[Editor's note: J.D. Obenberger, founding partner of J.D. Obenberger and Associates, is a Chicago-based attorney who practices in the areas of First Amendment and entertainment law, among others. He wrote the following explanation of the personal identification document requirements contained in Title 18 U.S.C. ยง2257 and associated regulations in order to clarify some misconceptions following the Justice Department's May 23 publication of revisions to the regulations. "This material is very hard even for very bright people to follow without the help afforded by formatting," he noted in a cover letter, adding that adult webmaster chat boards seem to be awash with incorrect and misleading information because some of the language in the statutes and associated regulations is technical and confusing. "That's why I wrote this," he said.]
The Constitution and Statutes are the primary source of law in the United States. The authority of any administrative agency or department to issue regulations derives only from authority granted by statute. To understand a regulation, one must first read its authorizing statute.
1. Start with the statute to find the duty under the statute:
18 United States Code Section 2257
a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which-
(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;
shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.
(b) Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct-
(1) ascertain, by examination of an
identification document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;(2) ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and
(3) record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation. . . .
(h) As used in this this section-
(2) "
identification document" has the meaning given that term in section 1028(d) of this title;
2. Determine what "identification document" means to determine what the law requires the producer to examine. Section 2257 tells us to look to Section 1028 (d):
18 United States Code Section 1028
. . . d) In this section and section 1028A-
(3) the term "
identification document" means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals;
3. Read the Regulations to determine any additional duties.
Sec. 75.2 Maintenance of records.
(a) Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that contains a depiction of an actual human being engaged in actual sexually explicit conduct that is produced in whole or in part with materials that have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce and that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made after July 3, 1995 shall, for each performer portrayed in such visual depiction, create and maintain records containing the following:
(1) 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. . .
4. The first term used, identification document, has previously been defined by Statute that the Regulation implements and possesses the meaning given to it by that Statute. The Attorney General does have specific statutory authority to prescribe the recording of "other identifying information" and the AG has done so in the case that the identification document does not contain a recent and recognizable picture of the performer. In that case a legible copy of a picture identification card must be contained in the records the producer maintains.
Sec. 75.1 Definitions.
(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.
5. As you now can see, the producer only has an obligation to deal with a picture identification card if he has not examined and copied (or received a copy of) an identification document that contains a recent and recognizable picture of the performer. If the producer has examined a birth certificate (without a picture and certainly without a recent picture) or a 1972 driver's license of a mature model (certainly not a recent picture) or perhaps a driver's license showing a model before cosmetic surgery (not recognizable) or before a male model grew a beard (not recognizable), only then does the regulation impose a duty to obtain and maintain a coy of what it calls a picture identification card, the special characteristic of which is that it can be accessed from a U.S. issuing authority, presumably for verification of authenticity.
[Emphasis, color, and formatting applied to statutes and regulatory provisions for clarity]
Copyright 2005, J. D. Obenberger and Associates
This document is not to be reproduced except in original colors with original formatting.
