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and each homepage must feature the statement. For example, http://www.usdoj.gov
is the full domain name of the Web site of the Department

of Justice. http://www.usdoj.gov/criminal is the Web page of the

Criminal Division, which is hosted by the Department's Web site. Under
this rule, http://www.usdoj.gov would be required to have a statement and that statement would cover anything contained on http://www.usdoj.gov/criminal.
However, http://www.ojp.usdoj.gov is a

subdomain of the full domain http://www.usdoj.gov and would be required

to have its own statement on that page, which would then cover any
material on a Web page linked to it, such as http://www.ojp.usdoj.gov/ovc/
, the Web page of the Office for Victims of Crime.

One commenter commented that the exception under Sec.
75.1(c)(4)(iv-v) for Web hosting, electronic communication, and remote
computing services should be extended to 18 U.S.C. 2257(f)(4).
Providers of Web hosting, bulletin boards, or electronic mail services
could be found liable for not ascertaining that the appropriate label
was affixed to a depiction transferred by one of their users. The
Department declines to adopt this comment, which would require an
amendment to the statute and is beyond the authority of the Department
to change by regulation. Moreover, the Department notes that 18 U.S.C.
2257(f)(4) makes it a crime for a person ``knowingly to sell or
otherwise transfer'' any sexually explicit material that does not have
a statement affixed describing the location of the records. Thus,
knowledge on the part of the transferor is an element of the offense.
One commenter commented that the proposed rule's record-keeping
requirements were troublesome in light of the 2003 amendment to section
2257(d), which authorizes the use of such records as evidence in
prosecuting obscenity or child pornography cases. According to the
commenter, this violates the Fifth Amendment right against mandatory
self-incrimination. The Department declines to adopt this comment, for
two reasons. First, the comment is not directly related to the rule but
rather is directed at the statute. Second, the amendment to section
2257(d) does not violate the Fifth Amendment since some sexually
explicit materials are protected speech and not obscene. Hence, the
reporting requirement is not directed at ``a highly selective group
inherently suspect of criminal activities.'' Albertson v. Subversive
Activities Control Bd., 382 U.S. 70, 79 (1965).
One commenter commented that the definition of producer is too
broad, such that one depiction may have multiple primary producers,
including, e.g., the photographer and a different individual who
digitizes the image. The commenter argued that the definition should be
written so that each depiction has only one primary producer. The
Department declines to adopt this comment. The Department does not
believe that logic, practicability of record-keeping or inspections, or
the statue dictates that there be one and only one primary producer for
any individual sexually explicit depiction. Any of the persons defined
as primary producers has easy access to the performers and their
identification documents and should therefore each have responsibility
individually and separately of maintaining the records of those
documents.
Two commenters commented that the definition of producer in the
proposed rule was too broad and would encompass a convenience store
that sold sexually explicit magazines or a movie theater that screened
R-rated movies. The Department declines to adopt this comment. As the
rule makes clear, mere distributors of sexually explicit material are
excluded from the definition of producers and under no plausible
construction of the definition would a movie theater be covered merely
by screening films produced by others.
One commenter commented that it was not clear in the proposed rule
whether, in cases in which it is discovered that a performer is
underage, the possessors of those images are required to destroy copies
of images required in the records in order to comply with the child
pornography laws. The Department declines to adopt this comment because
existing statutes make clear that it is unlawful knowingly to produce,
advertise, distribute, transport, receive, or possess child
pornography. See 18 U.S.C. 2251, 2252, and 2252A. Producers, like all
citizens, must comply with those statutes. Nothing in the rule changes
or obscures these existing legal obligations. Furthermore, there is a
good-faith defense to possession of child pornography for the
destruction or reporting to law enforcement of its existence. See 18
U.S.C. 1466A(e).

Burdensomeness

Thirty-six commenters commented that even if the effective date
were changed to July 3, 1995, the regulation would be overly burdensome
on secondary producers because producers would be required to obtain
records for thousands--even hundreds of thousands--of sexually explicit
depictions dating back a number of years. These commenters claimed that
secondary producers would likely be unable to locate many of those
records from primary producers who may have moved, shut down, or
otherwise disappeared. According to the commenters, those secondary
producers who could not locate such records would be forced to remove
the sexually explicit depictions, which would be a limit on
constitutionally protected material.
The Department declines to adopt these comments. Producers were on
notice that records had to be kept at least by primary producers for
depictions manufactured after July 3, 1995. In addition, commenters
were similarly on notice that the D.C. Circuit, in American Library
Ass'n v. Reno, had upheld the requirement that secondary producers
maintain records. The Department is not responsible if secondary
producers chose to rely on the Tenth Circuit's holding in Sundance and
not to maintain records while ignoring the D.C. Circuit's holding in
American Library Ass'n v. Reno. A prudent secondary producer would have
continued to secure copies of the records from primary producers after
July 3, 1995. If those records, which are statutorily required, are not
currently available, then the commenters are correct that they will be
required to comply with the requirements of all applicable laws,
including section 2257(f). They are incorrect, however, to claim that
this would result in an impermissible burden on free speech. As the
D.C. Circuit held, the government has a compelling state interest in
protecting children from sexual exploitation. If the producers (primary
and secondary) of sexually explicit depictions cannot document that
children were not used for the production of the sexually explicit
depictions, then they must take whatever appropriate actions are
warranted to comply with the child exploitation, obscenity, and record-
keeping statutes. The First Amendment is not offended by making it
unlawful knowingly to fail or refuse to comply with the record-keeping
or labeling provisions of this valid statute.
Two commenters commented that secondary producers should not be
required to maintain records at all because they are not proximate
enough to the production of the depictions to secure the requisite
information, and their retention of records would not further the
purpose of the statute. One commenter commented that secondary
producers should only be required to