© lawrence g. walters (2004) overview of proposed 2257 regulations overview of proposed 2257...

© Lawrence G. Walters (2004)

Overview of Overview of Proposed 2257 Proposed 2257

RegulationsRegulations Prepared for :

Internext, Summer 2004By:

Lawrence G. Walters, Esq.Weston, Garrou & DeWittwww.FirstAmendment.com


IntroductionIntroduction

Statute first passed in 1990.Statute first passed in 1990.

Original regulations passed shortly thereafter.Original regulations passed shortly thereafter.

Distinguish between statute and regulation.Distinguish between statute and regulation.Statute: Federal law Statute: Federal law

Regulation: 1) The means of implementing a law; Regulation: 1) The means of implementing a law; 2) Clarification of compliance requirements and 2) Clarification of compliance requirements and methodology. methodology.


Current Requirements Current Requirements

Primary ProducersPrimary Producers must compile records, must compile records, check I.D.s, and must maintain categorize and check I.D.s, and must maintain categorize and index records, and designate a records keeper.index records, and designate a records keeper.Secondary ProducersSecondary Producers (webmasters) must (webmasters) must disclose the Records Custodian. disclose the Records Custodian.

Initial regulations: Copies of records required.Initial regulations: Copies of records required.Sundance v. RenoSundance v. Reno: No records required.: No records required.

CustodiansCustodians must maintain and produce records must maintain and produce records at reasonable times at the “business premises.” at reasonable times at the “business premises.”


Scope of ApplicationScope of Application

Images must involve “actual sexually explicit Images must involve “actual sexually explicit conduct.”conduct.”Rule of thumb: Penetration, masturbation or Rule of thumb: Penetration, masturbation or S&M.S&M.““Lascivious depiction of the pubic area” Lascivious depiction of the pubic area” excluded from excluded from §2256 §2256 definition.definition.Nudity itself does not implicate compliance.Nudity itself does not implicate compliance.Cropping, blurring or alteration does not affect Cropping, blurring or alteration does not affect compliance.compliance.


Reasons for ComplianceReasons for Compliance

Avoiding inadvertent child pornography Avoiding inadvertent child pornography violations.violations.

Assuring law enforcement, business associates Assuring law enforcement, business associates & users of legality.& users of legality.

Compliance becoming industry standard for Compliance becoming industry standard for billing processors.billing processors.

Protecting minors from sexual exploitation.Protecting minors from sexual exploitation.


Enter the New RegulationsEnter the New Regulations

Scope of applicability expands.Scope of applicability expands. Additional records required.Additional records required. Maintenance and indexing requirements Maintenance and indexing requirements

clarified and expanded.clarified and expanded. Disclosure Statement location and appearance Disclosure Statement location and appearance

clarified.clarified. Inspection procedure established. Inspection procedure established. Applicability to the Internet clarified.Applicability to the Internet clarified.


Adoption DetailsAdoption Details

Proposed on June 25, 2004.Proposed on June 25, 2004.Public comment period closes August 24, Public comment period closes August 24, 2004.2004.Effective on: 30 days after publication in Effective on: 30 days after publication in Federal Register.Federal Register.

Precise effective date unknown.Precise effective date unknown.

Regulations touted as necessary for modern Regulations touted as necessary for modern valid inspections.valid inspections.

Reality: Setting traps and excuses for delay.Reality: Setting traps and excuses for delay.


The Public Comment IssueThe Public Comment IssueTo comment or not to comment?To comment or not to comment?

Comments may tip the industry’s hand.Comments may tip the industry’s hand.Comments necessary for compliance clarification.Comments necessary for compliance clarification.Weeding out the deadwood for ultimate challenge.Weeding out the deadwood for ultimate challenge.Comments will be submitted by someone.Comments will be submitted by someone.Positive potential impact on litigation.Positive potential impact on litigation.Waiver/claims preclusion issues.Waiver/claims preclusion issues.

Comments sent to: Comments sent to: [email protected]@USDOJ.gov..AVN automated comments available. AVN automated comments available. Real impact uncertain.Real impact uncertain.Predictions.Predictions.


2257 Meets the Internet2257 Meets the Internet

Hosts & Access Providers defined and exempted.Hosts & Access Providers defined and exempted. Webmasters identified as “Secondary Producers.”Webmasters identified as “Secondary Producers.” ““Internet” & “computer site” defined.Internet” & “computer site” defined. Images must be associated with URLs.Images must be associated with URLs. Records must be indexed to URLs.Records must be indexed to URLs. Disclosure Statement must appear on home page Disclosure Statement must appear on home page

or principle URL.or principle URL.


