Child Protection and Obscenity Enforcement Act

From Free net encyclopedia

(Redirected from 28 C.F.R. 75)

The Child Protection and Obscenity Enforcement Act of 1988 (Pub. L. 100–690, title VII, subtitle N (§7501 et seq.), Nov. 18, 1988, 102 Stat. 4485, Template:UnitedStatesCode et seq.) is a United States Act of Congress, and part of the United States Code, which places stringent record-keeping requirements on the producers of actual, sexual explicit materials. The guidelines for enforcing these laws (colloquially known as 2257 Regulations (C.F.R. Part 75)), part of the United States Code of Federal Regulations, require producers of sexually explicit material to attain proof of age for every model they shoot, and keep those records on hand. Federal inspectors may — at any time — launch inspections of these records and prosecute any infraction.

While the statute seemingly excluded from these record-keeping requirements anyone who is involved in activity "which does not involve hiring, contracting for managing, or otherwise arranging for the, participation of the performers depicted," the Department of Justice (DOJ) defined an entirely new class of producers known as "secondary producers." According to the DOJ, a secondary producer is anyone who "publishes, reproduces, or reissues" explicit material.

Contents

[edit]

Allied administrative law (2257 Regulations)

The administrative law that has been created by virtue of the Act to guide and aid its enforcement, 28 C.F.R. 75 (also known as the 2257 Regulations), specifies record-keeping requirements for those wishing to produce sexually-explicit media, and imposes criminal penalties for failure to comply. This is intended to ensure that no person under the legal age is involved in such undertakings.

The regulations define the terms "primary producer" and "secondary producer". A primary producer is defined in the set of rules as any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct. A "secondary producer" is defined as any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct. Different record-keeping requirements exist for primary versus secondary producers. One may be both a primary and a secondary producer.

The regulations also spell out requirements for the maintenance, categorization, location, and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.

The Department of Justice can modify the regulations, based on the discretion, or possible future requirements, that has been given to it to do so by the Act.

[edit]

Example of disclaimer

A disclaimer is typically similar to the following:

WARNING: Sexually Explicit Content.
This Website contains explicit sexual material which may be offensive to some viewers. You must be 18 years or older to enter this Website. By going beyond this point, you acknowledge that you are 18 years or older.
All models, actors, actresses and other persons that appear in any visual depiction of actual sexual conduct appearing or otherwise contained in this adult site were over the age of eighteen years at the time of the creation of such depictions.
Some of the aforementioned depictions appearing or otherwise contained in or at this site contain only visual depictions of actual sexually explicit conduct made before July 3, 1995, and, as such, are exempt from the requirements set forth in 18 U.S.C. 2257 and C.F.R. 75. With regard to the remaining depictions of actual sexual conduct appearing or otherwise contained in or at this adult site, the records required pursuant to 18 U.S.C. 2257 and C.F.R. 75 are kept by the custodian of records of this company whose address is available public information at Internic whois.
[edit]

Enforcement

It is clear there is much sexual material on the Internet and elsewhere that would fall within the terms of this law. It is so far unknown how vigorously it will be enforced.

[edit]

Legal challenges

In 1998, a company called Sundance and Associates sued the DOJ. A court later found that the DOJ was not authorized to create the definition of 'secondary producer'. While the DOJ did not strike that language from the regulations per the court’s decision, the DOJ did not launch any inspections.

In 2004, bound by the new PROTECT Act of 2003, the DOJ made sweeping changes to the 2257 Regulations to keep up with the proliferation of sexually explicit material found on the Internet. However, the "secondary producer" language not only remained in the regulations, but the DOJ created a much wider interpretation of who exactly was a "producer" of sexually explicit material and hence was required to comply with the new regulations. Anyone who touched explicit content in any way could arguably be considered a producer and be forced to maintain identification records of models along with a highly complex indexing system that many argue is impossible to implement. Now, anyone who operated a website that contained photos or videos of sexually explicit material could face five years in federal prison per each infraction of the regulations.

In June 2005, the Free Speech Coalition sued the Department of Justice to enjoin the regulations until they can be challenged in whole in court.

[edit]

External links

Retrieved from "http://www.netipedia.com/index.php/Child_Protection_and_Obscenity_Enforcement_Act"