How Many Angels May Dance on 2257?

Kenzie and the Chair 7

Some may think this post rather more about navel-staring than the real world. However, it’s a problem I’ve been puzzling over for weeks now, and I still don’t have a satisfactory answer.

Here’s the scenario I envision. A photographer — let’s call him “P” — has taken photographs whose content requires him to create and maintain §2257 records. He never publishes the photos. He doesn’t even send them to the model.

P is generally known as a photographer of artistic nudes. He has never published erotic material, however, nor even any material falling under the new “simulated” or “lascivious exhibition” standards of §2257A.

One day a federal investigator — “I” — shows up at his door and says, “I am here to inspect your 2257 records.” How may P respond to I’s demand? How should he?

Some may think P should just admit the investigator and show him the records. After all, P has nothing to hide, and his records are complete and proper. That clearly would avoid any possible problems. At the root of this scenario, however, lie major issues of civil liberties, constitutional rights, and what I believe is an overreach of Section 2257.

Section 75.5(a) of the regulations says in relevant part:

Investigators authorized by the Attorney General … are authorized to enter … any establishment of a producer where [models'] records … are maintained to inspect … for the purpose of determining compliance with the record-keeping requirements of the Act ….

Note what the reg does not say:

  • The investigator must disclose why P was singled out for inspection.

  • The investigator must point to any particular §2257 Notice as leading back to P.
  • The investigator must know beforehand whether P has any §2257 records at all.

Criminal law includes the concept of a “fishing expedition.” (We’ve all heard the phrase on Law & Order.) The phrase also is used in civil litigation to object to overly-broad attempts at document discovery. To my reading, §75.5(a) permits just such a fishing expedition on the government’s part vis à vis any photographer. The government justifies the inspection because P has subjected himself to §2257 jurisdiction (I detail in my book exactly how this comes about), and therefore when I shows up at P’s door, he must either admit I to inspect the records, refuse to admit him without reason, or tell I he has no records and refuse to admit him. (Since I is a federal official, falsely telling I he has no records may be a criminal act on P’s part.)

Here I think §2257 overreaches. There must be some reasonable basis for I to arrive at P’s door and demand to see P’s records. In the scenario posed at the beginning, however, no such basis exists.

In the end, however, and in the interest of avoiding possible conflict with federal authorities (up to and including the possibility of a search warrant issuing and P’s PC and all photography materials confiscated), I’ve concluded that P should admit I; but under what terms? To be continued in the next Update Service installment.


A stark and dramatically lit series with Kenzie.

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