How Will the New 2257 Law Affect Art Nude Photographers?

December 21, 2008 3:49 AM

I understand changes are coming to US CODE: Title 18-2257 - the record keeping requirements designed to stop child pornography. What effect, if any, will this have on people who are not in the pornography business? Specifically, what effect will this have on photographers who shoot and blog, say, erotically charged photos of clothed adults, or simple art nudes of adults? Will they be faced with onerous new record keeping requirements soon? Will the requirements apply retroactively to already published (blogged) work?
posted by jfrancis to law & government (6 comments total)

What changes? I'm not aware of any pending legislation which would amend 18 U.S.C. 2257. A search on THOMAS yields no relevant hits. The statute was last amended in 2006, mostly a belated update for the internet age which led to online pornmongers including 2257 notices in their productions.

Where are you getting your information?
posted by valkyryn at 4:06 AM on December 21, 2008

There's a brief mention of a proposed amendment here which ends "As of April, 2008, the proposed amendments are still pending finalization".
posted by JonB at 5:00 AM on December 21, 2008

AVN has a few words on it. They also link to a PDF of the new regulations.

How the proposed regs will affect tube style sites.

XBIZ has some more analysis.

I would think that in a few weeks there will be more real analysis available online.

Your safest bet is to speak with a lawyer familiar with the adult industry - they'll have the most knowledge of 2257. I'd give you my opinion, but I'm not a lawyer and people generally shouldn't listen to me anyway.
posted by tjistudios at 7:52 AM on December 21, 2008 [1 favorite]

I forgot about this AVN link. That one is definitely worth reading since it comments a bit more on lascivious exhibition.
posted by tjistudios at 8:32 AM on December 21, 2008

Where are you getting your information?

I'm reacting primarily to multiple threads on the subject at a site that focuses on modeling of various kinds, from fashion, to art nude, to mildly erotic.
posted by jfrancis at 10:55 AM on December 21, 2008

Okay, here's the deal. There is no proposed change to the statute: 18 U.S.C. 2257 and 2257A are not being amended.

What is happening is that the Justice Department's official interpretation of that statute, i.e. the guidelines by which it prosecutes offenses, are changing. The Justice Department is a federal agency, in many ways just like all the others, and agencies promulgate regulations. The IRS has Treasury Regulations, the Justice Department has its own regulations. 18 U.S.C. 2257(g) empowers the Attorney General to promulgate regulations for the enforcement of the statute, i.e. what counts as documentation, what counts as display, etc.

I could spend the afternoon reading the document, but I think the biggest item of interest here is that the rule will not affect anything produced prior to July 27, 2006, when the latest amendment to 2257 was originally passed.

Another point of significance is that the new regulations permit producers to contract with a third party to maintain records. So, for example, a producer could have his attorney maintain records rather than keeping them himself. It would not surprise me if "the industry" saw the birth of a few firms specifically dedicated to maintaining these records so that actual production companies don't have to. I'm sure they have, um, "better" things to do with their time.

One of the links above suggests that user-generated content might now subject *tube style sites to liability, but I'd have to spend a lot more time than that with the new rule to be able to say that for certain.

Either way, don't expect the Obama administration to spend a lot of time or energy going after this sort of thing. "Prosecutorial discretion" is one of the most badass perks about being President.
posted by valkyryn at 11:56 AM on December 21, 2008