2/21/09 UPDATE - The Court of Appeals in the 6th District has upheld Reg 2257 and the Connections Magazine Swingers case. However Obama has declared all new Justice Dept regs in the last days of the Bush Admin which includes 2257 are on hold, pending a review of the new justice Dept.

Here is article about the Court Case that upholds the Reg but which enforcement is on hold pending review of Obama Justice Dept:  Source: http://business.avn.com/articles/printable/34501.html

Appeals Court Rules 2257 Constitutional in 6th Circuit

By David Sullivan
CLEVELAND - In a disappointing decision for the adult industry, the Sixth Circuit U.S. Court of Appeals has overturned a landmark ruling that struck down the federal 2257 record-keeping and labeling law.

Weighing the government's appeal in the case of Connections Distributing Co., et al. v. Keisler, the en banc panel voted 11-6 to uphold Section 18 U.S.C. §2257. An en banc ("full bench") review involves the entire membership of an appellate court, rather than a smaller panel of judges.

A three-judge panel for the Sixth Circuit had declared section 2257 unconstitutional in October 2007, agreeing with the plaintiffs that the law is overly broad and a violation of free-speech rights. Soon after that ruling was handed down, the FBI stopped inspecting the records of adult producers; some fear that this week's reversal of that decision could open the door to more raids and prosecutions.

In the court's newly released 72-page opinion, the majority found "no reasonable basis" in the case to justify an overall rejection of the law. The plaintiffs argued that the labeling and record-keeping requirements of section 2257 invaded the privacy of "swingers" advertising for sex in the magazine Connection.

"We are being asked to invalidate a law in its entirety based on a worst-case scenario that, to our knowledge, has never occurred, that may never come to pass and that has not been shown to involve a materially significant number of people," Circuit Judge Jeffrey Sutton wrote.

Attorney J. Michael Murray and plaintiff Rondee Kamins first brought the Connections Distributing case to court in 1995. Connection magazine is published and distributed by a division of Cleveland-based adult video wholesaler GVA-TWN (General Video of America/Transworld News). 

Attorney Murray and Kamins, the chief executive of GVA, spent 13 years fighting the case. By upholding 2257, the court has also refused to strike the application of the law to Connections Distributing, Kamins, and two anonymous co-plaintiffs in the suit.

The plaintiffs maintain that section 2257 places an unreasonable and invasive burden on a magazine that "clearly" features mature adults in their 30s or older. After glancing at the magazines submitted as evidence in the case, Judge Sutton didn't see the age issue so clearly.

"Although Connection maintains that a simple look at the photos in its magazines makes clear that the persons pictured are obviously not minors, the record proves otherwise," Judge Sutton wrote. "A brief glance at one of the issues of the magazine reveals many images (particularly the frequent depiction of mere body parts) from which no lay observer could readily discern the individuals' ages, as well as a number of images that appear (and in some cases purport) to portray youthful individuals."

As for the record-keeping law itself, the majority of the judges found that 2257 serves a legitimate government interest in protecting children, in "a reasonably tailored way".

Many in the adult entertainment industry hoped the Sixth Circuit victory in 2007 signaled the beginning of the end for the burdensome bureaucracy of section 2257.

In a recent letter to the Department of Justice, the Free Speech Coalition cited the pending review of the Sixth Circuit decision as a reason to delay enforcement of recent amendments to the law. These changes officially took effect Jan. 20, but will likely be reviewed by the new DOJ under President Obama.

"Although we have not had the chance to review it in detail, this looks to be a very bad decision which makes FSC's future litigation and lobbying efforts all the more difficult and important," said attorney and FSC board member Jeffrey Douglas.

The Free Speech Coalition plans to issue an analysis of the new Sixth Circuit ruling to members next week.

