Comments On §2257

Stephen Yagielowicz
There are only a few days remaining for public comments on the proposed changes to the 18, U.S.C. §2257 records keeping statute. Tala encouraged folks to send in their comments in her thought provoking article, "Total Crap," and a handful of the best legal minds in the industry have helped prepare comments for Webmasters to submit; making the process simple, and hopefully, effective. Here's what I had to say to the DOJ:

With the August 24th deadline for submitting comments to the Department of Justice fast approaching, I wanted to be sure that I had my say about the sections of the proposed changes that would most directly affect my operation, and which I felt were most troubling to many other small scale and "amateur" adult Webmasters. Wanting to correctly articulate my concerns in a manner understandable and specific enough for lawmakers to act upon, I decided to make use of the "copy n paste" commentary made available by Larry Walters, Gregory Piccionelli, and J. D. Obenberger – who discussed these areas of concern in his recent XXXLAW Bulletin On 2257.

I sent my e-mail to admin.ceos@usdoj.gov with a subject line of "Comments on Amendments to Title 18, U.S.C. §2257":

Dear Sirs,

I would like to take this opportunity to comment on the proposed amendments to Title 18, U.S.C. §2257.

I am a primary producer as defined by the statute, operating a small "amateur couple" web site that exclusively features content depicting my wife and I. This content is not distributed elsewhere. We are both 40 years old, and run the web site as a "part time" business from our home. Aspects of the proposed amendments will directly and negatively impact my business, and present an unnecessary and potentially insurmountable burden. Specifically:

75.5(a)(1): Inspection Obligations are Overly-burdensome: The proposed regulations require each producer or secondary producer to make records available from 8am -6pm, 365 days per year. Authority to require all regulated businesses to be open every day of the year from 8am – 6pm cannot be found in the statutes, and such requirements ignore the different business hours kept by the regulated businesses. This proposal seems to mandate that no one may lawfully create or disseminate sexually explicit material unless that person can afford to staff and maintain an office that is open for inspection at least seventy hours per week during the business day. However neither Section 2257 nor the Constitution limit freedom of expression to those who can afford to do it as a full time enterprise. This proposal also limits the practical ability of photographers to do “location shoots” or to rent remote studios, to those photographers who can afford to hire a custodian who will always be present during the specified hours. All of this quite unreasonably, and quite unnecessarily, burdens the creation of images for publication.

The prior regulations simply provided that the availability be “reasonable”, and that is flexible enough to accommodate both the government’s interest in having an opportunity to inspect and the part-time producer’s actual availability. 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.

Privacy Concerns: 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.

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 Web sites without any employees from their residence. There are a very substantial number of such persons. These persons do so often only as a small part of an otherwise normal life that may include regular employment in unrelated enterprises. 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.

75.8(d) Statement Location Requirement is Counterproductive: The statute requires a conspicuous disclosure statement. Where Web site content provided by multiple content producers is concerned, it would be impossible and illogical to require all disclosure statement information to be contained on the home page or main url. The records custodian for each group of content must be designated on the interior pages to avoid confusion as to which custodian maintains the records for which content. Webmasters should be allowed to place portions of the disclosure statement, tying specific records custodians to specific content, in the interior pages of the site, or wherever necessary to avoid confusion.

75.6(e): Type Size Requirement is Illogical: Requiring an 11 point type disclosure statement for Web sites is nonsensical. The display size of any particular type contained on a Web site depends on the size of the monitor or screen on which it is displayed. Webmasters have no control over what the display size is on any particular screen.

75.5(g) Seizure Power During Inspections is Invalid and Unconstitutional: The new regulations grant law enforcement officers, who can be anyone designated by the Attorney General, broad authority to seize any evidence of the commission of any felony during the course of an inspection. Nowhere in 18 U.S.C. § 2257 is such a broad regulation authorized. Moreover, evidence of a felony could include evidence of violation of an obscenity statute, and seizure of media materials under those circumstances without a judicial determination of obscenity would offend the First Amendment. Moreover, this provision runs afoul of the established statutory scheme found in the Criminal Code and the Federal Rules of Criminal Procedure, and the Fourth Amendment, relating to searches and seizures.

Beyond this, I believe that Records Keeping Requirement for Webmasters Is Invalid and Illegal; §75.1(c)(2): The proposed requirement that secondary producers, including Webmasters who license images from photographers, obtain and keep age and identity records imposes an immense, complex, and sometimes impossible burden on Webmasters, a burden of a nature never intended by the Congress, and a burden that will inevitably cause a not inconsiderable number of lawful images, of persons well over the age of eighteen, to be withdrawn from the Internet. The new regulations will require many Webmasters to go back and obtain age records for all their content, which in some cases can number in the hundreds of thousands of images. However, the case of Sundance Assocs. Inc. v. Reno, 139 F.3d 804 (10thCir. 1998) says that the Justice Department does not have the authority to impose this requirement.

I hope that you will take these comments into consideration, and modify the proposed amendments accordingly.

Thank You.

I encourage everyone to take a few moments to send their comments to the DOJ about the proposed amendments to Title 18, U.S.C. §2257. You can find a selection of "copy n paste" comments on a variety of other areas of concern in these amendments here. You can't complain about what's going on if you're not trying to change it. Be part of the solution, not part of the problem! ~ Stephen

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