[Federal Register: July 12, 2007 (Volume 72, Number 133)]
[Proposed Rules]
[Page 38033-38039]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy07-19]
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DEPARTMENT OF JUSTICE
28 CFR Part 75
[Docket No. CRM 104; AG Order No. 2888-2007]
RIN 1105-AB18
Revised Regulations for Records Relating to Visual Depictions of
Sexually Explicit Conduct
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the record-keeping, labeling, and
inspection requirements to account for changes in the underlying
statute made by Congress in enacting the Adam Walsh Child Protection
and Safety Act of 2006.
DATES: Written comments must be received by September 10, 2007.
ADDRESSES: Written comments may be submitted to: Andrew Oosterbaan,
Chief, Child Exploitation and Obscenity Section, Criminal Division,
United States Department of Justice, Washington, DC 20530; Attn:
``Docket No. CRM 104.''
Comments may be submitted electronically to: Admin.ceos@usdoj.gov
or to http://www.regulations.gov by using the electronic comment form provided
on that site. Comments submitted electronically must include Docket No.
CRM 104 in the subject box. You may also view an electronic version of
this rule at the http://www.regulations.gov site.
Facsimile comments may be submitted to: (202) 514-1793. This is not
a toll-free number. Comments submitted by facsimile must include Docket
No. CRM 104 on the cover sheet.
FOR FURTHER INFORMATION CONTACT: Andrew Oosterbaan, Chief, Child
Exploitation and Obscenity Section, Criminal Division, United States
Department of Justice, Washington, DC 20530; (202) 514-5780. This is
not a toll-free number.
SUPPLEMENTARY INFORMATION: The Child Protection and Obscenity
Enforcement Act of 1988, Public Law 100-690, codified at 18 U.S.C.
2257, imposes certain name- and age-verification, record-keeping, and
labeling requirements on producers of visual depictions of actual human
beings engaged in actual sexually explicit conduct. Specifically,
section 2257 requires producers of such material to ``ascertain, by
examination of an identification document containing such information,
the performer's name and date of birth,'' to ``ascertain any name,
other than the performer's present and correct name, ever used by
[[Page 38034]]
the performer including maiden name, alias, nickname, stage, or
professional name,'' and to record and maintain this information. 18
U.S.C. 2257(b). Violations of these record-keeping requirements are
criminal offenses punishable by imprisonment for not more than five
years for a first offense and not more than 10 years for subsequent
offenses. See id. 2257(i). Any matter containing such visual depictions
must be labeled with a statement indicating where the records are
located, and those records are subject to inspection by the government.
See id. 2257(c), (e). These provisions supplement the federal statutory
provisions criminalizing the production and distribution of materials
visually depicting minors engaged in sexually explicit conduct. See id.
2251, 2252.
The regulations in 28 CFR part 75 implement section 2257. On May
24, 2005, the Department of Justice (``the Department'') published a
final rule that updated those regulations to account for changes in
technology, particularly the Internet, and to implement the
Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today (PROTECT) Act of 2003, Public Law 108-21. See 70 FR
29607 (May 24, 2005).
On July 27, 2006, President George W. Bush signed into law the Adam
Walsh Child Safety and Protection Act, Public Law 109-248 (``the
Act''). As described in more detail below, the Act made a number of
changes to section 2257. This proposed rule amends the regulations in
part 75 to comport with these statutory changes.
Need for the Rule
In publishing the May 24, 2005, regulations, the Department
explained the urgency of protecting children against sexual
exploitation and, consequently, the need for more specific and clear
regulations detailing the records and inspection process for sexually
explicit materials to ensure the accurate identity and age of
performers.
The identity of every performer is critical to determining and
ensuring that no performer is a minor. The key congressional concern,
evidenced by the child exploitation statutory scheme, is that all such
performers verifiably not be minors, i.e., not be younger than 18. See
18 U.S.C. 2256(1), 2257(b)(1). Congress has recognized that minors
warrant special concern in this area. Children are incapable of giving
voluntary and knowing consent to perform, or to enter into contracts to
perform, in visual depictions of sexually explicit conduct. In
addition, children often are involuntarily forced to engage in sexually
explicit conduct. For these reasons, visual depictions of sexually
explicit conduct that involve persons under the age of 18 constitute
child pornography. See id. 2256(8).
