2257 Reporting Requirements
From Internet Law Treatise
Under a federal law, 18 U.S.C. § 2257, producers of a "visual depiction of an actual human being engaged in actual sexually explicit conduct" are required to keep records showing the ages of the models. It does not cover images produced before July 3, 1995, or depictions of simulated sexually explicit conduct.
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New DOJ Regulations
In 2005, the Department of Justice issued new regulations that expand the definition of a "secondary producer" of sexually explicit material. As of June 23, 2005, new federal regulations apply the 2257 record-keeping requirement to these secondary producers, and defines them as anyone "who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction" of sexually explicit conduct.
The regulations imply that the record-keeping requirement is restricted to commercial operations. This would seem to exclude noncommercial or educational distribution from the regulation, and to limit secondary publishing and reproduction to material intended for commercial distribution. However, the DOJ has left wiggle-room, and it is still unclear if they intend to go after noncommercial websites.
Required Records
Producers are required to maintain records of the legal name and date of birth of each performer, any name, other than each performer's legal name, ever used by the performer, including the performer's maiden name, alias, nickname, stage name, or professional name.
The proposed DOJ rule would add a requirement that the records include a copy of each image as well as the URL on which the depiction was published. It also includes onerous requirements for how the records are kept, including maintaining the records for up to five years after the so-called producer is out of business.
For online publishers, a statement that includes the location of these records must be displayed on their site's "homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking a hypertext link that states, '18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.'"
Penalties
18 U.S.C. § 2257(f)(4) makes it a crime for a person "knowingly to sell or otherwise transfer" any sexually explicit material that does not have a statement affixed.
Case Law on 2257
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the prior regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).
However, the DOJ takes the position that American Library Ass'n v. Reno, 33 F.3d 78 (DC Cir. 1994), "implicitly accepted that the distinction between primary and secondary producers was valid" and that "the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech."
Chapter 2 - Content And Speech Regulation
Obscenity
· Communications Decency Act - Obscene Materials
· Children's Online Protection Act (COPA)
· Children's Internet Protection Act (CIPA)
· State Attempts At Regulation
· First Amendment
· Anonymity
· International Content Regulation
