There are a few amateurs nervous about having to put their home addresses on their sites to satisfy 18 USC 2257 legal requirements. These fears arise out of the possibility that a particularly “smitten” member might decide to come visit them (or worse!) one day.There are a few amateurs nervous about having to put their home addresses on their sites to satisfy 18 USC 2257 legal requirements. These fears arise out of the possibility that a particularly “smitten” member might decide to come visit them (or worse!) one day.
Would hiding the address in question in a sea of other producer’s addresses, such as the producers of any plug-ins that you have or any other galleries that are on the site, etc., be acceptable? That way the member wouldn’t be sure which address was the amateur’s address.
I also thought perhaps that the amateur could put her husband’s name rather than her own (if she has a hubby), since the “smitten member” would be looking for a female name, not a male one. This seems like it would work if the hubby helps to produce the content for the site (and technically it is his address as well), but I wanted to make sure before I go suggesting that anyone else try that.
Could you verify whether or not this would be okay?
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Your situation raises a serious problem with 18 USC 2257. For individuals that are promoting themselves, the 18 USC 2257 requirement requires them to list their primary place of business. If this is your home, this could force you to deal with annoying or dangerous individuals.
As far as burying your identification among other producers, the strategy is a good one.
Turning to the strategy of using husbands as the custodian of records, I think this is an excellent idea. Obviously, the husband needs to be living with you and have the actual records for proof of age and an index for the content. Many people fail to put together the searchable index, which is a requirement of compliance. Regardless, the use of a male’s name is better than using your own – but the male MUST be the true custodian of records.
This is a good example of a situation where setting up a business entity makes a lot of sense (a corporation or an LLC). In addition to liability and asset protection, if you make the company the custodian of records, then you don’t have to use any particular individual’s name.
Under a strict interpretation of the relevant law, an individual must still be identified as the custodian of records even if there is a company. The advantage of this approach, however, is that the custodian of records can be any employee or officer of the company. Such a designation will make it more difficult for a “smitten viewer” to ascertain which provider is the actual model appearing on the site.
As you are experiencing, the requirements of 18 USC 2257 are not thought out particularly well when it comes to the Internet. Ostensibly, the law potentially endangers the chat host that promotes through his or her own site. This has been a topic of discussion among the attorneys in the industry. I believe J.D. Obenberger even raised the topic with a federal prosecutor. As I understand it, the prosecutor’s response was essentially that he couldn’t care less about models being crime targets.
If sexually explicit images are involved, then proof of age must be obtained. This is true even if the models are amateurs acting from their homes. While there is some argument that the chat host is the primary producer, the better classification is that the chat host is the model, while the chat site is the primary producer. This also is a better approach in that you avoid making the name and address of an individual host available to the public.
Turning to the real time sites, the manner of compliance really depends on the site. The specific code section reads:
(a) Whoever produces any book, magazine, periodical, film,
videotape, or other matter which –
(1) contains one or more visual depictions made… of actual sexually explicit conduct…
Regardless, the current political climate calls for a very conservative approach to compliance with 18 USC 2257.
An indemnity clause certainly can’t hurt, but I wouldn’t put much faith in such language. It would be fairly difficult to enforce an indemnity clause buried in a user agreement against a member of a site, not to mention that they might not have much in the way of assets. In a criminal prosecution, such a clause is not going to protect you from facing a loss of your liberty and may not even be enforceable based on the specific charges made.
(Attorney Richard Chapo, Esq. contributed to this article.)
Gregory J. Geelan, J.D. “Otto” is Legal Counsel for YNOT Network, LP, and Editor for YNOT NEWS and has been practicing law for eleven years. He can be reached at greg@ynotmasters.com.
