WASHINGTON, DC – The U.S. Senate has passed what is now being called the “Adam Walsh Child Protection and Safety Act of 2006;” a sweeping piece of legislation that includes provisions for the creation of a national sex offender registry, enumerates funding for “Project Safe Childhood,” and contains major revisions to section 2257 of Title 18 of the United States Code – the set of regulations commonly referred to within adult industry simply as “2257.”The Act’s supporters expect the House of Representatives to approve the Senate version of the bill quickly, possibly as early as Monday, with the goal of having the bill signed into law by President George W. Bush on Thursday, July 27th.

Thursday marks the 25th anniversary of the abduction and murder of Adam Walsh, the Act’s namesake and son of America’s Most Wanted host and child-protection activist John Walsh.

“I am pleased to say that negotiations have resulted in a strong bill that will soon pass both chambers and become law,” Senator Harry Reid said in a written statement issued yesterday. “I appreciate the willingness of all members to put aside unrelated controversial issues so that we could focus on the core purpose of this bill – protecting children.”

In a statement issued earlier today, President Bush hailed the Senate for “voting to strengthen our laws against convicted sex offenders.”

“The Adam Walsh Child Protection and Safety Act of 2006 will ensure appropriate sentencing for sex offenders and will provide local law enforcement officials with the tools they need to track those who prey upon children,” said Bush. “I urge the House of Representatives to pass this good legislation as quickly as possible, so that I can sign it into law.”

While coverage in the mainstream media and comments from public officials are focusing on the national sex offender registry, increased sentences for child molesters, and increased funding for law enforcement, the Act also contains numerous provisions which are sure to raise concerns of unconstitutionality, and result in legal challenges from free speech and civil liberties organizations.

The Act includes several substantial changes to 18 USC 2257. In addition to redefining the term “produces,” the Act adds an entirely new sub-section, 2257A – “Record Keeping Requirements for Simulated Sexual Conduct.”

As the title of the section suggests, 2257A extends record-keeping requirements that hitherto have applied only to depictions of actual sexually-explicit conduct to apply to depictions of simulated sexually-explicit conduct, including sex scenes in mainstream Hollywood movies.

2257A states, in part, that “Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally-or computer-manipulated image of an actual human being, picture, or other matter that (1) contains 1 or more visual depictions of simulated sexually explicit conduct; and (2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.”

The excerpt above from 2257A has a virtually identical corollary in section 2257, the only differences being occurrences of the word “simulated,” and omission of the words “made after November 1, 1990” between the terms “visual depictions” and “sexually-explicit.”

The new section also introduces a labeling requirement for such simulated sexually-explicit materials, although the specifications for such labeling are not defined.

2257A (e)(1) states, in part, that “Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter… in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located.”

Another subsection of 2257A provides exemption from the new section’s record-keeping and labeling requirements for some simulated sexually-explicit content.

2257A (h)(1) outlines the circumstances under which “provisions of this section and section 2257 shall not apply to matter … containing one or more visual depictions of simulated sexually explicit conduct, or actual sexually explicit conduct as described in clause (v) of section 2256(2)(A)”

The clause referred to above, clause (v) of section 2256(2)(A), is the portion of the statutory definition of “sexually-explicit conduct” that specifies actual or simulated “lascivious exhibition of the genitals or pubic area of any person.”

Under 2257A, if the “sexually-explicit conduct” contained in the “matter” (movie, magazine, video, book, etc.) in question is merely “lascivious exhibition of the genitals or pubic area of any person” the provisions of 2257 and 2257A may not apply. These somewhat complicated exceptions are excerpted at length below.

The language of 2257A (h)(1) holds that the provisions of 2257 and 2257A do not apply to material that is:

• “created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers”
And:
• “is not produced, marketed or made available… in circumstances such than an ordinary person would conclude that the matter contains a visual depiction that is child pornography”
Or:
• “is subject to the authority and regulation of the Federal Communications Commission… regarding the broadcast of obscene, indecent or profane programming,”
And:
•“is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers…. where such information includes the name, address, and date of birth of the performer.”

The exception to 2257 and 2257A does not apply to any actual sexually explicit conduct as defined by clauses (i) through (iv) of section 2256(2)(A), closing the “loophole” for any content that goes beyond “lascivious exhibition of the genitals or pubic area of any person.”

Earlier versions of the bill had more stringent provisions regarding simulated sexually explicit material and included record-keeping requirements essentially identical to those for actual sexually-explicit content.

According to reports in the Hollywood Reporter, Reuters and the Associated Press, the requirements for simulated sexually explicit material were “watered down” after the legislation caught the attention of Hollywood studios.

Although Hollywood studios will still have to maintain records regarding the age of performers, they will not be required to segregate those records in the way producers of actual sexually-explicit content must, and failure to comply carries far lighter punishment than the equivalent record-keeping violations for actual sexually-explicit content.

The changes made to section 2257 under the Act are not the only potential source of concern for adult webmasters.

Section 505 of the Act, “Authorizing Civil and Criminal Asset Forfeiture in Child Exploitation and Obscenity Cases,” amends section 1467 of title 18 in a fashion that appears to expand considerably the scope of the government’s power to seize property and assets of persons convicting of offenses involving obscene material.

For example, the Act amends the following paragraph from section 1467 by removing all the words after “commission of such offense:”

“A person who is convicted of an offense involving obscene material under this chapter shall forfeit to the United States such person’s interest in… any property, real or personal, used or intended to be used to commit or to promote the commission of such offense, if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property in the offense.”

The above alteration appears to remove the discretion currently afforded to judges in determining which assets and property of individuals convicted of obscenity-related crimes are subject to forfeiture and seizure under section 1467.

Another alteration, detailed in section 703 of the Act, covers “Deception by Embedded Words or Images.” This portion of the Act inserts a new section to 18 USC 2252, by adding a new section, 2252C, “Misleading words or digital images on the Internet.”

The new section states that anyone who knowingly “embeds words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title and imprisoned for not more than 10 years” and that whoever does the same with the intent of deceiving a minor into viewing “material harmful to minors on the Internet shall be fined under this title and imprisoned for not more than 20 years.”

While the new section does specify that a “word or digital image that clearly indicates the sexual content of the site, such as ‘sex’ or ‘porn.’ is not misleading” for the purposes of 2252C, but this caveat still appears to leave open to question a host of terms that are commonly used in both pornographic and non-pornographic contexts.

Several adult industry attorneys contacted by YNOT today said they are reserving comment until the legislation passed by the House and they’ve had the opportunity to review the Act in its final form. Stay tuned to YNOT for more updates on the progress of the bill, along with analysis and commentary from adult industry attorneys and reaction to the new legislation from representatives of the Free Speech Coalition.