Section 2257, Part III

Kelley

A pleasant lead-off prior to getting into the dirty details of Section 2257. Effusive and profound thanks to Lin and Richard of Fluffytek for gracing this blog with their 2008 Golden Fluffy for “Best Fine-Art Nude Blog.” Second year in a row! I’m honored indeed.

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Make no mistake: the record-keeping and image tracking regime mandated by 18 U.S.C. Secs. 2257 and 2257A, together with the associated regulations (Code of Federal Regulations, Title 28, Part 75; an up-to-date unofficial compilation that includes new provisions published in the Federal Register may be seen here), is a frontal attack on photographers of sexually explicit and erotic imagery. Masquerading as a tool to find and prosecute child pornographers, the regime is in fact a cradle-to-grave tracking requirement for images having sexually and graphically explicit content, while having the secondary intended effect of discouraging both photographers and models who might wish to delve into erotically-charged art.

(As I said three days ago, note that, while I am — and have in the past sometimes referred to myself as — a “recovering attorney,” these comments should be read as neither legal analysis nor legal advice. If you are concerned sufficiently that anything here raises an issue for your own work, consult an attorney. And certainly read the statutes and regulations yourself.)

The analysis and commentary that follow assume that the en banc decision in the case reported three posts ago goes in favor of the government and that, assuming there is no other First Amendment-favorable decision from another jurisdiction, the statute and regs will take effect as scheduled. (What follows is purely and simply my opinion and interpretation. No one should rely on it for anything having legal consequence to themselves. I am also going to play rather loose and fast with terminology — e.g., I will be using “sexually explicit activity” to encompass all five of the types of activities enveloped by Sec. 2257 — so, again, return to the statute and regs themselves to answer all your questions.)

First, some significant dates to remember:

July 3, 1995: if anyone photographs sexually explicit activity after this date, those photographs are subject to 18 U.S.C. Sec. 2257 and its associated regulations. That means that the Sec. 2257 record keeping and notice requirements apply. (Photography of “simulated” sexually explicit activity or “lascivious” depiction of genitalia or the pubic area is not included — see third paragraph in this section.)

June 23, 2005: for any photographs of sexually explicit activity made after this date, the Sec. 2257 records must include a copy of all photographs and a record of any Internet location where they may be found. Records created regarding activity after this date must be organized in a manner specified by the regs. Please read the regs if this applies to you.

March 18, 2009: if anyone photographs simulated sexually explicit activity or lascivious depiction of genitalia or the pubic area after this date, those photographs are subject to 18 U.S.C. Sec. 2257 and its associated regulations.

I’ve never placed any sexually explicit content on the Internet or sold or exhibited any prints with that content. Should I be concerned?

This question presents two issues: first, the possibility that photographs of sexually explicit activity have never been placed in interstate commerce, and second the possibility that although a photographer may have photographed such activity he’s kept the photos to himself.

As to the first, some people may think that this law cannot reach them if they don’t engage in interstate commerce. That’s a common misperception. In fact, if you read the portion of Sec. 2257 that establishes jurisdiction ((a)(2)), the law applies to you if anything you used to create the photo was itself shipped in interstate commerce. So, because you purchased your camera at B&H in NYC, or your CF card at your local Best Buy, you are subject to the law. This is a common hook used in federal law to assert jurisdiction where you’d think none should exist.

(One teeny hopeful note: the Supreme Court has recently dampened this avenue of asserting jurisdiction, so a very limited number of people might have grounds to attack the statute.)

As to the second possibility, in my opinion it doesn’t matter, even if you keep the photographs to yourself. Let me be clear: in my opinion anyone and everyone who photographs sexually explicit activity is subject to the record keeping and notice requirements of Sec. 2257 and its associated regs.

I occasionally do private commissioned couples shoots. Should I be concerned?

See above.

Moreover, I think you now need to tell your clients that you are required to keep these records and that a federal inspector may learn not only of their photos but be able to view them and take copies with him. Session contracts with such couples commonly include a confidentiality clause, which Sec. 2257 will cause you to breach.

Finally, this applies going back at least seven years. So if in 2005 you once photographed such a couple, long before you learned of Sec. 2257, nonetheless you now need to create a set of records relating to the session and, most disturbingly, if you do not tell the couple to attach the requisite Sec 2257 notice to their photos, you will probably be in violation. In fact, since you didn’t attach the notice in the first place, you are probably already in violation in any case.

