Analysis: Justice Department Displays Schizophrenia With New 2257 Regs

WASHINGTON, D.C. - On the surface, it would seem as if the U.S. Department of Justice (DOJ) has done the adult industry a favor with its latest revision to the federal recordkeeping and labeling regulations drawn from 18 U.S.C. §2257.

In their words, the DOJ has:

  • Permitted the use of third-party custodians of records;
  • Permitted records to be maintained digitally;
  • Clarified the definition of "simulated sexually explicit conduct";
  • Clarified the exemption from the record-keeping requirements for those engaged in distribution;
  • Clarified that, for purposes of the requirement that every page of a webpage contain the disclosure statement, a hyperlink or "mouseover" is permitted;
  • Eliminated the requirement that statements on the location of records contain a date of production (or any other date), although added a requirement that primary producers create a record of the date of production; and,
  • Clarified the application of the requirements regarding location of the statement to DVDs.


Well, anyway, that's what it claims ...

"When you look at the new provision with respect to placing a statement on a DVD, it says that you can use a single statement for all of the DVD content including bonus tracks, and that makes a lot of sense and solves some headaches," observed attorney Roger Wilcox, co-author of an analysis of the new regulations. "However, it doesn't say in the reg itself where you put the statement. When you look at the comments, the comments point out that somebody commented on this analogy that we've made over the years of a DVD being like a film, so we would be putting it within one minute of the start of the film and before the movie started, and possibly also at the end of the end credits. But they said, 'No; really, a DVD is not like a movie or a film; a DVD with multiple parts is more like a magazine,' and so the Department of Justice adopted that comment and now analogizes a DVD to be like a magazine. Yet, with a magazine, they tell you exactly what page to put it on. It's either the copyright notice page or it may be your cover too, so where's the analogy to DVD in terms of placement of a 2257 statement on the DVD?"

But DVDs are not the only medium where the regulations leave producers in the dark about where to put a label - not to mention how to deal with the requirement that producers keep a copy of the depiction with the identification records.

"In order to meet the 'copy of a depiction' requirement, an operator of a web cam must keep a sufficient running time length of the performance to allow the inspecting agents to identify the performer in comparison to his or her identification records," Wilcox said. "But what does that mean? Does that mean a screen cap? Does it mean five seconds? Ten seconds? Thirty seconds? If it means 30 seconds, and you've got hundreds or thousands of live web cams going on simultaneously, as some of these companies do, who is the person responsible for capturing all of these images?"

"Moreover, many live services present hours of, for example, live chat, in which performers come and go, and they have multiple rooms operating at the same time," Wilcox continued. "How does the owner of those webcams actually keep track of the performers who are in each room, much less get a screen capture or a five-second clip or a 30-second clip of that person when they're in the room? It runs into terabytes and it runs into lots of personnel because I think you'll find, if you check into the live chat areas, the companies that run the live chats don't just have one or two rooms; they may have dozens of rooms operating simultaneously, and in hour 1, there might be a solo girl; in hour 2, that solo girl might be joined by a friend; in hour 4, there might be four people in that room, and you've got to capture the likeness of each of those performers for a sufficient period of time to allow those agents to identify those performers by comparing the recording to their identification records."

And what about labeling? How does the required custodian-of-records statement get affixed to a live webcam show or a live chat?

"That's something that I don't think is clearly answered in the comments to the regs," Wilcox replied. "I think that they recognize that that's a problem in the comments to the regs, but they don't actually come out and give an answer to that, so what the web cam operators are left with is just trying to jury-rig something that hopefully passes muster."

But "hopefully" is not a word an adult producer wants to hear, especially from a knowledgeable attorney - certainly not when a single violation of the regulations could mean five years in a federal prison.

Yet the answer to that question is likely to be vitally important, considering how much adult content is migrating to the Web and other new media platforms.

"Another thing that they didn't address, that is going to be a big pain in the butt for everybody, is how do you label mobile phone transmissions?" asked entertainment attorney Greg Piccionelli, who together with partner Robert Sarno filed voluminous comments regarding the latest 2257 reg revisions.

First, recall that the regulations dictate, in Sec. 75.6 (e), that "the required statement shall be displayed in typeface that is no less than 12-point type or no smaller than the second-largest typeface on the material and in a color that clearly contrasts with the background color of the material." Worse, when one commenter suggested that "a point-measured minimum size is irrelevant on a computer site because the appearance of the text will depend on the settings of each monitor displaying it," the DOJ rejected the comment, claiming, "Because the size of computer screens and their settings tend to vary little among the general public, the Department concludes that specifications governing the size of type should be retained."

But how big is the "second-largest typeface" on the screen of a mobile phone?

