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This article does not constitute legal advice but general information for the public. No attorney-client relationship is formed by virtue of this article with any person.
1. When does HR 4472 Take Effect?
2. Why Did Congress Enact the Section 2257 Amendments?
3. What is the Practical Effect of the Changes in Section 2257?
4. What Should a Webmaster Do to Comply with the Amendments?
5. What Else did Congress do in HR 4472?
6. What other Changes of Interest to Adult Webmasters did HR 4472 Make?
7. Isn’t There an Injunction Against Section 2257 Inspections?
8. Isn’t all of this Unconstitutional?
9. What Should I Do If the Agents Come for an Inspection?
10. Will Joe Obenberger Conduct any Seminars or Workshops on These Changes?
On Thursday, July 27 2006, President Bush signed House Resolution 4472 into law, an enactment with profound effects for adult webmasters.
1. When does HR 4472 Take Effect?
Bills passed by both houses of Congress become effective upon signing by the President in the absence of provisions in the Bill that otherwise provide. The definition of those who produce sexually explicit content now includes the class of persons who have been called “secondary producers” in the Regulations. That change seems to take effect immediately. (It is not clear what the effect of Denver Judge Milller’s injunction in favor of FSC members may have on enforceability of this provision on FSC members, but as to the other webmasters who are non-FSC members, it seems plainly enforceable now. It constitutionality is a matter that will be challenged as it is enforced, and perhaps before then.)
Section 502 (b) of the Bill provides that the provisions do not apply to the newly regulated class of images depicting the lascivious exhibition of the genitals or pubic area, if they were produced in whole or in part before the effective date of the statute, unless they were previously regulated (e.g. graphic depictions of masturbation or sexual intercourse that do include a lascivious exhibition of a penis and/or vagina.)
Additionally, the provisions concerning simulation of sexual conduct (2257A) do not become effective until ninety days after final rules implementing them are promulgated by DOJ according to Section 503 (i) (3) of the Bill. Thus, those provisions are not currently in effect.
2. Why Did Congress Enact the Section 2257 Amendments?
Fourteen years ago, In 1992, the United States Department of Justice promulgated Regulations to implement Section 2257 which included a class of persons called “secondary producers” who used explicit images but who had nothing to do with their creation. They were charged with the duty of maintain the same records as though they were a photographer, with the obligation to provide a disclosure statement, and the duty to make the records available for inspection. Certain constitutional objections to the statute and the Regulations were rejected by the United States Court of Appeals for the District of Columbia Circuit in ALA v. Reno in 1995 and the Regulations went into effect shortly afterwards. Eight years ago in Denver, the United Stated Court of Appeals for the Tenth Circuit, in Sundance Associates v. Reno, determined that the “secondary producer” obligations imposed by DOJ’s Regulations went further than Congress had authorized and that the record-keeping obligation had been imposed by Congress only on those with a close connection to the creation of the content. This ruling was never followed by any other court, and as a result, it was only the certain law in the mountain states of the Tenth Circuit. As a result of plenty of wishful (or hopeful) thinking, many - or at least some - producers in the first generation of adult internet commerce refused to provide Section 2257 records to webmasters, the webmasters often - or at least sometimes - acquired rights to the content anyway, and some tried to have it both ways by providing a disclosure statement referring to the original producer, as was permitted under the Regulations, but not maintaining records as required by the Regulations. Many webmasters with acquired content thought they were fully in compliance with the law and they simply did not know that the Regulations required them to maintain the records themselves. When the Free Speech Coalition responded to the Attorney General’s newly amended Regulations in 2005 with a lawsuit in the Tenth Circuit challenging the secondary producer obligations - a claim it was bound to win in the Tenth Circuit - Congress reacted by introducing at least three bills making it clear that Congress presently intended to impose the record-keeping obligation on secondary producers. These bills were introduced both before and after Judge Miller in Denver issued his December, 2005 ruling which preliminarily enjoined enforcement of the secondary producer requirements as a matter of authority rather than constitutionality, following the higher court decision in Sundance. (The Free Speech Coalition had also challenged the constitutionality of the entire scheme, including its effects on the creating photographers and videographers.
