2257 Custodian of the Information

Introduction

18 USCA s 2257

18 U.S.C.A. § 2257

UNITED STATES CODE ANNOTATED

TITLE 18. CRIMES AND CRIMINAL PROCEDURE

PART I--CRIMES

CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

Copr. © West Group 2000. No claim to orig. U.S. Govt. Works

Current through P.L. 106-213, approved 5-26-2000

2257. Records keeping requirments

(a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which--

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) 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;

shallcreate and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

(b) Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct--

(1) ascertain, by examination of an identification document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;

(2) ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and

(3) record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation.

(c) Any person to whom subsection (a) applies shall maintain the records required by this section at his business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times.

(d)(1) No information or evidence obtained from records required to be created or maintained by this section shall, except as provided in this section, directly or indirectly, be used as evidence against any person with respect to any violation of law.

(2) Paragraph (1) of this subsection shall not preclude the use of such information or evidence in a prosecution or other action for a violation of this section or for a violation of any applicable provision of law with respect to the furnishing of false information.

(e)(1) Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described in paragraph (1) of subsection (a) of this section, in such manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located.

(2) If the person to whom subsection (a) of this section applies is an organization the statement required by this subsection shall include the name, title, and business address of the individual employed by such organization responsible for maintaining the records required by this section.

(f) It shall be unlawful--

(1) for any person to whom subsection (a) applies to fail to create or maintain the records as required by subsections (a) and (c) or by any regulation promulgated under this section;

(2) for any person to whom subsection (a) applies knowingly to make any false entry in or knowingly to fail to make an appropriate entry in, any record required by subsection (b) of this section or any regulation promulgated under this section;

(3) for any person to whom subsection (a) applies knowingly to fail to comply with the provisions of subsection (e) or any regulation promulgated pursuant to that subsection; and

(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 determined the accuracy of the contents of the statement or the records required to be kept.

(g) The Attorney General shall issue appropriate regulations to carry out this section.

(h) As used in this section--

(1) the term "actual sexually explicit conduct" means actual but not simulated conduct as defined in subparagraphs (A) through (D) of paragraph (2) of section 2256 of this title;

(2) "identification document" has the meaning given that term in section 1028(d) of this title;

(3) the term "produces" means to produce, manufacture, or publish any book, magazine, periodical, film, video tape or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted; and

(4) the term "performer" includes any person portrayed in a visual depiction engaging in, or assisting another person to engage in, actual sexually explicit conduct.

(i) Whoever violates this section shall be imprisoned for not more than 2 years, and fined in accordance with the provisions of this title, or both. Whoever violates this section after having been convicted of a violation punishable under this section shall be imprisoned for any period of years not more than 5 years but not less than 2 years, and fined in accordance with the provisions of this title, or both.

Credits(s)

2000 Main Volume

(Added Pub.L. 100-690, Title VII, § 7513(a), Nov. 18, 1988, 102 Stat. 4487, and amended Pub.L. 101-647, Title III, §§ 301(b), 311, Nov. 29, 1990, 104 Stat. 4808; Pub.L. 103-322, Title XXXIII, § 330004(14), Sept. 13, 1994, 108 Stat. 2142.)

<General Materials (GM) - References, Annotations, or Tables>

Historical and statuatory notes

Revision Notes and Legislative Reports

1988 Acts. For Related Reports, see 1988 U.S. Code Cong. and Adm. News, p. 5937.

1990 Acts. House Report Nos. 101-681(Parts I and II) and 101-736, Senate Report No. 101-460, and Statement by President, see 1990 U.S. Code Cong. and Adm. News, p. 6472.

1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report No. 103-711, see 1994 U.S. Code Cong. and Adm. News, p. 1801.

Amendments

1994 Amendments. Subsecs. (f), (g). Pub.L. 103-322, § 330004(14), struck out the subsections (f) and (g), relating to regulations and definitions, which had been enacted as part of the original enactment of this section by Pub.L. 100-690 in 1988. Amendment served to correct the results of an error in directory language of section 311 of Pub.L. 101-647 which had moved the existing subsecs. (f) and (g) to the end of the section by adding new subsecs. (f) through (i) to follow subsec.(e) without deleting such existing subsecs. (f) and (g).

1990 Amendments. Subsec. (a)(1). Pub.L. 101-647, § 301(b), substituted "November 1, 1990" for "February 6, 1978".

Subsec. (d). Pub.L. 101-647, § 311, substituted in par. (1) "in this section" for "paragraphs (2) and (3)" and struck out par. (3), which provided that in a prosecution for violation of section 2251(a), a required element of which is establishment of a performer as a minor, proof of violation of subsecs. (a), (b), or (e) raises a rebuttable presumption that such performer was a minor.