"I don't know how you can fit a label in 12-point type onto a mobile phone screen, or even the hyperlink," Piccionelli said. "Fortunately, I think all the phones are going to go to touch-screens, so the mouseover possibility exists, but boy, I'll tell you, for the moment, this is a big problem for everybody that's distributing by phone, and there are a lot of them. So the big question is going to be, can you say that the phone is merely acquiring the content from a website, and therefore the appropriate way to label the stuff would be like a website: At the bottom of every page? I had a comment that went to that and it didn't get addressed. And I also had stated to the FBI in our meeting [Oct. 2007] that there really should be some guidance with respect to mobile phones and the comment I got back was, 'You're right, there should.'"

But believe it or not, even mobile phone labeling is just the tip of the iceberg. However, in order to discuss the problem, it's necessary to deal with the one of the bigger changes wrought by the new regs: The inclusion of "simulated sexually explicit conduct" and "lascivious exhibition of the genitals or pubic area" as triggers for recordkeeping - or what's better known as the "Hollywood regulations," 2257A.

"Although proposed part 75 [the new 2257 regulations] applied to the 'lascivious exhibition of the genitals or pubic area of a person,' it did not define this term beyond the language of section 2256(2)(A)," the Justice Department wrote in its nearly 37 pages of "comments" accompanying the release of the new 2257 regs. (The regs themselves run just over four pages in length.) "Case law provides guidance as to the types of depictions that federal courts have considered to be lascivious exhibition of the genitals or pubic area, and the Department will rely on such precedent in the context of section 2257 investigations and prosecutions."

The case the Justice Department has focused on to guide its agents and prosecutors is United States v. Dost, which lays out six factors to be considered in "determining whether a visual depiction constitutes lascivious exhibition."

Those "Dost factors" include:

"1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

"2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

"3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

"4) whether the child is fully or partially clothed, or nude;

"5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

"6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer."

Note that only point 3 gives consideration to the "age of the child"; for all the rest, both Hollywood and the adult industry are apparently supposed to substitute the word "actor" or "performer" for "child" in determining whether the person appearing on-screen is "lasciviously exhibiting" his/her genitals or pubic area, and therefore is subject to the recordkeeping/labeling requirements - because after all, by the DOJ's logic, any one of those actors/performers could actually be a minor.

Of course, for Hollywood, the regs provide a "Get Out Of Jail Free" card - they call it a "safe harbor" - in the form of a letter certificate that mainstream producers can file with the Attorney General that allows them to avoid keeping (and cross-indexing) records of particular performances.

However, when one commenter "suggested that because of the vagueness of the Dost test, a producer may not know that he must obtain identification before production," which would put a secondary producer (or even distributor) of such material in an awkward position, the Department responded that, "A secondary producer who is concerned that a primary producer may have violated the requirements of the statute and the regulation has the options of requesting that the primary producer revisit the issue and examine picture identification cards and compile age records."

But suppose the primary producer, having already filed its certificate letter with the Attorney General, doesn't have any records on that particular production to check?

Observed Piccionelli: "Think about this: You're a movie theater and you're showing a movie. The question is this: Is there a lascivious exhibition of the genitals in this movie from Fox, and the next question would be, how could you know if it should have a compliance statement on it or not?"

According to the DOJ, you'd have to depend on the judgment of the primary producer; in this case, Fox.

"That's the point: Can you?" asked Piccionelli. "The regulatory scheme, although there's a way out of it to a certain degree with the certification and that stuff, the minute that they engrafted on 'lascivious exhibition of the genitals,' and then they go the next step just to seal the deal by saying that the Dost factors apply, even though they were constructed for child porn, now that they say absolutely, unequivocally all but the one factor [#3] applies, what they have managed to do unwittingly is this: Remember that there are a whole shitload of people out there that are distributors of one sort or another of material that could conceivably fall under the regulation as either actual or simulated lascivious exhibition of the genitals or pubic area using the Dost factors. We're talking about all the movie theaters in the country; we're talking about every magazine producer, every mobile phone company. We're talking about anybody who depicts anything in which it is possible to say that there is a titillating exhibition of the pubic area clothed, even just one image in an entire book. And it means that the majority of producers of content - not just adult content - in the United States have just been brought under this regulatory scheme."

Roger Wilcox agreed.

"One section that really troubles me is lascivious exhibition of the genitals or pubic area," he told AVN. "The government continues to insist that the Dost factors should apply to adult content even though those factors were designed to determine whether a portrayal of a child is child pornography, and unfortunately, when you look at the Dost factors, almost every one of those factors can be triggered by an adult image. It talks about the setting; it talks about a performer who's looking coyly into the camera or is expressing her - indicating a desire to engage in sexual relations. That's all part and parcel of adult materials, and therefore you almost have to assume that your content is likely to be considered lascivious if it displays the genitals at all. And so you have to operate your business, if you're going to operate it safely, by erring on the side of caution, and that means either not showing genitals and suppressing your expression, or doubling up and showing whatever you want to show but making sure you have all the records for it."

What that means at the very least is that the government's argument that its regulations will encompass only a relatively small number of producers and cost those producers only a relatively small amount to implement are entirely out the window - and may violate the Regulatory Flexibility Act, which limits the amount that government agencies can force small businesses to spend to implement regulations.

