XXXLAW Bulletin On 2257

J.D. Obenberger
Editor's Note: Noted Attorney J.D. Obenberger has been very active in protecting the rights of adult webmasters and providing legal guidance in diverse areas of concern, including the impact of the proposed changes to the 18 USC 2257 record keeping requirements. The following are comments from his most recent XXXLAW Bulletin. ~ Stephen

As you know, these proposals are not the law yet. For now, they are just proposals, and I take the comment period seriously in this case, because I think that changes to the proposal are not only possible but likely. If your voice is to be heard, you must transmit your comments to the DOJ on or before August 24.

A table, prepared by me, comparing and contrasting the existing regulations with the proposed changes can be found on my site, here. More about those changes below.

On August 13, AVN Online, both print and online edition, will run the 2004 Third Revised Edition of my "Webmaster's Primer on Section 2257", which has become a standard work among webmasters since its first publication in 2000. The revision has been massive, but it still is meant to provide a plain-English, practical explanation of the ins and outs of Section 2257 compliance. In as much as we enter an era in which Section 2257 will surely be litigated, I have also added historical reference data to help other lawyers who may be called upon to represent webmasters.

Some Focus on the Proposed Regulations
The proposed regulations perpetuate and amplify many of the problems that already exist is the current statute and regulations. What follows is a brief (noncomprehensive!) list of issues adversely significant to the webmaster and producer.

— As they particularly affect small web operations, the proposed regulations require the mandatory records to be open to government inspection from 8:00 a.m. to 6:00 p.m. and whenever the operations take place. This provision works to impose a financial barrier that will be impossible for many; The part-time webmaster, the content provider who wishes to do a location shoot or to shoot in a rented studio, can only do these things if each hires help to man the office during the required hours. These regulations act to put a price tag on some kinds of expression by a large group of persons, establishing by government fiat a price that is practically unreachable by large numbers of producers today. However neither Section 2257 nor the Constitution limit freedom of expression to those who can afford to do it as a full time enterprise.

— The so-called secondary producer provisions (which the proposed regulations perpetuate) impose a duty to obtain or maintain identity records on all persons in the chain of publication, including those with no direct contact with any of the persons depicted. The imposition of such a duty carries with it a continuing and never-ending cycle in which personal identity documents concerning models and performers will be disclosed to ever more numerous and distant persons. This obligation seriously compromises the privacy and endangers the safety of each performer and is likely to lead to such evils as identity theft, stalking, harassment, and uninvited personal sexual solicitation of the performers. Similarly, The Internet has enabled many persons of limited economic means to publish web sites to a worldwide audience, including web sites with sexually explicit themes. These persons operate websites without any employees from their residence. The "disclosure statement" provisions, as applied to individuals operating web sites from their homes will, in many cases, operate to require these persons to disclose the only address they have, their home address, together with their name. This is an incendiary mix that will lead to the same evils: Stalking, harassment, and uninvited sexual solicitation.

— The Secondary Producer requirements may be invalid. The only federal courts to consider the issue determined that the Justice Department went too far by imposing this burdensome set of duties on republishers of explicit material.

— The duty of keeping copies of all depictions is an onerous, impossible burden. Imagine a part-time webmaster trying to make and maintain DVD's for seventeen channels of live, streaming content that his site carries.

— Some of the proposed regulations don't make any logical sense at all, including that which requires eleven-point type on a web page disclosure statement. Or that change which requires a webmaster to retain a "copy" of the URL associated with all content. What is a "copy" of alphanumeric address information?

There is lots more to cover, but that is what the article and seminar at Internext are for.

All best wishes, J. D. Obenberger

Nothing contained in this Bulletin creates any attorney-client relationship and it should not be understood as legal advice to you or anyone else.

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