The New 2257 Rulings - What now?

[Jim]

I read that yesterday. I was kind of surprised to see the Adam Walsh Act mentioned. I would like to see what part of it pertains to 2257.

These are the highlights of the Act.

Establishes a comprehensive national system for the registration of sex offenders.
Establishes three tiers of sex offenders.
Requires all jurisdictions to enact criminal penalties for sex offenders who fail to comply with registration requirements.
Requires sex offenders to appear in person to verify their registration.
Imposes a fine and/or term of imprisonment for up to 20 years on sex offenders who knowingly fail to register.
Makes registration as a sex offender a mandatory condition of probation and supervised release.
Eliminates the statute of limitations for prosecutions of child abduction and felony sex offenses against children.
Directs the Attorney General to provide technical assistance to jurisdictions to help identify and locate sex offenders relocated due to a major disaster.

[sabin]

sheesh

[Greenguy]

Originally Posted by Jim

...Directs the Attorney General to provide technical assistance to jurisdictions to help identify and locate sex offenders relocated due to a major disaster.

Oh great - they lost a couple of kid touchers that lived in New Orleans.

[Toby]

Originally Posted by Jim

...I was kind of surprised to see the Adam Walsh Act mentioned. I would like to see what part of it pertains to 2257...

It was an add-on, unrelated to the rest of the bill, that amended 2257.

It redefined "producer", essentially eliminating the distinction between primary producer and secondary producer.

It also broadened the Sexually Explicit content covered by 2257 by removing the previous exclusions for simulated sex and lacivious displays of the genital regions as listed in the definition of "Sexually Explicit" in 2256.

[Linkster]

http://thomas.loc.gov/cgi-bin/query/...aNdQA:e115994:

SEC. 502. OTHER RECORD KEEPING REQUIREMENTS.

(a) In General- Section 2257 of title 18, United States Code, is amended--

(1) in subsection (a), by inserting after `videotape,' the following: `digital image, digitally- or computer-manipulated image of an actual human being, picture,';

(2) in subsection (e)(1), by adding at the end the following: `In this paragraph, the term `copy' includes every page of a website on which matter described in subsection (a) appears.';

(3) in subsection (f), by--

(A) in paragraph (3), by striking `and' after the semicolon;

(B) in paragraph (4), by striking the period and inserting `; and'; and

(C) by adding at the end the following:

`(5) for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c).'; and

(4) by striking subsection (h) and inserting the following:

`(h) In this section--

`(1) the term `actual sexually explicit conduct' means actual but not simulated conduct as defined in clauses (i) through (v) of section 2256(2)(A) of this title;

`(2) the term `produces'--

`(A) means--

`(i) actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being;

`(ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or

`(iii) inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct; and

`(B) does not include activities that are limited to--

`(i) photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;

`(ii) distribution;

`(iii) any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;

`(iv) the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or

`(v) the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or alteration of the content of the communication; and

`(3) the term `performer' includes any person portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct.'.

(b) Construction- The provisions of section 2257 shall not apply to any depiction of actual sexually explicit conduct as described in clause (v) of section 2256(2)(A) of title 18, United States Code, produced in whole or in part, prior to the effective date of this section unless that depiction also includes actual sexually explicit conduct as described in clauses (i) through (iv) of section 2256(2)(A) of title 18, United States Code.

SEC. 503. RECORD KEEPING REQUIREMENTS FOR SIMULATED SEXUAL CONDUCT.

(a) In General- Chapter 110 of title 18, United States Code, is amended by inserting after section 2257 the following:

`SEC. 2257A. RECORD KEEPING REQUIREMENTS FOR SIMULATED SEXUAL CONDUCT.

`(a) Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter that--

`(1) contains 1 or more visual depictions of simulated 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 simulated 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) and such other identifying information as may be prescribed by regulation.

`(c) Any person to whom subsection (a) applies shall maintain the records required by this section at their business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times.

`(d)(1) No information or evidence obtained from records required to be created or maintained by this section shall, except as provided in this section, directly or indirectly, be used as evidence against any person with respect to any violation of law.

`(2) Paragraph (1) shall not preclude the use of such information or evidence in a prosecution or other action for a violation of this chapter or chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information.

`(e)(1) Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described in subsection (a)(1) in such manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located. In this paragraph, the term `copy' includes every page of a website on which matter described in subsection (a) appears.

[Linkster]

`(2) If the person to whom subsection (a) applies is an organization the statement required by this subsection shall include the name, title, and business address of the individual employed by such organization responsible for maintaining the records required by this section.

`(f) It shall be unlawful--

`(1) for any person to whom subsection (a) applies to fail to create or maintain the records as required by subsections (a) and (c) or by any regulation promulgated under this section;

`(2) for any person to whom subsection (a) applies knowingly to make any false entry in or knowingly to fail to make an appropriate entry in, any record required by subsection (b) or any regulation promulgated under this section;

`(3) for any person to whom subsection (a) applies knowingly to fail to comply with the provisions of subsection (e) or any regulation promulgated pursuant to that subsection; or

`(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce, that--

`(A) contains 1 or more visual depictions made after the date of enactment of this subsection of simulated sexually explicit conduct; and

`(B) 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;

which does not have affixed thereto, in a manner prescribed as set forth in subsection (e)(1), a statement describing where the records required by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept.

