WASHINGTION, D.C. – Details of the recently signed changes to 18 U.S.C. Section 2257, federal record-keeping requirements for adult businesses, were published in the Federal Register on Tuesday morning. The changes were signed by Attorney General Alberto Gonzales on May 17th, but the details of the changes were unknown to the adult industry until the publication. The final rule is effective June 23, 2005.As feared by many industry observers, the changes seem to stick closely to those originally requested by former Attorney General John Ashcroft, and do not take into consideration many of the adult industry’s concerns, which were provided to the Justice Department last year. The changes require all “secondary producers” to keep records in a manner similar to “primary producers,” and issues raised by the adult industry over both personal privacy and risks of physical harm to performers have been ignored. This means that all websites that show actual sexually explicit content will be required to keep detailed records as outlined in the new regulations, and to post a link to their primary business address, often their home address, on the home page of their websites.
“While we are pouring over the new regulations and explanatory statements by the DOJ like everyone else at this point, it appears that many of the significant concerns identified in our public comments have not been addressed,” explained First Amendment attorney Larry Walters. “Perhaps the most significant of these concerns are the requirement that secondary producers (i.e. webmasters) keep and maintain copies of age records, and that a copy of each depiction be kept with the age records. The DOJ displayed no concern or sympathy for the performers whose personal information will be circulated to every content purchaser and webmaster in the world. The DOJ essentially pretends like the Sundance decision does not exist, and relies on some ‘implied’ approval of the secondary producer records keeping requirement in the American Library Association v. Reno case. Legal challenges are sure to follow, and we will be releasing more information to our clients, and to the industry, as appropriate.”
The adult industry’s trade organization, the Free Speech Coalition, has pledged to challenge the new regulations in court. According to a Free Speech Coalition press release issued last week, the organization will seek a temporary injunction against enforcement of these new changes while the issue is fought in court.
Adult industry professionals had argued that the new 2257 changes would prove to be a significant and unnecessary burden on businesses, and requirements to keep copies of all published content with the records are impractical. The new regulations have rejected these concerns, and all cross-referencing requirements originally requested by Ashcroft have been included. The new regulations do allow for “digital” copies of content, but even streaming video such as live cam performances seem to fall under this requirement to keep copies of the content with the records.
“It proposes a very difficult situation for CamZ,” said Dan from CamZ.com, producers of live streaming media shows. “We do not archive our live shows. It would be a very difficult process if we were to have to archive those shows and keep them for that period of time. The storage alone would be astronomical. We are consulting our lawyers regarding the updated issues to come from this new regulation. We have spent many man hours getting and maintaining the proper ID’s of all of the performers and guests of the CamZ shows and for us to now keep the actual shows themselves would be a significant challenge. But one I am sure we will overcome.”
Additionally, the Justice Department has rejected arguments that providing the personal information of adult performers to every single person who licenses their content presents an undue privacy concern for the performers. Although previous 2257 regulations have gone widely unused and have not been shown to protect children, the Justice Department has argued that the protection of children surpasses the privacy concerns of adult performers. Webmasters and amateurs who work from home will still be required to list their home address on their websites, which also leads to questions of privacy and opens up the possibility of physical harm from stalkers or other individuals with harmful intent.
A complete copy of the changes can be viewed on the website for the Federal Registry.
