The New 2257 Rulings - What now?

[Linkster]

So Im sure most of you have heard that the judge in the case ruled a few days ago - basically saying that the suit was null and void because of the new law congress passed which rewrote 2257 even stricter - and that the plantiff (FSC) has about 12 days left to file new info to prevent this ruling from taking effect

So now that it looks like we are going to be under the Adam Walsh Act since no one has contested that and it basically overturned Sundance - I guess my question is - do you have all of your docs ready for any content you have up on your TGPs


BTW - heres the link over on AVN
http://avnonline.com/index_cache.php...tent_ID=286357

[Cleo]

I'm going to just set my head on fire and start praying to the aliens

[ladydesigner]

Originally Posted by Cleo

I'm going to just set my head on fire and start praying to the aliens

Same here.

[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.

[Ramster]

Looks to me that things are getting tougher overall. Secondary producer comes into play like the primary as Linkster said.

I am against this of course but if you think about it for a minute.....I have content that was given to me by NS Cash to promote one of the sites and have them on MY server so then it stands to reason I should have the docs to prove age. Doesn't make sense that I could say "hey those aren't mine, I got them from nscash. Go see them".

I'm showing them on my server no matter where I got them I need proof of age. right???

[kane]

Originally Posted by Ramster

Looks to me that things are getting tougher overall. Secondary producer comes into play like the primary as Linkster said.

I am against this of course but if you think about it for a minute.....I have content that was given to me by NS Cash to promote one of the sites and have them on MY server so then it stands to reason I should have the docs to prove age. Doesn't make sense that I could say "hey those aren't mine, I got them from nscash. Go see them".

I'm showing them on my server no matter where I got them I need proof of age. right???

A lot of it makes sense. The problems I think we will run into is that, at least right this moment, there is no really clear explanation as to how the index and cross reference needs to be handled. I'm making a spreadsheet with the urls of all images/videos I have hosted on my sites so that I can easily see the image url, what sponsor it came from (if it is sponsor supplied content) and where the records are. I also bought a single domain that will only host my 2257 info and I'm linking all my sites to it.

I do however wonder what programs just won't give out the docs. There are some that will let me download an encrypted doc then I have to call them for a password to open it if I get inspected, but there have been others that have flat said they won't give the docs out.

One good thing is that it looks like the government will allow them to give out "sanitized" IDs which can black out everything but the picture and the birth date. Still though I wonder who won't give any docs out period. For people like that I will have to pull any sites I have for them or change the content to some that I own that I have the docs for.

This could turn into a huge pain in the ass but it has to be done.

[Toby]

Originally Posted by Ramster

I'm showing them on my server no matter where I got them I need proof of age. right???

Yes, that's the Fed's postion on the issue. Kinda strikes me as guilty until proven innocent.

Assuming that nothing changes in the next month there are limited number of options. In no particular order:

1. Keep all the records as mandated.
2. Use only non-explicit content to be exempt from 2257.
3. Move to another country. Technically you may still need to comply if you host in the US or use other US based resources, but the chances of a 2257 inspection on foreign soil is next to nil.
4. Totally ignore 2257 and carry on without records.
5. Fold your tent and go play in another sandbox.

[Bill]

The FSC phone has been busy all afternoon - I'm hitting the redial every ten-twenty minutes or so - no dice.

[Linkster]

Toby - unfortunately using non-explicit, if it is just simulated sex still requires these docs- which is where the major motion picture industry is getting an exemption that you see in some of those later paragraphs - but that exemption is only for them - not for websites

[Maj. Stress]

Originally Posted by Linkster

the major motion picture industry is getting an exemption that you see in some of those later paragraphs - but that exemption is only for them - not for websites

Is that legal?

[Linkster]

Maj Stress - it is legal because it is written in the law The movie industry has some powerful lobbyists

[sabin]

Originally Posted by Linkster

Maj Stress - it is legal because it is written in the law The movie industry has some powerful lobbyists

We need some of those. I got $5 on it!

[Chop Smith]

Originally Posted by sabin

We need some of those. I got $5 on it!

Save your five bucks. Someone will be around to post something about a membership drive.

[bluemoney]

Originally Posted by Linkster

Maj Stress - it is legal because it is written in the law The movie industry has some powerful lobbyists

My 5 dollars say's that won’t stand.

It seems to me to be a direct violation of the Fourteenth Amendment of the Constitution as it denies certain individuals due process & equal protection under the law.

Course I’m drunk so . . . hey

[Linkster]

ummm - its already standing - its been law since last summer - almost a year now and no one has challenged it - there were numerous articles written on major web news sites and no one ever brought up any argument against it - but then most people in the adult world didnt pay any attention to it because no one bothered to read the law

[Maj. Stress]

I didn't really pay attention to the newer law since I didn't think it would fly considering it was overwriting a law already in the courts. I'm not to bright on this stuff.

I do tend to agree with Blue Money tho. I see giving exception to anyone as discrimination. (and I'm not drunk haha).

Second thing that came to mind when you mentioned "movie industry". Isn't the porn movie industry part of the movie industry?

I'm not making arguements, just trying to understand.

[bluemoney]

I think most folks in this Industry have just sat back and let the FSC take the lead. With that in mind they had no reason (until now) to challenge anything. Because;

1. They had a deal with the Feds

2. Judge Miller had not made his interim ruling (which he has as of March 30th)

They now have until the 16th of April to plead their case and my guess is the fourteenth amendment will be put in play.

But hell, I could be wrong. I’m just a whisky drinking “dipstick” with what my wife describes as a case of adult ADD. But I think she hey there’s a quarter under my chair