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retain on file the contact information for the primary producers'
custodians of records. The Department declines to adopt these comments.
As publishers of sexually explicit material, secondary producers are
equally responsible for protecting minors from exploitation as the
primary producers who photograph sexually explicit acts. Most
importantly, secondary producers are equally covered by the terms of
section 2257. In addition, the D.C. Circuit in American Library Ass'n
v. Reno, held that such a requirement was not unconstitutionally
burdensome.
Thirty-five commenters commented that the indexing and cross-
indexing requirements are unduly burdensome and argued that the records
should be indexed only by the performer's legal name, the name used in
the depiction, or the title of the depiction. The Department declines
to adopt these comments. As the D.C. Circuit held in American Library
Ass'n v. Reno, the indexing and cross-indexing requirements were not
unduly burdensome. Word-processing, bookkeeping, and database software
commonly in use by businesses and even for home computers can
accomplish the indexing and cross-indexing required by the rule. The
Department continues to believe that investigators must be able to
access records through cross-indexing in order to ensure completeness
and to enable investigation on the basis of less-than-full information.
Thirty-two commenters commented that the requirement that a copy of
each depiction be maintained would be unduly burdensome, leading to
vast stocks of magazines and videotapes, and even storage of computer
images would be unmanageable and prohibitive for small businesses.
Thirty-five commenters also commented that the requirement to keep
copies of each image is impossible to comply with due to the vast
amount of data involved in storing digital images, especially, e.g.,
producers of live streaming video. The Department declines to adopt
these comments. Maintaining one copy of each publication, production,
or depiction is critical to making the inspection process meaningful.
Commercial publishers and producers can reasonably be expected to
comply. Furthermore, modern computer and disk storage capacities make
digital archiving and back-up relatively inexpensive and space-
efficient. Finally, reviewing identification records in a vacuum would
be meaningless without being able to cross-reference the depictions,
and having the depictions on hand is necessary to determine whether in
fact age-verification files are being maintained for each performer in
a given depiction. In addition, without the depictions, inspectors
could not confirm that each book, magazine, periodical, film, videotape
or other matter has affixed to it a statement describing the location
of the records, as required by the existing regulations. Exceptions
cannot be made for producers of digital depictions, and indeed, it is
likely less onerous to store digital images than paper images. Children
are just as easily exploited in live streaming video as in any other
visual medium. Therefore, an exception cannot be made for producers of
live streaming video.
Thirty-nine commenters commented that the requirement that records
be available for inspection during specified normal business hours and
any time business is conducted would be impossible for small businesses
to meet, especially those run on a part-time basis or during non-
traditional hours. These commenters pointed out that the prior
regulations simply provided that the availability be reasonable. The
Department adopts this comment. The Department can accept that the
producers of the sexually explicit depictions subject to the statute do
not necessarily maintain traditional 9 a.m. to 5 p.m. business hours.
Accordingly, the rule will be adjusted to permit inspections during the
producer's normal business hours. To the extent the producer does not
maintain or post regular business hours, producers will be required to
provide notice to the inspecting agency of the hours during which their
records will be available for inspection, which must total no less than
twenty (20) per week, in order to permit reasonable access for
inspectors.
Thirty commenters commented that the proposed rule's requirement
that the statement appear on the homepage of a Web site would lead to
excessively lengthy statements that could deter viewers from
downloading site content. The commenters suggested that web sites
should be permitted to provide links that open windows to complex
disclosure statements. In response to these comments, the Department
has amended the proposed rule such that the final rule permits web
sites to contain a hypertext link that states, ``18 U.S.C. 2257 Record-
Keeping Requirements Compliance Statement,'' that will open in a
separate window that contains the required statement.
Five commenters commented that the requirement that copies of each
image be kept together with the records would interfere with the
requirement that records be segregated. According to these commenters,
hard copies of depictions cannot, by definition, be held together with
electronic copies, and if computer records are kept, it is not possible
for a producer to segregate records stored on a computer because they
are all found on the same storage device. Further, claimed the
commenters, the requirement under Sec. 75.2(e) that records be
segregated from other records, not contain other records, or be
contained within other records is vague. They claimed that it is
unclear whether copies of records may never be in any other company
files, which would be an irrational requirement and would open
inadvertent misfilings to criminal prosecution.
The Department declines to adopt this comment. The requirement that
records maintained pursuant to section 2257 be segregated not only
streamlines the inspection process but protects producers from
unbridled fishing expeditions. Inspectors should not be faced with
situations in which they have to sift through myriad filing cabinets to
find the records they are seeking, and producers should not be faced
with the risks that such exploration might create. Hard copies,
electronic copies, or files consisting of both can be segregated in
separate storage containers or hard drives (or even in separate
directories or folders on a hard drive) in/on which no other records
are held. Two commenters commented that the implicit requirement that
records be kept at a place of business is unreasonable and argued that
the regulation should permit third-party custody of records. The
Department declines to adopt this comment. Permitting a third party to
possess the records would unnecessarily complicate the compliance and
inspection processes by removing the records from the physical location
where they were initially collected, sorted, indexed, and compiled. For
example, producers could provide false names and addresses to the third
party as a means to avoid scrutiny by law enforcement. Historically,
producers have used front corporations in order to evade both law
enforcement and tax authorities. Permitting third-party custodianship
would exacerbate this problem. Custodians could, for example, disclaim
any responsibility for the condition or completeness of the records or
be unable to provide additional information regarding the status of the
records. Permitting such third-party custodians in the final rule would
thus require additional regulations to ensure that the third-party
custodian could guarantee the accuracy