The Webmaster’s BaneThe Webmaster’s BaneSecondary Producer includes one who inserts content Secondary Producer includes one who inserts content on, or manages, a computer site.on, or manages, a computer site.Secondary Producers must keep records under Secondary Producers must keep records under regulations.regulations.What about What about Sundance v. RenoSundance v. Reno? ? Retroactive application: Content acquired before new Retroactive application: Content acquired before new regulations.regulations.

Compliance apparently required if content published after Compliance apparently required if content published after effective date.effective date.

Constitutional concerns with retroactive applications.Constitutional concerns with retroactive applications.Prior restraint.Prior restraint.Ex post facto.Ex post facto.Exceeding delegated authority.Exceeding delegated authority.


Compilation Requirements Compilation Requirements

Records for performers portrayed after Records for performers portrayed after effective date must include:effective date must include:

Compliance form with legal name and all other Compliance form with legal name and all other names.names.

A copy of the depiction.A copy of the depiction.

If on the Web; a copy of any associated URL.If on the Web; a copy of any associated URL.


Indexing/Categorization Indexing/Categorization

Records created/amended after effective date must be Records created/amended after effective date must be categorizes and retrievable by:categorizes and retrievable by:

Alphabetically;Alphabetically;

Numerically (where appropriate);Numerically (where appropriate);

Performer’s legal last name followed by first name;Performer’s legal last name followed by first name;

Performer’s alias or other name used;Performer’s alias or other name used;

Title or identifying number of the work.Title or identifying number of the work.

Adding/changing depictions requires amending Adding/changing depictions requires amending records.records.


Records Maintenance & RetentionRecords Maintenance & Retention

Records must be maintained at Producer’s Records must be maintained at Producer’s place of business.place of business.

Records must be segregated from other Records must be segregated from other records.records.

Records must be maintained for 7 years from Records must be maintained for 7 years from creation/amendment.creation/amendment.

Records must be maintained for 5 years after Records must be maintained for 5 years after dissolution of organization. dissolution of organization.


Inspections Inspections

Inspections may occur from 8 a.m. to 6 p.m., Inspections may occur from 8 a.m. to 6 p.m., 365 days per year.365 days per year.Inspections must not unreasonably disrupt Inspections must not unreasonably disrupt operations.operations.Inspection only once per quarter unless more Inspection only once per quarter unless more needed.needed.Copies can be made of records.Copies can be made of records.Agents may seize evidence of any felony Agents may seize evidence of any felony while conducting an inspection.while conducting an inspection.


Disclosure StatementDisclosure StatementEntire Statement must appear on home page or Entire Statement must appear on home page or principle URL.principle URL.Minimum 11 pt. type or same type face/size as names Minimum 11 pt. type or same type face/size as names of performers, director, producer or owner.of performers, director, producer or owner.Contain the following information:Contain the following information:

Title of the work.Title of the work.Date of production, manufacture, publication, Date of production, manufacture, publication, duplication, reproduction or reissuance.duplication, reproduction or reissuance.The street address where the records may be made The street address where the records may be made available.available.The name, title and business address of the Records The name, title and business address of the Records Custodian (no P.O. Box).Custodian (no P.O. Box).


Where Do We Go From Here?Where Do We Go From Here?

Evaluate effect of comment submissions.Evaluate effect of comment submissions.

Potential litigation.Potential litigation.

Long shot: Negotiation with DOJ.Long shot: Negotiation with DOJ.

Enforcement policies?Enforcement policies?


ConclusionsConclusions

2257 obligations have existed since the dawn of the 2257 obligations have existed since the dawn of the Web.Web.

New Regs.: Verify applicability to the Web.New Regs.: Verify applicability to the Web.

Both serious and minor defects exist.Both serious and minor defects exist.

Potential clarification may occur prior to Potential clarification may occur prior to enforcement.enforcement.

Industry must prepare for eventual legal challenges.Industry must prepare for eventual legal challenges.

Webmasters/producers must prepare for “worse case Webmasters/producers must prepare for “worse case scenario.”scenario.”

© lawrence g. walters (2004) overview of proposed 2257 regulations overview of proposed 2257...

Documents