Child Protection and Obscenity Enforcement Act

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The Child Protection and Obscenity Enforcement Act of 1988 (Pub. L. 100–690, title VII, subtitle N (§7501 et seq.), Nov. 18, 1988, 102 Stat. 4485, 18 U.S.C. § 2251 et seq.) is a United States Act of Congress, and part of the United States Code, which places stringent record-keeping requirements on the producers of actual, sexually explicit materials. The guidelines for enforcing these laws (colloquially known as 2257 Regulations (C.F.R. Part 75), part of the United States Code of Federal Regulations, require producers of sexually explicit material to obtain proof of age for every model they shoot, and retain those records. Federal inspectors may at any time launch inspections of these records and prosecute any infraction.

While the statute seemingly excluded from these record-keeping requirements anyone who is involved in activity that "does not involve hiring, contracting for, managing, or otherwise arranging for, the participation of the performers depicted," the Department of Justice (DOJ) defined an entirely new class of producers known as "secondary producers." According to the DOJ, a secondary producer is anyone who "publishes, reproduces, or reissues" explicit material.

On October 23, 2007, the 6th Circuit U.S. Court of Appeals ruled that the record keeping requirements were facially invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech.[1] However the US DoJ, under control by US Attorney General Michael B. Mukasey, has asked for, and was granted, an en banc review of of initial decision of the 6th Circuit Court in order to see if the initial decision should be overturned.[2]. The 6th Circuit en banc review is currently unscheduled.

Contents

[edit] Allied administrative law (2257 Regulations)

The administrative law that has been created by virtue of the Act to guide and aid its enforcement, 28 C.F.R. 75 (also known as the 2257 Regulations), specifies record-keeping requirements for those wishing to produce sexually explicit media, and imposes criminal penalties for failure to comply. This is intended to ensure that no person under the legal age is involved in such undertakings.

The regulations define the terms "primary producer" and "secondary producer". A primary producer is defined in the set of rules as any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct. A "secondary producer" is defined as any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct. Different record-keeping requirements exist for primary versus secondary producers. One may be both a primary and a secondary producer.

The regulations also spell out requirements for the maintenance, categorization, location, and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.

The Department of Justice can modify the regulations, based on the discretion, or possible future requirements, that has been given to it to do so by the Act.

[edit] Example of disclaimer

A disclaimer is typically similar to the following:

WARNING: Sexually Explicit Content.
This Website contains explicit sexual material which may be offensive to some viewers. You must be 18 years or older to enter this Website. By going beyond this point, you acknowledge that you are 18 years or older.
All models, actors, actresses and other persons that appear in any visual depiction of actual sexual conduct appearing or otherwise contained in this adult site were over the age of eighteen years at the time of the creation of such depictions.
Some of the aforementioned depictions appearing or otherwise contained in or at this site contain only visual depictions of actual sexually explicit conduct made before July 3, 1995, and, as such, are exempt from the requirements set forth in 18 U.S.C. 2257 and C.F.R. 75. With regard to the remaining depictions of actual sexual conduct appearing or otherwise contained in or at this adult site, the records required pursuant to 18 U.S.C. 2257 and C.F.R. 75 are kept by the custodian of records of this company whose address is available public information at Internic whois.

[edit] Enforcement

It is clear there is much sexual material on the Internet and elsewhere that would fall within the terms of this law. These laws and supportive regulations only affect producers of sexually explicit content who reside and produce material within the United States or resell their products within the United States.

At present, the Department of Justice has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against Mantra Films, Inc., based in Santa Monica, California, and its sister company MRA Holdings (both owned by Joe Francis), who are the originators of the Girls Gone Wild video series. Francis and several of his managers were prosecuted, citing infractions of this act. [3] In January 2007, these charges were for the most part dropped.[4]

However, Francis and the company entered guilty pleas on three counts of failing to keep the required records and seven labeling violations for its series of DVDs and videos before U.S. District Judge Richard Smoak, agreeing to pay $2.1 million in fines and restitution. This allowed Francis to avoid possible harsher penalties which include five years prison time for each violation.

Also in 2006, the FBI began checking the 2257 records of several pornography production companies.[5]

[edit] Legal challenges

In 1998, a company called Sundance and Associates sued the DOJ. A court later found that the DOJ was not authorized to create the definition of 'secondary producer'. While the DOJ did not strike that language from the regulations per the court’s decision, the DOJ did not launch any inspections.

In 2004, bound by the new PROTECT Act of 2003, the DOJ made sweeping changes to the 2257 Regulations to keep up with the proliferation of sexually explicit material found on the Internet. However, the "secondary producer" language not only remained in the regulations, but the DOJ created a much wider interpretation of who exactly was a "producer" of sexually explicit material and hence was required to comply with the new regulations. Anyone who touched explicit content in any way could arguably be considered a producer and be forced to maintain identification records of models along with a highly complex indexing system that many argue is impossible to implement. Under the current law, anyone who commercially operates a website or releases sexually explicit images of actual humans, regardless of the format (DVD, photos, books, etc.), is subject to penalties that include up to five years in federal prison per each infraction of the regulations. These regulations do not currently apply to explicit drawings (i.e, adult cartoons, hentai) as no actual humans are involved in such production. However the exclusion for such sexually explicit drawings are being confronted with changes to these laws in the recently signed Adam Walsh Child Protection and Safety Act addendum to the adult record-keeping requirements now codified at 18 U.S.C. § 2257A.[6] At this time, though signed into law, the portions of § 2257A which include simulated sex are not enforceable.

In June 2005, the Free Speech Coalition sued the Department of Justice to enjoin the regulations until they can be challenged in whole in court. In December 2006, a federal judge issued an injunction protecting secondary producers who are members of the Free Speech Coalition, but FBI inspections of these producers are still ongoing despite the injunction.[7]

On March 30, 2007, District Court Judge Walker Miller issued an interim ruling, which dismissed some causes of action and allowed others from the initial 2005 case to proceed in light of the Walsh Act amendments.[8] The actual trial phase has not yet begun.

On October 23, 2007, the 6th Circuit U.S. Court of Appeals ruled the federal record-keeping statute unconstitutional, holding that the law is overbroad and facially invalid.[9]

[edit] Proposed regulations

On July 12, 2007, the Department of Justice issued a preliminary set of addendum record keeping regulations based on the Walsh Act amendments onto the existing regulations at 25 C.F.R. pt. 75.[10] These new regulations are meant to encompass the inclusion of simulated sexual actions that do not actually show explicit sexual contact or fulfillment that were included by the Adam Walsh Act that was signed into law in 2007. These new regulations are pending finalization.

[edit] References

  1. ^ Court Opinion, October 23, 2007
  2. ^ [[1]]
  3. ^ 'Girls Gone Wild' producers fined $2.1 million, CNN, 12 September 2006.
  4. ^ Judge Drops Most Charges Against 'Girls Gone Wild' Producer Joe Francis, Associated Press, 5 January 2007.
  5. ^ FBI Visits K-Beech, AVN News, 15 December 2006.
  6. ^ The relevant portion of the bill is Pub. L. 109–248.
  7. ^ Seeks Halt to 2257 Inspections Following 'Illegal Searches', AVN Online, 17 November 2006.
  8. ^ freespeechcoalition.com, 3 April 2006.
  9. ^ Court Opinion, October 23, 2007
  10. ^ 72 Fed. Reg. 38,033 (to be codified at 28 C.F.R. pt. 75).

[edit] External links

[edit] 18 U.S.C. § 2257 record-keeping software vendors (listed alphabetically)