"According to [one] comment, software support and legal advice costs 'will be substantial and probably incalculable'," the Justice Department reported. "It claims that secondary producers will need to employ a records custodian at least 20 hour per week and that doing so for the 5,000 businesses that the Department estimates will be affected would cost $30,000 each, for a total cost of more than $100,000,000. One comment cited a poll of businesses asking them what they expected the cost of compliance with the proposed rule would be and determined an average cost of more than $210,000 per business. The comment asks that the proposed rule be reviewed and promulgated in accordance with requirements pertaining to rules that impose a greater than $100,000,000 impact on the economy. The Department received a comment containing a long technical cost estimate that had been prepared by an entity other than the commenter that posited that compliance costs associated with the proposed rule would be significant."

That "long technical cost estimate" would be the study prepared by Georgetown Economic Services at the request of the law firm of Kelley Drye Collier & Shannon, acting for the Free Speech Coalition. That study, according to the comments section, found that it would cost each adult business an average of $5,000 per month to comply with the new regulations, as well as "up-front conversion costs and time to ensure initial compliance" - but the DOJ gave the study short shrift, perhaps because it failed to reinforce the Department's conclusion that it didn't have to conduct its own study.

"[W]hatever validity these estimates may have had with respect to the proposed rule, the decreased compliance costs due to removing restrictions as contained in the final rule reduces the accuracy of the submitted estimates significantly," the Department claims. "Although a business that produces depictions of lascivious exhibition will be required to keep records, because such a business could use a third-party custodian that would benefit from economies of scale, because hard copies would not have to be kept, and because the disclosure statement requirements have been significantly eased, such a business would avoid significant amounts of compliance costs for such categories as legal, storage, and staffing costs. There is no reason to believe that the final rule would impose $100,000,000 in costs on the economy. Many of the entities covered by this final rule already produce actual sexually explicit conduct as defined under the narrower existing rule, which imposes greater costs on such entities than those associated with this final rule; hence, they will face only negligible additional costs."

But none of the attorneys familiar with the adult industry believe that the regulations' costs will be affordable, nor that the regs will apply to as few businesses as the government claims.

"There is no doubt in my mind that they have constructed a bridge too far," Piccionelli said. "Their calculations with respect to the cost of this, they have no clue the Pandora's box they have opened up. There was substantially a greater amount of cost and applicability that was not addressed in the Free Speech Coalition data because of the fact that we really did not focus on the simulated sexual activity application. I believe flat out that virtually every producer of content in this country, as long as it's visual, will at one time or another probably produce content that is arguably now subject to these regulations, and for the Justice Department to believe that there are cost limitations of the type that they are claiming, they are deluded."

"Imposing the indexing requirement on secondary producers is going to be a logistical and economic disaster for VOD sites, some of which have tens of thousands of titles from hundreds of different studios," added prominent First Amendment attorney Clyde DeWitt. "Figure there is going to be an independent lawsuit by the VODs, because there is no way they can comply, and they have a pretty good case for the proposition that the indexing requirement poses an undue burden on their speech. The same would be the case for subscription Web sites having content from many sources."

Another "hidden" factor will be the regs' financial and personnel burdens on those who post profiles to social networking sites like MySpace and Facebook or dating/"hook-up" sites like AdultFriendFinder.

"A profile site is not normally a producer," the DOJ's comments to the new regs say. "The individuals who post depictions of lascivious exhibition on those sites are producers. It is the latter, not the former, assuming that the Web site does not act as a producer, who are required to comply with the record-keeping and disclosure statements."

And what depictions on such sites might trigger a need for recordkeeping?

"One comment, relying on a Court of Appeals decision that accepted the relevance of the Dost factors, United States v. Knox ... maintains that their applicability here would mean that millions of images on Myspace or Youtube or Facebook may require section 2257 compliance even though they do not involve nudity or sexual activity," the DOJ reported.

"The Department does not adopt this comment. The comment takes an overly broad reading of the law of child pornography and applies that reading to produce a nonsensical result. The Knox case does not stand for the proposition claimed by the comment... The images at issue in Knox were lasciviously displayed. Although the genitals were clothed in that case, they were covered by thin, opaque clothing with an obvious purpose to draw attention to them, were displayed by models who spread or extended their legs to make the pubic and genital region entirely visible to the viewer, and were displayed by models who danced or gyrated in a way indicative of adult sexual relations... Therefore, very few images posted on Myspace or Youtube of clothed individuals would require section 2257 compliance." [Emphasis added; citations omitted here and below]

What porn star with a Facebook page or a YouTube clip, and what poster with a photo on any of the more frisky dating sites, would be dumb enough to give any credence to that unlikely statement, especially with a hefty prison term as the booby prize?

