The U.S. Department of Justice (DOJ) has never inspected the records kept by producers of performers in sexually explicit photos or videos, and Attorney General John Ashcroft actually had the moxie to admit that when it came time for his required report to Congress under the PROTECT Act passed last year.
Ashcroft offered no excuses for his department’s sloth – but he did have a brand, spanking new set of regulations to propose under 18 USC 2257, the section of the U.S. Code created by the Child Protection and Obscenity Enforcement Act of 1988 which, due to a lengthy legal battle, didn’t go into effect until 1995.
The new requirements were published in the Federal Register on June 25, 2004; the public will have a chance to comment on them until August 24, and unless any changes are made (doubtful), they will take effect on that date – just in time for the Republican National Convention!
Prominent First Amendment attorney (and AVN/AVN Online legal columnist) Clyde DeWitt has written a commentary on the proposed regs which will appear in the August issue of AVN Online – but considering that one attorney has estimated that less than 5% of adult video companies are in full compliance with the current 2257 regs, and it’s impossible to tell how many Webmasters are in compliance – if you guess “less than 5%, you’re probably not too far off – it’s never too early to start thinking about what it will take to be compliant with the new ones, because rest assured, these WILL be enforced!
Some points to watch out for include:
IDs: Some forms of identification commonly used by models and performers are no longer acceptable. According to the new regulations, the only forms of identification that can be used must A) have a photograph of the individual, and B) must be “part of a system of records that can be independently accessed to verify the legitimacy of the identification card.” Driver’s licenses are fine, as are passports – U.S.-issued ones, at least; it’s unclear whether non-U.S. passports will be acceptable – but now “off the list” (what list?) are Selective Service cards, college ID cards and any other form of identification that doesn’t meet the above requirements. And on top of it all, every copy of the ID must be legible!
Recordkeeping: Starting with the implementation of the new rules, the records for every performer who works for a company must be indexed alphabetically by the performer’s legal name (“or numerically where appropriate,” whatever that means – consult your First Amendment lawyer!) and include every stage name used by that performer since May 26, 1992. (Where they pulled that date from is unclear, but note that it conflicts with the previously-understood requirements for scores of features made between that date and July 3, 1995, which has previously been considered the starting point for recordkeeping under 2257.)
Not only that, but every time that same performer works for the company again, all of that performer’s previous records with the company, for features made after the implementation of these new rules, must be updated with the name of the new feature (and, we’re guessing, any new stage names that performer may have acquired in the interim.) If that sounds like it’s going to a bitch to comply with, rest assured that the government will expect very “t” to be crossed and every “i” dotted lest the company be found to be not compliant! (We’re sorry; you thought these rules were for your benefit?)
Beginning with the new regs, all records will be required to be cross-referenced by all names of each performer, including legal name, any aliases, maiden name, nickname, stage name and/or professional name (got a non-porn-related business name by which you’re known?), as well as by title, number or “similar identifier” of each “book, magazine, periodical, film, videotape, computer-generated image, digital image, picture or other matter.” In other words, Webmasters, get ready to list every stinkin’ URL in which an image (even non-photographic, it would seem) of a particular performer appears, even if that numbers in the hundreds or thousands! But here’s a gift: Only one copy of a performer’s ID need by kept – as long as each copy is “categorized and retrievable according to any name, real or assumed, used by the performer, and according to any title or other identifier of the matter.”
Records inspections: “Advance notice of record inspections shall not be given”... but the inspections shall take place during “normal business hours” (8 a.m. to 6 p.m.) and “shall be conducted so as not to unreasonably disrupt the operations of the producer’s establishment.” Also, “A producer may be inspected once during any four-month period, unless there is a reasonable suspicion to believe that a violation of this part [regulation] has occurred, in which case an additional inspection or inspections may be conducted before the four-month period has expired.” [Emphasis added]
Oh; and for those who may have interesting non-porn-related things lying around the office: “Notwithstanding any provision of this part or any other regulation, a law enforcement officer may seize any evidence of the commission of a felony while conducting an inspection.”
There’s a lot more to these new regulations, especially as affects Webmasters, and a lot more questions to be asked about them – and rest assured, First Amendment lawyers will be asking them – but the point is, the feds are obviously gearing up to actually make those inspections the industry has been expecting all these years, so be ready for them – and make sure you have a good attorney on retainer.