With one exception relating to maintaining a copy of the depiction of streaming content, Judge Miller shot down every constitutional argument he reached concerning the scheme imposed by Section 2257 and the implementing Regulations. He never reached the constitutional arguments concerning secondary producers because he followed the authority holding of Sundance - and it’s debatable whether the constitutional arguments of secondary producers are different from that of primary producers in a constitutionally significant degree. In my view, to be successful, under intermediate tier scrutiny, the arguments would advance the interests of publishers who have no practical ability to acquire the records required. “Appropriationist” artists who create derivative works come to mind, but it is unclear whether they or the photographers of voyeuristic images created with unsuspecting targets in public, or those who simply steal content, and other classes of persons who cannot obtain records, will amount to a substantial enough segment to create a good argument regarding substantial overbreadth. To this point, the analysis of the obligations of Section 2257 has never obtained “most strict scrutiny” analysis by the courts, mainly because it is not viewed as a scheme aimed at the Regulations of _expression, but rather at the protection of children. Obviously, such scrutiny, if granted by the court, would make it tougher for the government to sustain its burden in defending the statute.
Because Congress had the power to make its designation of authority concerning secondary producers to DOJ clear, Congress could and did fix the problem affecting enforceability of the secondary producer obligations in the Tenth Circuit. In fact, Congressional attention to Section 2257 was ripe because, through an oversight in the Protect Act enacted in Spring 2003, the definitions of sexually explicit conduct contained in Section 2256 were no longer in synch with Section 2257 and needed to be adjusted. Congress took advantage of that need for its attention, and in my view, directly responded to the Free Speech Coalition’s lawsuit, by crafting a legislative fix for the situation in the Tenth Circuit that cleared both houses of Congress and which became law on July 27, 2006.
The obligations imposed on Secondary Producers have been defended by DOJ because they deny a market to child pornography and create duplicate records in case the primary producer disappears, dies, or blows away.
The inclusion of the previously exempt “lascivious display” images was defended by proponents as “plugging a loophole” in the Section 2257 system designed to abate child pornography. To others of us, it just looks like a vindictive neoconservative punch in the nose of the adult industry, responding to the litigation in Denver. The bills proposing such a result seem to have been introduced after suit was filed there and the cause and effect seems a fair inference from the events.
3. What is the Practical Effect of the Changes in Section 2257?
The term “secondary producer” never existed in Section 2257 and is not found in the recently amended statute, either. Instead, Congress has included the persons who insert images depicting actual, explicit sex and those who digitize them with a commercial interest into the expanded definition of the persons who “produce” such conduct. Congress has clearly legislated that secondary producers are, indeed, producers. The obligations of the law affect them as much as the guy behind the lens, assuming the constitutionality of the Statute. It is now clear that licensing/assignee webmasters must maintain the records and content, publish the notice, categorize the records, and make them available for inspection. The essential difference between the categories of producers remains as laid out in the Regulations: The noncreative webmaster acquiring content may accept as authentic those records tendered by the primary producer and must categorize them and maintain them for inspection, make them available for that purpose, and publish a disclosure statement, listing the primary producer or himself (or herself), at his option. He or she must also maintain a record of the name and address of the primary producer.
Stealing covered content has always been a violation of the copyright laws - but now it’s a crime to use covered content without the records.
4. What Should Webmasters and Producers Do to Comply with the Amendments?
A five year prison term is nothing to trifle with. Webmaster and producer clients should consult with us to obtain guidance tailored to their own production and/or publication.
a. A webmaster should read Section 2257 as amended, which can be found at http://my.execpc.com/~xxxlaw/18_USC_2257_text.html carefully, and with recourse to a graphic version that illustrates the changes, which can be found at http://my.execpc.com/~xxxlaw/22572006_Redlined.htm. The entire text of the Act can be found at http://my.execpc.com/~xxxlaw/HR4472_7.27.06.pdf.
