

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