2257

[gaydemon_jr]

i am confused. seen a lot of threads including stuff on 2257. is there anyone who could summarise it for me, and does it even apply to me in the uk? after all, why would US law affect someone in the uk.

:confused:

[gaybucks_chip]

In short, 2257 is a huge mess. To really understand all the ins and outs, you should really talk to an attorney or be prepared to read through a LOT of arcane and poorly written legalese (thanks to our fine US legislators and public servants.)

2257 applies in the US, but if you have a non-US based company (meaning even if employees, company base, servers, and everything are outside the US) and market to US customers, the US justice department takes the position that you are subject to those regulations.

That said, it's highly questionable how US authorities would be able to inspect records outside the US, since most other countries would require "probable cause" to conduct such an investigation.

Nevertheless, most adult companies worldwide at least claim to be compliant, in that they all have 2257 compliance statements on their sites. For non-US based companies, whether or not any records actually exist, and whether you need to worry about it or not, is a subject for endless speculation.

One thing that definitely does NOT work is to be a US resident or domiciled here and claim your company is based elsewhere, or to locate your servers elsewhere and claim you're outside of jurisdiction.

Hope that helps.

[gaydemon_jr]

thanks, yeah.

i think i personally will take the stance of complying wherever possible to avoid confrontation with the us government lol. :)

[abostonboy]

My question is what is the status of 2257 in regards to US webmasters using sponsor content. I was advised by my attorney that it was ok until the final regs on the adam walsh act were released.

[gaybucks_chip]

What, am I suddenly the 2257 guru? :)

First, I'm not an attorney, so nothing I say on this topic should be relied upon.

The secondary producer issue is thorny. Here is my understanding. This is lengthy, but there's no simple way to explain it because it's a gray area.

Prior to 6/23/05, secondary producers were not required to maintain their own records. They needed only to point to the primary producer of the content. The Sundance vs. Reno decision affirmed that position. The new regulations that went into effect on 6/23/05 attempted to change that, and required that all secondary producers maintain complete records.

The secondary producer requirements imposed in the 6/23/05 revision of the law were subsequently suspended from enforcement by an injunction issued on behalf of the FSC. FSC's position is that only members of the FSC are entitled to protection from that injunction. The opinion of Chad Belville and a number of other attorneys is that the government is obligated to apply the law equally, so everyone is protected by the injunction.

The Adam Walsh act, signed into law 7/27/06, among other things expanded the definition of "sexually explicit" to include simulated sex, certain types of nudity that were previously nonexplicit (including erections), and other changes. It also redefined "producer" and eliminated the term "secondary producer." Under AWA, anyone who displays adult content, including material that was previously "nonexplicit" and therefore exempt, must keep their own 2257 records (IDs, date of shoot, cross referencing, etc.)

Here's where it gets hairy. The final regulations guiding enforcement of AWA have not been published. Until they are, AWA cannot be enforced.

Once the regulations are published, AWA will render moot the Sundance decision and the injunction issued to prevent enforcement of the 6/23/05 regulations, and will require ALL producers (meaning, affiliates, blog owners, sponsors -- essentially almost anyone who displays any nudity -- to have docs in hand for any nude content displayed under a URL owned or controlled by them (in other words, if you embed a sponsor video, but your URL is at the top, you need the records in your hands.)

So for now, there are two things that prevent Justice from performing any records inspections of what are now called secondary producers, i.e., affiliates, blog owners, etc.

1. the injunction in place for the 6/23/05 regs, based on Sundance)
2. the lack of published final regs for the AWA.

Agent Jarvis has been quoted as saying the FBI is not doing any inspections of secondary producers and is not inspecting secondary records of primary producers. He has made clear that they cannot inspect until the regulations are final (30 days after publication of final regs.)

However... the regs could be published any day. If and when they are, they will go into effect 30 days later. At that point, unless FSC wins another injunction (and that may be more difficult, since AWA was written to specifically invalidate Sundance), everyone displaying or embedding content on a URL they own or control will have to have records on hand.

That is how I understand it, based on my conversations with our attorney, with reading the transcripts of various public seminars, and my own reading of the regulations and injunctions. However, don't take my word for it, and your mileage may vary.

[abostonboy]

The secondary producer requirements imposed in the 6/23/05 revision of the law were subsequently suspended from enforcement by an injunction issued on behalf of the FSC. FSC's position is that only members of the FSC are entitled to protection from that injunction. The opinion of Chad Belville and a number of other attorneys is that the government is obligated to apply the law equally, so everyone is protected by the injunction.



The injunction you are talking about follows (I believe),

"Defendant is enjoined, pending the outcome of these proceedings or
further order, from treating any of the Plaintiffs or members of plaintiff
Case 1:05-cv-01126-WDM-BNB Document 60 Filed 12/28/2005 Page 27 of 29

28
Free Speech Coalition as “producers” under 28 C.F.R. part 75 or persons
or entities “produc[ing]” any book, magazine, periodical, film, videotape,
or other matter containing one or more visual depictions of actual sexually
explicit conduct under 18 U.S.C. § 2257, to the extent that plaintiff or
member of plaintiff Free Speech Coalition’s activity does not involve the
hiring, contracting for, managing, or otherwise arranging for the
participation of the depicted performer."

It is my understanding that that injunction was overturned via Adam Walsh. But regs have not been posted yet on Adam Walsh.

[abostonboy]

Here's where it gets hairy. The final regulations guiding enforcement of AWA have not been published. Until they are, AWA cannot be enforced.



There are more than 20 instances of the word "regulations" in AWA. Here is one example,

"in such manner and in such form as the Attorney General
shall by regulations prescribe"

By regulations? We HAVE NONE! How can you follow a regulation that doesn't exist?

p.s. Never say to your attorney that someone said you should get a new one. He charged me more for this one than he did last time. People ask me why I hate attorneys. rofl

[gaybucks_chip]

It is my understanding that that injunction was overturned via Adam Walsh. But regs have not been posted yet on Adam Walsh.

As far as I know, the injunction itself was not overturned or invalidated by AWA, but many of the issues in the injunction became moot points because the justification for the injunction in the first place was that the regulations overstepped what the actual language of 2257 allowed. AWA resolved the issue by creating new law to support what Justice wanted to do.

However, since AWA has no regulations, it's not yet enforceable. Net effect is the secondary producer recordkeeping requirements, which were covered by the injunction, are now justified by a new law, but that law is not yet enforceable.

Ergo, secondary producers (even though they no longer exist according to AWA) can, for the time being, continue putting up content without having records. However, we at Gaybucks have been encouraging our US affiliates to comply with AWA even though it is not yet in force, so that when the regs are published, affiliates won't have to suddenly, radically change their business models.