Publish Date: 2009-02-20 10:00:20

12/28/08 NEW 2257 Picture Regs for Websites that effects everyone in the adult industry as well as nude, swing and social networking sites

New Justice Dept regs could affect swingers, sexworkers, nude art, and even social networking sites. It would seem that simply a nude picture without an erect penis on a male (or erect nibbles????? on a female) should not have to meet the new record keeping requirements but clarification is needed.

While disguised as a protection for children it also can apply to adult websites with no children's pictures. The new regs take effect on Jan. 17, 2009 three days before the inauguration of President Obama. It seems nudity is not even required it can be lascivious even if fully clothed! Just another weapon the Feds have to go after whoever they want.

The new recordkeeping rules are a direct result of the 6th Circuit US Court basically demanding clarifications when the original law was challenged. The Justice Dept new regs clarify the law.

These regs it involves record keeping requirements for any "lascivious activities" or "simulated sexually explicit act" to prove that any pictures on a web site, in a movie etc is not that of a minor - even if its an 80 year old granny in the picture. It is a revision of prior regulation and the final rule is at http://edocket.access.gpo.gov/2008/pdf/E8-29677.pdf 

This is the worst part, from a blog quoting the regs:
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.

Applies to almost any clothed image where the legs are apart and the pelvis area is facing the camera. Yes, clothed or not.

It will all come down to some self righteous pencil pushers interpretation of your work. That's why the two articles listed above bother me probably the most out of the entire document. I have in the past performed work where complying with this law part of daily business however this reaches far into an artists freedom of expression. Now if you think that any model working with you in any way would elicit a sexual response or even suggests coyness you better goddamn well have the paperwork to verify the persons age.

An adult business owner who does not have the expertise to feel comfortable running a 2257 database may now hire a third party to perform the task, yet he's blessed with full criminal liability for the third-party record-keeper's errors.

whoever "inserts" on a web page an image requiring records is liable for keeping the records not the owner of the site such as a social networking site where people post their own pictures or of others. Even self posting seem to have the record keeping burden in the required formats. If a web site is however moderated the site owner may be required to keep the records according to various discussions in blogs etc.

L.A. Direct Models Claims 2257 Doesn’t Apply, Then Reverses Talent agency posts 2257 legal notice then replaces it with new language - it realized it does have to appy to its postings of models. Article 12/25/08 at http://www.xbiz.com/news/all/103132 

2257 for Dummies same as before but now cover many more types of pictures:
1 - Verify model's age - even if its yourself.
2 - Maintain records of model's age verification such as a copy of her drivers license or U.S. govt issued ID not foreign but a Green Card should be OK.
3 - Have a data base of records such as a Excel spreadsheet and originals should be filed separate from any other records. One phtotog noted this is what the FBI looked for when he was inspected under the old regs.
3 - When you publish (upload) model's (or your own) photo, include information on where said documentation is maintained using a Compliance Statement on the website. You can see examples by Google searching "18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement"

A a sample Record Keeping Compliance Form at http://www.sexwork.com/legal/2257SampleForm.jpg

Section 2257 requires an address and all stage names, aliases, maiden names, etc. that the person ever used...

The names of the models and their personal information are not made public. Only the name of the record keeper and the address where the records are kept are to be displayed with the publication of the image. The FBI is usually tasked with inspecting the records. The DOJ often goes after the "little guys" since more likely to get convictions since they can not afford expensive lawyers.

A photographer (Modelmen) suggests:
Doesn't every photographer comply with 2257 anyway? I know I do for every shoot, regardless of the content or use. It is simple. It means getting a copy (taking a quick digital snapshot at the beginning of a shoot) of a model's valid photo identification that clearly indicates a birthdate. I take 2 shots: one of a close-up of the i.d. and the other of a shot of the model holding the i.d. up next to their face so you can match the i.d. to the model and that they showed it to you. It also means not shooting any model under the age of 18 (or the age of consent in your local jurisdiction.

Then, if someone comes knocking on my door, all of my ducks are in a row. Valid, signed releases and copies of i.d. for every model for every shoot. That's all 2257 requires. And it something you should do for every shoot anyway.

