Proposed Section 2257 Rules Would Regulate Adult Sites for Age Verification

DoJ’s draft rules, released for comment in June, largely reject suggestions from the adult industry. The big exception is DoJ’s allowing third-party record-keeping, so adult businesses and porn sites don’t have to keep records of performers’ ages and dates of production themselves. The rules challenged in court had required companies -- including home-based, mom-and-pop porn sites -- to publicly provide the address where records are located, and make them available to authorities any time. Primary producers under the proposal also could black out “non-essential information” like address, phone and Social Security numbers from “copies” of original records, to protect privacy as they're passed to “secondary producers.” A porn-industry lobbyist told us the proposal includes some “very welcome developments” that probably will pave the way for an even friendlier system.

Nearly every porn site would be considered a regulated secondary producer under the rules. They would cover people involved in digitizing, “inserting” or “otherwise managing” an image through a “computer site or service.” But the rules would exempt any “telecommunications service, Internet access service or Internet information location tool,” such as a search engine, that serves only as a passive conduit of explicit content. And producers wouldn’t have to keep a copy of a “URL hosting a depiction that the producer produced but over which he exercises no control.” The provisions would be retroactive to July 1995, when section 2257 took effect.

Every page of a porn site would have to include a link to a site’s 2257 statement of compliance. That would be a change from the previous rules, which said the statement could be on a “homepage, any known major entry points, or principal URL.” But the link could open a pop-up window or provide the record location information through a “mouseover,” DoJ said. One of the bigger concerns of porn sites -- how to keep records for streaming video chat sessions without breaking the bank -- was played down by DoJ. Producers wouldn’t have to keep a “full running-time” copy for each video session -- only a copy with a run-time “sufficient to identify each and every performer” with their age records.

A new “certification regime” offered by DoJ would greatly reduce the record-keeping burdens on producers, the department said. To qualify, producers would have to provide a legal basis for asking for record-keeping exemptions and evidence that they collect and maintain records “in the normal course of business” for their performers and performances. They also would have to confirm that foreign producers whose content they distribute have taken “reasonable steps” to ensure that performers were of the U.S. legal age.

Material featuring “lascivious exhibition” that was created before the Adam Walsh law took effect in July 2006 wouldn’t be required to have age and location records, in contrast to retroactive duties under several other parts of the bill. DoJ said the “reasonable person” standard would govern whether a depiction is lascivious, using the so-called Dost factors, including whether the “focal point” of an image is the pubic area and whether the pose is sexually suggestive. Neither lascivious exhibition nor simulated sex requires nudity, DoJ said, because children can be sexually exploited even if they're clothed. But the agency warned that simulated sex isn’t the same as “virtual” sex, the subject of a Supreme Court rebuke that said the government can’t punish porn that doesn’t involve real children (WID May 20 p1).

Adult Social Networks Exempt -- Users, Maybe Not

DoJ said it received “thousands of comments that appear to be part of an orchestrated campaign,” contending its proposed rules would force adult social networks to keep detailed personal information on members, including photo ID, and give DoJ unconditional access to it. The department said most adult social networks wouldn’t be covered by the rules. But it added that users may be treated as “producers” if they post sexually explicit representations of themselves or others on the site. It declined to exempt from regulation those who do “non-material alteration,” such as pixellating an image to obscure sexual activity. DoJ made a distinction between this and the activity of a “transmitter” that deletes content it considers “objectionable” -- such as online forum moderators who remove curse words -- without being held responsible for its users’ conduct. That’s explicitly exempted under federal law.

A commenter’s proposal for companies to be considered “distributors” not “secondary producers” of content they didn’t produce was rejected by DoJ. That classification would contradict a goal of the Adam Walsh law, it said: “to eliminate commercial markets for non-commercially produced child pornography.” Secondary producers aren’t required to check a performer’s identification. But they “run the risk” of being held criminally responsible for distributing child porn if they don’t, the department warned.

Web users who in-link videos from other sites, such as YouTube, wouldn’t be exempt from record keeping and disclosure requirements, either, the department said, because they are secondary producers under the proposed rules. Presumably they could get the required information about performers and the location of records from the primary producer of the in-linked content, DoJ said.

The department was especially dismissive of a comment that said “depictions of persons in tight clothing suggestive of genitalia,” such as competitive swimmers, would trigger section 2257 compliance for millions of images on MySpace, YouTube and Facebook, under DoJ’s “lascivious” test. That’s “nonsensical,” DoJ said. The court case cited by the commenter, U.S. v. Knox, involved “thin, opaque clothing with an obvious purpose to draw attention” to the genital area, not the “mainstream advertising” that displays models in underwear. DoJ rejected several comments that said “lascivious exhibition” was too broadly defined, saying that the Dost factors for identifying child pornography “rely on context as well as content.”

The records of performers’ identities and ages could be kept in electronic form, DoJ said, agreeing with commenters who said the “hard copy” requirement could lead to errors as copies were made for other parties. But the agency rejected a comment that said producers shouldn’t have to keep copies of URLs where their work appears if those producers don’t own those sites, because producers still may control content on those sites.

Porn producers that want to digitize older images with lascivious exhibition would have to do that quickly to avoid liability, DoJ said. After the March 18 compliance date for lascivious depictions, the agency won’t make an exception for digitization of such images that don’t have any known records to prove compliance with the law, it said.

The proposed rules would cover about 500,000 Web sites and 5,000 businesses, DoJ said. It rejected comments that said its estimate was low, because none offered an alternative estimate for the entire universe of adult content, as opposed to segments such as subscription sites. The vast majority, about 4,000, are small businesses, but their compliance costs shouldn’t be as burdensome as claimed in a cost estimate submitted by Georgetown Economic Services, the department said. That’s because DoJ dropped the hard- copy requirement and would allow third-party record-keeping services, it said.

‘Entrepreneurs’ Ready to Start Recordkeeping Businesses

“Microproducers” such as women who run webcams out of their rooms could be the biggest beneficiaries of DoJ’s new rules, said Reed Lee, who chairs the government and legal committee of the Free Speech Coalition, an industry trade group. It worked out a deal with DoJ in 2005 to delay enforcement of DoJ’s rules for porn sites, which were then new, even as a court fight went on (WID Sept 1/05 p1). The third-party record-keeping provision, proposed by the coalition starting in 2004, would make amateur producers secure enough to continue their businesses without risking their privacy, Lee said. Several “entrepreneurs” are ready to start record-keeping businesses for the adult industry, which will reduce the cost for small producers to comply, he said.

The industry is relieved that secondary producers wouldn’t be held responsible for missing records before the Adam Walsh law took effect, Lee said. “It is 18 years of secondary producer culpability … that we were ready to fight, that we no longer have to worry about.” The new rules are “clearing out a whole lot of underbrush” from the coalition’s first lawsuit three years ago, he said.

Other parts of the rules are encouraging but unclear, Lee said. They seem to say that DoJ believes a porn production can be “private enough that it’s not covered,” including content made or posted without commercial motive, he said. The previous 2257 rules made it a crime to sell or even transfer explicit material without a compliance label, so DoJ is backing down a bit, Lee said. But the coalition’s legal challenges won’t end. The proposed rules still suggest that porn producers must defend their speech as constitutionally protected, leaving the entire 2257 framework open to constitutional challenge, Lee said.