Maintaining Records is Key to Complying with 18 USC §2257

The Nissenbaum Law Group’s internet picture removal practice area utilizes a number of federal statutes and state-specific common law to seek removal of adult-oriented content that should not have been posted in the first place. One such example is federal law 18 USC §2257 (“2257”). Though it imposes well-known requirements regarding record-keeping and labeling on producers of sexually explicit material, it also imposes lesser known rules on those who are not directly involved in the production of the content. 18 U.S.C. §2257. Though the latter individuals play less of a role in the preparation of the material, secondary producers and non-producers can sometimes find themselves facing penalties just as serious as those faced by the primary producers.

One example is found in section (f) of 2257, which imposes obligations on distributors of adult content. This “2257 distributor obligation” applies to sellers and distributors of the content, even though they might not otherwise be held to the same requirements as a primary producer of such material.

Specifically, section (f) states that it shall be unlawful—

(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, produce 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, which—

(A) contains one or more visual depictions made after the effective date of this subsection of actual 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.

18 U.S.C. §2257(f)(4).

This language imposes a responsibility on certain individuals who may not be primary producers who are subject to the more well-known record keeping requirements. An individual who uploads the content to a website server (thus becoming a secondary producer) can fall under the purview of section (f) if the content being uploaded is subject to 2257. This extends to any individual who knowingly offers, sells or transfers the materials.

The Department of Justice has demonstrated that even a so-called innocent violation of 2257 can be a fully chargeable offense, so the lack of attention to section (f) does not make the crime any less serious in the eyes of the law. It is important for those handling materials subject to the 2257 regulations to realize the statute requires all distributors – even those on a secondary level – to display a proper compliance statement on the material that indicates where the required 2257 records are kept.