Panic from the nude photographer community:
This thread has been very timely as a way to get the word out to you all.

Yesterday, 18 December 2008 will burn into your memory as well as give you heartburn. The US Department of Justice published the NEW REVISED 2257 REGULATIONS including the 2257A changes mandated by Congress for compliance with the Adam Walsh Act which established as 18 USC c:110 s:2257A

A full analysis of this damn thing is not yet available BUT what is there will make your eyes water, and I guarantee it will.

These NEW record keeping regulations extend a NEW recordkeeping requirement to a LOT of work involving mere nudity, and some with no actual nudity at all, presented in any way that can be interpreted as "lascivious exhibition of the genitals or public area" [even if covered] that is produced on or after March 18, 2009

The new regs run over 150 pages, and the country's top experts are only now analyzing them. The regs cover a LOT more and are a lot more onerous than merely verifying age and keeping records of ID. There is a lot of other stuff, including imposing requirements on websites to post 2257 data, or at least a link to it, on EVERY single page where a possible '2257' image resides. (Won't that be fun on dynamic sites where the photos displayed are constantly changing?)

Read and weep - - -

Sample Blog comments from http://www.modelmayhem.com/ (full credit under fair use copyright law)

What people should realize is that 2257 was DESIGNED to harass the adult industry, and provide a chilling effect on ALL erotic and nude photography. The excuse about protecting minors is a transparent falsehood and just an excuse, especially since there were already ample and severe laws protecting minors.

The George Bush legacy continues. Nudity is not dirty. Nudity is the human body. I love it when I'm in Europe with its more mature, grown up attitude about life in general. Good ole George has had so much free time that he pushed an age verification policy.

I lived through the Meese commission. I understand the evangelical fervor that anti "porn" activists (many of whom work in the justice department) feel. This is on par with defeating Al Quaida for them. I also know that they don't really care about protecting the children, they care about using that mantra to increase regulations in an effort to eventually eliminate the adult industry. Will that happen? No. But they'll try. In so trying, they will fuck with as many as they can and they'll do their best to nail the little guys (who don't have the $$$ to hire first amdendment power houses) in an effort to intimidate.

At the very least it would seem to mean, for instance, any shot with a discernible camel toe; it might also mean many spread leg shots even clothed. These interpretations are only two examples. We shall all have to wait for some of the lawyers who specialise in this area to start giving up some opinions... or the courts doing so.

What does "lascivious exhibition of the genitals or pubic area" mean? It means a sexy picture where the pubic area is exposed or prominent. It could be fully clothed and sexy. On the other hand, it could be completely nude and not sexy, for example, a medical text book. A jury will decide.

you need to anticipate what a publisher might think; what a viewer of your website might think; what the DoJ might think; and ultimately what a court might think. It is really as simple as that.

So you can be arrested at anytime. You can go bankrupt trying to clear yourself or.... plead guilty to a lessor offense (whats behind door number two)...........
and save something of your life's work and savings and just lose your crummy right to vote or something like that and be on the list for the rest of your life.
The idea that the burden of prooving yourself innocent being on the back of any American is dam near unthinkable but there it is .....thought of and codified!

Under current rules, there is a fairly wide lattitude to shoot nudes without worry of stepping over the record-keeping line. Under these new rules, it seems to me that it wouldn't be safe to shoot at all without the records, regardless of the nature of the shoot or the age of the model. Someone just made a lot of lawyers very rich. This will take a while to strike down. It will likely be struck down ( since it is so vague), but it will take years.

They want these regulations to be so complicated and labyrinthine with layer upon layer of complexity that they can get you coming and going. This has little or nothing to do with protecting minors.