So what does that mean? It means that every poster to a profile or dating site is at least potentially a primary or secondary producer of the images he/she uploads to that site, and must therefore comply with all of the 2257 requirements. That means putting his/her home address (unless he/she has a business address - and remember, post office boxes won't do) on the required 2257 statement, and making him/herself available "for inspections to be held at the place of business of a producer... To the extent that the producer does not maintain at least 20 normal business hours per week, the producer must provide notice to the inspecting agency of the hours during which records will be available for inspection, which in no case may be less than 20 hours per week."

Incidentally, even though the Department "received thousands of ... comments that §75.5(b) provides for inspections without advance notice and request that it should instead require such notice," which would give producers a chance to better organize their records, the feds are going to continue to show up unannounced anyway.


"Advanced notice would provide the opportunity to falsify records in order to pass inspection. Lack of specific case-by-case notice prior to inspection will promote compliance with the statute and encourage producers to maintain the records in proper order at all times, as is contemplated by the statute."

The good news?

"The inspection process clearly does not contemplate warrantless forced entry solely because no one is present when the investigator arrives."

Of course, under the new regs, the porn star, or that guy or gal looking for a hot date, could employ a third party recordkeeper ... but that would likely ensure that this year's dating budget would allow just about enough for a matinee at the cineplex and a selection or two from the dollar menu at Mickey D's.

Similar problems would be faced by cam show performers, professional or amateur: Although the regs don't reveal where the 2257 statement is to be located or how it's to be displayed during a live webcast, the statement would reveal the performer's home address unless his/her records were being kept by a third party.

Producers of B&D content face similar vagueness problems, since "sadistic or masochistic abuse" is one of the definitions given for "sexually explicit conduct."

"One comment requests that the Department define 'sadistic or masochistic abuse' because some people believe that safe and consensual bondage is not abuse, and requests that the Department distinguish between actual and simulated sadistic or masochistic abuse," the DOJ writes in the comments section. "The Department declines to adopt this comment. That term is not a subject of this rulemaking. Moreover, actual sexually explicit conduct depends on the content of what is being displayed, not on whether the content is subjectively considered to be abusive. If belief as to abuse were to control, a producer who determined that nothing was abusive would be able to avoid compliance with the regulations in their entirety, creating massive opportunity for child exploitation."

In other words, the Department's position seems to be that the term "abuse" as used in 18 U.S.C. §2256(2)(b)(ii)(III) is meaningless; that if any content depicts what might be viewed as "sadistic" or "masochistic" behavior, it triggers the 2257 recordkeeping and labeling requirements.

Producer/director and BDSM aficionado Ernest Greene agreed.

"What they're saying is, 'We decide what's abuse and what isn't,'" Greene assessed, "and the fact that some people might not consider it abuse - I guess the leap of logic here is, 'If we allow them [producers] to define anything one way or another and alter the statute based on the object of the statute's definition of a thing, the first thing they're going to do is run out and put kids in it and say that that doesn't constitute a violation,' but I fail to see what one thing has to do with the other, because child pornography remains illegal, whatever form it takes."

"This particular argument goes all the way back to 1956 and Irving Klaw," he continued, "when the Kefauver Committee struggled mightily, with the help of the typical kind of shrinks that come in to do this kind of thing, to determine what might be pornographic even though nobody had their clothes off or was having any sex. They were engaging in bondage and other kinds of activities of that sort that might have a sexual connotation to them but might not. In any case, in that context, they wished to classify it as pornographic, and of course, by writing postal regulations without bothering to go to Congress, which this is somewhat of a throwback to, they did do exactly that, and that's what led to Irving Klaw ultimately pleading out to the postal obscenity charges and agreeing to destroy all his stuff and go out of business. So the argument they seem to be making here is, we're the ones who decide what constitutes abuse, and the fact that a producer decides or the people involved decide it's not abuse doesn't matter."

Documentary filmmakers are generally out of luck with 2257 as well.

"Several commenters ask the Department to exclude news and documentary programming from the definition of 'producer'," the DOJ reports. "The comments claim that producers of that programming use footage provided by others under the fair use doctrine. The comments posit that if a producer includes news and documentary producers, then such producers either will lose the ability to obtain footage depicting any adult sexual conduct, or will be forced to make payments to the original producer notwithstanding the fair use doctrine. The Department declines to adopt this comment. The First Amendment does not permit even a bona fide reporter to trade in child pornography in order to create a work of journalism."

So ... even though adult content is made by adults, with adults for adults, the Justice Department has decided to force documentary filmmakers to assume that all performers are minors, and demand that primary producers provide them with all of the required 2257 records ... which the documentarians will then duly save, index and make available for inspections 20 hours per week.


Of course, as the Justice Department makes clear in several places in the comments, none of this fairly detailed regulatory scheme will stop child pornography from occurring - which hasn't prevented the feds from being incredibly paranoid about adult (and even Hollywood) productions anyway.

