The History of 2257

The September 1984 issue of Penthouse magazine was particularly controversial even before it hit the newsstands. For starters, it contained a nude pictorial of the reigning Miss America, Vanessa Williams, engaging in simulated interracial lesbian acts, taken from a shoot conducted before she won the crown. This was all over page-one news in 1984, and the ensuing outcry compelled Miss Williams to give the Tiara back to the pageant.

But seeds that would grow into far greater controversy, with far greater societal and legal effects in the adult entertainment industry, existed elsewhere in the same issue, though scarcely noticed for what they were at the time.

The Pet of the Month in September 1984 was a newcomer to modeling who had just recently been “discovered” by a talent agency while sunbathing at Malibu Beach. She reportedly carried a driver’s license identifying her as the 22-year-old Kristie Elizabeth Nussman, but, the reports go on, she sometimes called herself Christie Lee Nussman.

She immediately became something of a phenomenon in the world of glamour photography. In 1984 and 1985, she appeared as the centerfold or in a major pictorial feature at least once in nearly all of the men’s magazines that counted: Penthouse, Oui, Hustler, High Society, Swank (photo credits to the renowned Suze Randall), and Club, and she made multiple appearances in some of them as a result of her amazing popularity with the readers.

During the same year, Miss September was paid $10,000 for a four-day shoot of her first hardcore adult video, What Gets Me Hot. The 1985 Adam Film World Directory of Adult Films described her performance with Tom Byron as “erotic and compelling,” and called her an “overnight sensation” in the adult film business. From the beginning, she appeared with all of the biggest names in porn video and rapidly became a reigning porn starlet of the first rank with an intense national following. Those who saw the tapes say that to describe her performance as merely “enthusiastic” would be to risk serious understatement: Though her looks were a significant factor in her popularity with the viewers, it was her blazing sexual performance on camera that propelled her to AVN award nominations and undisputed status at the top of the heap. She went on to appear in at least 107 hardcore adult tapes before it all came to a sudden end in 1987.

In the first place, her name was neither Kristie Elizabeth Nussman nor Christie Lee Nussman, but Nora Louise Kuzma.

In the second place, she was only 15 years old when this story began.

You would probably know her better as Traci Lords.

The fallout from the Traci Lords story came fast and furious, and included a round of criminal prosecutions of video distributors, the appeal of at least one of which crossed the threshold of the United States Supreme Court. Tens, if not hundreds of thousands of dollars worth of adult tapes were hurriedly pulled from the shelves of adult bookstores all across America so fast that you could almost hear a collective “thump” as the Traci Lords calliope crashed to the ground. For years afterwards law enforcement agents across America regularly trolled the shelves of adult bookstores looking for stray Traci Lords tapes that the owners had missed.

The aftershocks reached the Halls of Congress and the outcry was that something had to be done.

As the old adage goes, when your only tool is a hammer, all of your problems become nails. And inasmuch as Congress had to do something, and all that Congress can do is to investigate and pass laws, investigate and pass laws is what it did. (However, it is highly debatable whether, had the law presently expressed in Section 2257 existed in 1984, it would have made any significant difference in this story: Lords, by her own admission, obtained a valid identification card at the Torrance office of the California Department of Motor Vehicles by using an older person’s birth certificate. When asked for ID at the time of her first adult professional modeling gig, she produced it to the photographer for copying as casually as she presented it at liquor establishments.

Lords was never marketed to the pedophile fringe. Instead, she was portrayed as an object of sexual fantasy to the mass of American men. Her age was given as 22 in Penthouse and 23 in Oui at the beginning of her adult career in 1984. She socialized with a very grown-up crowd and had a grown-up boyfriend or two. Innocence, reticence about matters sexual, and inexperience are the exact opposite of what she projected.

Though she was the centerfold attraction in magazines aspiring to meet the sexual tastes of as large and mainstream an audience as possible, and though those who photographed her and published her reasonably believed her to be of age, what emerged was legislation designed to combat the creation and commercial exploitation of pedophilic pornography, in part, by regulating the production of general pornographic materials by requiring the identification of performers, regardless of their age.

Title 18 United States Code Section 2257 was enacted on November 18, 1988, imposing certain obligations on the producers of graphical representations of actual, explicit sexual conduct. Additionally, the Attorney General, directed by Congress in that law to establish regulations for the enforcement of the Section, has promulgated a series of regulations found at 28 CFR Part 75, the validity of some portion of which have been rejected by the federal courts considering them. In June 2004, the Attorney General has published proposed, newly amended regulations which change some of the existing duties and which squarely address the adult Internet for the first time. These regulations have been published for comment; the comment period ends on August 24, 2004, after which changed regulations may be promulgated.

