Legal Enforcement Mechanisms for Adult Website Takedowns (28 C.F.R. 75.1 et seq.)

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There are extensive federal regulations that govern how adult websites must police themselves.

Adult Website Compliance with the Federal Regulations Under 18 U.S.C. 2257

Any discussion of the Nissenbaum Lareguw Group’s practice area concerning the legal requirements with which adult websites must comply under prevailing state and federal laws, regulations and common law would be incomplete without a review of the federal regulations that interpret how 18 U.S.C. (§)2257 is enforced. They are located at 28 C.F.R. 75.1 et seq. These sets of statutes and regulations are integral to the law firm’s adult picture removal practice. They are enforced under the authority of the Federal Communications Commission (FCC).

Set forth below are a selection of key excerpts from the regulations covering such items as (a) who is and is not a “producer” of adult content; (b) the type of identification that must be provided to the producer, so as to verify the age of the performers; (c) the manner in which the identification must be stored; and (d) when and how it must be produced when requested by federal law enforcement.

The term “producer” describes not only the creators of adult content for profit as understood in lay-person’s terms, but can also include an amateur who manipulates an image using photo-editing software from their home.

28 C.F.R. 75.1 et seq. defines a producer as “any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer.” 28 C.F.R. 75.1(c)

As to the difference between a primary producer and a secondary producer, the regulations state that a primary producer is “… any person who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.” 28 C.F.R. 75.1(c)(1) 

A secondary producer is defined as “… any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.” 28 C.F.R. 75.1(c)(2)

In either scenario, the regulations include the important clarification that “[w]hen a corporation or other organization is the [primary or] secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the [primary or] secondary producer of that image or picture.” Id.

28 C.F.R. 75.1 et seq. requires that producers obtain specific types of identification from their performers to ensure that they are indeed over the age of 18.

The regulation stipulates that a “picture identification card,” defined as “a document issued by the United States, a State government, or a political subdivision thereof, or a United States territory, that bears the photograph, the name of the individual identified, and the date of birth of that individual, and provides specific information sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (commonly known as a “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 the 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 non-U.S. citizen, is located outside the United States on the original production date. The picture identification card must be valid as of the original production date.” 28 C.F.R. 75.1(b)

28 C.F.R. 75.1 et seq. also provides clear definitions for what constitutes the sale or distribution of adult content.

“Sell, distribute, redistribute, and re-release refer to commercial distribution of a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.” 28 C.F.R. 75.1(d)

Producers of adult content must keep detailed records of the identification of the performers. They must adhere to strict protocols not only for how those records are stored, but also for making those records available for inspection by law enforcement.

“Any producer … shall, for each performer portrayed in such visual depiction, create and maintain records containing… [t]he 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… [as well as any] name, other than the performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name…

“Records required to be created and maintained under this part shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, picture, URL, or other matter.

“Investigators authorized by the Attorney General… are authorized to enter without delay and at reasonable times any establishment of a producer where records… are maintained to inspect during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, for the purpose of determining compliance with the record-keeping requirements of the Act and any other provision of the Act…” 28 C.F.R. 75.1(a)(1) through (3)

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