2257 Record Keeping

A judge has upheld a federal law that requires the pornography industry to verify performers are at least 18 years of age, rejecting industry arguments that the measure is unconstitutional and imposes unnecessarily burdensome record-keeping requirements.

U.S. District Judge Michael Baylson in Philadelphia ruled against a bid by the adult entertainment industry's advocacy group to have the law overturned.

Federal law requires producers of sexually explicit photos, videos and other media to obtain government-issued photo ID from each performer and keep it on file for government inspection at unnecessarily short notice. The law also imposes labeling requirements.

The Free Speech Coalition filed suit in 2009, arguing the law is overbroad and tramples on protected speech. The industry says it already takes measures to keep kids out of porn.

In the US the 2006 Adam Walsh Act, created a recordkeeping regime for producers of simulated sexually explicit content and of content displaying lascivious exhibition of the genitals or pubic area, known by its criminal code name as 2257A.

But that was nearly six years ago, and apparently because of a requirement by the Obama administration's Office of Management and Budget, the U.S. Department of Justice has now tasked itself with finding out whether the burdens of creating and keeping 2257A records exceed those allowed under the Paperwork Reduction Act of 1995, and has asked for public comment regarding those 2257A regulations.

The US Justice Department and its Obscenity Prosecution Task Force has posted a list of frequently asked questions and answers pertaining to the most recent revisions for 18 U.S.C. § 2257 regulations, which were issued in December.

The 18 U.S.C. § 2257 regulations govern name- and age-verification, record-keeping and labeling requirements on producers of visual depictions of actual human beings engaged in actual sexually explicit conduct.

The Justice Department's FAQs attempt to define terms including lascivious exhibition of the genitals or pubic area and simulated sexually explicit conduct. The FAQs also include information about which parts of a performer's ID can be redacted, whether records can be kept electronically and the appropriate dating of content.

Adult industry trade group the Free Speech Coalition has announced plans to challenge the revised 2257 regulations. In ongoing litigation against the Justice Department and the 2257 regulations, FSC has asserted that the regulations are burdensome for producers of sexually explicit content and a violation of content producers' First Amendment rights.

The United States Court of Appeals for the Sixth Circuit has upheld the 2257 federal record-keeping law in the long-contested Connections case.

Writing for the majority, Circuit Judge Sutton addressed what he sees as the critical question in this issue: Under what circumstances is it appropriate to invalidate a law in all of its applications when its invalidity can be shown [or assumed] in just some of its applications?

Sutton went on to discuss the hypothetical middle-aged couple shooting their own erotica — a practice used as an example of the burdensome requirements of the statute. Over twenty years and numerous administrations, the statute has never been enforced in this setting, and the attorney general has publicly taken the position that he will not enforce the statute in this setting, Sutton wrote.

Opposing the ruling was Circuit Judge Helene N. White, who in writing a dissenting opinion stated her belief that under intermediate scrutiny the identification/record-keeping requirements of 2257 impose an unconstitutional burden on plaintiffs' First Amendment rights.

As for the future of the statute it really comes down to whether or not the U.S. Supreme Court will take the case, attorney Larry Walters told XBIZ: But that is much less likely to happen since the circuit court upheld the law, rather than overturned it.

The upholding of 2257 presents a possible immediate threat to the industry as well:

Webmasters [and others] should be much more concerned about possible inspections and prosecutions, Walters said: Now that the law has been upheld, 2257 inspections could resume at any time.

Addressing fellow members of the Free Speech Coalition, attorney Jeffrey Douglas said the FBI won't show up anytime soon to inspect the records of adult producers under the revised 2257 regulations.

Douglas' remarks followed in the wake of events which have left the latest changes to 2257 in limbo, leading to questions about the future of the record-keeping laws under President Obama.

The final revisions to 18 U.S.C. §2257 officially took effect Jan. 20, the same day Obama was sworn into office.

Obama's Chief of Staff Rahm Emanuel announced on the same day that all regulatory changes not yet in effect from the final days of the Bush regime would be suspended, pending review by the new administration.

After inspecting more than two dozen adult companies in an 18-month period, the Justice Department has yet to bring a single 2257-based criminal case against a mainstream" adult producer.

And the question remains: Will President Obama's administration continue to pursue an even more overcomplicated version of this law?

The US Justice Department has released revised Section 2257 regulations and they are expected to go in effect in three months.

The 167-page draft includes a change that enables for third-party recordkeeping, attorney J.D. Obenberger told XBIZ.

It means individuals and small companies will be able to contract with a third party with the necessary records, giving them added privacy and security and reduction in compliance costs, he said.

The revised regulations are more stringent with the application of Adam Walsh Child Protection Act of 2006, which requires notices to be placed on each page of every adult website.

Webmasters will now need to post a link to the disclosure statement on all pages where 2257-triggering content appears, attorney Larry Walters from FirstAmendment.com told XBIZ. This is a change from the prior method of posting a link only on the home page.

Walters added that there are several other interesting nuggets in the regulations, and the comments, such as the determination that videos embedded on Web pages from sites like YouTube.com need to be accompanied by full 2257 compliance efforts, even if the originating site may be exempt from compliance.

The 6th Circuit U.S. Court of Appeals has granted the federal government's request for a rehearing on the 2257 federal record-keeping law struck down as unconstitutional by a 6th Circuit panel last October.

The 2257 rules require adult producers to keep onerous records of participants ready for inspection at short notice. They are onerous to the point of being repressive and are way beyond the requirements of checking for under age performers.

The government filed its petition for a rehearing on the 6th Circuit ruling in January. While the decision to move forward with an en banc (full court of senior judges) rehearing of the panel decision is bad news for the porn business, it comes as no surprise.

When any kind of federal statute is struck down, there's a much higher likelihood of an en banc hearing being granted than there is with any other form of ruling, attorney Jeffrey Douglas told AVN: While this news is certainly disappointing because of how bad the law is, it can't be characterized as surprising.

The original panel ruling striking down 2257 as unconstitutional and overbroad was the result of a long, hard-fought battle by Rondee Kamins of GVA and attorney J. Michael Murray. The rehearing could overturn a major victory for the adult industry - but Douglas remains optimistic: Because the opinion by the panel was so well-written and well thought-out, and because of my confidence in [attorney] Mike Murray, I'm still optimistic that this is going to come out right .