The Empire Strikes Back: FAQs on HR 4472 for Adult Webmasters

  

The Empire Strikes Back:

FAQs on HR 4472 and Its Consequences for Adult Webmasters

  

By J. D. Obenberger, Attorney at Law
http://www.xxxlaw.net

 

 This Summer, 2006 piece was written for public distribution and publication; it's a distilled version of the Client Advisor sent to my retaining clients. (Our ongoing, retaining clients receive timely updates via email when legal news significant to their operations comes from the courts or Congress. Less frequently, we send out an XXXLAW Bulletin to those who are on our general mailing list.) This was written in the wake of the enactment of House Resolution 4472, which had significant repurcussions that found their way into the Regulations governing Section 2257, issued by the Justice Department.

On Thursday, July 27 2006, President Bush signed House Resolution 4472 into law, an enactment with profound effects for adult webmasters. 

 

When does HR 4472 Take Effect? 

Bills passed by both houses of Congress become effective upon signing by the President in the absence of provisions in the Bill that otherwise provide. The definition of those who produce sexually explicit content now includes the class of persons who have been called "secondary producers" in the Regulations. That change seems to take effect immediately. (It is not clear what the effect of Denver Judge Milller's injunction in favor of FSC members may have on enforceability of this provision on FSC members, but as to the other webmasters who are non-FSC members, it seems plainly enforceable now. It constitutionality is a matter that will be challenged as it is enforced, and perhaps before then.)

Section 502 (b) of the Bill provides that the provisions do not apply to the newly regulated class of images depicting the lascivious exhibition of the genitals or pubic area, if they were produced in whole or in part before the effective date of the statute, unless they were previously regulated (e.g. graphic depictions of masturbation or sexual intercourse that do include a lascivious exhibition of a penis and/or vagina.) Webmasters should create strict protocols 1) to assure that pre-4472 images are identifiable as exempt (or just taken down) and 2) to assure that images produced after the effective date of HR 4472 are included in Section 2257 record keeping and are embraced within the required Disclosure Statement.

Additionally, the provisions concerning simulation of sexual conduct (2257A) do not become effective until ninety days after final rules implementing them are promulgated by DOJ according to Section 503 (i) (3) of the Bill. Thus, those provisions are not currently in effect.

 Why Did Congress Enact the Section 2257 Amendments? 

Fourteen years ago, In 1992, the United States Department of Justice promulgated regulations to implement Section 2257 which included a class of persons called "secondary producers" who used explicit images but who had nothing to do with their creation. They were charged with the duty of maintain the same records as though they were a photographer, with the obligation to provide a disclosure statement, and the duty to make the records available for inspection. Certain constitutional objections to the statute and the regulation were rejected by the United States Court of Appeals for the District of Columbia Circuit in ALA v. Reno in 1995 and the regulations went into effect shortly afterwards. Eight years ago in Denver, the United Stated Court of Appeals for the Tenth Circuit, in Sundance Associates v. Reno, determined that the "secondary producer" obligations imposed by DOJ's regulations went further than Congress had authorized and that the record-keeping obligation had been imposed by Congress only on those with a close connection to the creation of the content. This ruling was never followed by any other court, and as a result, it was only the certain law in the mountain states of the Tenth Circuit. As a result of plenty of wishful (or hopeful) thinking, many – or at least some - producers in the first generation of adult internet commerce refused to provide Section 2257 records to webmasters, the webmasters often - or at least sometimes – acquired rights to the content anyway, and some tried to have it both ways by providing a disclosure statement referring to the original producer, as was permitted under the regulations, but not maintaining records as required by the regulations. Many webmasters with acquired content thought they were fully in compliance with the law and they simply did not know that the regulations required them to maintain the records themselves. When the Free Speech Coalition responded to the Attorney General's newly amended regulations in 2005 with a lawsuit in the Tenth Circuit challenging the secondary producer obligations - a claim it was bound to win in the Tenth Circuit - Congress reacted by introducing at least three bills making it clear that Congress presently intended to impose the record-keeping obligation on secondary producers. These bills were introduced both before and after Judge Miller in Denver issued his December, 2005 ruling which preliminarily enjoined enforcement of the secondary producer requirements as a matter of authority rather than constitutionality, following the higher court decision in Sundance. (The Free Speech Coalition had also challenged the constitutionality of the entire scheme, including its effects on the creating photographers and videographers. 

With one exception relating to maintaining a copy of the depiction of streaming content, Judge Miller shot down every constitutional argument he reached concerning the scheme imposed by Section 2257 and the implementing regulations. He never reached the constitutional arguments concerning secondary producers because he followed the authority holding of Sundance – and it’s debatable whether the constitutional arguments of secondary producers are different from that of primary producers in a constitutionally significant degree. 

