2257 Information: A Summary of 18 USC 2257 and Relevant Regulations:

When people think of the adult industry record-keeping requirements, they think of 18 USC section 2257. In reality, it's a bit more complicated than that. The law is found in 18 USC Title 18, Part I, Chapter 110, which includes 18 USC section 2251 through 2260A. Many of these sections deal with child pornography, and as such, are beyond the scope of this summary, which deals with the notice and record-keeping requirements for legitimate producers of adult content. The relevant sections here are sections 2256, 2257, and 2257A. This is not the end of the road, however. The law must be interpreted with reference to the relevant federal regulations, which are located in 28 CFR Part 75, sections 75.1 through 75.9.

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Definitions

Section 2256 sets forth the definitions for the chapter; however, other important definitions are found elsewhere in the law and regulations.

Producers

The first hurdle is to define who is a producer under the law. Section 2256 defines producing as: ^[1]

• producing
• directing
• manufacturing
• issuing
• publishing
• advertising

Sections 2257 and 2257A further define the term produces as: ^[2]

• Actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being;
• Digitizing an image of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or
• Inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content of a computer site or service that contains a visual depiction of sexually explicit conduct.

The regulations provide the most clarity, defining both primary and secondary producers:

• A primary producer is one who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct. ^[3]
• A secondary producer is one who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct. This includes any person who inserts such visual depictions on a computer site or service, or who otherwise manages the site or service's sexually explicit content. This also includes any person who enters into a contract, agreement, or conspiracy to do so. ^[4]

Sexually Explicit Conduct

Sexually explicit conduct means actual or simulated: ^[5]

• sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
• bestiality;
• masturbation;
• sadistic or masochistic abuse; or
• lascivious exhibition of the genitals or pubic area of any person.

Simulated Sexually Explicit Conduct

Simulated sexually explicit content means conduct that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not. ^[6]

Visual Depiction

Visual depiction includes undeveloped film and videotape, as well as data stored on computer disk or by electronic means which is capable of being converted into a visual image.^[7]

Performer

Performer includes: Any person portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct.^[8]

Record-Keeping Requirements Generally

Sections 2257 and 2257A set forth the actual record-keeping and notice requirements. 2257 applies to actual sexually explicit conduct, while 2257A applies to simulated sexually explicit conduct. Generally speaking, both statutes require producers of materials containing visual depictions of actual or simulated sexually explicit conduct to create and maintain individually identifiable records for every performer who appears in the depiction. ^[9]

To comply with the law, producers must determine and record: ^[13]

• The performer's name and birth date via inspection of the performer's picture identification card (the nuts-and-bolts of which are explained below); and
• Any other name the performer may have used, including his or her maiden name, alias, nickname, stage, or professional name; and
• Any other identifying information prescribed by regulation.

Producers must maintain these records at their place of business or they may contract with a non-employee third-party custodian. ^[10]

Third-Party Custodian of Records

Beginning March 18, 2009, producers may contract with a non-employee third-party to retain copies of these records. ^[11]

Form of Records

Records may be kept in hard-copy or digital form. ^[12]

Exceptions

The provisions of 2257 and 2257A generally do not apply to depictions of actual sexually explicit conduct made before July 3, 1995. They generally do not apply to depictions of simulated sexually explicit content made before March 18, 2009. Nor do they apply to depictions of actual sexually explicit content limited only to the lascivious display of the genitals or pubic area made before March 18, 2009. ^[14]

For depictions made after that date, there is still an exception for material that contains only simulated sexually explicit content or the lascivious exhibition of the genitals or pubic area. ^[15] There are, however, a number of requirements that must be met, most notably, that the producer must certify to the U.S. Attorney General that it collects and maintains individually-identifiable information regarding all performers in the normal course of business. ^[16]

The Nuts-And-Bolts of Record-Keeping

Records may be kept in hard-copy or digital form. ^[17] Each record must contain the following:

• The legal name and date of birth of each performer; ^[18]
• A legible copy the performer's identification document. A legible hard-copy of a picture identification card must be provided if the identification document does not contain a recent and recognizable picture of the performer. ^[19] Producers do not need to keep more than one copy of a performer's picture identification card and identification document so long as it is categorized and retrievable by any of these criteria. ^[20]
  • The picture identification card must be issued by a United States or State government entity for any performer who is an American citizen, whether the production occurs in the United States or abroad. A producer abroad may rely on foreign government identification cards for foreign performers, but must maintain a copy of that identification. Producers may not rely on a foreign identification card for a foreign citizen when production occurs in the United States, but must check a United States identification card in that circumstance. ^[21]
• A copy of the depiction. For live internet performances, the records must include a copy of the depiction with running-time sufficient to identify the performer to associate him or her with the records needed to confirm his or her age; ^[22]
• The date of original production of the depiction; ^[23]
• The title or identifying number of the depiction; ^[24]
• Where published on the Internet, a copy of any URL associated with the depiction. If no URL is associated with the depiction, the records shall include another uniquely identifying reference associated with the location of the depiction on the Internet; ^[25]
• Any name, other than the performer's legal name, ever used by the performer, including a maiden name, alias, nickname, stage name, or professional name. These names must be indexed by the title or identifying number of the depiction; ^[26]

Records must be organized alphabetically (or numerically where appropriate). They must be retrievable by: ^[27]

• the performer's name (real or assumed) and
• the title or number of the matter.