Subsec. (e)(3). Pub.L. 101-647, § 311, struck out par. (3), which provided that in a prosecution for violation of section 2252 of this title, a required element of which is establishment of a performer as a minor, proof that the matter in which the visual depiction is contained did not contain the statement required by this section raises a rebuttable presumption that such performer was a minor.

Subsecs. (f) to (i). Pub.L. 101-647, § 311, added subsecs. (f) to (i).

Effective and Applicability Provisions

1990 Acts. Section 312 of Pub.L. 101-647 provided that: "Subsections (d), (f), (g), (h), and (i) of section 2257 of title 18, United States Code, as added by this title shall take effect 90 days after the date of the enactment of this Act [Nov. 29, 1990] except--

"(1) the Attorney General shall prepare the initial set of regulations required or authorized by subsections (d), (f), (g), (h), and (i) of section 2257 within 60 days of the date of the enactment of this Act; and

"(2) subsection (e) of section 2257 and of any regulation issued pursuant thereto shall take effect 90 days after the date of the enactment of this Act."

1988 Acts. Section 7513(c) of Pub.L. 100-690 provided that: "Section 2257 of title 18, United States Code, as added by this section [this section] shall take effect 180 days after the date of the enactment of this Act [Nov. 18, 1988] except--

"(1) the Attorney General shall prepare the initial set of regulations required or authorized by section 2257 [this section] within 90 days of the date of the enactment of this Act [Nov. 18, 1988]; and

"(2) subsection (e) of section 2257 of such title [subsec. (e) of this section] and of any regulation issued pursuant thereto shall take effect 270 days after the date of the enactment of this Act [Nov. 18, 1988]."

Guidelines and References

FEDERAL SENTENCING GUIDELINES

See Federal Sentencing Guidelines § 2G2.5, 18 USCA.

LIBRARY REFERENCES

American Digest System

Obscenity k2.5, 5.

Key Number System Topic No. 281.

Encyclopedias

Obscenity, see C.J.S. §§ 3 to 7, 10, 13-19.

Notes of decisions

Constitutionality 1
Purpose 2
Regulations 3

1. Constitutionality

Child Protection Restoration and Penalties Enhancement Act was not impermissible over broad as applied to publisher of "swingers" magazine and its readers and advertisers; although majority of publisher's readership might not be object of the Act's focus, allowance of exceptions to disclosure requirements, presumably based on subjective determination by publisher as to a subscriber's age, would not promote the Act's goal of eliminating use of minors in pornography. Connection Distributing Co. v. Reno, C.A.6 (Ohio) 1998, 154 F.3d 281, rehearing and suggestion for rehearing en banc denied, certiorari denied 119 S.Ct. 1496, 143 L.Ed.2d 650.

Requirement of record-keeping and disclosure provisions of Child Protection and Obscenity Enforcement Act that producer ascertain any name ever used by performer is not unconstitutionally onerous as interpreted to merely require that producer record every name supplied by performer in response to request. American Library Assistant v. Reno, C.A.D.C.1994, 33 F.3d 78, 308 U.S.App.D.C. 233, rehearing denied, suggestion for rehearing denied 47 F.3d 1215, 310 U.S.App.D.C. 341, certiorari denied 115 S.Ct. 2610, 515 U.S. 1158, 132 L.Ed.2d 854.

2. Purpose

Congressional purpose in enacting record-keeping and disclosure requirements of Child Protection and Obscenity Enforcement Act is to prevent exploitation of children by requiring those responsible for videotaping sexually explicit acts to secure proof of performer's age and keep a record of it, to deprive child pornographers of access to commercial markets by requiring secondary producers to inspect the proof, and to establish system whereby law enforcement officers can identify performers and verify compliance with the Act. American Library Assistant v. Reno, C.A.D.C.1994, 33 F.3d 78, 308 U.S.App.D.C. 233, rehearing denied, suggestion for rehearing denied 47 F.3d 1215, 310 U.S.App.D.C. 341, certiorari denied 115 S.Ct. 2610, 515 U.S. 1158, 132 L.Ed.2d 854.

3. Regulations

Regulation implementing Child Protection and Obscenity Enforcement Act was invalid to the extent that its definition of "producer," establishing those persons subject to Act's record keeping requirements, failed to exclude those not involved in hiring, contracting for, managing, or otherwise arranging for participation of performers depicted in sexually explicit material, as required by statute, by restricting exclusion to those not qualifying as primary or secondary producers. Sundance Associates, Inc. v. Reno, C.A.10 (Colo.) 1998, 139 F.3d 804.

18 U.S.C.A. § 2257

18 USCA § 2257

Custodian of the records