The reader is cautioned that this article contains a summary treatment of the law, that it is the law itself that should be consulted for legal guidance, with the guidance of an experienced lawyer, rather than this or any other summary of the law, and that this article does not constitute legal advice or guidance.

Obligations and Penalties for Violation

Title 18 U.S.C. §2257 is a part of the United States criminal code and imposes certain obligations on the producers of material containing depictions of actual sexually explicit conduct, made after November 1, 1990 [see sidebar – Ed.]. It does so under penalty of criminal prosecution and the imposition of a criminal sentence.

It imposes no record-keeping or inspection obligations on persons who are not producers. More about that later.

It imposes no obligations on producers of material that does not include actual, sexually explicit conduct. Thus, there is no obligation under this provision regarding graphic representations of mere erotic nudity or of simulated sex. But it does cover the waterfront of actual sexual conduct: It includes all varieties of sexual intercourse, vaginal, anal, or oral, straight or gay; and bestiality, masturbation, and sadistic or masochistic abuse. The determination of whether the act applies to images that do not clearly display penetration or the other covered activities is simple: If it was really going on, the Section applies, even if the actual sexual conduct can’t be seen in the image, due to obscuring, covering, or any other reason. (There are compelling and eminently practical reasons why that the wise content provider should harvest identity documents and information in every graphic depiction of erotic nudity whether, strictly speaking, required by the statute, or not, and should maintain them as though covered by the statute.)

Failure to comply with the obligations of the section is a felony upon the first conviction, punishable by up to five years confinement and a fine, and five to 10 years and a fine on a second conviction. A person may be convicted for violation of the statute because he or she fails to comply with the affirmative duties of identification and inquiry, record keeping, and disclosure imposed by statute or regulation, or because he or she knowingly makes any false entry in those records, or in interstate commerce or foreign commerce, sells or otherwise transfers without a “custodian of records” statement, any of the material specified in the statute and required to have such a statement. It is also a crime to remove any of the compliance statements attached to the matter.

Those affirmative obligations of 2257 are four in number and may be summarized as follows:

1) The Duty to Identify and Inquire. The producers of visual images which depict actual sexually-explicit conduct are required to obtain and examine an identification document containing the performer’s name and date of birth and to record and maintain that information as individually identifiable. Under the Regulations, a legible copy of the identification document examined shall be made and maintained with the other records which must be maintained. They are also required to ascertain, apparently from the performer, though this is not clear in the statute, any other name ever used by the performer, including maiden name, alias, nickname, and stage or professional names. Under the existing regulations, one of the approved, government-issued, official identification documents mentioned or described at 18 U.S.C §1028 (d) suffices if it contains a photo. If it does not bear the holder’s photo, a copy of a “picture identification card” must be examined, copied and maintained under the existing regulations. June 2004 Proposal: The draft regulations proposed in June 2004 seemingly shrink the universe of acceptable identification documents to the kind of document which provides sufficient, specific information that enable it to “be accessed from the issuing authority” [sic]. The proposal mentions several examples of what it means, including foreign passports, but the kind of access and speed of access required by the proposed regulation is not actually defined; verification and authentication are simply not mentioned as such. Under the existing regulatory/statutory definition of acceptable identification, a birth certificate is acceptable identification, at least if coupled with a photo identification card. Inasmuch as information concerning the issuance of a birth certificate can be accessed, the argument can be made that it an other accessible forms of identification described in 18 U.S.C. §1028 (d) (3) remain legally sufficient – even if highly unreliable in practice – under the proposed regulations. Whether the regulations change or not, it is a wiser course to follow the practice of most prudent content providers and obtain the multiple forms of identification with the best chances of reliability, including at least one driver’s license, passport, or state identity card. In the limited and remote experience of this author, underage drinkers typically don’t possess more than one fake ID.

