A recent Department of Justice filing in Free Speech Coalition v. Gonzalez, (the case challenging the new Section 2257 regulations), alleviates one small part of the Foreign ID concern – American productions using foreign talent are no longer on questionable legal ground – provided that the ground they are filmed on is not American soil.
The regulations state 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]. The law defines picture identification card by naming a laundry list of U.S. identification documents such as a passport, a "green card," or a driver's license issued by any state. This section allows for foreign equivalents only when the talent and the producer are both "located outside the United States."
The regulations clearly prohibit the review of foreign-issued ID, (even a foreign passport) unless the talent and the producer are both located outside the United States. The regulations are less clear on what "located outside the United States" means in this context. Does it mean that these parties must be based or domiciled outside the United States? Or does it mean that they must physically be outside the United States when the production takes place? Given the fact that a violation of Section 2257 could result in federal incarceration, the safe-bet position was that American producers were out of the foreign-content business unless they employed overseas primary producers as intermediaries.
In a recent response to interrogatories in Free Speech Coalition v. Gonzalez, the Justice Department retreated from a hard-line interpretation of the regulations. The DOJ's current position is that the words "located outside the United States" means "located outside the United States at the time of production." Given the importance of this distinction, it is surprising that the DOJ did not include these five words in the original regulations, and thus clearly demarcate what conduct is permitted.
Since the DOJ did not include this clarification in the regulations, and the regulations have not been modified, it should be noted that the statement in the Free Speech Coalition v. Gonzalez case is not necessarily binding, and the DOJ could potentially take a contrary position at any time. Anyone subject to prosecution could make an argument that they relied on the DOJ's interrogatory response, and the success of such an argument is likely, but not guaranteed. Nevertheless, at this time, it appears that American producers who use foreign talent can comply with Section 2257 by examining and copying foreign identification, as long as they do so outside of U.S. territory.
This legal scenario creates quite a bizarre result. The regulations, when colored with the Government's position in Free Speech Coalition v. Gonzalez, means that American producers can use foreign talent, supported by a review of foreign identification if they do so in a foreign country, but that it does not matter in which foreign country the production takes place.
For example, an American producer could shoot content in Mexico using Russian talent, showing a Canadian ID, but the same exact content would not be legal if it were filmed across the border in California. More absurd is the fact that a Canadian producer, using Canadian talent, could not film a production on location in the United States (unless the talent had US identification). Of course, this is an over-simplification – they could "film" the content, but they could not legally distribute it in the United States.
What is absolutely clear is that if a producer uses foreign talent on US soil, that talent must have an American passport, a "green card," or a US-issued driver's license (or other American ID as permitted by the regulations). Otherwise, no matter how old the talent is, and no matter how reliable her foreign ID is, the producer risks imprisonment in the "land of the free" for violating a law supposedly enacted to keep children from being exploited.
Marc J. Randazza, Esq. is an attorney with the law firm of Weston, Garrou, DeWitt & Walters, which maintains offices in Orlando, Los Angeles, and San Diego. The firm handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your personal attorney for information on specific legal issues. Mr. Randazza may be reached at firstname.lastname@example.org, at his office, (407) 389-4529, or at AIM Screen Name: "Mrandazza007."