Tying Adam Walsh's name to this stupid legislation sullies his memory, and will serve only to make others dislike him.
The effect of using Walsh’s name on the legislation is to make it almost impossible that any congressman would ever vote to repeal it. Imagine what an opponent would make of that at election time . . . “so -and-so voted against the law that keeps kids safe”. I wouldn’t hold my breath to see it repealed anytime soon.

Porn producers go to Brazil because of the girls there.
Those days are long gone . . . It’s illegal for American producers to go out of the country and bring back videos or images for use, unless the models have US ID’s or US Work Permits. Every production (still or video) must comply with US 2257 regulations.

As was feared, the crime of 2257 is NOT that you used underage performers. It is that you can’t PROVE that you didn’t.

Well now you have it you all are assumed guilty until proven innocent.

so... does a photo of the model holding his/her drivers license work well enough? (no)

does this include baby models on the diaper packages?!

They appear to want to regulate commercial sexuality. I wonder if my Kama Sutra 1001 Sexual Positions book will become contraband?

Good to see, in the middle of a complete economic disaster, they have time for this and give themselves a pay raise.

better not visit the States...EVER!...I have photos of ferrets which some deranged bestiality freak (probably a US Senator) may find arousing. The problem is, my ferrets carry no age verification, and truth be told, I've never had a ferret live to 18 years old! Bugger, guess I better start shooting flowers...is there a technical term for someone who gets aroused by daisys?.... Flowers are the genitalia of plants.

now out of curioustity how does this law effect a consumer with a camera who shoots a picture say on vacation. the person they shoot may well be 18+ or not. the resulting photo may be interpreted as sexualy suggestive in nature. many scenarios come too mind. not having documented the required info would result in convictions. the freedom too do street or public photography is being attacked! the judgment of whether its subject matter is sexual in nature is left up too law.

http://www.openmindmedia.com/records This site explains the record keeping in plain English. That that page was last modified on 24 October 2005. It is clearly out of date but in general still provides an overview of the process.

I won't bore you all with the story of when my 4 1/2 year old son decided to go swimming in the Ocean and took off his clothes - resulting in MULTIPLE complaints to the life guards and beach patrol. It would just depress you all and make you want to move to a different country...
The Free Speech Coalition (FSC) will issue a Request-for-Proposal (RFP) letter to solicit attorneys for consideration in choosing a legal team to challenge the Justice Department's latest revisions to the federal 2257 recordkeeping laws.
December 27, 2008
Does the new regs and 18 USC 2257 apply to your website ? You might be surprised how far reaching the US government believes that 18 USC 2257 should be. Many SFW (what is an SFW?) sites may also now need to be compliant 18 USC 2257. Read on to learn more...

One of the most confusing aspects of 28 CFR 75 is the question of whom exactly do these regs effect and how do you know if it applies to you. That question is based on two words -- "lascivious exhibition." What does lascivious exhibition actually mean ? That is the difficult question. There is no clearly defined answer unfortunately. However, 28 CFR 75 indicates that if you produce content that contains "lascivious exhibition" of a human body, you may have to comply with 18 USC 2257. In 28 CFR 75, a case involving child pornography is cited as the defining case in regards to lascivious exhibition.

Courts have struggled to define "lascivious," which is "not self-defining." The regs rely on United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), in which the district court cited six factors that should be considered: (1) was the focal point of the visual depiction the child's genital area; (2) was the setting sexually suggestive; (3) was the child depicted in an unnatural pose or inappropriate attire given his age; (4) the degree of nudity; (5) did the image suggest sexual coyness or a willingness to engage in sexual activity; (6) was the image intended to elicit a sexual response from the viewer.

If you produce content -- we will be discussing what "produce" means in the next update -- then you have to be aware of the Dost factors. Most do not realize that even if the content you produce is fully clothed, you still may have to maintain records pursuant to 18 USC 2257.

We strongly advise that anyone that has a site that is sexual in nature, please read the new regs, read the Dost case and contact an attorney well versed in 2257 to discuss how these new regs will effect you.

Michael Fattorosi