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of the records, would act as a legally liable agent of the producer,
and would raise other administrative issues as well.
Furthermore, permitting a third party to maintain the records
would, if anything, exacerbate the concerns of numerous commenters
regarding the privacy of information on performers and businesses by
placing that information in the hands of another party.
Three commenters commented that the record-shifting requirements
under Sec. Sec. 75.2(a) and (b) are impermissibly burdensome.
According to the commenters, primary producers would resist turning
over records that contain trade secrets, such as the identities of
performers. The Department declines to adopt these comments. The D.C.
Circuit Court clearly held in American Library Ass'n v. Reno that the
record-keeping requirements were not unconstitutionally burdensome. Any
primary producer who fails to release the records to a secondary
producer is simply in violation of the regulations and may not use the
excuse that the records contain alleged trade secrets to avoid
compliance.
Three commenters commented that the requirement that the statement
appear in font size equal in size to the names of the performers,
director, producer, or owner, whichever is larger, and no smaller in
size than the largest of those names, and in no case in less than 11-
point type, in black on a white, untinted background amounts to forced
speech, would ruin the aesthetic quality of web pages and other media,
and is impractical. Another commenter commented that the requirement
that the statement appear in a certain typeface cannot apply to web
sites, whose appearance depends on the viewer's computer. In response
to these comments, the Department has revised final rule to require
that the statement appear in typeface that is no less than 12-point
type or no smaller than the second-largest typeface on the website, and
in a color that contrasts with the background color. Regarding the
claim that such an administrative label constitutes forced speech, the
Department notes that the federal government imposes a range of such
requirements, such as nutritional labels on food products and safety
warnings on a myriad of products.
Two commenters commented that the length of retention of records
was too long and could multiply to include excessively long periods of
time. The commenters also claimed that the periods of time in the
proposed rule were contrary to the D.C. Circuit's opinion in American
Library Ass'n v. Reno. The Department declines to adopt this comment.
The regulation provides for retention of records for seven years from
production or last amendment and five years from cessation of
production by a business or dissolution of the company. The Department
does not believe that these limits are unreasonable. The only way to
satisfy the commenters' objection that the periods of time can multiply
would be to impose a blanket short period of time no matter what
changes to the records were made. Such a change would frustrate the
ability to ensure that records were maintained up-to-date and prevent
inspectors from examining older records to determine if a violation had
been committed. In addition, the time periods, contrary to the claim of
the commenters, do not violate American Library Ass'n v. Reno. In that
case, the D.C. Circuit held that Sec. 75 could not require records to
be maintained for as long as the producer remained in business and
allowed a five-year retention period ``[p]ending its replacement by a
provision more rationally tailored to actual law enforcement needs.''
33 F.3d at 91. The Department has determined that the seven-year period
is reasonable, thus satisfying the court's directive. The production of
child pornography statute of limitations was increased in the PROTECT
Act from five years to the life of the child, and the increase
contained in the regulation seeks to comport with that extended statute
of limitations.
Finally, the Department wishes to clarify that the statute requires
that each time a producer publishes a depiction, he must have records
proving that the performers are adults. Thus, if a producer purges his
or her records after the retention period but continues to use a
picture for publication, the producer would be deemed in violation of
the statute for not maintaining records that the person depicted was an
adult. Records are required for every iteration of an image in every
instance of publication.
One commenter objected to the proposed rule's lack of prior
announcement of inspections. Advance notice, the commenter stated,
would allow producers to put records in proper order and ensure that
someone would be on the premises when investigators visited. The rule
should specify what happens in cases in which no one is present when
the investigator arrives. The Department declines to adopt this
comment. Advanced notice would provide the opportunity to falsify
records in order to pass inspection. Lack of specific case-by-case
notice prior to inspection will promote compliance with the statute and
encourage producers to maintain the records in proper order at all
times, as is contemplated by the statute. The rule will specify that
inspections are to occur during the producer's normal business hours.
The inspection process clearly does not contemplate warrantless forced
entry solely because no one is present when the investigator arrives.
One commenter commented that the proposed rule appeared to require
hard copies of records and suggested that digital copies be permitted
in order to simplify storage and indexing. The Department adopts this
comment. Records may be maintained in either ``hard'' (paper) form or
digital form, provided that they include scanned forms of
identification and that there is a custodian of records who can
authenticate each digital record. The regulation has been revised to
clarify this point.
One commenter commented that the regulation should permit the
statement to be located on main menu screen of a DVD, rather than
requiring the statement to appear in the movie itself. The Department
declines to adopt this comment. The statement cannot be severed from
the actual depiction because that could lead to confusion on the part
of the public as to the applicability of the statement in cases, for
example, when there is more than one film on a DVD or when a movie on a
DVD is also available in other contexts in which the statement must be
appended (e.g., posted on a Web site).
One commenter commented that the list of acceptable forms of
performer identification in the proposed rule is unduly restrictive and
argued that college and employer identification cards should be
acceptable. The Department declines to adopt this comment. The
regulation properly requires a government-issued identification
document because other forms of identification are too susceptible to
forgery to accomplish the purposes of the Part.
One commenter who supported the proposed rule stated that he
created a system to help webmasters comply with the rules and protect
the identity of individuals depicted in the images while allowing
verification by law enforcement. The commenter stated that no
webmasters took advantage of his system because, he said, they believe
that there is an extremely remote possibility of being prosecuted for
non-compliance and that the Sundance ruling protects them. The comment
tends to demonstrate that the claim by industry groups that the rule is
unconstitutionally burdensome is