New Proposed H.R. 4472 Rules As Posted A Few Moments Ago...

[Lee]

[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 * * *.

[Lee]

18 U.S.C. 2257(h)(2)(A), as amended.

It excludes from the definition of ``produces,'' however, the
following activities, in pertinent part:

(i) Photo or film processing, including digitization of
previously existing visual depictions, as part of a commercial
enterprise, with no other commercial interest in the sexually
explicit material, printing, and video duplication;
(ii) Distribution;
(iii) Any activity, other than those activities identified in
subparagraph (A), that does not involve the hiring, contracting for,
managing, or otherwise arranging for the participation of the
depicted performers * * *.

Id. 2257(h)(2)(B), as amended.

This language replaced the previous definition of ``produces'' in
the statute, which stated, in pertinent part, as follows:

[T]he term `produces' means to produce, manufacture, or publish
any book, magazine, periodical, film, video tape, computer generated
image, digital image, or picture, or other similar matter and
includes the duplication, reproduction, or reissuing of any such
matter, but does not include mere distribution or any other activity
which does not involve hiring, contracting for managing, or
otherwise arranging for the participation of the performers depicted
* * *.

In enacting this language, Congress upheld the Department's
consistently held position that the rule's requirements for secondary
producers have been in effect since the rule's original publication. As
explained by

[[Page 38036]]

the sponsor of the Act in the House of Representatives:

Congress previously enacted the PROTECT Act of 2003 against the
background of Department of Justice regulations applying section
2257 to both primary and secondary producers. That fact, along with
the Act's specific reference to the regulatory definition that
existed at the time, reflected Congress' agreement with the
Department of Justice's view that it already had the authority to
regulate secondary procedures under the applicable law.
A federal court in Colorado, however, recently enjoined the
Department from enforcing the statute against secondary producers,
relying on an earlier Tenth Circuit precedent holding that Congress
had not authorized the Department to regulate secondary producers.
These decisions conflicted with an earlier D.C. Circuit decision
upholding Congress' authority to regulate secondary producers.
Section 502 of the bill is meant to eliminate any doubt that section
2257 applies both to primary and secondary producers, and to reflect
Congress' agreement with the regulatory approach adopted by the
Department of Justice in enforcing the statute.