Because Congress had the power to make its designation of authority concerning secondary producers to DOJ clear, Congress could and did fix the problem affecting enforceability of the secondary producer obligations. In fact, Congressional attention to Section 2257 was ripe because, through an oversight in the Protect Act enacted in Spring 2003, the definitions of sexually explicit conduct contained in Section 2256 were no longer in synch with Section 2257 and needed to be adjusted. Congress took advantage of that need for its attention, and in my view, directly responded to the Free Speech Coalition's lawsuit, by crafting a legislative fix for the situation in the Tenth Circuit that cleared both houses of Congress and which became law on July 27, 2006. 

The obligations imposed on Secondary Producers have been defended by DOJ because they deny a market to child pornography and create duplicate records in case the primary producer disappears, dies, or blows away. 

The inclusion of the previously exempt “lascivious display” images was defended by proponents as “plugging a loophole” in the Section 2257 system designed to abate child pornography. To others of us, it just looks like a vindictive neoconservative punch in the nose of the adult industry, responding to the litigation in Denver. The bills proposing such a result seem to have been introduced after suit was filed there and the cause and effect seems a fair inference from the events.

 

What is the Practical Effect of the Changes in Section 2257? 

The term "secondary producer" never existed in Section 2257 and is not found in the recently amended statute, either. Instead, Congress has included the persons who insert images depicting actual, explicit sex and those who digitize them with a commercial interest into the expanded definition of the persons who "produce" such conduct. Congress has clearly legislated that secondary producers are, indeed, producers. The obligations of the law affect them as much as the guy behind the lens, assuming the constitutionality of the Statute. It is now clear that licensing/assignee webmasters must maintain the records and content, publish the notice, categorize the records, and make them available for inspection. The essential difference between the categories of producers remains as laid out in the regulations: The noncreative webmaster acquiring content may accept as authentic those records tendered by the primary producer and must categorize them and maintain them for inspection, make them available for that purpose, and publish a disclosure statement, listing the primary producer or himself (or herself), at his option. He or she must also maintain a record of the name and address of the primary producer. 

Stealing covered content has always been a violation of the copyright laws – but now it’s a crime to use covered content without the records.


What Should a Webmaster Do to Comply with the Amendments? 

A five year prison term is nothing to trifle with. Webmasters should consult with an attorney specializing in this area and obtain guidance tailored to their own production and/or publication. 

A webmaster should read Section 2257 as amended [which can be found at http://my.execpc.com/~xxxlaw/18_USC_2257_text.html] carefully, and with recourse to a graphic version that illustrates the changes, which can be found at http://my.execpc.com/~xxxlaw/22572006_Redlined.htm. The entire text of the Act can be found at http://my.execpc.com/~xxxlaw/HR4472_7.27.06.pdf. 

Given the commencement of inspections under the Section by trained teams of agents during the past week and their intimations of a sustained program of inspection, and in light of the five-year penalty provided for in the Statute, it would be foolhardy to continue the publication of covered images that are not documented pursuant to the statute and regulations. It would be unreasonably risky under these circumstances to license or acquire covered content that is not accompanied by the mandated records, in view of Judge Miller's wholesale rejection of the constitutional claims he considered. Those who have never understood their obligations, and those who never complied, now face the prospect of pulling content down at the risk of a jail term. Some who did not understand now do finally understand. 

It is my advice to my clients to avoid acquiring rights in any content that does not come with its papers. Those producers who refuse to provide the paperwork have justified their position by claiming to protect the privacy of their models. No one seems to articulate that they are also feathering their own nests by protecting their exclusivity concerning models and performers – at the risk of jail time for those who purchase it. Model releases should expressly authorize the disclosure of records required (on the face of the law) to licensees and assignees; Acquiring webmasters should refuse to do business with content houses that put them in jeopardy, no matter how prominent or well-established. 

All of this applies to all covered images, whether they are licensed or acquired expressly on one hand or simply distributed as free content or banners or otherwise. This Act applies to bitstream torrents, to decentralized file distribution, to the newsgroups, and to other web services. It remains wise practice to affix a 2257 notice to all content elements that may independently circulate.

 

What Else did Congress do in HR 4472? 

Congress went a bit further in responding to the situation in Denver. It included lascivious images depicting genitals and the pubic area with the other matters that had earlier triggered Section 2257. It specifically provided that this provision is prospective rather than retrospective, working only to impose the obligation on images, not otherwise governed by Section 2257, that were not produced in whole or in part before July 27, 2006. This is likely to have a restraining effect on the use of new genital images which are not accompanied by records, which is its intended effect. 

