Gonzales Signs Final 2257 Rule

Gretchen Gallen
WASHINGTON – Attorney General Alberto Gonzales gave final approval on the proposed amendments to current 2257 law, known officially as 18 U.S.C. § 2257, which could potentially have a significant impact on the record-keeping process for producers of sexually explicit content in proving that their performers are not minors.

The rule signed by Gonzales is a provision of the Child Protection and Obscenity Enforcement Act and could become law within the next 30 days; however the specific language of the amended regulations remains unknown at this time or whether the rule has been further amended or altered after being first published in June of last year.

Violations of the requirements are considered criminal offenses punishable by imprisonment for up to 5 years for a first offense and up to 10 years for subsequent offenses.

Regulations implementing section 2257 were first published in 1992, but according to the Department of Justice, were in need of being updated because of the burgeoning presence of pornography on the Internet. The DOJ issued a statement announcing that the rule signed by Gonzales establishes a more detailed administrative inspection system designed to enable the federal government to ensure that children are not exploited in the production of pornography.

Industry attorney Lawrence Walters told XBiz that at such an early stage, he had no specifics on what the language of the rule currently is.

"The regulations have been approved, and they are in the process of being published in the Federal Register," Walters told XBiz. "But until we are able to investigate, we can't say exactly what has been included in the regulations or the effective dates."

According to the DOJ, the amended law ensures that the definition of “pornography producers” includes producers of visual depictions of sexually explicit conduct published on the Internet. It also clarifies the means by which a producer must verify the identity and age of each performer and the manner in which records of these verifications must be kept. Additionally, the final rule establishes a detailed structure for conducting administrative inspections of pornography producers’ records to ensure that children are not being used as performers in sexually explicit depictions.

The proposed regulation amendments were first published in the Federal Register, followed by a 60-day comment period during which several industry attorneys helped rally commentary from adult professionals on the dangers the regulations posed to the industry.

As an example, the proposed regulations would have required producers to make their records available from 8 a.m. to 6 p.m., which industry attorney J.D. Obenberger calls "unconstitutional" because of the financial burden it would put on individuals who only work in the industry on a part-time basis.

Obenberger told XBiz that contrary to the terms of Informal Rulemaking procedure, those responses were never published by the DOJ, making it increasingly difficult for anyone to challenge the final regulations when they are made into law. Obenberger said he contacted the DOJ some time ago and was told that comments did not have to be published; however Obenberger thinks the Justice Department is wrong and intends to pursue the issue.

Obenberger went on to say that the next step now that Gonzales has signed the rule is final publication in the Federal Register, although it remains unclear if the DOJ has taken any of the public's commentary to heart.

The Federal Register is similar to a newspaper that is published five days a week and contains all administrative news. Thirty days after publication in the Register, the amended rule becomes law, Obenberger told XBiz, unless a court enjoins its enforcement.

In October, a group of adult industry lawyers including Greg Piccionelli, Jeffrey Douglas, Paul Cambria, Louis Sirkin, Reed Lee and Robert Sarno partnered with the Free Speech Coalition to challenge the new law if and when it went into effect.

According to Piccionelli at the time the effort was first organized, the group of lawyers are coordinating a "full frontal attack" on the regulations through a multi-jurisdictional approach by filing two separate lawsuits in U.S. District Court against the Justice Department.

The FSC has been tapped as the plaintiff in both cases because it does not distribute content and is the industry trade association that deals with matters such as 2257. The FSC is also not subject to the requirements of 2257 record-keeping laws.

"As soon as the final regulations are announced, we want to be ready to go to court to seek an injunction on behalf of the FSC and its members," the FSC said.

Tom Fisher, vice president of CCBill, told XBiz that the processor is eager to find out the new 2257 rules.

"We are quite concerned what the new rules will be," Fischer said. "We don't know what the effect will be."