Congressional Record, 109th Cong., 2d Sess., July 25, 2006, at H5725.
Congress thus rejected the interpretation adopted by the court in
Sundance Assocs., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), in favor
of the DC Circuit's decision upholding the application of the statute
to secondary producers, Am. Library Ass'n v. Reno, 33 F.3d 78 (DC Cir.
1994). In upholding the constitutionality of the secondary-producer
requirements, the DC Circuit both recognized the importance of these
requirements and effectively rejected the argument that Congress lacked
the authority to regulate secondary producers.
In accordance with current law, the proposed rule retains July 3,
1995, as the effective date of the rule's requirements for secondary
producers. (The current regulations, published in 2005, adopted July 3,
1995, as the effective date of enforcement of section 2257 based on the
Court's order in American Library Association v. Reno, No. 91-0394 (SS)
(D.D.C. July 28, 1995)). The one exception is that the proposed rule
would not penalize secondary producers for failing to maintain required
records in connection with those acts of production that occurred prior
to the effective date of the Act. While the law would permit the
Department to apply the statute and regulations to actions that
occurred prior to that date, the Department has determined that the
rule shall not apply in such circumstances to avoid any conceivable ex
post facto concern.
In addition to implementing the changes in the statute described
above, the proposed rule clarifies several other issues. First, it
clarifies that primary producers may redact non-essential information
from copies of records provided to secondary producers, including
addresses, phone numbers, social security numbers, and other
information not necessary to confirm the name and age of the performer.
However, the identification number of the picture identification card
presented to confirm name and age--such as drivers' license number or
passport number--may not be redacted, so that its validity may be
confirmed. Second, the proposed rule clarifies that producers of visual
depictions performed live on the Internet need not maintain a copy of
the full running-time of every such depiction. Rather, they may
maintain a copy that contains running-time sufficient to identify each
and every performer in the depiction and associate each and every
performer with the records needed to confirm his or her age.
Third, the proposed rule clarifies that, with regard to the
government-issued photo identification required for records, a foreign-
government-issued picture identification card is acceptable if the
performer providing it is a foreign citizen and the producer
maintaining the records produces the visual depiction of the performer
in a foreign country, no matter whether the producer is a U.S. or
foreign citizen. That is, a U.S. producer who produces a depiction of
sexually explicit conduct while located in a foreign country may rely
on a foreign-government-issued picture identification card of a
performer in that depiction who is a foreign citizen. All other
requirements of the regulations continue to apply mutatis mutandis--
i.e., the producer must examine and maintain a legible copy of the
foreign-government-issued picture identification card in his records.
Furthermore, a foreign-government-issued picture identification card is
not sufficient to comply with the regulations for U.S. citizens, even
when abroad. That is, if a U.S. producer travels to a foreign country
to produce a depiction of sexually explicit conduct, all U.S. citizens
performing in the depiction must have a U.S.-government-issued picture
identification card, even though a foreign citizen performing in the
same depiction may provide a foreign-government-issued picture
identification card. And, as is the case in the current regulation,
only a U.S.-government-issued picture identification card complies with
the regulations in the United States, no matter whether a performer is
a U.S. or foreign citizen. The regulation also states that producers of
visual depictions made after July 3, 1995, the effective date of the
regulations published in 1992, and before June 23, 2005, the effective
date of the current regulations published in 2005, may rely on picture
identification cards issued by private entities such as schools or
private employers that were valid forms of required identification
documentation under the provisions of part 75 in effect on the original
production date.
Finally, although it is not necessary to change the text of the
regulations for this purpose, the Department hereby clarifies that a
producer need not keep a copy of a URL hosting a depiction that the
producer produced but over which he exercises no control.

Regulatory Procedures

Regulatory Flexibility Act

The Department has drafted this proposed rule in accordance with
the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department
drafted the rule to minimize its effect on small businesses while
meeting its intended objectives. Based upon the preliminary information
available to the Department through past investigations and enforcement
actions involving the affected industry, the Department is unable to
state with certainty that this rule, if promulgated as a final rule,
will not have any effect on small businesses of the type described in 5
U.S.C. 601(3). Accordingly, the Department has prepared a preliminary
Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 604, as
follows:
A. Need for and Objectives of This Rule
The identity of every performer is critical to determining and
assuring 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 younger than 18 years of
age. See 18 U.S.C. 2256(1), 2257(b)(1). As discussed above, Congress
has recognized that minors warrant special concern in this area.
Children themselves are incapable of giving voluntary and knowing
consent to perform or to enter into contracts to perform. 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 unlawful
child pornography. See 18 U.S.C. 2256(8).

[[Page 38037]]

This proposed rule amends certain provisions of the existing
regulations to conform to the Act, as described above.
B. Description and Estimates of the Number of Small Entities Affected
by This Rule
A ``small business'' is defined by the Regulatory Flexibility Act
(``RFA'') to be the same as a ``small business concern'' under the
Small Business Act (``SBA''), 15 U.S.C. 632. Under the SBA, a ``small-
business concern'' is one that: (1) Is independently owned and
operated; (2) is not dominant in its field of operation; and (3) meets
any additional criteria established by the SBA. See 5 U.S.C. 601(3)
(incorporating by reference the definition of ``small business
concern'' in 15 U.S.C. 632).
Based upon the information available to the Department through past
investigations and enforcement actions involving the affected industry,
there are likely to be a number of small businesses that are producers
of visual depictions of sexually explicit conduct as defined in the
statute, as amended by the Act.
Pursuant to the RFA, the Department requests affected small
businesses to estimate what these regulations will cost as a percentage
of their total revenues in order to enable the Department to ensure
that small businesses are not unduly burdened.
The proposed rule has no effect on State or local governmental
agencies.
C. Specific Requirements Imposed That Would Affect Private Companies
The proposed rule modifies existing requirements for private
companies with regard to visual depictions of sexually explicit conduct
to ensure that minors are not used in such depictions. One of these
requirements that would specifically affect private companies is
Congress's expansion of the coverage of the definition of ``sexually
explicit conduct'' to cover lascivious exhibition.

