Republicans Save US Jobs

Marc J. Randazza

Since George W. Bush was elected, hundreds of thousands of American jobs have flowed overseas – where labor costs are lower. On Tuesday, May 24, 2005, the federal government took a stand to help stop cheap foreign labor from competing on an uneven playing field with our local workers. What industry was protected? Automobile factory workers? No. Textile workers? No. Software developers? Wrong again. So who was it? Adult industry actors and actresses are the beneficiary of this governmental largesse.

Yes, that's right. The party of "moral values" and its Attorney General who stated that prosecuting obscenity was his number one priority has issued a new regulation that makes it very difficult (if not impossible) for US-based producers of erotic content to use foreign talent. While hundreds of thousands of Americans are losing their jobs to outsourcing to the Third World, erotic talent is receiving a protectionist gift from the federal government.

The new regulations define "Picture Identification Card."  But they do not define "identification document."

In light of the new regulations implementing 18 USC § 2257, there is a lot of confusion in the industry as to what identification requirements are truly required, and how they will affect producers who wish to use foreign talent. Upon first blush, the regulations appeared to be quite onerous for these producers. Upon additional examination, they appear to be even worse for stateside producers.

One opinion circulating is that the new regulations require either a foreign passport or a specified "picture identification card." While this may be one possible interpretation, it appears that the true requirement is that both are necessary.

If the "either/or" theory were correct, it would lead to a far more reasonable result.  The alternative theory leads to a very unreasonable result.  Accordingly, the author recognizes that the entire industry would much prefer the "either/or" theory to be correct.  Nevertheless, what we want to be true and what is true are often unconnected.

The "either/or" position is based upon the fact that "identification document" referenced in the new regulations is different than "Picture Identification Card" and that the regulations provide that either one or the other is required.  It is true that the two terms are different and mandate the use of two different kinds of documentation.  However, it is an incorrect conclusion that only one or the other is required.

The "either/or" theory is based on the second sentence in §75.2(a)(1). However, that theory only passes muster if the first sentence in that section is ignored.

The first sentence in §75.2(a)(1) of the new regulations states that any producer of sexually explicit content must create and maintain records containing "[t]he legal name and date of birth of each performer, obtained by the producer's examination of a picture identification card." (emphasis added).  Therefore, according to this sentence, a "picture identification card" is strictly required.  Parenthetically, this sentence is new, and was not contained in the proposed version of the regulations published in June, 2004.

The second sentence in §75.2(1) (and the sentence upon which the "either/or" theory relies) states: "For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card." (emphasis added).

To further illustrate the issue and to demonstrate the confusing language in the new regulations, we should turn our attention to the definitions of these two terms.  The new regulations define "Picture Identification Card."  But they do not define "identification document." (that term is defined in the statute).

Picture Identification Card is defined by naming a laundry list of U.S. Identification documents such as a passport or a green card, or a driver's license issued by any state. See §75.1(b).  However, this section allows for foreign equivalents as long as the talent and the producer are both located outside the United States. 

This leaves us searching for a definition of "identification document." Fortunately, we can find this definition in 18 U.S.C. § 1028(d), the identification fraud statute, 18 U.S.C. § 1028.  Unfortunately, while 18 U.S.C. § 1028(d), defines "identification document," it also limits its definition to "this section and section 1028A."

Therefore, it would appear the definition of "identification document" that is contained in the Identification Fraud statute at 18 U.S.C. § 1028(d) is limited to that section and its companion section (1028A).  However, §2257(h)(2) contains the following: "'identification document' has the meaning given that term in section 1028(d) of this title."

This is certainly somewhat confusing, as we can travel in circles by looking at 1028, which says that its definition only applies to itself, but then look at 2257, which says that it is importing this definition, which (by definition) is limited to only Section 1028.  Ultimately, the balance of the analysis is likely to tip in favor of the 1028 definition being properly imported into 2257.  Accordingly, we have our definitions of Picture Identification Card and Identification Document – although there is a weak argument against the importation of the 1028 definition into 2257.

The comments to the new regulations further illustrate why there is so much confusion on this point currently in the industry.

At Page 29616 of the Federal Register, in the comments discussing the new 2257 regulations, 18 USC § 1028 is discussed explicitly.

"One commenter commented regarding a minor drafting error in which s75.2(a)(1) of the proposed rule incorrectly referenced the definition of an identification document in 18 USC 1028.  The department has eliminated entirely the reference to 18 USC 1028, which is redundant in light of the final rule's defined term picture identification card."

If we examine the proposed regulations and the final regulations, it appears that the intent was to delete any reference to 18 U.S.C. § 1028(d).  It also appears that the regulations might have intended to do away with the 1028 definition.  This is unclear, and ultimately the regulations cannot change the fact that 2257 mandates the use of that definition. The regulations cannot subtract from the statute, although they may add to it, so long as the Department does not exceed its authority given by Congress.  Given the comments, it appears that the Justice Department may have been improperly attempting to merge the terms Picture Identification Card and Identification Document. Nevertheless, this is far from certain, and may not be clarified until the courts address the issue.

As mentioned above, the result that the industry would like to see is more logical than what the regulations seem to create. Accordingly, a court may eventually agree with the interpretation developed in this article and dispense with it under the "absurd result doctrine."

Allowing the use of foreign-issued ID only when the producer and talent are outside the United States is certainly unwise, as it will cause great difficulty for the industry, drive much money out of the economy, and ultimately mean that the new regulations will serve as the only steps that the Bush administration has ever taken to stop American jobs from being lost to cheaper foreign workers. Nevertheless, a bad result from bad law does not trip the wire to activate the absurd result doctrine – and the threshold for the employment of this doctrine is quite high.

In conclusion it appears that a picture identification card, as defined in the regulations, is strictly required to be examined by the producer, and this definition does create difficulty for American producers using foreign talent (whether on US soil or abroad).  Although there are alternative theories to interpret the rest of the regulations, the more conservative position is that a legible copy of the identification document (as defined in section 1028) must be kept, but if it does not contain a recent and recognizable picture, then a legible copy of the picture identification card must also be kept with the required records.

Marc J. Randazza, Esq. is a Las Vegas based First Amendment attorney. Nothing contained in this article constitutes legal advice. Please consult your personal attorney for information on specific legal issues. Mr. Randazza can be reached at www.randazza.com.