"Protecting children from sexual exploitation is one of government's most important responsibilities," the "background" section of the 2257 comments begins. "[C]hildren often are forced to engage in sexually explicit conduct for the purpose of producing pornography." [Emphasis added]

Therefore, "[e]stablishing the identity of every performer in a depiction of sexually explicit conduct is critical to ensuring that no performer is a minor and that, hence, the depiction is not child pornography... Producers are less likely as a result of these requirements to exploit children and to create child pornography through carelessness, recklessness, or deliberate indifference. As for those who intentionally produce material depicting minors engaged in sexually explicit conduct, the statute and regulations provide an additional basis for prosecuting such individuals besides the applicable child-exploitation statutes."

In other words, while the 2257 regs in no way prevent anyone from accidentally using a minor with a good-looking phony ID in a sexually explicit production, and even though such a production using a minor would be, by definition, "child pornography," and since actual child pornographers (none of whom, the Department already knows, keep records) will be prosecuted under the child porn laws anyway, what 2257 does is simply add an additional crime to the incontestable child porn charge - and at the same time, forces all legitimate adult content producers to spend tens or hundreds of thousands of dollars amassing and indexing (or paying to have indexed) records on every performer and extra they use, whether that person is 18 or 80 years old. And failure to perform this recordkeeping (and labeling) precisely correctly may mean a long trip to The Big House.

For those whose aim is to suppress sexual speech, the 2257 law and regs can only be seen as a double victory.

Indeed, the DOJ admits that preventing child porn is not the purpose of 2257:

"The goal of the record-keeping regime is not to intervene to stop crimes involving underage performers that have already occurred. Rather, the point of the record-keeping is to prevent victimization in the future. The inspection requirement is designed to ensure that the prophylactic identification- and age-verification measures are complied with."

In other words, though legitimate adult content producers may be fooled by an underage performer with an authentic-looking false ID, and though any XXX product that did include a minor would have to be removed from sale immediately, at a possible cost of tens of thousands of dollars to the producer - surely itself an incentive to take some pains to keep minors out of the material - the government still claims that its expensive recordkeeping and labeling system serves a worthwhile purpose in keeping producers from again employing a minor in sexually explicit content; have we got that right?

Not surprisingly, one commenter brought up almost that exact point:

"One comment posits that searches under section 2257 have not identified any underage performers, so their purpose cannot be to catch and prosecute people who arrange for such performances. It claims that no producer knowingly uses underage performers, and that section 2257 is an after-the-fact tool, not one that advances prevention."

The DOJ's response?

"The Department does not adopt this comment. It does not agree that no producer knowingly uses underage performers. On the contrary, the Department's successful prosecution of child pornography cases every year proves that some producers do knowingly or recklessly use underage performers. Further, as discussed above, the Department believes that section 2257 is in fact preventive because it ensures that before any production occurs, the producer undertakes steps to ensure that the performers are of legal age. Finally, the purpose of the regulation in large part is to prevent unknowing use of underage performers." [Extra emphasis added]

It's hard to figure out who the Justice Department thinks it's fooling here. Among legitimate adult content producers - the ones who have identifiable offices, keep 2257 records, label their product and sell it through legitimate distributors - there have been no - that's NO - "successful prosecution[s] of child pornography cases"; not this year and not for more than the past two decades.

Moreover, since child pornography is a crime punishable by up to 20 years in prison for the first offense, it's more reasonable to assume that the child porn statutes prevent legitimate adult content producers from using kids more than any requirement to keep records.

And yet:

"Four comments state that the proposed rule would achieve none of its stated goals, either because people will lie about their age or produce fake identification documents or because illicit entities would not keep records," the DOJ recounts in its comments section. "The Department does not adopt these comments. People who lie about their age must still produce identification cards, or the producers will be criminally liable for depicting them. The Department cannot guarantee that some individuals will not provide fake documents, but such individuals risk incurring criminal penalties, and the Department believes that the existence of these penalties will persuade many people who would be tempted to use fake documentation to avoid doing so."

But while it's true that Sec. 4463 of the California Motor Vehicle Code, like similar provisions in other states, makes it a felony to alter, forge, counterfeit or falsify a driver's license, registration card or certificate of ownership, punishable by up to three years in prison or one year in the county jail - in other words, roughly one-sixth the sentence a producer using that minor in a XXX movie could get for "child porn" - it is questionable whether a jury would convict a 16- or 17-year-old who used a fake ID to perform hardcore scenes if the minor could tell a good enough sob story in court. After all, consider the sympathetic receptions "child stars" Traci Lords and Alexandra Quinn have gotten from the mainstream media that reported on their "outings"!

And, reminds Clyde DeWitt, "Notably, every instance of which I am aware in which an underage performer has managed to get into an adult motion picture, it was accomplished with a genuine but fraudulently obtained drivers license."

However, the history of the adult industry reflects that, over the past 22 years since the Meese Commission's recommendations on the subject, just five minors have successfully defrauded their way into performing in adult movies - and not one within the last 10 years - which is a considerable testament to the ability of adult producers to ferret out underage con-men and -women.


