Conceived as a part of the 1986 Final Report of the Attorney General's Commission on Pornography, 18 U.S.C. §2257 came about at a time when the Internet as we know it was unimaginable. Remember the revolutionary "IBM AT," which was released in 1984, the year the commission was established?
The concept seemed simple enough: require makers of adult depictions to obtain identification documents from the performers, keep them at the office, allow for their inspection, and require labeling of the magazines and videotapes so that the attorney general could check the records. After all, that smut all emanated from Los Angeles or New York, right? Well, most of it actually did back then.
But in the 20 or so years that it took for all this to shake out, erotica reached the point that it zips around the world in electron packets. Producers are everywhere and go everywhere; and that makes 2257 a different ball game. And the new regulations really screwed up that game.
Consider the example of a mythical producer in San Diego. (Any similarity to anyone in the real world is a total coincidence.) Performers from San Diego are no problem because they all have U.S. IDs. But performers from neighboring Tijuana present a perhaps insurmountable problem, as does the circumstance when the producer goes to Tijuana to shoot content. Here's the scoop on identification of foreign talent (contrary to some popular myth):
In enacting 2257, Congress required the producer of sexually explicit images to ascertain the name and date of birth of each performer by examination of an "identification document," a term that is broadly defined by statute to include most of the commonly accepted forms of identification, and regardless of the national origin of the document. However, the 2257 statute goes on to additionally require "such other indicia of ... identity as may be prescribed by regulations" enacted by the Department of Justice. And that's the rub.
Under the original 1992 regulations, an "identification document" was nearly always good enough. In the rare instance where the "identification document" did not "contain a recent and recognizable picture of the performer," the old regulations required the producer to also examine a more strictly defined "picture identification card." That rarely was the case, given the fact that most documents commonly accepted for identification have a recent photograph, whatever "recent" means.
In 2004, when the Department of Justice proposed the new regulations, little changed; the definition of "picture identification card" was tightened to limit it to identification issued by government (school IDs were no longer acceptable), but the regulations still required producer to ascertain:
"The legal name and date of birth of each performer, obtained by the producer's examination of an identification document, as defined by 18 U.S.C. 1028(d)(3). For any performer portrayed in such a depiction made after May 26, 1992, 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."
Emphasis is added to the significant language in the above proposal, showing that nothing had changed unless a "picture identification card" was required, and then its tightened-up definition kicked in.
What most significantly did not change – which had nothing to do with the identification requirement – was the 1992 effective date. By failing to change that, the DOJ welshed on its earlier written promise to the Free Speech Coalition to limit the effective date to July 3, 1995.
But in the process of repairing that blunder during the finalization of the regulations, the Department appeared to commit another one, requiring that the producer ascertain:
"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, as written, if this isn't obvious: The producer must examine a "picture identification card" and if that isn't good enough, the producer must examine a "picture identification card."
You might want to read that sentence again; and then read the regulation again. Yup; they screwed up. The extra identification required if the ID lacked a recent and recognizable picture was the very same "picture identification card" that was required anyway. Go figure!
Now, since a "picture identification card" is always required, the tightened-up definition – which was even further tightened between the proposed regulations and the final ones – is crucial:
"(b) Picture identification card means a document issued by the United States, a State government or a political subdivision thereof, or a United States territory, that bears the photograph and the name of the individual identified, and provides sufficient specific information that it can be accessed from the issuing authority, such as a passport, Permanent Resident Card (commonly known as a 'Green Card'), or other employment authorization document issued by the United States, a driver's license issued by a State or the District of Columbia, or another form of identification issued by a State or the District of Columbia; or, a foreign government-issued equivalent of any of the documents listed above 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."
Now, let’s return to our hero in San Diego. If a performer from nearby Tijuana is filmed in San Diego, then a U.S.-issued identification is required and the performer's Mexican passport is no good, even though it would be acceptable for a Mexican producer in Tijuana. If the producer goes to Tijuana, however, the Mexican passport is probably no good if the producer is a California corporation (as producers tend to be), because the corporation that keeps the records is "located in" California; if the producer is an individual, it is not clear whether that individual is "located in" Mexico if only there for the purpose of shooting the movie. One would suppose so, given the dictionary definition of "located" and the concept of shooting movies "on location."
Buy American!
The practical result of this is tragically comical in two respects. First, given the trend toward refusing to issue driver's licenses to aliens, the only qualifying, U.S.-issued ID that our Tijuana movie star could use may be a so-called "green card." Accordingly, the Department of Justice – unwittingly, to be sure – is indirectly doing the job of the Department of Homeland Security by prohibiting anyone who cannot legally be employed in the United States from appearing in an American triple-X movie. No longer could someone in town on a tourist visa pick up a few extra bucks at an XXX shoot!
Second, American-based companies no longer can so easily scurry around the globe shooting foreign talent. The Department of Justice – equally unwittingly – has stopped those "runaway productions" about which American motion-picture workers on both sides of the camera have been complaining since the "spaghetti westerns" of the 1960s. The DOJ has come to the rescue of American adult performers, camera operators, key grip, and all!
DOJ’s (lack of) jurisdiction
But there is more. Consider a website in, say, Lithuania that produces its own content over there and has American customers.
"Knock, knock!"
"Who's there?"
"It's the 2257 man."
"Right!"
"I'm here to inspect your 2257 records. Open up!" (Remember, a DOJ inspector could be a Lithuanian. The regulations do not say anything about qualifications to be appointed as an inspector.)
"What if I don't?"
That is an excellent question. Now, maybe under Lithuanian law, if a cop says he wants in, it is a crime to keep him out. So he lets him in. But then what? Exactly what Lithuanian law has this guy violated? After all, America is the only country that is stupid enough to enact legislation like this. Just how much extraterritorial jurisdiction America has here is a function of treaties and a host of other arcane principles of international law. But the Justice Department has far from made clear how they intend to deal with that problem.
And, as a practical matter, can you imagine the response of the police chief in some remote European or South American city when the DOJ calls, requesting the appointment of a records inspector?
"You want to what?"
"We need to appoint a records inspector over there."
"Do you think this involves child pornography?"
"Well, not really; but they need to have those records."
"Right!"
Hopefully, by the time this article hits the streets, this and other nonsensical aspects of the new 2257 regulations – and hopefully 2257 itself, lock, stock, and barrel – will have been put on the shelf by the judge in Denver.
Clyde DeWitt is a partner in the Los Angeles, California-based, national law firm of Weston, Garrou, DeWitt & Walters. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or via email: [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but rather serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
