Amended 2257 Regulations Published in Federal Register

Gretchen Gallen
WASHINGTON – Amended 2257 regulations were published today in the Federal Register, marking the first day of a 30-day period before they become law. However some of the provisions could go into effect immediately, attorney Lawrence Walters told XBiz.

In summary, the revised provisions have ramped up record keeping requirements for all producers and secondary producers of explicit sexual content, including websites that feature digitized box covers, requiring all webmasters who handle content to maintain thorough records of age verification on each performer.

Additionally all associated URLs must be identified for each iteration of each image in every instance of every publication.

"Now you have the extremely burdensome requirement in terms of identifying where each image appears on the web," Walters said.

A detailed summary of current and former 2257 law can be viewed here.

Prior to these revisions, secondary producers (webmasters) were not required to maintain records based on what Walters referred to as the "well-reasoned" 1998 Sundance ruling, which directly confronted secondary producer requirements for those living in the 10th U.S. Circuit Court of Appeals. Although it was not binding case law and left all other jurisdictions in murky, undetermined waters.

"Now all of that content is going to become illegal overnight after these regulations go into effect," Walters said.

Walters added that he was both impressed and concerned with the written response to the amendments and public comment and that the Justice Department is clearly thinking down the road in terms of potential litigation.

"They went through [the proposed amendments and public commentary] with a fine-tooth comb to make the necessary edits and make them less susceptible to potential attack," he said. "They went to great lengths to explain their final decision and the government expressed little sympathy for how difficult it will be for the industry to comply."

Attorney General Alberto Gonzales gave final approval on the proposed amendments to current 2257 law, known officially as 18 U.S.C. § 2257, on May 17. The amendments were drafted in order to update record keeping and inspection requirements adopted in 1994 for the purposes set by Congress in enacting the Child Protection and Obscenity Enforcement Act.

Industry attorneys have warned the webmaster community for some time that the Justice Department is intending to use the revised 2257 law to crack down on the porn industry.

Attorney Joe Obenberger told XBiz that the final regulations published in the Federal Register represent substantial changes to the amendments first proposed in June. Obenberger called them both "good and bad."

"There were significant changes as a result of comments made, but what was also newsworthy and remarkable was that some of the things weren't changed in response to comments and that numerous comments were neglected," Obenberger told XBiz.

Among one of the bigger issues addressed in the final version of the regulations was the issue of making records available for inspection from 8 a.m. to 6 p.m., 365 days a year. In the final rule, the DOJ acknowledged the difficult compliance issues facing smaller, part-time operations and the provision was changed so that records would only have to be available 20 hours per week, with the hours posted or the DOJ being notified of when those hours were.

Additionally, Obenberger added that one of the provisions state that nothing can be added to 2257 records. For example, if an extra piece of ID is obtained by a producer, it is a violation of 2257 law and can result in a maximum of five years in prison.

"If you exceed the requirements then it is a federal crime," Obenberger said.