Attorney General Alberto Gonzales signed the final rule implementing the Child Protection and Obscenity Enforcement Act, aka 2257, today, the Justice Department announced.
An official publication date has not been announced.
“I think the most interesting thing is the coincidence between this and the creation of the anti-obscenity task force,” First Amendment attorney Jeffrey Douglas tells AVNOnline.com. “The 2257 regime exists, essentially, to create criminal liability to leverage in obscenity cases, which otherwise has extremely effective defenses. You can defend almost anything in an obscenity case because the offense is not defined—it’s subjective. So you create this arbitrary set of rules to get leverage in a criminal obscenity prosecution. Together, it’s a dangerous combination.”
The DOJ’s official release makes things about as clear as mud. However, it is clear that the 2257 regulations, which were originally developed in 1992 and never enforced, will set down a new set of rules for webmasters.
“The rule ensures that the definition of “pornography producers” includes producers of visual depictions of sexually explicit conduct published on the Internet. It also clarifies the means by which a producer must verify the identity and age of each performer and the manner in which records of these verifications must be kept. Additionally, the final rule establishes a detailed structure for conducting administrative inspections of pornography producers’ records to ensure that children are not being used as performers in sexually explicit depictions,” the release read in part.
While that clearly lumps online producers into the same boat as video producers, it doesn’t say much else.
“Everything is in the details,” Douglas says.
“The real question is how are they going to deal with the concept of secondary producer. If I have no contact with any of the performers and I’m just sticking them on my website or in my magazine images [as] recorded by others, what are my obligations?”
That’s not the only question.
“The second issue is we need to find out if this is retroactive. Content that was shot 10 years ago isn’t going to have these records,” Free Speech Coalition executive director Michelle Freridge tells AVNOnline.com. “Does a producer have to recreate these records?”
Once the regulations are posted – at the Federal Register – there will be a wait period before they are enforced. Thirty days is the norm. In that time, Free Speech will likely file an injunction to stop enforcement.
“We’re going to fight them in court if the regulations are unfair,” Freridge says.
“I expect we’ll move forward just from looking at [the DOJ press release].”