Ain’t life great?

My models expect anonymity. What do I do?

Don’t take any photographs that arguably are subject to Sec. 2257 record keeping.

I’m confused. Exactly what records do I need to keep?

The answer to this is complicated by several “effective-as-of” dates, so I’m going to simplify things and go beyond the final “as-of” date and ask it this way: What if John Doe photographs Peter Moe fucking Sally Noe on March 19, 2009?

First, John Doe must keep all the records. Neither Peter nor Sally have any record-keeping obligations.

John must record Peter’s and Sally’s full legal names and dates of births. (Some have suggested that their addresses and Social Security numbers must be recorded. The regs do not require this.) This record must be maintained on separate documents. Each record must show a copy of that model’s ID containing a recognizable picture of him or her, usually a dr
iver’s license. (Some have suggested that the model must sign the record containing the copy of his or her ID — the regs do not require this, however.) John must include on each model’s record a copy of each photograph of sexually explicit activity in which the model appears. If the photograph appears online, John must record the URL or other Internet location address where the photo is found.

John must then record “any name, other than the performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name [I’m using ‘aliases’ henceforth to encompass all these].” A separate record must be created for each alias.

Then, and this is where you either need a good relational database or are willing to invest a great deal of effort, each photograph of sexually explicit activity must be cross-indexed to the legal name and alias records of the persons depicted as engaged in the activity.

In my opinion, if a photograph appears in different locations (e.g., stored locally on a hard drive, and displayed at one or more locations on the Internet), each location must receive a separate indexed entry.

(If John took photographs of other sexually explicit activity more than seven years ago and has never republished, placed them on the Internet, or otherwise used the images between then and now, he does not need to keep any of these records, although he might keep them around somewhere in case the photos are used again.)

All the foregoing was only a warm-up for the main event.

John must also attach the statutory “Section 2257 Notice” to each photograph of sexually explicit activity (meaning each digital image and copy thereof stored locally on his PC), each print thereof, and each online location where such picture occurs. This is the “cradle-to-grave” tracking I referred to in my lead paragraph for this posting. The law intends that wherever a copy of an image may be seen, authorities may trace back to the producer (John) in order to verify that the persons photographed were of legal age. Of course, the ease with which images may be copied from the Internet stripping off any 2257 notice makes a mockery of the law’s intent.

In addition, the 2257 Notice should have been affixed to copies of the photographs given to Peter and Sally.

Exactly how the 2257 notice reads will differ according to the circumstances.

More about this notice affixing issue below.

What the hell does “lascivious” mean?

Good question.

Lawmakers love this term because it sounds just so salacious. The DoJ [Department of Justice] provided guidance, however, in the Federal Register notice finalizing Sec. 2257 and Sec. 2257 regulations. Here’s the FR portion verbatim (there is a certain irony, of course, in that Dost is a child porn case):

The leading case is United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), …, which provides a list of factors for determining whether a visual depiction constitutes lascivious exhibition:

(1) Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Now you know about as much as you will ever know, and clearly for many photographers it will not answer the question, “If my photograph includes the male or female pubic area or includes a portion of a model’s genitalia, will some Assistant U.S. Attorney somewhere consider it ‘lascivious’?”

I think that this provision contains potential grief for more photographers than anyone might imagine. Hundreds (thousands?) of photographers, professional and amateur, have photographed male and female genitalia – each and every one of them is a potential criminal after March 18, 2009.

I photograph bondage. Should I be concerned?

Reasonable people will disagree, but I think “yes.” Under 2257 photographs of sado-masochistic activity taken prior to March 19, 2009, were only subject to the law if actual activity was involved. To me that means depictions of sexual violence, like whipping.

After March 18, 2009, however, the law is extended to cover “simulated sado-masochism.” To my way of thinking bondage will fall under this “simulated” rubric. We won’t know unless DoJ issues some follow-up guidance, but, yes, if you photograph bondage I think you should be concerned.

I sometimes photograph models with their hands at their crotches and feigning a look of ecstasy. Should I be concerned?

You mean like this?


After March 18, 2009, photos like this may be considered simulated sexually explicit activity — e.g., “simulated” masturbation. It will be interesting to learn how D. Brian Nelson changes his blog, and what he photographs, once we enter this new age.

