(Note: The answers below pertain to persons who are not members of the FSC subject to the injunction we obtained in Free Speech Coalition vs. Gonzales earlier this year. While much of the following will still be true for such persons, the ambiguities and complexities introduced by the new regulations with respect to persons subject to the injunction cannot adequately be addressed here. Please consult your attorney or the FSC regarding your specific situation.)
1) Did the type of material for which records must be kept change?
Yes. Before the passage of the Walsh Act’s modifications to the 2257 record-keeping provisions, 2257 applied to depictions of what was defined in subparagraphs (1)(A)(i)-(iv) of 18 U.S.C. § 2256 as “sexually explicit conduct” which included material depicting sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; and sadistic or masochistic abuse. Now the record-keeping requirements also apply to lascivious exhibition of the genitals or pubic area (18 U.S.C. § 2256 (1)(A)(v)), and upon the effective date of a new section, 2257A, to depictions of simulated sexually explicit conduct, the latter being mere simulations of all the sexually explicit conduct described in (1)(A)(i)-(v) of 18 U.S.C. § 2256.
2) Did the type of material change for which a compliance statement must be affixed as required by the regulations?
Yes. The same additional materials described above must now have an appropriate compliance statement.
3) Would the record-keeping and labeling requirements apply to materials — supplied by a third-party content provider — that I have uploaded to my website server?
4) How about materials uploaded by others on a site where I maintain or control the content — such as situations where persons can post nude pictures of themselves, including their genitals?
Probably yes. The regulations have an exception for Internet service providers. But the determination of whether that exception would potentially apply to any particular situation requires the assistance of competent counsel.
5) Do the record-keeping and labeling laws apply to banners on my site for another company’s affiliate program if they depict genitalia, the pubic area or actual or simulated sexual conduct?
6) What about banners I provide for affiliates to my programs? Do they have to have a compliance statement if they depict genitalia, the pubic area or actual or simulated sexual conduct, and does that mean my affiliates must have and maintain all the corresponding 2257 records?
Yes to both parts of the question.
7) Must I now put the compliance statement on every page of my website?
8) For every photo, video clip, movie, photographic banner ad and other visual depictions that includes lascivious exhibition of genitalia or the pubic area, or actual or simulated sexual conduct that I digitize, upload onto a website or otherwise publish, must I maintain all the records required by 2257, have them cross-referenced exactly in the manner required by the regulations, have them available for inspection at least 20 hours a week and have them completely separated from all other records and not include any other records?
9) Is it true that any, even a minimal violation of 2257, can result in a sentence of five years in jail for the first offense and 10 years for second and subsequent offenses?
10) Does that mean that I can go to jail for five years for each violation of 2257, even if the violation is an omission of a single record or legal name in the record-keeping system, or just a cross-referencing error?
Gregory A. Piccionelli is one of the world's most experienced Internet and adult entertainment attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com.