2) The Duty to Create and Maintain Retrievable Records. The producers of the graphic materials covered within the ambit of Section 2257 must create certain records of the name and date of birth of the performers, those records must permit the retrieval of information and copies of documents by the various names associated with the performer and by the name or number of the work. Those records must be maintained at the producer’s place of business and for a period of five years after the dissolution of any business under the existing regulations. The law does not address what is to happen should the records be destroyed or taken, as for example in the execution of a search warrant by local officials. The prudent content producer will maintain redundant, duplicate off-premises copies of all required records so that he or she is not compelled to blaze a new trail in litigation concerning the unexplored frontier of Section 2257 or to alternatively risk criminal sanction by publishing a Website without the required records. There are special regulations concerning modification or amendment of the records when the material is released in another form or re-released. June 2004 Proposal: Under the June 2004 proposal, an important “may” becomes a “shall” for content made after its effective date and thereby appears to impose a duty to update the records when the producer publishes new matters containing the images. The proposed Section 75.4 contains some element of misfit concerning the duration for which records must be maintained. There would be a plenary obligation to maintain the required records for seven years. However, there is also obligation upon dissolution of a business to maintain the records for five years thereafter, suggesting a duty to maintain the records as long as the producer remains in business. The proposed regulation addresses computer generated images, digital images, pictures, and URLs in a confusing manner that has naturally led to some confusion and perhaps misunderstanding in the adult Webmaster community. There are two dimensions to this confusion. First, the proposal imposes (or at least assumes) a duty to uniquely associate each covered content element created after May 26, 1992 with its required records, a requirement which some of us have long believed to exist under the current regulations. In the practice of some smaller sites and many megasites, the same file names are used redundantly for different images located in different galleries and file directories. The new regulation provides that the records may be associated with images by title, file name or URL; that provision would avoid the task of uniquely naming all file names; however, this treatment of non-unique filenames can lead to a morass of a different kind, because directories and URLs can and do change over the course of time, sometimes by reorganization and perhaps by automation. Second, with respect to images created on the effective date of the regulation (30 days after publication in the Federal Register) the producer of Internet content must include a copy of the depiction in the Section 2257 records and a “copy of the URL associated with the depiction.” Proposed Section 75.2(a)(1)(i) and (ii): This latter provision may be read to impose the unwieldy and nearly-impossible burden on primary producers to account for every use of their content in the blazingly mercurial adult Internet. It is my suspicion that such a reading would impose an unreasonable burden on protected expression and would render the regulation unconstitutional; no producer should be responsible to maintain records concerning the publication of images by another person. Given the definition of “URL” as the uniform resource locator itself in Section 75.1(h) of the proposal (rather than the page it locates), the proposal seems to require that the associated URL be recorded in the mandatory records; It would appear that the use of “copy” as a noun in the proposal is probably a misnomer. Finally, Section 75.2 (e) of the proposal requires that the set of required records be maintained as a discrete entity, apart from others, included in to others, and contained in no others.

3) The Duty to Make Disclosure in the Work of the Location of Records and the Identity of the Records Custodian. Each copy of a work covered by the law must contain a statement of compliance, which identifies the title of the work, the date of production, the identity of the custodian of records (always a real person) and the address where the records are maintained. There are specific provisions in the existing regulations concerning where that disclosure statement is to appear in books and magazines and videotapes and films. (There are also specific rules on matter exempt from the law because of a date of creation or publication.) There have been no such specific requirements in the existing regulations specifying where the disclosure or exemption statement is to appear on a web page or in other electronic media such as computer images on disc, in newsgroups, or in computer games. The statute in question and the regulations which were promulgated to implement them were all written before the modern World Wide Web took shape, form, and substance in the manner we now know it. The existing regulation and the current statute are written broadly enough to encompass all of these kinds of images in computer formats, but a person who has sought to comply with the law has found no direct and positive criteria in the existing implementing regulations for images in electronic media: He or she can only look for guidance for the provision in Section 75.8 of the regulation stating that the disclosure should be “prominently displayed consistent with the manner of display required” in books, magazines, films, and tapes; in other words, up front and prominent. (In a book or magazine, the disclosure must be printed on the cover or copyright page, and in a videotape, it must appear in the first minute, before the first scene, or during the closing credits, and it must appear long enough to be read by the average viewer.) June 2004 Proposal: Sections 75.6 and Section 75.8(d) of the proposed regulation discuss digital images, the World Wide Web, and how notices must be provided. It seems that images standing on their own – such as those posted in newsgroups, shared in P2P and displayed on banners – are addressed in Section 75.6 as though in the crosshairs of a gunsight. Though it is not as clear as it might be, it appears that one proper notice for a Website may suffice and is provided for; for the first time addressing the location of such a statement on a Website with specificity, the proposal requires the notice (not a link to a notice) to appear on its homepage or principal URL. As an electronic display, it would appear that a Website notice “must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer” under Section 75.6 (e) and that other language purporting to specify type font size and background may not be intended to apply to the Internet, though this, too, is less than clear.