Executive Order 12866

This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is a ``significant regulatory
action'' under Executive Order 12866, section 3(f). Accordingly this
rule has been reviewed by the Office of Management and Budget.
The benefit of the rule is that children will be better protected
from exploitation in the production of visual depictions of sexually
explicit conduct by ensuring that only those who are at least 18 years
of age perform in such depictions. The costs to the industry include
slightly higher record-keeping costs. The Department encourages all
affected commercial entities to provide specific estimates, wherever
possible, of the economic costs that this rule will impose on them.

Executive Order 13132

This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.

Executive Order 12988

This rule meets the applicable standards set forth in Sec. 3(a)
and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, codified at
5 U.S.C. 804. This rule will not result in an annual effect on the
economy of $100,000,000 or more; a major increase in costs or prices;
or significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.

Paperwork Reduction Act

This proposed rule modifies existing requirements to conform to
newly enacted legislation. It contains a revised information collection
that satisfies the requirements of existing regulations to clarify the
means of maintaining and organizing the required documents. This
information collection will be submitted to the Office of Management
and Budget for regular approval and comments from the public, in
accordance with the Paperwork Reduction Act of 1995. Any comments
received during the comment period should address one or more of the
following four points: (1) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) how to enhance the quality,
utility, and clarity of the information to be collected; and (4) how to
minimize the burden of the collection of information on those who are
to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses.

[Lee]

The Department of Justice has no way of estimating the annual cost
burden because of the multitude of variables within the control of
producers of depictions of actual sexually explicit conduct. In
publishing the proposed rule for the current part 75, the Department
estimated that there were 100,000 Web sites and 200 producers of DVDs,
videos, and other images containing visual depictions of actually
explicit conduct (as defined by the language of section 2257 at that
time), constituting 2000 businesses. The Department invited comments on
these estimates but received none. The Department estimates currently
that there are 500,000 Web sites and at least 200 producers of DVDs,
videos, and other images containing visual depictions of actually
explicit conduct (as defined by the revised section 2257), constituting
5000 businesses. Again, the Department invites comments on these
numbers. The Department also invites comments on the total number of
visual depictions that will be subject to the proposed rule and the
cost of compliance of the rule for each visual depiction.
All comments and suggestions, or questions regarding additional
information, should be directed to 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. Comments should also be sent to: Lynn Bryant,
Clearance Officer, United States Department of Justice, Policy and
Planning Staff, Justice Management Division, Patrick Henry Building,
601 D Street, NW., Washington, DC 20530.

[[Page 38038]]

List of Subjects in 28 CFR Part 75

Crime, Infants and children, Reporting and recordkeeping
requirements.

Accordingly, for the reasons set forth in the preamble, part 75 of
chapter I of title 28 of the Code of Federal Regulations is proposed to
be amended as follows:

PART 75--CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT
OF 1990 AND PROTECT ACT; RECORDKEEPING AND RECORD INSPECTION
PROVISIONS

1. The authority citation for part 75 continues to read as follows:

Authority: 18 U.S.C. 2257.

2. Amend Sec. 75.1 by revising paragraphs (b), (c)(4), and (e),
and adding new paragraphs (m) and (n), to read as follows:


Sec. 75.1 Definitions.

