Category Archives: 18 U.S.C. 2257

What Should the Damages be in a Case Involving 18 U.S.C.§ 2259 (Possession of Child Pornography)?

How much restitution should be imposed for the possession of child pornography?  The federal mandatory restitution statute, 18 U.S.C.§ 2259, appears to have the answer. It states that a defendant shall pay a victim of child pornography the full amount of the victim’s losses, which is  defined as follows:

For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.

18 U.S.C.§ 2259(b)(3).

But how should this very generic formula be applied? Under § 2259, a victim is defined as someone who suffered specified harm “as a result of” another’s unlawful conduct.  In other words, the wrongdoer’s harm must have caused the victim’s losses and therefore the wrongdoer is liable for the losses.  Causation becomes an issue where one individual is in possession of photographs depicting abuse and thousands of other anonymous people have access to the same photographs.  Obviously, the victim can be harmed by the fact that everyone has viewed the child pornography.  Therefore who should be on the hook for the full amount of the victim’s losses?

On April 23, 2014, the United States Supreme Court decided this issue in Paroline v. United States,          U.S.                 (2014). In that case, Mr. Paroline was convicted of possessing 280 explicit photographs of an underage girl who was referred to as “Amy.” The photographs depicting the abuse had been viewed several thousand times by others throughout the world.  The question was should the damages be assessed solely against Paroline; against everyone who viewed the images; or some combination of the two.  During oral argument, the Justices were skeptical that a reasonable formula could be reached to balance all the factors involved.

Writing for the majority, Justice Kennedy held that it was unfair to assess damages against the defendant that did not proximately stem from the injury, i.e. were not the proximate cause. The court was concerned about the remote nature of damages stemming from viewing images which the viewer had no role in producing. Nevertheless, the court did say that the trial judge could take restitution into account in assessing some level of damages, but again, proximate cause would have to be shown.

© 2014 Nissenbaum Law Group, LLC

Does 18 U.S.C. 2257 Violate the Fourth Amendment?

The Free Speech Coalition has obtained a landmark ruling applying limited fourth amendment protections to prevent unannounced inspections of records kept under 18 U.S.C. 2257.  Specifically, in Free Speech Coalition, Inc. v.  The Honorable Eric H. Holder, Jr, EDNY (09-4607) (July 18, 2013), [READ CASE HERE] the United States District Court for the Eastern District of Pennsylvania ruled that
[T]he Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard – the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.
Id. at 2.

          The basis for the ruling was that the government could not demonstrate that the requirement met the constitutional standard. As the Court stated, “[g]iven these two streams of evidence in the record – demonstrating advance notice would not undermine the regulatory scheme, but a lack of such notice significantly burdens producers who maintain records at home – the Court finds the regulations’ lack of a notice requirement, as to searches at bona fide residences, unreasonable …” Id. at 69.

          The Court focused on the fact that many producers of adult content keep the records in their homes. Therefore, the requirement that the FBI be allowed to inspect the records without advance notice meant that the residents would be burdened by the need to remain on premises to allow access. This burden was found to be unconstitutional.

© 2014 Nissenbaum Law Group, LLC

In addition to 2257, You Need to Also Comply with the Summary of Protocols Under 28 CFR 75

It is important to keep in mind that although 18 U.S.C. 2257 is the statute (law) that relates to recordkeeping for adult content sites, there are regulations that interpret and expand upon the statute. These regulations begin at 28 CFR 75.

One striking thing about the regulations is that it there were major revisions to it as of  March 18, 2009; the application to content was made much broader after that date. Many of the changes were expressed on two levels: first, the type of content was expanded and second, the requirements were in many cases reduced based upon the level of that content.

In order to comply with these regulations, it is critical that a thorough analysis be done to determine whether the content is covered by the regulations, and if so, to what extent. This review should be conducted by counsel, if at all possible.


© 2011 Nissenbaum Law Group, LLC