4) The Duty to Make the Records Available for Inspection by the Attorney General. The producer of works within the scope of the law must make the required records available for inspection, by the Attorney General or those the Attorney General appoints, at the producer’s business premises at all reasonable times. Neither the incumbent, John Ashcroft, nor any prior Attorney General has ever gotten around to designating anyone for the purpose of conducting 2257 inspections, and so, from the time of the first regulations implementing Section 2257 to today, only the Attorney General, personally, has been empowered by law to knock on the door under the Section. It is reported that one or more local police agencies actively lobbied without success for such authority. It is not unreasonable to suppose that John Ashcroft may find one or more federal, state, or local law enforcement agencies that he finds competent to conduct these inspection before his tenure in office comes to an end. June 2004 Proposal: Under the proposed Section 7.5, the focus shifts noticeably from a simple articulation of a duty by a person maintaining records to the authorization and empowerment of agents deputized for that purpose by the Justice Department. On their face, they would impose an obligation to make the records available for inspection from 8:00 a.m. until 6:00 p.m. local time, and at any other time that the custodian may be conducting business concerning covered adult depictions. See Section 7.5 ( c ) (1). This provision, too, brashly imposes a crushing burden on nonobscene, constitutionally protected expression as now exercised by small Websites and content houses, run frequently as a part-time enterprise by individuals during casual moments of a day filled with the other responsibilities of life. When coupled with the existing notice requirements, requiring individual campersons of limited means, operating out of their homes as they often must to identify that address to the world, the Justice Department here creates an impossible barrier to free expression that should fall as an unreasonable and unconstitutional. The proposal limits inspections to once in a four-month period unless more frequent inspection is justified by suspicion. The proposal also empowers the agents to copy any document subject to inspection. It also positively asserts that “plain view” seizures of any evidence of a felony may be seized.

 

Who Must Comply, Who "Produces", Who is a "Producer?"

Much controversy and much dispute have arisen in the adult Internet community in recent years concerning the issue of whether non-content-producing adult Webmasters have any affirmative obligations under Section 2257 to create, index, and maintain records. The question is whether the Webmaster who buys all of his or her content without any special arrangement for its production must comply, to the extent possible, with the affirmative obligations mentioned. The degree of misunderstanding is so grave that numerous posters on the Webmaster boards have misunderstood the requirements imposed under the “secondary producer” requirements to be new, appearing for the first time in the June 2004 proposal; to the contrary, the secondary producer requirements and the issue they create have existed from the start of the World Wide Web as we know it.

The Attorney General’s only authority to promulgate regulations concerning Section 2257 is that Section itself: In any conflict between the regulations issued by the Attorney General and published in the Code of Federal Regulation and the laws of Congress appearing in the United States Code, it is obviously the laws of Congress which must prevail.

The regulations that the Attorney General issued under the authority of Section 2257 are found in 28 Code of Federal Regulations Ch. I, part 75. To this point in time, the most controversial part of those regulations has been a definition of “producer” that is far more expansive, covers far more territory, and includes far more persons with the scope of the regulation than would fall within the scope of the term “produces” as used in Section 2257. The long-existing Justice Department scheme breaks producers down into what it calls primary and secondary producers. What it calls primary producers are the persons who actually film, videotape, or photograph the explicit conduct; these persons are plainly within the coverage the Statute through its definition. The June 2004 Proposal adds persons who digitize images to the list of primary producers at Section 75.1( c ) (1).

The real controversy arises in the second category mention in the existing and proposed regulation, the definition of “secondary producers.” (28 CFR Ch. I, Part 75, Section 75.1 (c) (2) and (4)). The existing Justice Department regulations aspire to reach any person who “publishes, reproduces, or reissues” explicit material, and some others. The persons who would be exempted under the regulations are chiefly photo processors and mere distributors. So, the existing definition covers just about anyone who uses such images, or contracts or arranges for their creation. The June 2004 Proposal adds to the list of secondary producers those persons who use covered images for publication for a commercial purpose, and without respect to commercial purpose, expands the scope of the regulation to those persons who insert an image on a computer site or service and those who manage the content of a computer site or service, and anyone who contracts or otherwise agrees to do those things.

Section 2257 certainly applies to those Webmasters who create graphic images depicting actual sexual conduct and who publish those images to Websites. Under the existing law, if any matter contains one or more “visual depictions” of actual sexually explicit conduct made after November 1, 1990, it is brought within the ambit of the statute. Under Section 2256, a visual depiction has long included data stored on a computer disk or by electronic means which is capable of conversion into a visual image. Those Webmasters who are content producers of visual images depicting actual sexual conduct, who come into contact with the performers for the creation of the images, are certainly required to comply with the affirmative duties provided for in that Section and summarized above. Webmasters who “custom order” or contract for the production by others of material depicting actual sexual conduct may arguably also be producers of the content under the statutory definition because they have contracted for its creation. Thus a Webmaster can be a producer under 2257, but this arises, under a proper reading of the statute and the cases, which explain it, not because he is a Webmaster who publishes such images to the Internet, but because of a deeper and stronger connection with the creation of the images or with the performers involved.

The issue at hand, though, is whether it is the duty of a non-producing Webmaster to obtain the documents and information required by law to maintain and index them and to make them available for inspection.

While Congress did not define the term “producer” in the Section, it uses the term “produces” in legislating the scope of the Section and in describing its reach. As most recently amended, subparagraph (h)(3) of Section 2257 defines the term as follows:

“[T]he term ‘produces’ means to produce, manufacture, or publish any book, magazine, periodical, film, video tape, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted;”

The affirmative duties of Section 2257 are imposed on “Whoever produces… matter” and on no other persons. While perhaps not a model of good, simple, English expression, the meaning of the definition Congress gave to the word “produces” seems plain enough. In American Library Association v. Reno, 33 F.3d 78, 93 (D.C. Cir., 1994) rehearing en banc denied, 47 F.3d 1215 (D.C. Cir. 1995), cert. den. 115 S.Ct. 2610 (1995), the United States Court of Appeals for the District of Columbia concluded that the “obvious purpose” of Section 2257 “is to identity those who have had direct contact with the performers.” No known decision of any court in this nation holds to the contrary. [This case is not presently available online from a free source. A scholarly casenote treating it is found at 3 Vill. Sports & Ent. L. J. 589 (1996).]

It was however necessary for a United States Court of Appeals to take this issue head on in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir., 1998). The Tenth Circuit Court invalidated language contained in Part 75 which attempted to expand the scope of Section 2257 so that it would reach the re-publishers of photographs.

Sundance Associates published five swingers’ magazines that reprinted reader-submitted photos, some of them apparently depicting actual sexual conduct. Fearing criminal liability under Section 2257, it brought suit for declaratory judgment declaring that the Attorney General’s provisions, so expanding the scope of the Section as to make them what the regulations called a “secondary producer”, were invalid. 28 CFR Ch. 1 Section 75.1 (c) (2) defined a “secondary producer” as any person who, among other things, publishes matter that contains a visual depiction of actual sexually-explicit conduct. Sundance argued that the regulations did not simply implement the will of Congress for enforcement and application of the statute, but, contradicting limitations on the kind of production which was controlled by the Statute, it improperly added activity and persons to the reach of the law.

The trial court ruled for Sundance and invalidated the “secondary producer” obligations and the Attorney General took an Appeal to the Tenth Circuit.

The Tenth Circuit held that the Attorney General’s interpretation of Congress’s definition of “produces” “flies in the face of the statutory language.” It gets stronger. The Tenth Circuit observed that the Attorney General was “twisting words to reach a result it prefers” rather than interpreting any verbal ambiguity with accepted alternative meanings. The court struck down that part of the regulation that reached publishers who had no contact with the performers and had not contracted for the work to be produced. (To perhaps state it with too much exactitude for an article directed at a general readership, the Tenth Circuit struck the words “other than those activities identified in paragraphs (c) (1) and (2) of this section,” words which had the effect of putting all publishers of explicit material back into a definition that otherwise would have excluded all persons who “did not hire, contract for, manage, or otherwise arranging for the participation of the depicted performers.”)

Strictly speaking, the decision of the Tenth Circuit does not bind inferior courts except in the Mountain States of its territory; strictly speaking, the Court of Appeals for the District of Columbia does not bind inferior courts outside the District. However, the Tenth Circuit opinion is remarkably strong, clear, and well-reasoned in rejecting a government position that it concluded was ill-founded, poorly reasoned and contrived to defend regulations that were promulgated not so much to implement the law as to do what the Justice Department thought Congress should have done. Given the agreement in understanding of the definition by the D.C. Circuit and the Tenth Circuit, it is unlikely in my view that the “secondary producer” provisions as they exist identically in the existing and proposed regulations will stand in any federal court. See generally “The Record Requirement as Applied to Webmasters: Section 2257,” Klixxx, issue 5, pp.115, 119. (The Sixth Circuit sidestepped the issue entirely in Connection Distributing Co. v. Reno, 154 F.3d 286 (6th Cir., 1998) the first time this case came to its bench by noting at footnote 3 of the decision that Connection Distributing never raised the issue of whether the regulation exceeded the Attorney General’s power to regulate under Section 2257. Apparently, this issue is still alive in t