* * * * *
(b) Picture identification card means a document issued by the
United States, a State government or a political subdivision thereof,
or a United States territory, that bears the photograph and the name of
the individual identified, and provides sufficient specific information
that the issuing authority can confirm its validity, such as a
passport, Permanent Resident Card (commonly known as a ``Green Card''),
or other employment authorization document issued by the United States,
a driver's license issued by a State or the District of Columbia, or
another form of identification issued by a State or the District of
Columbia; or, a foreign government-issued equivalent of any of the
documents listed above when the person who is the subject of the
picture identification card is a non-U.S. citizen located outside the
United States at the time of original production and the producer
maintaining the required records, whether a U.S. citizen or non-U.S.
citizen, is located outside the United States on the original
production date.
(c) * * *
(4) Producer does not include persons whose activities relating to
the visual depiction of actual sexually explicit conduct are limited to
the following:
(i) Photo or film processing, including digitization of previously
existing visual depictions, as part of a commercial enterprise, with no
other commercial interest in the sexually explicit material, printing,
and video duplication;
(ii) Distribution;
(iii) Any activity, other than those activities identified in
pargraphs (c)(1) and (2) of this section, that does not involve the
hiring, contracting for, managing, or otherwise arranging for the
participation of the depicted performers;
(iv) The provision of a telecommunications service, or of an
Internet access service or Internet information location tool (as those
terms are defined in section 231 of the Communications Act of 1934 (47
U.S.C. 231)); or
(v) 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, except
that deletion of a particular communication or material made by another
person in a manner consistent with section 230(c) of the Communications
Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or
alteration of the content of the communication; and
* * * * *
(e) Copy, when used:
(1) In reference to an identification document or a picture
identification card, means a photocopy, photograph, or digitally
scanned reproduction;
(2) In reference to a visual depiction of sexually explicit
conduct, means a duplicate of the depiction itself (e.g., the film, the
image on a Web site, the image taken by a webcam, the photo in a
magazine);
(3) In reference to an image on a webpage for purposes of
Sec. Sec. 75.6(a) and 75.8(d), means every page of a Web site on which
the image appears.
* * * * *
(m) Date of original production or original production date means
the date the primary producer actually filmed, videotaped, or
photographed, or created a digitally or computer-manipulated image,
digital image, or picture, of the visual depiction of an actual human
being engaged in actual sexually explicit conduct.
(n) Sexually explicit conduct has the meaning set forth in 18
U.S.C. 2256(2)(A).
3. Amend Sec. 75.2 by revising paragraph (a)(1), adding two new
sentences to the end of paragraph (b), revising paragraph (c), and
adding a new paragraph (g), to read as follows:


Sec. 75.2 Maintenance of records.

(a) * * *
(1) The legal name and date of birth of each performer, obtained by
the producer's examination of a picture identification card prior to
production of the depiction. For any performer portrayed in such a
depiction made after July 3, 1995, the records shall also include a
legible hard copy of the identification document examined and, if that
document does not contain a recent and recognizable picture of the
performer, a legible hard copy of a picture identification card. For
any performer portrayed in such a depiction after June 23, 2005, the
records shall include a copy of the depiction and, where the depiction
is published on an Internet computer site or service, 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. For any performer in a depiction performed live on the
Internet, the records shall include a copy of the depiction with
running-time sufficient to identify the performer in the depiction and
to associate the performer with the records needed to confirm his or
her age.
* * * * *
(b) * * * The copies of the records may be redacted to eliminate
non-essential information, including addresses, phone numbers, social
security numbers, and other information not necessary to confirm the
name and age of the performer. However, the identification number of
the picture identification card presented to confirm the name and age
may not be redacted.
(c) The information contained in the records required to be created
and maintained by this part need be current only as of the date of
original production of the visual depiction to which the records are
associated. If the producer subsequently produces an additional book,
magazine, film, videotape, digitally- or computer-manipulated image,
digital image, or picture, or other matter (including but not limited
to Internet computer site or services) that contains one or more visual
depictions of an actual human being engaged in actual sexually explicit
conduct made by a performer for whom he maintains records as required
by this part, the producer may add the additional title or identifying
number and the names of the performer to the existing records
maintained pursuant to Sec. 75.2(a)(2). Producers of visual depictions
made after July 3, 1995, and before June 23, 2005, may rely on picture
identification cards that were valid forms of required identification
documentation under the provisions of part 75 in effect during that
time period.
* * * * *
(g) Records are not required to be maintained by either a primary
producer or by a secondary producer for a visual depiction of sexually
explicit