But the most blatant evidence that neither the Justice Department nor Congress really cares whether a child is used in sexual situations is the creation of the 2257A regulations dealing with "simulated sexually explicit content," which the DOJ claims can be as damaging as actual sex if a minor engages in it.

(The government might want to ask actress Dakota Fanning about that. According to a story about the movie Hounddog in USA Today, in which the 12-year-old Fanning played a rape victim, "Fanning said that even if she hadn't been in the movie, she would want to see it ... 'I know my mom would take me to see it,' said Fanning. 'You have to prepare your children for things that happen in the world. Everything isn't rosy.'")

One of the changes the Adam Walsh Act created in the 2257 regime was the addition of  both "simulated sexual explicit conduct" and "lascivious exhibition of the genitals or pubic area" as  triggers for recordkeeping, and while the adult industry occasionally simulates sex, these days, simulated sex is pretty much Hollywood's bread and butter. The problem for Congress then became how to require that records on simulated sex be kept without overly pissing off the (very rich and well-connected) mainstream film industry.

Turns out, it wasn't that tough:

"The second key element of the proposed rule [after figuring out what "simulated" really meant] was the crafting of the certification regime," the DOJ writes. "In enacting section 2257A, Congress determined it would be appropriate, in certain circumstances, to exempt producers of visual depictions of lascivious exhibition (for which records must be kept under section 2257, as amended by the Act) and producers of visual depictions of simulated sexually explicit conduct (for which records must be kept under section 2257A) from statutory requirements otherwise applicable to such visual depictions."

"The safe harbor provision in the statute," the DOJ explains, "in essence permits certain producers of visual depictions of lascivious exhibition or of simulated sexually explicit conduct to certify that in the normal course of business they collect and maintain records to confirm that performers in those depictions are not minors, while not necessarily collected and maintained in the format required by part 75. Where a producer makes the required certification, matter containing such visual depictions is not subject to the labeling requirements of the statute."

Specifically, in order to be exempt from the 2257 recordkeeping and labeling, a producer must fulfill the following criteria:

"(1) The visual depiction is intended for commercial distribution;

"(2) The visual depiction is created as a part of a commercial enterprise;

"(3) Either-

"(i) The visual depiction is not produced, marketed or made available in circumstances such that an ordinary person would conclude that the matter contains a visual depiction that is child pornography as defined in 18 U.S.C. 2256(8), or,

"(ii) The visual depiction is subject to regulation by the Federal Communications Commission acting in its capacity to enforce 18 U.S.C. 1464 regarding the broadcast of obscene, indecent, or profane programming; and

"(4) The producer of the visual depiction certifies to the Attorney General that he regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer."

So, to recap: The visual depiction has to be available for sale; it has to have been created by a business; it has to be marketed in such a way that an ordinary person wouldn't think it is or contains child porn (or else it has to be subject to the FCC's decency regulations for broadcast material), and the producer has to, in the normal course of business, collect and maintain tax records as well as, possibly, unemployment benefits records and/or labor contracts for the performers who appear in the visual depiction, that include each person's name, address and date of birth.

So let's take, for example, Wicked Pictures, a major adult video production company. It's a business, and it makes movies (visual depictions) which it releases for sale through retailers, and it's very careful to make sure that none of those movies appear to be, through advertising or any other means,  child pornography. Moreover, the service Wicked employs to handle its payroll keeps records on all payees, which include the person's name, address and age, all for tax purposes.

But as this is written, neither Wicked nor any other producer of sexually explicit content is eligible for the exemption from recordkeeping and labeling - even though the comments to the new regs state, "The Department will consider any entity's procedures that include these basic elements to be in compliance with the certification."

Why? Because the visual depictions created by adult producers contain actual sexually explicit conduct rather than simulated.

But wait! The regulations also say, "A producer of materials depicting sexually explicit conduct not covered by the certification regime is not disqualified from using the certification regime for materials covered by the certification regime."

Therefore, when a company which keeps tax records for all of its employees also releases R-rated versions of its hardcore blockbusters, none of which depict hardcore action nor are marketed in a way that would cause the ordinary person to think they contain child pornography, why would they not be able to file an exemption letter with Attorney General Mukasey and dispense with the 2257 notice?

"One of the problems that has existed for a very long time has been that people will do a shoot in which they will create the so-called softcore version by simply angling the shot while people are actually engaging in sexual activity," warned Piccionelli. "Now, the position of the Justice Department so far has been that that version that you see, in which the people were actually engaging in sexual activity, but you're not seeing the penetration, the Justice Department says, 'No, that is still 2257 material.' This is one of the rare instances in which their justification actually makes some sense, because their objective is, they want to protect kids. The concept behind what the Justice Department said before and what they've said here is that 2257 is an anti-child porn, anti-child exploitation statute. As a result, if what you're looking at is in fact a simulated sex scene, then for that particular movie, you'd be able to get the certification, I think. But if it was originally a hardcore scene only edited to look softcore, then I think you don't get it."