`(5) for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c).

`(g) As used in this section, the terms `produces' and `performer' have the same meaning as in section 2257(h) of this title.

`(h)(1) The provisions of this section and section 2257 shall not apply to matter, or any image therein, containing one or more visual depictions of simulated sexually explicit conduct, or actual sexually explicit conduct as described in clause (v) of section 2256(2)(A), if such matter--

`(A)(i) is intended for commercial distribution;

`(ii) is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer; and

`(iii) is not produced, marketed or made available by the person described in clause (ii) to another in circumstances such than an ordinary person would conclude that the matter contains a visual depiction that is child pornography as defined in section 2256(8); or

`(B)(i) is subject to the authority and regulation of the Federal Communications Commission acting in its capacity to enforce section 1464 of this title, regarding the broadcast of obscene, indecent or profane programming; and

`(ii) is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer.

`(2) Nothing in subparagraphs (A) and (B) of paragraph (1) shall be construed to exempt any matter that contains any visual depiction that is child pornography, as defined in section 2256(8), or is actual sexually explicit conduct within the definitions in clauses (i) through (iv) of section 2256(2)(A).

`(i)(1) Whoever violates this section shall be imprisoned for not more than 1 year, and fined in accordance with the provisions of this title, or both.

`(2) Whoever violates this section in an effort to conceal a substantive offense involving the causing, transporting, permitting or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of this title, or to conceal a substantive offense that involved trafficking in material involving the sexual exploitation of a minor, including receiving, transporting, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic, in violation of this title, shall be imprisoned for not more than 5 years and fined in accordance with the provisions of this title, or both.

`(3) Whoever violates paragraph (2) after having been previously convicted of a violation punishable under that paragraph shall be imprisoned for any period of years not more than 10 years but not less than 2 years, and fined in accordance with the provisions of this title, or both.

[Linkster]

Note that this change adds in the secondary producer as if they were the primary producer - no difference now
Also adds in simulated contact requiring the same records

[Bill]

I looked at the FSC letters I've received from mar30th on, and haven't seen any mention of this. The .xxx thing, the copa thing, but not this.

Checking the website, this seems to be the summary:

=================

FSC attorneys have identified and are working on a number of strategies to address Judge Miller’s most recent decision. “While we are disappointed by Judge Miller’s ruling,” said Reed Lee, FSC Board member and President of the First Amendment Lawyers Association, “this case is far from over. There are a number of constitutional issues, previously appropriately avoided by Judge Miller that must now be addressed.”

=================


This is the whole announcement on their index page:

Judge Miller Issues Interim Decision on 2257

April 3, 2007 - On Friday March 30th, Colorado Federal District Court Judge Walker Miller issued an interim ruling dismissing some causes of action and allowing others to proceed in light of the Adam Walsh Act amendments to 18 U.S.C. § 2257 signed into law on July 27, 2006.

FSC attorneys, in cooperation with government litigators, had held off amending their lawsuit until the regulations for those amendments were issued. These regulations were scheduled to be issued in January, but have not yet been made public.

“It makes no sense to rule on a law prior to the issuance regulations defining how the law is to be carried out,” said Diane Duke, FSC Executive Director.

Judge Miller’s issuance is consistent with his December 2005 ruling enjoining parts of 2257. But, because of amendments made to 2257 by the Adam Walsh act, FSC has until April 16th to present to the court grounds for why the amended 2257 is unconstitutional and the government has until April 30th for response.

FSC attorneys have identified and are working on a number of strategies to address Judge Miller’s most recent decision. “While we are disappointed by Judge Miller’s ruling,” said Reed Lee, FSC Board member and President of the First Amendment Lawyers Association, “this case is far from over. There are a number of constitutional issues, previously appropriately avoided by Judge Miller that must now be addressed.”

“FSC will provide regular updates on the status of 2257 as the case unfolds through our weekly XPRESS newsletter, e-mail alerts and posting on our websites,” said Ms Duke. “As soon as we have additional information, we will communicate it to our membership.”

http://www.freespeechcoalition.com/

They have a 2257 Challenge legal fund - I'm going to ignore the fact that they don't have an online system for taking credit cards and call them up in a few minutes and give them $100 earmarked for the 2257 fund.

I hope many of you will do the same, contributing what you can. Giving the FSC money earmarked for 2257 defense is the best way to send them the message that this is what we want them to fight.

[Bill]

This is the contribution page:

http://www.freespeechcoalition.com/ContributeForm.htm

This is the phone number, or at least the one I've been calling - but it's been busy so far:

Phone: 1-818-358-9373

I'll post again when I get thru.