Category Archives: record keeping

Does the 5th Amendment Protect Producers of Sexually Explicit Material From Self-Incrimination?

In in re: Grand Jury Subpoena Duces, 368 F. Supp. 2d 846 (W.D. Tenn. 2005), John Doe 1 & 2 (collectively, “Petitioners”) were served with a subpoena to testify before a Federal Grand Jury. Pursuant to 18 U.S.C. §2257, the subpoena required the Petitioners to bring with them any and all records pertaining to models used by their company Petitioners attempted to quash the subpoena by arguing that it violated their 5th Amendment right to be free from self-incrimination. The United States asserted that the 5th Amendment did not protect the Petitioners because the documents requested were records required to be kept pursuant to §2257.

§2257(a) states:

Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which—

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

In Shapiro v. United States, the Supreme Court held that the 5th Amendment privilege against self-incrimination does not apply to records that are required to be kept pursuant to a valid regulatory scheme. Shapiro v. United States, 335 U.S. 1, 17-18, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). However, the “required records” exception is construed narrowly in preservation of the 5th Amendment’s constitutional purpose. United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). The government’s request for information will be granted under the exception if it meets the following three requirements:

(1)   the purpose of the government’s inquiry must be essentially regulatory, rather than criminal;

(2)   the records must contain the type of information that the regulated party would ordinarily keep; and

 (3)   the records must have assumed public aspect which render them at least analogous to public documents.

(citing Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968)).

The Supreme Court explained that §2257 targets a specific group of people. Specifically, it targets producers of media depicting sexually explicit conduct that utilizes performers who either are, or appear to be, minors. Additionally, the Court noted that although the record keeping requirement applies to “all producers of media depicting sexually explicit conduct,” it is not necessarily regulatory. The requirement does not foreclose the possibility that it targets a select group inherently suspect of criminal activities. Further, the production and distribution of child pornography is inherently illegal.

The Supreme Court concluded that §2257 is not regulatory in nature. This is because it targets a highly selective group that is inherently suspect of criminal activities, and is a part of a criminal enforcement scheme that seeks eradication of child pornography. Accordingly, the Supreme Court granted Petitioners’ motion to quash the subpoenas because the government did not meet the first prong of the required records exception, to wit: that the purpose of the government’s inquiry must be essentially regulatory, rather than criminal. 

Does §2257 Apply To A Breastfeeding Video That is Used Illegally by an Adult Website?

Does a
producer of a breastfeeding instructional video have to abide by §2257? What
about the mother who volunteers to allow herself and her baby to be filmed? How
about somebody who illegally uses the breastfeeding video to create an adult
video?

This was
addressed in a case heard in M.S.  v. Meredith Corporation, United States
District Court of New Jersey,  August 2,
2012 (Civil Action No. 11-cv-5180). In that case, the plaintiff, a new mother,
volunteered to allow the defendant, a media and marketing corporation that aims
at educating women on various topics, film a “how to” video for breastfeeding.
The defendant did not pay the plaintiff for filming the video; the plaintiff
felt as if her experience as a new mother could help women who are considering
breastfeeding. According to the plaintiff, the defendant promised her that
neither her name nor that of her daughter would be revealed. The plaintiff also
claimed that the defendant told her the video would only be played on the
defendant’s website and on cable television for educational purposes.

Unfortunately,
while searching her name on the internet, the plaintiff discovered that the
video of her breastfeeding was being displayed by an adult website. That
website included both her full name and her daughter’s first name on the video.
A man named “Nizard” was the culprit. He had access to the video because the
video had been posted on YouTube by the defendants. This was done in spite of
the fact that plaintiff had been assured it would not.