A good example of the above would be Digital Playground's Pirates series, which used editing and alternate angles to hide the movie's hardcore aspects for its eventual R-rated release. Both versions carry the 2257 statement, and Digital Playground has records for both versions.

But what about the companies who actually do shoot two versions of the same movie, one with hardcore and the other with just simulated sex - such as Hustler's recent release, Who's Nailin' Paylin? Piccionelli is of the opinion that such a movie would be entitled to the exemption ... but he has a caveat.

"One of the bases for challenging this law is that it could be ineffective in actually accomplishing what they want to accomplish," he said, "because of the fact that you could create edited hardcore material that is indistinguishable from actually simulated material, and to the degree you could haul in somebody who actually shot softcore and indict them on the basis that there's probable cause that this thing was hardcore because it looks so real, that's a problem - and that's also exactly what Hollywood wants to do: Shoot soft and make it look hard. And that would put them into the position where they would  have to say, 'You know what? We will have to guess conservatively and just to be safe, we'll have to keep records on all simulated stuff even though we've got an exemption, because as filmmaking gets better and better and hardcore-looking scenes are more and more in demand, we're going to be running more and more risk that somebody's gonna try and indict us.' If I were CEO of a major motion picture company, I'd say, 'You know what? Just to be safe, we'd better keep the records.'"

But here may be the more important question: If a company whose main stock-in-trade is releasing movies featuring actual human beings engaged in actual sexually explicit conduct qualifies for the exemption on its softcore versions because it meets the Justice Department's criteria, why is the same company not qualified for an exemption for its hardcore material?

After all, if the Justice Department is willing to trust adult companies to verify the ages of their performers in softcore productions as part of their regular recordkeeping functions, and not force them to keep voluminous identical records on the performers they use, listing every stage name or nickname those performers have ever used, cross-indexed by both their names and the movies they were in - with a minimum five years in jail for a screw-up - why can't it trust them to do the exact same thing with performers in their hardcore productions?

The problem is made all the more galling when one reads through the comments and sees in how many instances the Justice Department has bent over backwards to make Hollywood's recordkeeping (and even exemption from same) as painless as possible.

For example, one comment took the DOJ to task for requiring softcore producers to "certify that it maintains records concerning all performers employed by the producer who appear in depictions of simulated sexually explicit conduct or lascivious exhibition, whereas the statute permits a blanket certification as to all performers employed by the producer."

The problem? "[R]equiring the producer to certify only as to performers who appear in visual depictions of simulated sexually explicit conduct or lascivious exhibition would first require the producer to determine which depictions may contain simulated sexually explicit conduct or lascivious exhibition, which would be difficult and time-consuming (another comment also notes the 'troubling' nature of requiring producers to determine what materials depict lascivious exhibition or simulated sexually explicit conduct 'given the vagueness of the definitions for these terms')."

Translation: If we Hollywood producers have to try to figure out, because of the vagueness of the statute, whether our performers are actually engaging in "simulated sexually explicit conduct" or "lascivious exhibition of the genitals or pubic area," and we guess wrong, we might be in as bad trouble as those lousy pornographers - so why do we have to guess at all? Why not just say, if we keep the required records on all our performers, that satisfies the exemption criteria, and then we don't have to second-guess what some overzealous FBI agent or prosecutor may try to do to us?

Guess what? "The Department adopts this comment."

But what about imported material? After all, the U.S. Department of Justice has no jurisdiction over what foreign governments may require of their filmmakers in terms of identity and age certifications, but Hollywood brings in material containing simulated sex and lascivious exhibitions from all over the world. How are they to be sure that none of those sexy performers are kids? Surely, that's a real problem for the Justice Department!

Remember, for adult industry producers importing hardcore, the requirements of 2257 are ultra-strict: While foreign performers shooting for U.S. or foreign producers shooting outside the U.S., a foreign government's photo ID is acceptable, and the producers must keep copies of same - though for U.S. performers shooting overseas, their "U.S.-government-issued picture identification card" must be used, even if they have foreign passports or driver's licenses - and of course, foreign performers with non-U.S. government-issued IDs are not permitted to shoot in the U.S..

Bur what about Hollywood? How must they handle imported sexy material?

"Both United States and foreign entities may certify," the DOJ says. "In the case of a certification by a foreign entity, the foreign entity, which may be unlikely to collect and maintain information in accordance with United States federal and state tax and other laws, may certify that it maintains the required information in accordance with their foreign equivalents. The Department considers the statute's use of a broad description of laws and other documentation that would satisfy the certification to provide authority for this permission to foreign entities."

Hmmm ... so the foreign entity "may be unlikely to collect and maintain information in accordance with United States federal and state tax and other laws," eh? Then how could it certify that it wasn't using kids in those sexy movies and videos?

