Child Protection and Obscenity Enforcement Act

Template:Use American English Template:Short description Template:Redirect Template:Use mdy dates The Child Protection and Obscenity Enforcement Act of 1988, title VII, subtitle N of the Anti-Drug Abuse Act of 1988, Template:USStatute, Template:USBill, is part of a United States Act of Congress which places record-keeping requirements on the producers of actual, sexually explicit materials. The implementing regulations (colloquially known as 2257 regulations) (C.F.R. Part 75), part of the United States Code of Federal Regulations, require producers of sexually explicit material to obtain proof of age for every model they shoot and retain those records. Federal inspectors may inspect these records at any time and prosecute violations.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

Allied administrative law (2257 regulations)

The administrative law that has been created by virtue of the Act to guide and aid its enforcement, 28 C.F.R. 75 (also known as the 2257 regulations), specifies record-keeping requirements for those wishing to produce sexually explicit media, and imposes criminal penalties for failure to comply. This is intended to ensure that no person under the legal age is involved in such undertakings. (See Template:Slink and Child pornography laws in the United States for more information about the term "sexually explicit".)

The regulations define the terms "primary producer" and "secondary producer". The term "produces" means:

• actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being;
• digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or
• inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content of a computer site or service that contains a visual depiction of, sexually explicit conduct;

and does not include activities that are limited to:

• photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;
• distribution;
• any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;
• the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or
• the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230 (c)) shall not constitute such selection or alteration of the content of the communication.<ref>{{#invoke:citation/CS1|citation

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A "primary producer" is defined in the set of rules as

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A "secondary producer" is

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One may be both a primary and a secondary producer.<ref name=ecfr/>

"Manage content" means

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"Computer site or service" means

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The regulations also spell out requirements for the maintenance, categorization, location, and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.

The Department of Justice can modify the regulations, based on the discretion, or possible future requirements, that has been given to it to do so by the Act.

Enforcement

It is clear there is much sexual material on the Internet and elsewhere that would fall within the terms of this law. At present, the U.S. Department of Justice has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against Mantra Films, Inc., based in Santa Monica, California, and its sister company MRA Holdings (both owned by Joe Francis), who are the originators of the Girls Gone Wild video series. Francis and several of his managers were prosecuted, citing infractions of this act.<ref>'Girls Gone Wild' producers fined $2.1 million, CNN, September 12, 2006.</ref> In January 2007, these charges were for the most part dropped.<ref>Judge Drops Most Charges Against 'Girls Gone Wild' Producer Joe Francis, Associated Press, January 5, 2007.</ref>

However, Francis and the company entered guilty pleas on three counts of failing to keep the required records and seven labeling violations for its series of DVDs and videos before U.S. District Judge Richard Smoak, agreeing to pay $2.1 million in fines and restitution. This allowed Francis to avoid possible harsher penalties which include five years prison time for each violation.

Also in 2006, the FBI, under the direction of United States attorney general John Ashcroft, began checking the 2257 records of several pornography production companies.<ref>FBI Visits K-Beech, AVN News, December 15, 2006.</ref>

The final regulations implementing Congressional amendments to 2257, termed 2257A, were updated December 18, 2008, and went into effect on the same day as the inauguration of Barack Obama. On that same day, January 20, 2009, President Obama, through Chief of Staff Rahm Emanuel, requested by memorandum that heads of departments allow for review by the incoming administration of all regulations not then final.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

Legal challenges

The initial iteration of 2257, first passed in 1988, mandated that producers keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalties for noncompliance, the statute created a rebuttable presumption that the performer was a minor. Pub. L. 100-690. This version was struck down as unconstitutional in American Library Association v. Thornburgh on First Amendment grounds. 713 F. Supp. 469 (D.D.C. 1989) vacated as moot 956 F.2d 1178 (D.C. Cir. 1992).<ref>Template:Cite court</ref>

After Thornburgh, Congress amended 2257 to impose direct criminal penalties for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accompanying regulations, but the new version was upheld by American Library Association v. Reno, 33 F.3d 78 (D.C. Cir. 1994).<ref>Template:Cite court</ref>

In Sundance Association Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).<ref>Template:Cite court</ref><ref name="ILT">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

PROTECT ACT related challenges

Challenges to initial regulations (2005 to 2010)

In 2004, bound by the new PROTECT Act of 2003, the DOJ made changes to the 2257 regulations to keep up with the proliferation of sexually explicit material found on the Internet. Currently the 18 U.S.C. 2257 regulations do not pertain to simulated pornography (e.g., hentai, etc.) provided such is not facially obscene.

In June 2005, the Free Speech Coalition (an advocacy group for the adult entertainment industry) sued the Department of Justice to enjoin the regulations until they could obtain a court hearing. In December 2006, a federal judge issued an injunction protecting secondary producers who were members of the Free Speech Coalition, but FBI inspections of these producers were still ongoing despite the injunction.<ref>Seeks Halt to 2257 Inspections Following 'Illegal Searches',Template:Dead linkTemplate:Cbignore AVN Online, November 17, 2006.</ref> On March 30, 2007, District Court Judge Walker Miller issued an interim ruling, which dismissed some causes of action and allowed others from the initial 2005 case to proceed in light of the Walsh Act amendments.<ref>freespeechcoalition.com, April 3, 2006.</ref> The actual trial phase had not yet begun.On October 23, 2007, the 6th Circuit U.S. Court of Appeals ruled the federal record-keeping statute unconstitutional, holding that the law is overly broad and facially invalid.<ref name="Court Opinion">Court Opinion, October 23, 2007</ref> The Sixth Circuit subsequently reheard the case en banc and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.<ref name="uscourts1">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> The United States Supreme Court refused to hear (denied certiorari to) the April 2009 challenge to Connection Distributing Co. v. Holder, the Sixth Circuit Court of Appeals decision on the legality of 2257 and its enforcement. (See "Order List", Monday, October 5, 2009).<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

Challenges to later 2007 regulations (2010 to 2016)

After a July 2010 decision by U.S. District Judge Michael Baylson to dismiss the FSC's lawsuit per the request of U.S. Attorney General Eric Holder's DOJ, agreeing that USC 2257 and 2257A regulations are constitutional,<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> the FSC then filed an additional appeal to amend their original challenge to the constitutionality challenge.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> On Monday, September 20, 2010, Judge Baylson rejected FSC's amended appeal, allowing the government record-keeping inspections to be restarted.<ref>Template:Cite news</ref>

The FSC appealed this case to the Court of Appeals for the Third Circuit. In 2016, the court ruled that the record-keeping regulations did not violate the First Amendment. However, they also ruled that requiring adult producers to make the records available without a warrant, accessible by law enforcement for any reason, violated a producer's Fourth Amendment protections against unreasonable search and seizure.<ref>Free Speech Coalition, Inc. v. Attorney General, 825 F.3d 149 (3d Cir. 2016). RET. April 06, 2018.</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

See also

• Internet Safety Act

References

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External links

• Template:Commons category-inline
• Department of Justice Final Rule for 28 CFR Part 75: Effective January 20, 2009 | HTML / PDF
• Text of 28 C.F.R. pt. 75: amendments to the regulations became effective on June 23, 2005, via GPO Electronic Code of Federal Regulations