b. Given the commencement of inspections under the Section by trained teams of agents during the past week and their intimations of a sustained program of inspection, and in light of the five-year penalty provided for in the Statute, it would be foolhardy to continue the publication of covered images that are not documented pursuant to the statute and Regulations. It would be unreasonably risky under these circumstances to license or acquire covered content that is not accompanied by the mandated records, in view of Judge Miller’s wholesale rejection of the constitutional claims he considered. Those who have never understood their obligations, and those who never complied, now face the prospect of pulling content down at the risk of a jail term.
c. It is my advice to my clients to cease publication of any content that does not come with its papers. Those producers who refuse to provide the paperwork have justified their position by claiming to protect the privacy of their models. No one seems to articulate that they are also feathering their own nests by protecting their exclusivity concerning models and performers - at the risk of jail time for those who purchase it. The real concern of the content houses is that the models they engage just might be paid more or treated better by their competitors. Model releases produced by this office during the past year expressly authorize the disclosure of records required (on the face of the law) to licensees and assignees and releases without this language should not be used; Acquiring webmasters should refuse to do business with content houses that put them in jeopardy, no matter how prominent or well-established. Acquiring webmasters should not acquire content from producers who do not have as much to lose as they do.
d. All of this applies to all covered images, whether they are licensed or acquired expressly on one hand or simply distributed as free content or banners or otherwise. This Act applies to bitstream torrents, to decentralized file distribution, to the newsgroups, and to other web services. It remains wise practice to affix a 2257 notice to all content elements that may independently circulate.
e. Webmasters and producers should review their record keeping and disclosure statement in view of the recent changes - including the June, 2005 regulatory changes - and webmasters should examine their metatags and coding to avoid misleading persons using search engines (and otherwise) into viewing explicit content that they are not seeking. The disclosure statement should be reviewed. The retention of copies of the depictions and the inclusion and indexing of URLs are matters that should particularly concern clients. All banners should be reviewed for 2257 purposes and those that are covered should not be published without the maintenance of records and indexation.
f. Webmasters should create strict protocols 1) to assure that pre-4472 images are identifiable as exempt (or just taken down) and 2) to assure that images produced after the effective date of HR 4472 are included in Section 2257 record keeping and are embraced within the required Disclosure Statement.
g. The Act effectively provides that a link to the Section 2257 Disclosure Statement should appear on every page of every website that publishes covered material anywhere. It’s now a crime to do otherwise, and that should result in some simple site redesign for some webmasters. You should review your sites to assure that each page possesses a link to the disclosure statement.
5. What Else did Congress do in HR 4472?
Congress went a bit further in responding to the situation in Denver. It included lascivious images depicting genitals and the pubic area with the other matters that had earlier triggered Section 2257. It specifically provided that this provision is prospective rather than retrospective, working only to impose the obligation on images, not otherwise governed by Section 2257, that were not produced in whole or in part before July 27, 2006. This is likely to have a restraining effect on the use of new genital images which are not accompanied by records, which is its intended effect.
Anyone who did not pay attention last summer, when the Attorney General amended the Regulations implementing Section 2257 should be aware that he or she is responsible to keep a copy of each depiction and of every URL on which he or she is publishing the images. The images and identity documents must be retrievable by URL. Judge Miller’s decision seems to find that the requirement to keep copies of lengthy streams may be unconstitutional.
A table setting out all of the changes in the Regulations last summer - associated with the pertinent DOJ Commentary - can be found at http://www.adultinternetlaw.com/docs/5col.table.htm.
It is best to consult with an attorney in any case - but this is especially critical if you are producing streams.
6. What other Changes of Interest to Adult Webmasters did HR 4472 Make?
It created a federal felony in the refusal of a producer to permit the Attorney General or his designee to permit the inspections authorized under Section 2257.
House Bill 4472 made it a federal crime to produce obscenity. Though any competent defense to such a charge will include constitutional attacks on the statute, this elevates content production to a matter which may implicate a federal felony for the first time. This is the first new federal obscenity statute in a very long time. Why did Congress enact it? Probably to give federal agents a basis for a search warrant on producers who do not publish directly.
Section 702 of the Act creates a federal crime to deceive persons into viewing obscenity through metatags or other coding - punishable by up to ten years in prison - and to deceive minors into viewing material harmful to minors - punishable by up to twenty years in prison. It is time for webmasters to take a very close look at metatags and coding, and under the advice of a qualified attorney, to deal with such terms as “toys” in a manner that eliminates the risk associated with such words.
Finally, Congress created Section 2257A dealing with simulated depictions of sexual acts, a provision which expressly extends a wide discretion to the Attorney General in fleshing out Regulations that will precisely describe duties and exemptions, and which will not become effective until those Regulations are promulgated.
7. Isn’t There an Injunction Against Section 2257 Inspections?
There is no injunction against Section 2257 Inspections of primary producers and the government has started a program of inspections with specially trained teams. This relief was denied to the Free Speech Coalition in Denver. Free Speech Coalition members and non-members, alike, who produce content, may be inspected.
There remains a preliminary injunction against inspections of secondary producers who are members of the Free Speech Coalition. Non-FSC members are simply not covered. Whether it will long survive or whether it applies to anyone in light of the new statutory amendment remains to be seen.
8. Isn’t all of this Unconstitutional?
That will be for the courts to determine ultimately. With the one exception noted in this article above - and another issue related to the duration for which records must be maintained - the few courts that have considered Section 2257 and its Regulations have rejected each constitutional argument they have squarely faced. While it’s obvious that past performance is no guarantee of future yields (or the lack thereof!), a reasonably prudent webmaster should not place heavy reliance on the unconstitutionality of Section 2257 or its associated Regulations generally in conducting a content production or online publishing business.
Along with many other defenders of Liberty, Reed Lee of this office believes passionately that the entire scheme is constitutionally flawed because it works an unreasonable burden on _expression. He believes that most strict scrutiny should be applied to the scheme by the courts and that it must fall because it cannot be constitutionally justified. I most sincerely hope that he is correct. Reed points to the victory concerning virtual child pornography in the Free Speech Coalition case as the kind of victory that can be won here. In balance, no real children were directly affected by the statute considered by the Supreme Court in that case, whereas actually underage persons are the articulated protected class in this legislation. That factor is capable of making a significant difference in the outcome. He also believes that the creation of Section 2257A creates a content-regulating scheme that invites strict scrutiny. The counterargument is that the scheme simply allocates the burden of record keeping on the perceived risk of harm to children in distinguishing hardcore from simulation. Time will tell.
Our universal hope that the scheme falls because of the unwarranted burden it places on erotic _expression is no substitute for confidence in the success of that argument, and little consolation to those facing time in the Bureau of Prisons should the statute be deemed enforceable and constitutional.
9. What Should I Do if the Agents Come for an Inspection?
a. Ascertain authority - It is not clear at present who has been designated by the Attorney General to conduct Section 2257 Inspections. This office will shortly transmit a Freedom of Information Request to DOJ in an attempt to determine who has been designated and you will be informed further as we learn more. Teams composed of at least one FBI agent with DOJ credentials accompanied by other active duty or retired agents bearing DOJ credentials should provisionally be assumed to have authorization to conduct such investigations. You should ask the team whether it also has a search warrant and if the answer is affirmative, you should ask to see it.
b. Don’t panic. Try to calm down.
c. Determine from the team the nature of the inspection - ask them what they want to see, and produce those records. If you are a member of the Free Speech Coalition and the team has asked to see records that include secondary producer records, tell them that you are a member of the Free Speech Coalition and that you believe that an injunction from the US District Court for the District of Colorado protects you from inspection of these records. If they insist on examination of the records, produce them for inspection while politely expressing objection.
d. Do not refuse the inspection to a team which apparently seems to be authorized to conduct such an inspection. - It is appropriate to indicate that you are granting no consent to any search but that you express no objection or refusal to permit the inspection. Do not physically impede, obstruct or interfere with any aspect of the investigation, speak any issue or objection in a measured tone, and do not get belligerent or argumentative with any member of the team. If you observe what you believe to be misconduct, note the particular details and the team member or members involved.
e. Immediately call the lawyer you have previously retained. Before calling, make note of the number of agents, the nature of their credentials, their names, the agency in which they work and the name of the field office, the time of arrival, and any statements any of them have made to you. If they have given you a card, be prepared to provide that lawyer with the information.
f. It is best to restrict the locale of the inspection to a designated room or area where the records are stored by constructing such a place and putting the records there in advance of an inspection. Object politely to any deviation into any place other than where the records are to be inspected.
g. Such a designated area can be equipped with a video camera for surveillance of the activity with a signal sent to a remote location. In some places, including Illinois, it is illegal to make a voice recording of a conversation without the knowledge and consent of all persons involved in the conversation, and you should avoid making a sound recording without such consent of all persons present unless you have clearly established a legal right to do so in your jurisdiction.
h. You are under no obligation to answer any questions except to identify and authenticate the records and it is unwise to discuss any matter concerning your operations, business, or activity with the agents. Any statement made under such circumstances can be admissible in court against you. You will make no mistake by avoiding any casual conversation. The agents are performing their job and that job includes obtaining any and all useful information and physical objects. It is most definitely not your job to give them anything whatever other than the documents which must be produced and you should not do so. You may refer them to us if they have questions.
i.Keep visual observation of the activity. The team can be expected to copy records at their own expense with their own equipment. No records normally will be taken away. If the agents wish to remove records in your possession, express an objection politely, ask for a receipt for the document or things taken, and request that they make a copy for your own records. Take close and detailed notes on what they say and do. Do not show them your notes. Do not show them this list.
j. All of your 2257 records should be physically segregated from all other records - and include no other records within them. If they ask for other records, it is best to advise them that you do not maintain them with the records kept for Section 2257 purposes and that they are not available at this location at this time.
k. At the end of the inspection, the agents may tell you that you have passed. Or they may tell you that you need to correct mistakes and that they will be back. Or, if the situation warrants, if they believe that they have probable cause, they may arrest you and you will be taken for questioning or detention pending a bond hearing. You must get word concerning this to us immediately and from that point forward, you must make no statement whatsoever and advise them that you desire to speak with your attorney They may attempt to engage you repeatedly in conversation to get additional facts. Remember always, that if their case was air-tight, they wouldn’t feel any need to question you. You are unlikely in the extreme to talk your way out if you have been arrested, but you are quite likely to build a case for them if you make comments, even those that sound innocent at the time.
l. Call your lawywer again when the inspection concludes and be prepared to discuss everything that took place.
10. Will Joe Obenberger Conduct any Seminars or Workshops on These Changes?
On Saturday, August 5, at the hour of 1:00 pm, Joe Obenberger will conduct a two-hour legal workshop for content providers and webmasters as part of the AVN Online Internext show and under its auspices, at the Westin Diplomat Resort in Hollywood, Florida, in Diplomat Ballroom 1. The workshop will be free to Internext attendees with a Seminar Pass. The program will concentrate on the substance of the law of obscenity and the punishment and forfeiture provisions that apply to it - and Section 2257, including its recent amendments - and to the legal principles involving copyright, privacy, and the appropriation of images and performances. This workshop is intended to provide essential legal information that should be in the possession of everyone involved in the online adult industry.
At the hour of 10:00 on Sunday Morning, August 6, he will participate in the Internext legal seminar together with other attorneys of national stature who serve the Adult Internet. Though it seemed at first unlikely that a seminar held at 10 am on the last day of Internext, a Sunday, was likely to draw a substantial audience, the present circumstances suggest that a standing-room-only audience may appear.
Potential clients who desire personal consultation during Internext or by phone are requested to make arrangements with this office promptly.
No short article on this topic can comprehensively deal with all of the issues in their complexity and I make no claim that this article has done so. You are advised to contact us regarding your own situation at 312.558.6420.
All of the foregoing is presented for the general information and education of a select group of Internet and adult industry professionals. Nothing contained in this article creates any attorney-client relationship and it should not be understood as legal advice to you or anyone else. “xxxlaw” and “adultinternetlaw” are service marks of J. D. Obenberger and Associates. All text, graphics, images and photos, Copyright 2006, J. D. Obenberger and Associates. All rights reserved.
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