[[Page 38039]]

conduct that consists only of lascivious exhibition of the genitals or
pubic area of a person, and contains no other sexually explicit
conduct, whose original production date was prior to July 27, 2006.
4. Amend Sec. 75.6 by adding a new sentence at the end of
paragraph (a) and revising paragraph (b)(2), to read as follows:


Sec. 75.6 Statement describing location of books and records.

(a) * * * In this paragraph, the term `copy' includes every page of
a Web site on which a visual depiction of an actual human being engaged
in actual sexually explicit conduct appears.
(b) * * *
(2) The date of original production of the matter; and,
* * * * *
5. Amend Sec. 75.8 by revising paragraph (d) to read as follows:


Sec. 75.8 Location of the statement.

* * * * *
(d) A computer site or service or Web address containing a
digitally- or computer-manipulated image, digital image, or picture,
shall contain the required statement on every page of a Web site on
which a visual depiction of an actual human being engaged in actual
sexually explicit conduct appears.
* * * * *

Dated: July 5, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-13500 Filed 7-11-07; 8:45 am]

BILLING CODE 4410-14-P

http://a257.g.akamaitech.net/7/257/2...7/E7-13500.htm

Im reading through the new ammendements to 2257 now.

Regards,

Lee

[Shima]

Maybe its wise to go for an offshore company? Like in European Union?..

[Madame0120]

[T]he term `produces' means to produce, manufacture, or publish
any book, magazine, periodical, film, video tape, computer generated
image, digital image, or picture, or other similar matter and
includes the duplication, reproduction, or reissuing of any such
matter, but does not include mere distribution or any other activity
which does not involve hiring, contracting for managing, or
otherwise arranging for the participation of the performers depicted

I'm reading it backwards ..

it seems to me that the above statement puts secondary producers, like our company. back to the start .. having only to list our vendors.

[Lee]

[T]he term `produces' means to produce, manufacture, or publish
any book, magazine, periodical, film, video tape, computer generated
image, digital image, or picture, or other similar matter and
includes the duplication, reproduction, or reissuing of any such
matter, but does not include mere distribution or any other activity
which does not involve hiring, contracting for managing, or
otherwise arranging for the participation of the performers depicted

I'm reading it backwards ..

it seems to me that the above statement puts secondary producers, like our company. back to the start .. having only to list our vendors.

That is how i read it too Madame itll be interesting to see how many different opinions the industry attorneys have on this part of the ammendments.

Regards,

Lee

[awysocki]

[T]he term `produces' means to produce, manufacture, or publish
any book, magazine, periodical, film, video tape, computer generated
image, digital image, or picture, or other similar matter and
includes the duplication, reproduction, or reissuing of any such
matter, but does not include mere distribution or any other activity
which does not involve hiring, contracting for managing, or
otherwise arranging for the participation of the performers depicted

I'm reading it backwards ..

it seems to me that the above statement puts secondary producers, like our company. back to the start .. having only to list our vendors.

This statement says that Producer=secondary producer

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

[Madame0120]

but does not include mere distribution or any other activity
which does not involve hiring, contracting for managing, or
otherwise arranging for the participation of the performers depicted

That would be our lil company. We only lease. However, we have always bought content that came with docs, and will continue to use vendors that supply them. Never know when another change might come along.

It all seems like a big expensive research project on the part of the DOJ. Might just be that they weren't ready to licence thousands of small businesses, and thereby have the right to inspect w/o a warrant.

Anyone w/ half a brain could see they have been Fishin' For Trout, in the Great South Bay.

Just my read .. I'm sure all the Attys will be posting on Monday.