Subsequent Publication

If a producer subsequently publishes additional material containing visual depictions of a performer for whom he maintains records, the producer must add the additional title or identifying number of the matter to the performer's existing records. ^[28] One example of where this might be necessary is the publication of a compilation disc using footage from a variety of previous shoots.

Location of Records

Records may be kept at the producer's place of business or with a non-employee custodian of records.^[29]

Duration of Record-Keeping

Records must be maintained and kept available for inspection for seven years from the date they were created or last amended. The time period drops to five years if the producer stops doing business. ^[30]

Inspection of Records

Records must be available for inspection by the Attorney General at all reasonable times. ^[31]. The Attorney General may delegate inspection duties to subordinate officials, and is not required to provide advance notice of inspections. ^[32]

Notice Requirements

Every producer must affix a statement describing the location of the records required by this part to every copy of the published matter. This includes every page of a Web site on which a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct appears. ^[33] Each page of a website required to carry the notice may link to a page containing all the required compliance information. ^[34]

This statement must include: ^[35]

• The title of the published matter (unless the title is prominently set out elsewhere in the matter) or, if there is no title, an identifying number or similar identifier that differentiates this matter from other matters which the producer has produced;
• A street address at which the records may be made available. A post office box address does not satisfy this requirement.
• If the producer is an organization, the statement must contain the title and business address of the person who is responsible for maintaining the records.
• The required statement must be displayed in typeface that is no less than 12-point type or no smaller than the second-largest typeface on the material and in a color that clearly contrasts with the background color of the material. For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer.
• If the producer contracts with a non-employee custodian of records to serve as the person responsible for maintaining his records, the statement must contain the name and business address of that custodian instead of the producer's.
• The information contained in the statement must be accurate as of the date on which the matter is produced or reproduced.

Penalties

Failure to comply with the provisions of 18 USC 2257 may result in an initial fine and/or imprisonment not to exceed five years. Subsequent convictions are punishable by a fine and up to ten years imprisonment, with a minimum term of two years. ^[36]

Non-compliance with 18 USC 2257A may result in a fine and/or imprisonment for up to a year. There are additional punishments for violations involving the exploitation of a minor. ^[37]

Notes

1. ^ 2256(3)
2. ^ 2257(h)(2), 2257A(g)
3. ^ 28 CFR section 75.1(c)(1)
4. ^ 28 CFR section 75.1(c)(2)
5. ^ 2256(2)(A), 28 CFR section 75.1(n)
6. ^ 28 CFR section 75.1(o)
7. ^ 2256(5)
8. ^ 2257(h)(3), 2257A(g)
9. ^ 2257(a)(1), 2257(h)(1), 2257A(a)(1), 28 CFR section 75.2(a)
10. ^ 2257(c), 2257A(c), 28 CFR section 75.4
11. ^ 2257(c), 2257A(c), 28 CFR section 75.4
12. ^ 28 CFR section 75.2(f)
13. ^ 2257(b), 2257A(b)
14. ^ 28 CFR section 75.7
15. ^ 2257A(h)(1)
16. ^ 2257A(h)(1)(A)(ii), see 2257A(h)(1)-(2), 28 CFR section 75.9
17. ^ 28 CFR section 75.2(f)
18. ^ 28 CFR section 75.2(a)(1)
19. ^ 28 CFR section 75.2(a)(1)
20. ^ 28 CFR section 75.3
21. ^ 56 FR 77437
22. ^ 28 CFR section 75.2(a)(1)
23. ^ 28 CFR section 75.2(a)(4)
24. ^ 28 CFR section 75.2(a)(3)
25. ^ 28 CFR section 75.2(a)(1)
26. ^ 28 CFR section 75.2(a)(2)
27. ^ 28 CFR section 75.2(a)(3), 75.2(d), 75.3
28. ^ 28 CFR section 75.2(c), 75.2(d)
29. ^ 28 CFR section 75.4
30. ^ 28 CFR section 75.4
31. ^ 2257(c), 2257A(c)
32. ^ 28 CFR section 75.5(b), 56 FR 77446
33. ^ 28 CFR section 75.6(a)
34. ^ 56 FR 77447
35. ^ 28 CFR section 75.6(b)
36. ^ 2257(i)
37. ^ 2257A(i)(1)-(3)