The Act effectively provides that a link to the Section 2257 Disclosure Statement should appear on every page of every website that publishes covered material anywhere. It’s now a crime to do otherwise, and that should result in some simple site redesign for some webmasters. 

Anyone who did not pay attention last summer, when the Attorney General amended the regulations implementing Section 2257 should be aware that he or she is responsible to keep a copy of each depiction and of every URL on which he or she is publishing the images. The images must be retrievable by URL. Judge Miller’s decision seems to find that the requirement to keep copies of lengthy streams may be unconstitutional. 

A table setting out all of the changes in the Regulations last summer – associated with the pertinent DOJ Commentary - can be found at http://www.adultinternetlaw.com/docs/5col.table.htm. 

It is best to consult with an attorney in any case – but this is especially critical if you are producing streams.

 

What other Changes of Interest to Adult Webmasters did HR 4472 Make?

 

It created a federal felony in the refusal of a producer to permit the Attorney General or his designee to permit the inspections authorized under Section 2257.

House Bill 4472 made it a federal crime to produce obscenity. Though any competent defense to such a charge will include constitutional attacks on the statute, this elevates content production to a matter which may implicate a federal felony for the first time. This is the first new federal obscenity statute in a very long time. Why did Congress enact it? Probably to give federal agents a basis for a search warrant on producers who do not publish directly.

Section 702 of the Act creates a federal crime to deceive persons into viewing obscenity through metatags or other coding – punishable by up to ten years in prison – and to deceive minors into viewing material harmful to minors – punishable by up to twenty years in prison. It is time for webmasters to take a very close look at metatags and coding, and under the advice of a qualified attorney, to deal with such terms as “toys” in a manner that eliminates the risk associated with such words.

Finally, Congress created Section 2257A dealing with simulated depictions of sexual acts, a provision which expressly extends a wide discretion to the Attorney General in fleshing out regulations that will precisely describe duties and exemptions, and which will not become effective until those regulations are promulgated. 

[Update: The 2257A Regulations have been promulated now and are on the books.]

Isn’t There an Injunction Against Section 2257 Inspections?

 

There is no injunction against Section 2257 Inspections of primary producers and the government has started a program of inspections with specially trained teams. This relief was denied to the Free Speech Coalition in Denver. Free Speech Coalition members and non-members, alike, who produce content, may be inspected. 

There remains a preliminary injunction against inspections of secondary producers who are members of the Free Speech Coalition. Non-FSC members are simply not covered. Whether it will long survive or whether it applies to anyone in light of the new statutory amendment remains to be seen.

 

Isn’t all of this Unconstitutional?
 

That will be for the courts to determine ultimately. With one exception noted in this article above, the few courts that have considered Section 2257 and its regulations have rejected each constitutional argument they have squarely faced. While it’s obvious that past performance is no guarantee of future yields (or the lack thereof!), a reasonably prudent webmaster should not place heavy reliance on the unconstitutionality of Section 2257 or its associated regulations generally in conducting a content production or online publishing business. Our universal hope that the scheme falls because of the unwarranted burden it places on erotic expression is no substitute for confidence in the success of that argument, and little consolation to those facing time in the Bureau of Prisons should the statutes be deemed enforceable and constitutional.

 

Will the Adult Internet Attorneys Conduct any Seminars or Workshops on These Changes? 

On Saturday, August 5, at the hour of 1:00 pm, Joe Obenberger will conduct a two-hour legal workshop for content providers and webmasters as part of the AVN Online Internext show and under its auspices, at the Westin Diplomat Resort in Hollywood, Florida, in Diplomat Ballroom 1. The workshop will be free to Internext attendees with a Seminar Pass. The program will concentrate on the substance of the law of obscenity and the punishment and forfeiture provisions that apply to it - and Section 2257, including its recent amendments - and to the legal principles involving copyright, privacy, and the appropriation of images and performances. This workshop is intended to provide essential legal information that should be in the possession of everyone involved in the online adult industry. 

At the hour of 10:00 on Sunday Morning, August 6, he will participate in the Internext legal seminar together with other attorneys of national stature who serve the Adult Internet. Though it seemed at first unlikely that a seminar held at 10 am on the last day of Internext, a Sunday, was likely to draw a substantial audience, the present circumstances suggest that a standing-room-only audience may appear.

 No short article on this topic can comprehensively deal with all of the issues in their complexity and I make no claim that this article has done so. It certainly does not create any attorney-client relationship with any reader. You are advised to contact a lawyer with expertise in this area, preferably a member of the First Amendment Lawyers’ Association.

 

 

Copyright 2006-2011 J. D. Obenberger. All rights reserved.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net. 

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.