What is the Relationship Between Violating 18 U.S.C. 2257 and Violating Section 2252A of the Child Pornography Protection Act of 1995?

If a defendant fails to adhere to the record-keeping provisions of section 2257 has he also violated section 2252A of the Child Pornography Protection Act?  The Federal District Court for the Eastern District of Michigan recently addressed this question in Doe v. Peterson, No. 2:09-cv-13138-PDB-PJK (E.D. Mich. March 24, 2011).

In that case, Plaintiff sued the owners of a website that posted nude pictures of Plaintiff sent from an unknown person that were intended to remain private between Plaintiff and her boyfriend.  Even after Plaintiff contacted the site asking that the pictures be removed because they were submitted without her consent, the pictures remained on the website.  Plaintiff claimed that she was a minor when the pictures were taken and relayed this information to the site when she initially contacted them.  It was only after being served with the complaint that the photos were taken down a day later.

Plaintiff alleged, among other things, that Defendant violated 18 U.S.C. §2252A(a)(2), which prohibits any person from knowingly receiving or distributing child pornography that has traveled in interstate or foreign commerce.  Id. at 5.  Plaintiff moved for summary judgment and claimed that there was no genuine issue of material fact regarding whether Defendant knowingly participated in receiving or distributing child pornography. See Id.  Plaintiff claimed that because Defendant violated §2257, which requires publishers of pornographic material to verify the age of models, Defendant could not therefore claim he did not know how old Plaintiff was.  Id. 

Defendant’s website encouraged men to submit nude pictures of their ‘ex-girlfriends, ex-wives, current girlfriend or wife, or any female showing her stuff.’ Id. at 2.  Although the site contained “submission rules” requiring that models be 18 or older, Defendant admitted that he had no real way of knowing if people followed the rules.  The only safeguard Defendant took was judging to see whether the models could pass for 18. See id. Defendant claimed that he never was the recipient of any correspondence from Plaintiff regarding her request that the photos be taken down nor did he receive an email stating that Plaintiff was underage.  However, Plaintiff argued that Defendant’s claim to have not received the emails, coupled with Defendants failure to follow the verification requirements of §2257, demonstrated that the Defendant was “deliberately ignorant” of Plaintiffs age.  Plaintiff claimed this could satisfy the “knowingly” requirement of §2252A.  Further, Plaintiff argued that if nothing else, the fact the Defendant didn’t remove her pictures until one day after receiving the complaint showed that Defendant undisputedly knew Plaintiff was a minor, in violation of §2252A.

The Court disagreed with Plaintiffs position.  First, because Plaintiffs age at the time the photos were originally taken was at issue, this rendered Plaintiffs request for summary judgment inappropriate.  Further, the Court stated that even if Plaintiff’s age was not in dispute, Plaintiff’s motion for summary judgment would still be denied because violation of §2257 does not necessarily establish that Defendant “knowingly” violated section 2252A. The court noted that the Defendant did not have actual knowledge that Plaintiff was a minor because the correspondence did not contain any real evidence of  Plaintiffs age, such as a birth certificate, so at most, Defendant had “inquiry notice,” requiring the Defendant to investigate the matter further . See id. at 6.

The Court agreed with Defendant’s contention that there was no reason to suspect that Plaintiff was a minor from looking at the pictures posted on the website and so Defendant should not be found deliberately indifferent. Id.  Further, the court did not take issue with the timeframe with which the Defendant removed the photos from the website after being served with the complaint.  At most, the Court found that Plaintiff’s allegations established that there were issues of material fact regarding whether the Defendant knew Plaintiff was a minor, but this did not amount to proof that 18 U.S.C. §2252A was violated as a matter of law. See id. at 7. Ultimately, Plaintiff’s motion for summary judgment was denied.

The best practice is to verify the age of participants when posting anything associated with the adult industry.  One should be cautious of the possibility of interacting with minors and take measures to ensure that the subject’s age is accounted for. 

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC