The new adult record-keeping and labeling regulations, 28 CFR Part 75, drawn from the Child Protection and Obscenity Enforcement Act of 1988, 18 U.S.C. 2257, as amended, were published today in the Federal Register, with the notation that they will take effect on June 23, 2005 – so the adult community has exactly one month to scour its files and make sure everything in them complies with the new regs, because the shit-storm could hit anytime after June 24, and the general consensus is that it'll hit webmasters first and hardest.
"In the immediate future, you're going to be seeing inspections and arrests, not because of 'illegal' content, but because [the producers] don't have the records, they never had the records, or they're trying to be cutesy," predicted First Amendment attorney J.D. Obenberger. "Maybe the DOJ [Department of Justice] will proceed gently, but I don't really think they have any reason to. I'm pretty damn sure the DOJ has a list of content producers they want to inspect, and they'll begin doing that in 30 days. They could do it early, but they probably won't because that undermines the political smokescreen. They have a staff that's been well-trained, and they're armed – literally – and ready to go."
But the fact is, the new regulations will cause problems for everyone who creates or broadcasts adult product.
"The Free Speech Coalition has a team of attorneys who are reviewing the rules and regulations now," said FSC Executive Director Michelle Freridge. "And although there were some changes [to the draft version released last summer], there weren't enough changes, and we intend to go forward with our lawsuits. We've hired H. Louis Sirkin and Paul Cambria, and we're going to file two legal challenges to 2257, and we're going to file for a temporary restraining order and injunction to prevent prosecution while we're moving forward with our legal challenges. We may also file a third or a fourth legal challenge, depending on what the attorneys decide."
Even veteran First Amendment attorneys, however, have found some light in the darkness of the revised regs.
"One thing that I take great pride in is the date before which companies aren't required to have records," noted Cambria. "When the original regulations were challenged by Adam & Eve in the PHE case, Judge Joyce Hens Green had issued an injunction, and there were issues back then as to when they would become effective if they were on materials that were produced in 1990 and forward, and they [Adam & Eve] had an injunction, but the rest of us in the adult business who were not part of that lawsuit had nothing. I negotiated, with Gene Malpas of the Department of Justice, the July 3, '95 effective date, and Clyde DeWitt happens to have, which I myself haven't even found, a copy of their letter to me, saying, 'Mr. Cambria, we acknowledge that today we've agreed that it's July 3 forward,' and I'm pleased to say that they incorporated that date into these regulations, because their original draft went back to 1990, and that would have wiped out about five years of very expensive and valuable library that no one ever could have gotten the records for, reconstituted the records for. It wouldn't have happened. So I'm very happy about that."
Another supremely important change is that the record-keeping now only applies to "a visual depiction of an actual human being engaged in actual sexually explicit conduct." Although "actual sexually explicit conduct" isn't defined in the regulations, the applicable definition is found in the United States Code: "sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person" (18 U.S.C. 2256). The previous version of the regulation included simulations of those acts, which now are no longer covered.
"The 'actual human being', as opposed to computer-generated images and cartoons, is an interesting change," Cambria pointed out, "because in the past, cartoons have been prosecuted left and right."
Certainly, the greatest number of changes to the original regulations are in response to the rapid growth of the Internet, which was virtually unknown when the 1988 law was passed – see Kathee Brewer's accompanying article specifically directed to changes involving the Internet – and on the online front, some progress has been made from the 2004 draft version in terms of who must keep records of what, and in what manner the records must be kept.
"The regulation states, 'A computer site or service or Web address containing a digitally- or computer-manipulated image, digital image, or picture, shall contain the required statement on its homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking a hypertext link that states, "18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement",'" Cambria noted. "Now, that would be the way to go right there: Have a link and then just lay it all out. But as a 'secondary producer,' the records do have to be in the site owner's possession; the link just basically saves a lot of space on the Web page."
The reason the regulation allows the record-keeping to be accomplished that manner is Sec. 75.2(f), another revision to the earlier draft: "Records required to be maintained under this part may be kept either in hard copy or in digital form, provided that they include scanned copies of forms of identification and that there is a custodian of the records who can authenticate each digital record."
A boon for video producers, though not so much for Webmasters, is the reduction in the number of hours that a producer must be available to receive a records inspector. Whereas the earlier draft required someone to be on-premises 10 hours per day, seven days per week, the published reg limits that to "normal business hours", which are from 9 a.m. to 5 p.m., local time, Monday through Friday, "or any other time during which the producer is actually conducting business relating to producing depiction of actual sexually explicit conduct. To the extent that the producer does not maintain at least 20 normal business hours per week, producers 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 twenty (20) hours per week."
It's that last part that will be problematic for some webmasters, and even some smaller video companies that don't maintain much of a formal business presence – and the part about "any other time during which the producer is actually conducting business relating to producing depiction of actual sexually explicit conduct" suggests that if a producer is, for example, shooting a video in the middle of the night or on a Sunday, a records custodian must be available to receive inspectors during those same hours. That requirement is likely to be challenged in one of the Free Speech lawsuits.
The question of what forms of identification are acceptable from performers has undergone some major changes since the original regulations were written, and though the latest version adds the use of a "Green Card" or "other employment authorization document issued by the United States" to the list of acceptable IDs, the overall requirements are that the ID a) contain a photo of the individual identified, and b) be issued by the federal or a state government, or a foreign-government issued equivalent. But since photo IDs weren't required under the original regs, there may be some problems with material created between July 3, 1995 and June 23, 2005.