Technologically, these people really don’t have a clue, do they?

Here’s exactly what the regs say:

[The producer (e.g., photographer)] shall cause to be affixed to every copy of the matter a statement describing the location of the records required by this part. A producer may cause such statement to be affixed, for example, by instructing the manufacturer of the book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter to affix the statement. In this paragraph, the term “copy” includes every page of a Web site on which a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct appears. [Emphasis added]

What does “affixed” mean?

For website display, the regs are fairly clear, if ultimately ineffective. The DoJ fails utterly to provide guidance how one “affixes” the Sec. 2257 notice to an image of sexually explicit activity stored on one’s PC. In other words, how does one affix the notice to a Raw image (which is read-only), to a Photoshop PSD file (an annotation on the image? a text layer that is turned off?), or to a JPEG (if you add content to the image itself you degrade the JPEG upon resaving)?

Some people might suggest putting the notice in metadata, but remember that many (all?) Digital Asset Management Systems store such metadata information in databases or sidecar files that are physically detached from the image itself, thus the notice will not be “affixed.”

My conclusion: it is physically impossible to comply with the regs as written.

Why shouldn’t I support this law and these regs in order to combat child pornography?

To answer this I could go on and on. The best answer, however, is that it is an affront to the First Amendment to the U.S. Constitution, an excellent explanation of why being found in the Sixth Circuit decision in CONNECTION DISTRIBUTING CO. et al. v. PETER D. KEISLER, reported earlier, or, even better, consider Dave Rudin’s pithy analogy in a comment offered to that posting:

According to the government’s argument, if there is a wanted murderer scheduled for execution hiding out in a crowd of 100 people, it would be proper to execute all 100 just to make sure that the one murderer among them is executed and doesn’t get away.

Thanks, Dave – I think you got it right on this one.

I’ve read something about a “certification” that may permit me to avoid much of the record-keeping requirement. What is this?

Without having personal knowledge, I’m guessing that the movie studios and magazines such as Playboy and Penthouse lobbied Congress during hearings on 18 U.S.C. 2257A (the “Adam Walsh Child Protection and Safety Act of 2006”) to find a way to exclude them from the Sec. 2257 record-keeping requirements. Since simulated sexually explicit activity and “lascivious” depiction of genitalia and the pubic area are commonly found in those magazines and in some R-rated movies, Congress complied by coming up with a certification procedure that is codified in the regulations at Sec. 75.9.

You should read that section for details, but essentially in my opinion any “professional” photographer who sells prints or displays his images on a “professional” website will qualify as a “commercial entity” and therefore will be able to utilize this certification “safe harbor” to make a one-time filing with the Attorney General (the DoJ) in the form and with the content specified by the regs. (There is a renewal requirement; read the regs.)

The downside is that you bring yourself to the attention of the Attorney General. And, of course, the certification does not excuse a photographer from complying with Sec. 2257 record-keeping and notice requirements for photographs of sexually explicit activity other than the two areas covered by 2257A .

The initial letter of certification is due at DoJ by June 16, 2009.

So what’s the big deal? What if I just ignore all this?

Clearly, the FBI has nowhere near the resources necessary to track down all possible technical violations of Sec. 2257. Likewise, if you don’t post a Sec. 2257 notice on your website, it’s unlikely that the authorities will discover it. If all you have is photographs stored on your PC, it’s really unlikely anyone will know of them.

Or is it?

Consider the following:

  • A disgruntled employee turns you in
  • You have misjudged a photo’s content
  • A model is mad at you and reports you
  • You break up with your lover and he/she wants revenge
  • You get divorced

Well, you get the idea.

In addition, a friend has reported that contacts in DoJ have told him that the government has a web crawler seeking out suspect websites.

And the consequences: if convicted, you are a felon and may serve up to 5 years in prison and pay fines that can run into the millions of dollars.

So, that’s my take on this 2257 thing. No guarantees that my analysis is correct. Offer any comment you wish. Tell me I’m full of it. Offer your own interpretation.

I’ll be interested to see if this analysis gets any wider distribution. I’d love it if someone from DoJ were to contact me with illuminating comments regarding some of the issues I’ve raised. (The whole “affixed” issue really sticks in my craw, as you may have discerned.)

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A very early photograph, of my first studio model. No 2257 issues here.

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