The Old Picture ID Requirements

How to Understand the Personal Identification Documents Requirement Under Section 2257 and Its Newly Promulgated Implementing Regulations. [For Historical Research Only.]

 

By J. D. Obenberger, Attorney at Law
Copyright 2005

This document is not to be reproduced except in original colors with original formatting,  nor without the CAUTION that follows.


CAUTION: The article which follows was written in 2005 and interprets regulations which have been MASSIVELY and IMPORTANTLY CHANGED since it was written. It is published now only for historical reference as to the legal standards for identification documents regarding sexually explicit depictions made during that time. To follow the guidance it gives in creating such materials now risks criminal charges, prosecution, and prison.

Why reprint this at all in 2011? First, two help ascertain whether the use of old content can get a publisher into trouble now; in other words, to help knowing if the content was legal when made. Second, to help the newer generation of producers to know how and why the industry best practice of at least two ID's originally came about.

     Originally written for and published in YNOT News.

 

 

Paranoia strikes deep
Into your life it will creep
It starts when you're always afraid
You step out of line, the man come and take you away

  - Stephen Stills, For What It’s Worth. Copyright 1966 Stephen Stills

 
The Constitution and Statutes are the primary source of law in the United States. The authority of any administrative agency or department to issue regulations is derives only from authority granted by statute
. To understand a regulation, one must first read its authorizing statute.

 
1. Start with the statute to find the duty under the statute:

 

18 United States Code Section 2257

 
a)         Whoever produces any book, magazine, periodical, film, videotape, or other matter which—

 
(1)  contains one or more visual depictions made after November 1, 1990 of actual 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.

(b)        Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct-                   

 (1)  ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;

(2)  ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and

(3)  record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation. . . .

(h) As used in this this section—

(2) “identification document” has the meaning given that term in section 1028(d) of this title;

2. Determine what “identification document” means to determine what the law requires the producer to examine. Section 2257 tells us to look to Section 1028 (d):

18 United States Code Section 1028

. . . d) In this section and section 1028A—

(3) the term “identification documentmeans a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals;

3. Read the Regulations to determine any additional duties.

 Sec. 75.2 Maintenance of records.

(a) Any producer of any book, magazine, periodical, film,  videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that contains a depiction of an actual human being engaged in actual sexually explicit conduct that is produced in whole or in part with materials that 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 and that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made after July 3, 1995 shall, for each performer portrayed in such visual depiction, create and maintain records containing the following:

(1) The legal name and date of birth of each performer, obtained by the producer's examination of a picture identification card. For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible copy of the
identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card. . .

4. The first term used, identification document, has previously been defined by Statute that the Regulation implements and possesses the meaning given to it by that Statute. The Attorney General does have specific statutory to prescribe the recording of “other identifying information“ and the AG has done so in the case that the identification document does not contain a recent and recognizable picture of the performer. In that case a legible copy of a picture identification card must be contained in the records the producer maintains.

Sec. 75.1 Definitions.

(b) Picture identification card means a document issued by the United States, a State government or a political subdivision thereof, or a United States territory, that bears the photograph and the name of the individual identified, and provides sufficient specific information that it can be accessed from the issuing authority, such as a passport, Permanent Resident Card (commonly known as a ``Green Card''), or other employment authorization document issued by the United States, a driver's license issued by a State or the District of Columbia, or another form of identification issued by a State or the District of Columbia; or, a foreign government-issued equivalent of any of the documents listed above when both the person who is the subject of the  picture identification card and the producer maintaining the required records are located outside the United States.

5. As you now can see, the producer only has an obligation to deal with a picture identification card if he has not examined and copied (or received a copy) of an identification document that contains a recent and recognizable picture of the performer. If the producer has examined a birth certificate (without a picture and certainly without a recent picture) or a 1972 driver’s license of a mature model (certainly not a recent picture) or perhaps a driver’s license showing a model before cosmetic surgery (not recognizable) or before a male model grew a beard (not recognizable), only then does the regulation impose a duty to obtain and maintain a coy of what it calls a picture identification card, the special characteristic of which is that it can be accessed from a US issuing authority, presumably for verification of authenticity.

[Emphasis, color, and formatting applied to statutes and regulatory provisions for clarity]

 

Copyright 2005-2011 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.