"If, for example, you had a college ID card, you couldn't use that anymore," Cambria explained. "So there's a question now. It says what you need to have for records created after June 23, 2005, but what effect that will have for records created after July 3, 1995, we don't know. But you're definitely not going to be able to use college IDs anymore. The question is whether or not that's retroactive; that's one of the things we're going to have to find out. Now, it says that producers shall maintain, 'The legal name and date of birth of each performer, obtained by the producer's examination of a picture identification card. For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card.' So logically, you'd say anyone from July 3, 1995 to June 23, 2005 is grandfathered in; that would be our position. But what if you're wrong? Anyway, we're working on this now."
One identification problem that will shake the video industry, however, is the prohibition, according to commentary accompanying the published regulations, that "the Department has clarified that the definition includes a foreign government-issued passport or any other document issued by a foreign government or a political subdivision thereof only when both the person who is the subject of the picture identification card and the producer maintaining the required records are located outside the United States." In other words, performers who have only IDs issued by foreign governments will not be able to work in adult features shot in the U.S.
"It seems that the DOJ has taken it upon itself to use 2257 regulations to enforce immigration laws and preclude 'runaway productions', "commented Clyde DeWitt. "It has required a 'green card' as effectively the only identification that a performer who is a citizen of another country can use in the United States, given the recent legislation concerning issuing driver's licenses to undocumented aliens. And what was really overlooked is the situation where an American company engages in overseas production using talent from the country where it is shooting, which is a very common practice (called 'runaway production' in the mainstream movie industry). It would seem that the producer is not 'located outside the United States' if it is just visiting a foreign country to produce a couple of movies."
Okay; that's the good. Now we get to the bad (and possibly also the ugly) – such as the fact that the new regulations specifically deny the validity of the industry's victory in Sundance Associates v. Reno, a 10th Circuit decision that voided the original regulations' definition of a "secondary producer."
"[S]everal commenters commented that the rule's application to secondary producers exceeds the Department's statutory authority," state the comments preceding the new regulations' publication. "In Sundance, the court held that the statutory definition of producer did not distinguish between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity 'does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.' 18 U.S.C. 2257(h)(3). In contrast, the D.C. Circuit in American Library Ass'n v. Reno implicitly accepted that the distinction between primary and secondary producers was valid. The D.C. Circuit there held that the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech, particularly since secondary producers can comply by maintaining copies of the records of the primary producers, an option permitted by this rule. In so holding, the court implicitly considered the distinction between primary and secondary producers to be legitimate. Consistent with the D.C. Circuit's holding, which the Department believes reflects the correct view of the law, the Department declines to adopt these comments."
"All along, I have advised my clients not to rely on Sundance; that any image they had in any book, magazine, video or whatever, whether it's amateurs or swingers or any of that stuff, that they should have the appropriate records," gloated Cambria, noting that several clients had already called to thank him for that advice. "And what's interesting is, there probably are upwards of 50 percent of the Web sites out there who will be devastated because they're carrying content, either thumbnails or streaming or fixed photos that they have no records for. They are fucked. The thing that seems to be the biggest problem are those who advised their clients to rely on Sundance; those clients are fucked. They definitely have a huge problem."
Not all attorneys agree with that analysis, however.
I disagree with Paul about Sundance," commented DeWitt. "The Department of Justice is just plain wrong here, and the courts will establish as much. The American Library Association case that the Department relies on did not reach the issue raised in the Sundance case. American Library held that the statute and regulations did not violate the First Amendment with respect to the requirements imposed on primary and secondary producers. The court there was not called upon to address, nor did it address, the issue of whether the regulations exceeded the authority of the enabling statute in extending the record-keeping requirements to parties plainly exempted in the statute. The Sundance decision addressed exactly that issue, and did little short of reprimanding the government for having the temerity to take the position that it did, which is the same position it is taking here."
Ergo, that issue will likely form a part of Free Speech's legal challenge.
Another problem, which seems minor but will have a big impact, is Sec. 75.6(e): "For the purposes of this section, the required [2257] 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."
How anyone ascertains what is "12-point type" on a computer display is problematic enough, but it will cause video and DVD package designers no end of headaches.
"That's interesting," mused Cambria, "because if you have a title and then you have a sub-title, the label's typeface would have to be at least as big as the sub-title. That's a crock of shit."
One of the more recent developments surrounding 2257 compliance has been the creation of off-site records custodians who contract to maintain required records for a number of different companies at one central location. Such a system is no longer permitted under the regulations, except where digital records are being used, and those records are available on the producer's physical premises. In such a case, an off-site company could accomplish the indexing and some other duties, but an official on-premises custodian would have to be designated, and copies of the records (which could be electronic copies) maintained at the producer's location.
"Two commenters commented that the implicit requirement that records be kept at a place of business is unreasonable and argued that the regulation should permit third-party custody of records," the published comments read. "The Department declines to adopt this comment. Permitting a third party to possess the records would unnecessarily complicate the compliance and inspection processes by removing the records from the physical location where they were initially collected, sorted, indexed, and compiled."
There are many more changes to the original regulations than can be commented upon here, but the very best advice that any knowledgeable authority can give an adult content producer is, "Contact a veteran First Amendment attorney, have him/her review what you're doing now, make whatever changes are suggested, and ask for advice on how to conduct yourself in the future." Remember, violation of 18 U.S.C. 2257 is good for up to 10 years in federal prison ... per violation!
