Legal

Secondary producers

This is the most significant for webmasters. The reason is “producers” of qualifying images are required to have in their possession all the records required by 2257 and have them properly indexed and available for inspection by the attorney general’s representative all day, every day. Webmasters’ ability to dodge this burden has been a significant force in driving the explosion of the adult Internet.

The 1998 decision in Sundance Assoc. Inc. v. Reno established (at least in the 10th U.S. Circuit Court of Appeals) that so-called “secondary producers”—effectively meaning every website that did not shoot content—were not required to keep records. If the webmaster’s activities did not involve actual photography or any “hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted,” all that was required was affixing the appropriate disclosure statement (label). Sundance held that, because 2257 specifically excluded such people from recordkeeping, the government could not write regulations imposing those requirements.

In the 2005 rewrite of the regulations, the Court thumbed its nose at the Sundance decision, expressly claiming it was wrongly decided (broadly defining “producer” to include anyone making a physical or electronic copy of a qualifying image). In response, the FSC’s suit stopped enforcement of the extensive requirements against secondary producers—i.e. most webmasters—and the preliminary injunction remained in place at press time.

The Justice Department struck back by hastening through Congress the Adam Walsh Child Protection and Safety Act of 2006, the subject of most of this discussion. Effective July 27, 2006, it legislatively overruled Sundance, eliminating the exception for those not involved in actual photography or any “hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted” and broadly recasting the definition of “producing” to include almost all physical or electronic copying of any qualifying image.

Webmasters belonging to the FSC continue to dodge the bullet because of the language of the injunction. If the FSC wins its suit, then “secondary producers” will benefit. Otherwise, they will be required to have all the records, properly indexed and ready for inspection by the attorney general’s representatives “from 9 a.m. to 5 p.m., local time, Monday through Friday,” including holidays.

Expanded coverage

The 2257 recordkeeping act as a broad proposition was applicable only to depictions of “actual sexually explicit contact”—not to simulated conduct or simple nudity (a likely concession to mainstream studios, magazines, and cable television). The Adam Walsh Law changed that.

First, except images photographed before July 27, 2006, 2257 now applies to “lascivious exhibition of the genitals or pubic area of any person.” That does not include buttocks or breasts, but it’s a much broader application. The definition is drawn from the child pornography statutes, meaning courts have had 20-plus years to interpret it and, having little sympathy for child pornographers, broadly construe it, including application to depictions of fully clothed pubic areas. What “lascivious exhibition” means is a complex analysis, but caution requires interpretation in the context of adult entertainment such that “lascivious” includes any depiction of the pubic area unless covered by loose-fitting clothing other than underwear.

Webmasters whose content already is covered by 2257 are not impacted. However, e-tailers who display racy packaging are placed in a position in which they must either confine their promotional images to waist-up pictures or comply with 2257 by including the required statement of the location of the records for each image or—worse—by actually having the records and fending off inspections should FSC’s lawsuit be unsuccessful.

The Adam Walsh Law also creates a mirror image of 2257, applicable to “simulated sexually explicit conduct.” However, 2257A does not become effective until after regulations have been issued. The particulars of 2257A are thus beyond the scope of this article, save one: 2257A gave some a bail-out to avoid inspections for both “simulated” depictions and “lascivious exhibition” depictions; but, the bail-out is not effective until 2257A is effective—when regulations are issued (not for some time to come). The bail-out stipulates that a producer can avoid this whole mess by complying with a list of requirements, including that the image “is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer [and] is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer.”

That eventually will exempt some webmasters, but qualifying for the exemption is fairly complex—unless you are an influential publisher or major motion picture studio, of course.

Where to put the label

The 1995 revision of the 2257 regulations did impose less-than-clear but arguably manageable requirements concerning where websites were required to place the 2257 disclosure statement. The regulations defined the size of the typeface, color contrast, and location of the statement, including an immense concession allowing a hyperlink to the disclosure.

The Adam Walsh Law clouded that by adding to the statutory requirement that the producer “shall cause to be affixed to every copy of any matter” a disclosure statement—rather, a confusing statement: “In this paragraph, the term ‘copy’ includes every page of a website on which [an image] appears.” Literally interpreted, that seems to require that the whole disclosure statement appear on every page of a website containing a qualifying image. However, the consensus is, because Congress left in that paragraph the qualifier that the statement shall be affixed “in such form as the Attorney General shall by regulations prescribe,” the use of a hyperlink on each page containing a qualifying image is sufficient. Nonetheless, that stands as an outrageous requirement.

The future

The government methodically is inspecting primary producers and claims to be working feverishly on new 2257 and 2257A regulations, although that process came nearly one year after proposed regulations were issued. Meanwhile, the FSC suit in Denver moves at a snail’s pace, and with new regulations coming, it may be shooting at a moving target. Keep your ears to the ground, webmasters.

Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online’s offices, or at clydedewitt@earthlink.net. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.