The current regulations and this revised proposed rule provide
greater details for the record-keeping and inspection process in order
to ensure that minors are not exploited in visual depictions of actual
sexually explicit conduct. Neither the current regulations nor this
revised proposed rule restrict in any way the content of the depictions
themselves. Instead, the rules clarify the identity verification,
record-keeping, and labeling requirements pertaining to the depictions.
By requiring producers to ascertain the age of performers in their
depictions, and maintain records evidencing such compliance, the
statute helps to ensure that producers will not exploit minors, either
through carelessness, recklessness, or deliberate indifference. As for
those who intentionally produce material depicting minors engaged in
sexually explicit conduct, the statute and regulations either require
them to maintain records of their crimes or provide an additional basis
for prosecuting such individuals besides the applicable child-
exploitation statutes. In addition, by confirming that the statute and
regulations apply to ``secondary producers,'' the revised proposed rule
will make it more difficult for the purveyors of such material to
access the market. As the U.S. Court of Appeals for the DC Circuit
explained in partially upholding the constitutionality of an earlier
version of the regulations, one of the reasons for the regulations is
``to deprive child pornographers of access to commercial markets by
requiring secondary producers to inspect (and keep a record of) the
primary producers' proof that the persons depicted were adults at the
time they were photographed or videotaped.'' American Library Ass'n v.
Reno, 33 F.3d 78, 86 (DC Cir. 1994).
The proposed revision of the existing regulations also reflect
several significant changes to section 2257 made by the Act.
First, the Act corrected an anomaly in the definition of ``sexually
explicit conduct'' to which section 2257's requirements apply. Prior to
the enactment of the Act, section 2257 referenced the definition of
``sexually explicit conduct'' for purposes of Chapter 110 of the U.S.
Code in section 2256(2)(A) and listed four of the five categories of
conduct included in that section. Section 2257 did not include
``lascivious exhibition of the genitals or pubic area of a person.'' 18
U.S.C. 2256(2)(A)(v). The Act revised section 2257 to include that
category along with the others. See Adam Walsh Child Safety and
Protection Act, Public Law 109-248, section 502(a)(4). Because part 75
defines ``sexually explicit conduct'' by referencing that term in
section 2256(2)(A), part 75 will apply to depictions of the
``lascivious exhibition of the genitals or pubic area of a person.''
The proposed rule reflects this change by adding to the
definitional section of the regulations at Sec. 75.1(n). Although
proposed part 75 applies to the ``lascivious exhibition of the genitals
or pubic area of a person,'' it does not define this term beyond the
language of section 2256(2)(A). Case law provides guidance as to the
types of depictions that federal courts have considered as lascivious
exhibition of the genitals or pubic area (hereinafter, ``lascivious
exhibition''), and the Department will rely on such precedent in the
context of section 2257 investigations and prosecutions.
The leading case is United States v. Dost, 636 F. Supp. 828 (S.D.
Cal. 1986), aff'd sub nom. United States v. Weigand, 812 F.2d 1239 (9th
Cir. 1987), which provides a list of factors for determining whether a
visual depiction constitutes lascivious exhibition:
(1) Whether the focal point of the visual depiction is on the
child's genitalia or pubic area;
(2) Whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated with
sexual activity;
(3) Whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child;
(4) Whether the child is fully or partially clothed, or nude;
(5) Whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity;
(6) Whether the visual depiction is intended or designed to
elicit a sexual response in the viewer.
Dost, 636 F. Supp. at 832. Several courts of appeals have relied upon
the Dost factors. See, e.g., United States v. Knox, 32 F.3d 733 (3d
Cir. 1994); United States v. Grimes, 244 F. 3d 375 (5th Cir. 2001);
United States v. Wolf, 890 F.2d 241 (10th Cir. 1989).
It should be noted that, although these factors have been used to
determine whether visual depictions of children constituted lascivious
exhibition for purposes of criminal prosecution for violations of
sections 2251, 2252, and 2252A of title 18, only the third factor is
necessarily dependent on the age of the person depicted. The other
factors provide guidance as to the types of
[[Page 38035]]
depictions that would constitute lascivious exhibition for purposes of
section 2257 and part 75, as well, even though those sections apply to
any performers regardless of age.
