Published in today's Federal Register, the proposal would implement provisions of the Adam Walsh Child Protection and Safety Act of 2006 that require producers of depictions of simulated sexually explicit conduct to maintain records documenting that performers in those depictions are at least 18 years of age.
The agency asked that public comments on the proposed changes be submitted by Aug. 5.
The addition of 2257A brought mainstream Hollywood under the 2257 umbrella, however, and set off a round of intense lobbying by mainstream studios that resulted in the inclusion of safe-harbor provisions, contained in 2257A(h), that seek to provide the creators of mainstream works with sufficient protection from unintended prosecution.
According to the Justice Department, "One part of this [safe-harbor] exemption states that section 2257A does not apply to matter that (1) is intended for commercial distribution, (2) is created as a part of a commercial enterprise by a person who certifies to the attorney general that he regularly and in the normal course of business collects and maintains individually identifiable name and age information regarding all performers for purposes such as federal and state tax, labor, and other laws, and (3) is not produced, marketed, or otherwise made available in circumstances such that an ordinary person would conclude that it is child pornography." Producers who qualify for the exemption would need to notify the attorney general in writing every two years.
Today's proposed amendments also contain three main changes to the previous iteration. First, according to the Justice Department, "the [agency] has chosen to apply the existing requirements for visual depictions of actual sexually explicit conduct under section 2257 to visual depictions of simulated sexually explicit conduct under section 2257A with regard to the records at issue, the time, place and manner of inspection of those records, and the labeling of matter containing such visual depictions," necessitating a change in 28 CFR part 75 necessary to regulate simulated sexually explicit conduct.
"This proposed rule also makes two additional changes to part 75 to implement section 2257A: it defines ‘‘simulated sexually explicit conduct’’ and it implements a certification regime for producers of actual sexually explicit conduct constituting lascivious exhibition and for producers of simulated sexually explicit conduct."
Following the public comment period, the Justice Department plans to publish an assessment of the comments followed by the final regulations, a process that can take a year or more. The Justice Department, for instance, has yet to publish the public comments made last year, and official assessment of those comments, following the issuance in July of proposed changes to 2257.
According to industry attorney and Free Speech Coalition Board member Reed Lee, the overlapping and perhaps intermingling of these comment periods may be a problem for Justice, and "a violation of the Administration Procedure Act, but we'll have to take a closer look."
Regarding today's proposed amendments, Lee said that an initial assessment did not reveal any surprises, but that there remained a few underlying holes in 2257A that today's changes do not address. One regards a scenario in which a producer protected by the safe-harbor provisions contained in 2257A(h) contracts with a so-called secondary producer not similarly protected.
"What if protected producer A wants to do business with unprotected producer B, with producer B required to have copies of records that producer A is not required to maintain," Lee posed. "Neither the original 2257A, nor today's amendments, address such a situation."
Lee said that the Free Speech Coalition would issue an official comment on the proposed regs, but in the meantime he reiterated the oft-expressed opinion that 2257A poses inherent constitutional problems for 2257.
"With 2257A, not only is Congress handing us an argument for strict scrutiny, but they are signaling to the courts that they know a less-restrictive means of complying with 2257," he said. "Congress did it, and I think they walked it into a strict scrutiny analysis. In other words, if 2257A(h) were extended to everyone covered under 2257, we would be living in a different world, one in which I think a lot of people in our industry might conclude, 'Yes, I can live with writing a letter to the government every two years.'"