[awysocki]

[T]he term `produces' means to produce, manufacture, or publish
any book, magazine, periodical, film, video tape, computer generated
image, digital image, or picture, or other similar matter and
includes the duplication, reproduction, or reissuing of any such
matter, but does not include mere distribution or any other activity
which does not involve hiring, contracting for managing, or
otherwise arranging for the participation of the performers depicted

I would read this as the guy that is shipping and delivering the magazine or news paper.

[gaybucks_chip]

Secondary producers do have to keep records:

(From page 38035)

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 * * *.

They haven't included in the published changes all of the original act, but the language was there in the original act as above.

One thing I haven't heard anyone comment on yet: apparently it is no longer sufficient to simply place a link on the bottom of the entry page to the site, or even a link on the bottom of each page within the site. From my read, the new requirement is that every single page of a site displaying regulated content must contain a full 2257 notice as required in the regs, rather than a link to a page that displays the notice.

For models and others who use their home address as their records location, this will make for even less privacy, as instead of having to click a link that most people won't bother with, the address information will be clearly listed at the bottom of every page of a site.

I will say that whomever wrote these regulations could actually write decent English, unlike the person that wrote the previous set.

And they have added at least a couple of "reasonable person" clarifications; they have clarified that webcam shows do not have to store the entirety of each performance, only a snippet and IDs can be redacted, and it appears that one can republish older content exempt from regulation without triggering 2257 recordkeeping.

There are a few other things I read which said to me "Wow, somebody actually thought about this and tried to be reasonable."

Now... that said, there are some serious problems:

- Unequal treatment under the law; Hollywood producers are exempt from the requirements to maintain records for "simulated sex" that adult (and indy film) producers are required to keep

- Serious free speech restrictions by requiring that pretty much all nudity (and simulated sex acts that may not even have nudity) is now regulated.

and probably more issues. But this one, on the face of it, will be harder to overturn because somebody has paid attention and at least given lip service to making it less burdensome than the previous changes.

[Madame0120]

Nothing but another piece of conflicting garbage regulations. And not one bit of it will help the children.

:wtf:

[desslock]

Secondary producers do have to keep records:

Now... that said, there are some serious problems:

Unequal treatment under the law; Hollywood producers are exempt from the requirements to maintain records for "simulated sex" that adult (and indy film) producers are required to keep

- Serious free speech restrictions by requiring that pretty much all nudity (and simulated sex acts that may not even have nudity) is now regulated.

and probably more issues. But this one, on the face of it, will be harder to overturn because somebody has paid attention and at least given lip service to making it less burdensome than the previous changes.

I think this is ripe for free speech and due process arguments.

In fact - this law pretty much resembles a severe problem with federal criminal law today. Here is a bill that is intended to criminalize minors from appearing in porn, thus protecting them.

The end result has nothing to do with this, it regulates record and file keeping. Thus, a studio or website operator can always have hired and filmed adults, but still go to jail for breaking the law.

There's no crime there. It also presumes guilt before innocence.

And no one has still explained to me how the Dept of Justice has authority to enforce business record keeping... as opposed to an established federal regulatory agency like the Securities and Exchanges Commission or the Federal Communications Commission which have appointed boards and public board meetings to process rule enforcement.

Steve

[desslock]

"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 * * *."

You don't think this would withstand court scrutiny? Is placing a photo of naked people having sex on a website a federal crime? Or is the crime failure to maintain records?

What is it? That is a key here in understanding and seeing the constitutional problem with this law.

Steve

[Bec]

I was talking to Lee last night, and this part - at first glance - looked like it gave the go ahead to use content produced prior to July 2006 and not worry about docs ... which it sort of does:

"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."

But this morning as I re-read it, it applies only to lascivious exhibition ... which to me translates as pics like what you see in a playboy or playgirl center page spread, erect cocks, or a spread pussy, and not for any pics of actual intercourse, jacking off, toyplay, etc. Am I interpreting this correctly?

[IdolKnights]

Even non nude can be a lascivious exhibition