The applicability of part 75 to lascivious exhibition is
prospective from the effective date of the Act. The rule therefore
applies only to depictions whose original production date is on or
after July 27, 2006. That is, records are not required to be maintained
either by a primary producer or by a secondary producer for a visual
depiction of lascivious exhibition, the original production date of
which was prior to July 27, 2006. In the case of a secondary producer,
this means that even if the secondary producer ``produces'' (as defined
in the regulation) such a depiction on or after July 27, 2006, he need
not maintain records if the original production date of the depiction
is prior to that date.
Along with adding the requirement that producers of lascivious
exhibition maintain records under section 2257, the Act created a new
section of the Federal criminal code, 18 U.S.C. 2257A. See Adam Walsh
Child Safety and Protection Act, Public Law 109-248, section 503.
Section 2257A requires that producers of visual depictions of simulated
sexually explicit conduct maintain records documenting that performers
in those depictions not be minors. It thus brings the record-keeping
requirements in line with the definition of sexually explicit conduct
in section 2256(2)(A), which includes both actual and simulated
conduct. See 18 U.S.C. 2256(2)(A). The Department is preparing a
separate rule to implement this section.
In section 503, the Act also created an exemption from the record-
keeping requirements of section 2257, to the extent it applies to
lascivious exhibition, and of section 2257A. One part of this exemption
states that section 2257 (to the extent it applies to lascivious
exhibition) and section 2257A do not apply to matter that is (i)
Intended for commercial distribution, (ii) is created as a part of a
commercial enterprise by a person who certifies to the Attorney General
that he regularly and in the normal course of business collects and
maintains individually identifiable name and age information regarding
all performers for purposes such as Federal and State tax, labor, and
other laws, and (iii) is not produced, marketed, or otherwise made
available in circumstances such that an ordinary person would conclude
that it is child pornography. See 18 U.S.C. 2257A(h)(1)(A). The other
part of this exemption states that section 2257 (to the extent it
applies to lascivious exhibition) and section 2257A do not apply to
matter that is produced by someone subject to the Federal
Communications Commission's authority to enforce federal bans on the
broadcast of obscene, indecent, or profane programming, and is created
as a part of a commercial enterprise by a person who certifies to the
Attorney General that he regularly and in the normal course of business
collects and maintains individually identifiable name and age
information regarding all performers, for purposes such as Federal and
State tax, labor, and other laws. See id. 2257A(h)(1)(B). The rule to
implement section 2257A will also implement this exemption and the
associated certification regime, which, as noted, will also apply to
matter and producers covered by this proposed rule.
Second, the Act revised the exclusions in the statute for the
operations of Internet companies. Specifically, the Act amended section
2257 by excluding from the definition of ``produces'' the ``provision
of a telecommunications service, or of an Internet access service or
Internet information location tool * * * or the transmission, storage,
retrieval, hosting, formatting, or translation (or any combination
thereof) of a communication, without selection or alteration of the
content of the communication.'' These exclusions are based on the
definitions in section 231 of the Communications Act of 1934, 47 U.S.C.
231.
Third, the Act made several changes in the terminology of the
statute. In subsection 2257(e)(1), it added at the end the following:
``In this paragraph, the term `copy' includes every page of a Web site
on which matter described in subsection (a) appears.'' That change is
reflected in the proposed rule at Sec. Sec. 75.1(e)(3), 75.6(a), and
75.8(d). The change materially affects the regulations' labeling
requirement as applied to Web sites. Section 75.8(d) of the current
regulations permits a producer of a computer site of service or Web
site to affix the label stating where the records required under the
regulations are located ``on its homepage, any known major entry
points, or principal URL (including the principal URL of a subdomain),
or in a separate window that opens upon the viewer's clicking a
hypertext link that states, `18 U.S.C. 2257 Record-Keeping Requirements
Compliance Statement.''' Because of the change in the statute, the
proposed rule eliminates this portion of the current regulations. The
proposed rule requires, per the statute, that the statement describing
the location of the records required by this part be affixed to every
page of a Web site (controlled by the producer) on which visual
depictions of sexually explicit conduct appear.
Finally, the Act confirmed that the statute applies to secondary
producers as currently (and previously) defined in the regulations.
Specifically, the Act defines any of the following activities as
``produces'' for purposes of section 2257:
(i) Actually filming, videotaping, photographing, creating a
picture, digital image, or digitally- or computer-manipulated image
of an actual human being;
(ii) 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
(iii) 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 * * *.
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