Sunday, February 25, 2007

Girls Gone 18 U.S.C. §2257

Girls Gone Wild Volleyball
Originally uploaded by tywardinger.
Ok, I can see how it could happen that you would not keep good records taping stuff to put one of these videos together. And remember they had trouble with people not being the age they said or didn't even get asked they were.

Try and follow it.

Prior to the act, the record-keeping requirements applied only to visual depictions of four specific types of "actual sexually explicit conduct": sexual intercourse, bestiality, masturbation, or sadistic or masochistic abuse. Under the DOJ's implementing regulations, producers of material containing such scenes must collect and retain the legal name and date of birth of each performer in the scene, and keep a copy of a government-issued identification card for each such performer, a list of all names ever used by each such performer, and a copy of the video or other matter in which the performer appears. These records must be kept separate from all other records and they must be organized so that they are easily retrievable by the name of each performer and the title of each video or other work. In addition, the records must be available for inspection by the attorney general or his agent.

Against this backdrop, the act expanded the record-keeping requirements in two important ways. First, the act added a fifth type of actual sexually explicit conduct covered by § 2257: "lascivious exhibition of the genitals and pubic area." Second, the Act added new record-keeping requirements for "simulated" sexually explicit conduct, codified separately at 18 U.S.C. §2257A. On their face, both changes could sweep a significant amount of mainstream entertainment into the ambit of the burdensome record-keeping requirements.

Among other things, the addition of "lascivious exhibition of the genitals and pubic area" injects a highly ambiguous term into a criminal record-keeping statute. That term is generally applied in cases involving child pornography, and involves a highly fact-specific -- and necessarily subjective -- inquiry. The result is a test for "lascivious exhibition" that is difficult if not impossible to apply with any reasonable degree of certainty -- especially in the context of images of adults. For example, courts have held that, although nudity alone is not sufficient to make an image of a child lascivious, nudity also is not necessary, and have found lascivious exhibition to exist even when the pubic area is clothed. The test becomes even more ambiguous when applied to sexual images involving adults. If this case law is imported directly to the record-keeping context, a broad range of sexual scenes in mainstream entertainment could conceivably trigger record-keeping obligations.

The term "simulated sexually explicit conduct," which is not defined in the statute, is also highly ambiguous. It is not clear, for example, whether "simulated sexually explicit conduct" would include a scene in a mainstream film in which characters are supposed to be having sex but are only shown in bed from the waist up. Such a broad interpretation could cover a wide range of popular content, and subjecting such material to the record-keeping requirements -- with their corresponding criminal penalties -- would place significant burdens on a large amount of valuable and protected expression, thereby raising serious constitutional concerns.


In response to some of these concerns, Congress included in the act a safe harbor provision under which companies that create material containing images that might arguably qualify as "lascivious exhibition of the genitals or pubic area" or "simulated sexual conduct" will be exempt from the record-keeping requirements. In order to qualify for the safe harbor, the company's material must be intended for commercial distribution and the company must certify to the attorney general that it regularly and in the normal course of business collects and maintains certain identifying information about its performers "pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards." 18 U.S.C. §2257A(h)(1). Companies qualifying for the safe harbor are exempt from the record-keeping and labeling requirements and the corresponding criminal penalties.

I think this is all designed to make you just give up..., DUH! Don't do it. Don't simulate it. Don't even think about it.

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