No problem! When the Hollywood producer writes his/her letter certifying that the company satisfies all of the above-stated requirements, that producer can also "certif[y] that any foreign producers of visual depictions acquired by the certifying entity either maintain the records required by section 2257A or have themselves provided a certification to the Attorney General, and the producer making the certification has copies of those records or certification; or, for visual depictions of simulated sexually explicit conduct only, has taken reasonable steps to confirm that the performers are not minors," and can "list[] the titles, names, or other identifying information of the foreign-produced visual depictions (or matter containing them) that include performers for whom no information is available but for whom the U.S. entity has taken reasonable steps to confirm that the performers are not minors."

Wow! "Reasonable steps" - isn't that great? So even if the foreign producer doesn't have any age-verification records the American producer can look at - and in fact, the foreign producer itself may never have seen such records - it's okay if the foreign producer just tells the American producer that it has seen the records, and if (we're guessing) the foreign producer has never been convicted of making child porn in its own country, that should be enough of a basis for the American producer to claim that it "has taken reasonable steps to confirm that the performers are not minors"!

But no, there's actually a comment or two about that.

"One comment describes as vague and unreasonably burdensome the proposed rule's certification at §75.9(c)(5) that [mainstream] U.S. secondary producers take 'reasonable steps to confirm' that performers in foreign works are not minors," the DOJ states. "The comment states that the Department should either impose a lesser standard, such as a good faith belief that the foreign work does not depict minors, or specify what is meant by 'reasonable steps.' The comment suggests that 'reasonable steps' could include reliance on representations and warranties from a foreign producer. Another comment makes the same points, stating that if the proposed rule's §75.9(c)(5) is not stricken, the section should be amended to specify what constitutes 'reasonable steps' and that such steps should not impose a duty to investigate but rather should permit reliance on a review of the work itself and/or reliance on a representation or warranty of the foreign producer. This comment also notes that the certification as to the age of the performers should explicitly state that the performer was not a minor at the time the visual depiction was produced." [Emphasis added]

Of course, since it's Hollywood doing the asking, "The Department adopts these comments to the extent they recommend clarification of 'reasonable steps,' with the caveat that any review of the materials or reliance on the representations made by a foreign producer must itself be in good faith. The Department also adopts these comments to the extent they recommend the certification be revised to state the performer's age at the time the visual depiction was originally produced. Accordingly, the corresponding section in the final rule (designated as §75.9(c)(3) due to the deletion of the proposed rule's §75.9(c)(3) and (4)) will explain that reasonable steps may include, but are not limited to, a good-faith review of the material itself or good-faith reliance on representations and warranties from a foreign producer, and the certification will be revised to state that the performers were not minors at the time the visual depiction was originally produced." [Emphasis added]

Adult industry members may try to imagine the Justice Department's reaction to an adult producer who, in importing foreign XXX material, simply assured the DOJ that the producer had looked at the material and didn't see anyone who looked underage, or had spoken to the foreign producer and had that person assure the American producer that there were no minors used in the production. Then adult industry members can try to imagine that producer spending the next five or more years in the proverbial Graybar Hotel.

Because, after all, we have to protect the kids!

Of course, to get the exemption from the recordkeeping and labeling requirements, a producer actually has to write a letter to the Attorney General ... and apparently, that was a little too work-intensive for at least one commenter.

"One comment states that the Department should prepare a form for the certification instead of requiring producers to submit a letter," The DOJ writes. "The Department declines to adopt this comment. As outlined below, the Department has simplified the requirements for the certification in response to comments received. Accordingly, the short letter that would be required would not be significantly more burdensome on producers, if at all, than requiring producers to fill out a form." [Emphasis added]

And then there's the one commenter who got bent out of shape over having to write a new exemption letter every two years - why, that's - that's - that's - one "short letter" every 730 days!

"The comment points out that if the requirement to list the titles of works covered by the certification and other related information were deleted, it would not be necessary to require producers to submit certifications every two years," the Department recounts. "Instead, the Department could simply require re-certification if there are material changes in the information the producer certified under §75.9(c)(1) and (2) concerning how the producer collects and maintains information concerning its employees who perform in its works covered by the certification regime."

Do we even have to tell you?: "The Department adopts this comment."

Ready for the kicker?

"One comment asks the Department to clarify that a 'false certification' is one that is knowingly and willfully false, and to specify the criminal statutes that may be violated by such a false certification. The Department adopts this comment."

Sure, if a Hollywood producer makes a mistake in its recordkeeping or exemption process, he/she has to do it knowingly and willfully in order to get into trouble. If an adult producer makes a similar mistake ... five years in the slammer!

Hmmm ... wonder how the courts would look at the differences in requirements and exemptions between Hollywood and adult?

"I think that they've nailed themselves in this coffin," said Piccionelli. "They fell all over themselves here explaining how simulated sexual activity from a perspective of the government's interests in protecting children is no different at all than actual sexual activity being depicted, and yet the two regimes are completely different. I think any court would say, 'By your own admission, the governmental interest is identical, and yet the burdens are on a scale of a thousand, one burden is one, the other burden is a thousand. How do you justify that?' So I think they've nailed themselves here. I think what they've done is, they've made our arguments for us."