According to Xbiz, the Supreme Court has refused to hear the case against 18 U.S.C. § 2257, the federal law that mandates recordkeeping and labeling for anyone producing, publishing, or hosting adult images.
I understand why they didn’t want to touch the case. I believe that the law is unconstitutional, and I bet that even the conservative court secretly agrees with me. It’s much safer not to come out in favor of porn.
Ever wonder why this site has no visual porn? Because I hate 2257.
What is 2257, and why do people in the adult industry say those numbers with such loathing? This primer by a lawyer covers the history, details, and application of the law up to 2004. There have been updates since then.
The short form is that this law is supposed to protect children from exploitation—a goal I strongly support—but that seems designed to make producing visual porn so complicated and burdensome that nobody will do it.
I am not a lawyer, so take all my interpretations with a grain of salt and a ton of legal advice from a qualified attorney. However, I’ve worked with 2257 records, and it’s a freaking nightmare.
At first it doesn’t seem unreasonable for porn producers to get verification of the age of models and keep that data on file. For one thing, it’s the best way to protect yourself against child porn charges, which can wreck your life even if you’re innocent.
If you’re making new images, keeping clean, complete records is relatively simple, if burdensome. If you’re buying older content, however, you can run into dreadful complications.
For one thing, the definition of “producer” isn’t limited to the primary producer, the one who does the photo shoot. If you post erotic pictures on your web site, you are a secondary producer under the law. That means having those records ready, available, and in perfect order.
The law covers “actual or simulated sexually explicit conduct.” But it also includes pictures that are sexually suggestive. They don’t have to be nude or explicit. If you’re going to show any porn, cover your ass. Maintain full 2257 documentation for every image.
You also need to list all known pseudonyms of the models. You’re lucky if the documentation gives that.
The identification must be current as of the time of the photo shoot. If you don’t know the exact day, or your model’s driver’s license had expired, you’re technically in violation.
Even if you’re making fresh images and have perfect records, there are problems. In the mandatory 2257 compliance notice, you also must list the name of the custodian of records, the physical address of the records, and your business hours in case the Feds drop by to inspect the records. Easy enough if you’re a corporate giant.
What if it’s just you and your honey taking pictures and posting to your own site? The law still applies, even if the location of those records is your home address and you don’t actually have business hours. I can see serious issues with this, aside from your desire to leave the house once in a while.
There are ways to handle this issue, but it can be complicated and expensive. Hardly worth doing for the occasional snapshot of well-spanked buns.
If you do choose to post erotic images, the only way to protect yourself is to maintain those records religiously for any kind of nude or erotic art, unless you have a yen to spend the rest of your life registering as a sex offender. Or else not to take sexual pictures.
But nobody’s going to bother you, right? This is all just bureaucracy, right? Don’t bet on it.
Plenty of teenagers have been arrested and convicted on child porn charges for sexting. Believe me, an actual porn producer—primary or secondary—whose records are not perfect may well be in serious legal trouble.
If you do decide to take or publish erotic pictures, read this compliance guide from the Department of Justice.
You should also check out A Photographers’ Guide to Section 2257 by Stephen Haynes.
Even if you never make an erotic image or look at them, if you care about free speech rights, support the National Coalition for Sexual Freedom and the Free Speech Coalition. They are fighting for your rights.