Although this list is not comprehensive, it does cover most of the questions clients have asked. If you have questions not answered here, please see our Contact link below and let us know. We’re always happy to answer any question.
Can information on a performer be redacted for privacy?
Yes, however… all information on a performer (such as home address and social security number) may be redacted EXCEPT the name, date of birth, and information that identifies the type and validity of the picture identification card (e.g., drivers license or passport number).
Do you provide legal advice about 2257 record keeping?
No. Although our leadership consists of an adult industry attorney, 2257Snap’s role is strictly as a repository for your records and a place where inspections can be performed. We cannot answer any questions that fall into “legal advice” for example, “should I do this with my records…”, “do I need to have my performers sign such and such…”, etc. Membership to 2257Snap does not preclude you from obtaining your own attorney for detailed legal advice about your 2257 records and we strongly recommend that you enlist the advice of your own attorney for such questions.
How do 2257 rules apply to social networking sites?
Most social networking sites would not be covered by the rule because its definition of “produces” excludes “the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the communication.” Social networking sites would not then normally need to comply with the rule’s record-keeping requirements, labeling requirements, or be required to maintain information concerning their users, and the rule would therefore have no effect on the operations of the site. However, users of social networking sites who post sexually explicit activity on “adult” networking sites may well be primary or secondary producers. Therefore, users of social networking sites may be subject to the rule, depending on their conduct.
How must a producer of covered material verify the age of performers?
Each producer must check a picture identification card issued by a United States or State government entity for a performer who is an American citizen, whether the production occurs in the United States or abroad. The identification card must contain the performer’s date of birth. A producer abroad may rely on foreign government identification cards for foreign performers, but must maintain a copy of that identification. A producer may not rely on a foreign identification card for a foreign citizen when production occurs in the United States, but must check a United States identification card in that circumstance.
Is a secondary producer required to check identification documents?
A secondary producer is not required to check identification requirements. The secondary producer, however, is required to maintain records that identify the primary producer for any depiction and that verify that the primary producer checked the legal age of performers prior to the date of original production.
Is the producer required to maintain records demonstrating the performers age?
The producer must record the date of original production. A performer need not be 18 as of the date of original production as long as the performer is 18 when he or she is first depicted in actual or simulated sexually explicit conduct. Producers who keep records demonstrating that performers are 18 as of the date of original production conform to the rule, as will records demonstrating that the performer was 18 on the first date that the performer was actually filmed for the production at issue.
Must the producer itself retain the required records?
No, a third party can retain the records, such as 2257Snap.
Must the required records be kept in hard copy?
No. The producer may retain the required records in electronic form.
What are the regulation’s labeling requirements?
Each page must contain a label stating where the records required to be maintained may be located. Although the producer need not provide the label on every page of the website that contains actual or simulated sexually explicit material, the regulation requires that if the full label does not appear on each such page, then a hypertext link to the required statement appear on each such page. Further, the name of the individual required to be listed on the disclosure statement may consist only of the title of the individual rather than a specified person. Finally, for a DVD which contains multiple depictions, the disclosure statement may be located in a single place covering all depictions on the DVD.
What is the date of original production for a compilation?
For compilations, the date of original production is the date that the depicted conduct occurred.
What is the date of original production for depictions made over time?
The single and earliest of those dates.
What is “lascivious exhibition of the genitals or pubic area”?
The regulation does not define the term “lascivious exhibition of the genitals or pubic area,” but the Department of Justice will rely on precedent from child pornography prosecutions for 18 U.S.C. § 2257 investigations and prosecutions involving such depictions. In that context, judicial precedent indicates that a depiction can constitute lascivious exhibition if, among other things: (1) the focal point is on the subject’s genitalia or pubic area; (2) the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or (4) the visual depiction is intended or designed to elicit a sexual response in the viewer. For more detail, see 73 Fed. Reg. at 77433 and 77440-41.
What is “simulated sexually explicit conduct”?
Simulated sexually explicit conduct is conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean sexually explicit conduct that is merely suggested. See 28 C.F.R. § 75.1(o) In addition, it does not include virtual representations of such conduct, i.e., cartoons or computer-generated images that do not depict real human beings.
What should my 2257 statement say?
Unfortunately we cannot tell you how your 2257 statement should be worded. This amounts to legal advice and we recommend that you contact an attorney to advise you on the verbiage of your statement. We can only provide you the address that you may use in your statement which can be found in your Welcome email.
When is the producer required to make a record documenting the models age?
At the time that the producer examines the identification document.
Which depictions are covered by the regulation?
The regulation applies to visual depictions of actual human beings engaged in actual or simulated sexually explicit conduct. However, with respect to depictions of actual sexually explicit conduct consisting of only lascivious exhibition or depictions of simulated sexually explicit conduct, the regulation applies only with respect to such depictions that are originally produced after March 18, 2009.
Who is not required to maintain records?
Individuals or entities are not covered producers if their role with respect to covered materials is limited to photo or film processing; distribution; services that do not involve the hiring, managing, or arranging of the participation of depicted performers; providing telecommunications or Internet services; transmission, storage, retrieval, hosting, formatting, or translation of a communication, without selection or alteration of the content of the communication; or dissemination of a depiction without selection or alteration of its content. See 28 C.F.R. § 75.1(c)(4).
Who is required to maintain records?
Both primary and secondary producers of covered materials. A primary producer “is any person who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.” 28 C.F.R. § 75.1(c)(1). A secondary producer “is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.” 28 C.F.R. § 75.1(c)(2).