18 USC §2257
makes it a federal crime to fail to comply with certain record keeping and
reporting requirements. Such requirements must be followed when one produces a film,
book, magazine etc. which includes “sexually explicit conduct.” “Sexually
explicit conduct” is defined under §2256 (2)(A):

“Sexually explicit conduct” means
actual or simulated—

(i)   sexual
intercourse, including genital—genital, oral-genital, anal—genital, or oral
anal, whether between persons of the same or opposite sex.;

(ii)  bestiality;

(iii) masturbation;

(iv) sadistic
or masochistic; or

(v)  lascivious
exhibition of the genitals or pubic area of any person;

Applying
both §2257 and §2256, it would appear that only Nizard would be liable under
the statute; not the mother nor the defendant. The only way the mother or the
defendant would be liable under §2257 is if breastfeeding were considered
“sexually explicit conduct.” Interpreting the statute makes it clear that it is
not. Breastfeeding clearly does not fall into one of the sexual acts listed in
§2256. While the statute states that sexually explicit conduct includes “sexual
intercourse, including genital—genital, oral-genital, anal—genital, or oral
anal, whether between persons of the same or opposite sex” which clearly
breastfeeding is not. Further, one would be hard-pressed to argue before a
Court that breastfeeding a newborn has a sexual component in the first place;
hence the intent of the statute clearly is not to include it within the law’s
purview.

However,
when Nizard illegally added the video to an adult website, he entered the realm
of §2257. Although, the pornographic scenes which Nizard combined with the breastfeeding
video are not described in the case, it is likely that such scenes involve at
least one of the acts listed in (i) through (v) of §2256. Thus, under such
assumption, a §2257 claim against Nizard for failure to follow reporting
requirements would be available against him.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

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

Do the 2257 Record-keeping Requirements Violate the First Amendment?

The requirements of 18 U.S.C. §2257 (“2257”) impose certain record-keeping obligations on the producers of sexually explicit material. The constitutionality of the statute has been challenged in recent years, but courts have usually indicated that 2257 is constitutional. An interesting example of such a challenge was heard by the U.S. Court of Appeals for the Sixth Circuit in 2009. Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. Ohio 2009).

That case focused on how the 2257 requirements apply to “swinger magazines,” which consisted of sexually explicit advertisements by couples who invite other couples to share sexual experiences. The appellants were the publishers and potential advertisers of the magazine. They brought an action against the U.S. Attorney General, seeking to enjoin enforcement of the 2257 record-keeping requirements as they relate to the content of a swingers’ magazine content.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in the required manner. The appellants in Connection argued that requiring the publishers to maintain records of their advertisers’ identities and ages was an infringement of their freedom of speech. They argued that the statute was unconstitutional both as applied to the publishers and the advertisers. They also took the position that it was unconstitutional on its face. The U.S. District Court for the Northern District of Ohio granted summary judgment in favor of the Attorney General. The publishers and potential advertisers appealed to the U.S. Court of Appeals for the Sixth Circuit.

In determining the constitutionality of the statute, the Court of Appeals applied an intermediate level of scrutiny. A statute survives intermediate scrutiny if it:

  1. advances a “substantial” government interest;
  2. does not “burden substantially more speech than is necessary;” and
  3. leaves open “ample alternative channels for communication.”

Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The Court held that the statute was constitutional. First, the Court held that the statute was not a presumptively invalid content-based regulation of speech. The Court found there to be a substantial governmental interest in deterring the production and distribution of child pornography. It listed several reasonably tailored ways the statute’s universal age-verification requirement advanced the interest. This included ensuring that primary producers confirm the age of their performers and prevent children from attempting to pass themselves off as adults. As a result, it found the statute justified in regulating the records of those producing sexually explicit material.

The magazine and its advertisers further argued that the law was overbroad and would be unconstitutional as applied to a magazine that depicted only “mature adult models” who “are clearly and visibly not minors.” Connection at 336. However, the Appellate Court did not find this to be sufficient to justify declaring the statute invalid. It found that hypothetically unconstitutional applications of the statute to sexually explicit depictions of obviously mature adults did not demonstrate the level of substantial over breadth that is necessary for invalidation.

The U.S. Supreme Court subsequently denied the appellants’ request to have the case heard by it. Connection Distrib. Co. v. Holder, 2009 U.S. LEXIS 6926 (U.S., Oct. 5, 2009).

It appears unlikely that 2257 will be found unconstitutional anytime soon. Therefore, it is important that those producing sexually explicit films and other materials become familiar with the statute’s requirements in order to avoid criminal liability. 

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

What Are The Identification Requirements Under 18 USC 2257?

In order to avoid criminal liability under 18 U.S.C. §2257 (“2257”) and its related regulations (“Regulations”), such as 28 C.F.R. 75, it is important for those producing adult explicit content to be familiar with the basic identification rules that the law requires.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in a prescribed manner.

As required in Section 75.2 of the Regulations, the actor documentation should be in the form of a picture identification card. That Section requires that when producing adult content, the Custodian of Record must maintain documentation of “the legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card prior to production of the depiction.” 28 C.F.R. 75. Section 75.19(b) specifically defines the requirements for the picture identification card as follows:

1)      It must be issued by the United States, a state government (or political subdivision thereof, or a U.S. territory)

2)      It must bear the photograph, name and date of birth of the person identified.

3)      It must provide specific information that is sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (“Green Card”), or employment authorization document issued by the United States, a driver’s license or other form of identification issued by a state or District of Columbia; or a foreign government-issued equivalent of any of the documents listed above when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the United States at the time of original production and the producer maintaining the required records, whether a U.S. citizen or not, is located outside the United States on the original production date.

4)      It must be valid as of the original production date.

28 C.F.R. 75.19(b).

In addition, the producer should maintain the identification documentation in the prescribed manner. Producers are required to include and keep a copy of the document that was examined before the creation of the adult work within a record-keeping system as detailed in section 75.2(a)(1) of the Regulations. That Section states that “the records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined.” 28 C.F.R. 75.2(a)(1).

Examples of identification documents that comply with the regulations include:

1)      A valid U.S. passport (or, if the performer and producer are both outside the U.S., a valid passport issued by a foreign government).

2)      A valid state identification card.

3)      A valid state driver’s license.

4)      A valid identification from either a state college or university, so long as it contains a clear picture of the person identified along with their legal name, date of birth and document identification number or some other information that allows one to confirm the document’s validity.

Examples of identification documents that might not sufficiently comply with the regulations include:

1)      A Social Security card.

2)      A valid passport issued by a foreign country for any performer where the performance that creates the content subject to 2257 regulations is in the U.S.

3)      A valid identification from a private college or university.

4)      An identification document that does not contain a clear picture of the person identified.

5)      An identification document that is invalid.

The consequences for violating 2257 are very serious, including the possibility of penalties and incarceration. Knowing the law’s requirements, and what forms of identification are sufficient to meet those requirements, are critical to complying with the law.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

What Is The “2257 Distributor Obligation”?

Though 18 USC §2257 (“2257”) imposes well-known requirements regarding record-keeping and labeling on producers of sexually explicit material, it also places certain rules on those who are not directly involved in the production of the content. 18 U.S.C. §2257. Though these individuals play less of a role in the production of the material, secondary producers and non-producers can sometimes find themselves facing penalties just as serious as those faced by producers found in violation of the statute. 

One example of such a requirement is found in section (f) of 2257, which imposes obligations on distributors of adult content. This “2257 distributor obligation” applies to sellers and distributors of the content, even though they might not be held to the same requirements as a primary producer of such material.

Specifically, section (f) states that it shall be unlawful:

“(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, which –

(a)    contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and

(b)   is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

which does not have affixed thereto…a statement describing where the records required by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept.”

18 U.S.C. §2257(f)(4).

This language extends a responsibility to certain individuals who may not be primary producers who are subject to the more well-known record keeping requirements. An individual who uploads the content to a website server (thus becoming a secondary producer) can fall under the purview of section (f) if the content being uploaded is subject to 2257 regulations.  This extends to any individual who knowingly offers, sells or transfers the materials in some way.

The Department of Justice has demonstrated that a 2257 violation is a fully chargeable offense, so the lack of attention to section (f) does not make the crime any less serious in the eyes of the law. It is important for those handling materials subject to the 2257 regulations to realize the statute requires all distributors – even those on a secondary level – to display a proper compliance statement on the material that indicates where the required 2257 records are kept.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC