Feds issue updated § 2257 record keeping regulations

Dec 19, 2008 Feds issue updated § 2257 record keeping regulations

The First Amendment and the rest of the Bill of Rights. (From the public domain.)

On December 2, I blogged that updated 18 U.S.C. § 2257 recordkeeping regulations aimed against child pornography were coming around the corner. The aim is overbroad, censorious, and not precise. In any event, the regulations were issued yesterday by the Justice Department and are here. Thanks to some listserv members for posting on the new regulations. My uploaded link to these regulations comes straight from the online Federal Register. I discussed the proposed regulation update here.


The introduction to the updated § 2257 rules says: "This rule finalizes two proposed rules and amends the record-keeping, labeling, and inspection requirements to account for changes in the underlying statute made by Congress in enacting the Adam Walsh Child Protection and Safety Act of 2006." The rule takes effect on Inauguration Day 2009. The introduction to the rules further states: "Compliance date: The requirements of this rule apply to producers of visual depictions of the lascivious exhibition of the genitals or pubic area of a person and producers of simulated sexually explicit conduct as of March 18, 2009."

The Supreme Court’s most key recent ruling on child pornography prosecutions is Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In 2001, I became the founding president of the Free Speech Coalition affiliate for the District of Columbia, Maryland and Virginia, and for many years have defended the First Amendment rights and sometimes criminal defense rights of adult video stores, strip clubs, online providers, and individuals in the field. The FSC is the main trade association for the adult entertainment industry, particularly for the recorded and print image side of the business. However, I have made my disagreement clear from the beginning that I disagree with and refuse to participate with the Free Speech Coalition’s support of child pornography prosecutions, considering that the First Amendment applies even to the possession and distribution (as opposed to creation) of child pornography, even while I acknowledge that this area includes some of the most upsetting violations and images imaginable and beyond imagination. The FSC’s child pornography policy might make good business sense, but the First Amendment must come first.

I plan to review and comment on the updated § 2257 regulations in the near future. Jon Katz

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