New bill re photographers and nudity on the Internet

[Walter Moss]

Last Monday Congressman Pence [R - IN] introduced a bill, HR 3726, as a rider to another modifying the record keeping requirements of 18USC part1 chapter110 section2257 (the porn law) to include images which contain nudity alone. The details of the latest (June 2005) recordkeeping requirements are onerous and can be found in 28 CFR Part75. Failure to keep records when they are required is a criminal offence; failure to keep proper, complete, and correctly organized (indexed and cross referenced) records is a technical violation. Technical violations are also actionable as criminal offences.

Further, Pence's bill allows for instances of forced examination of the records. It also provides for civil and criminal forfeiture of assets/property for violations.

THIS WILL IMPACT EVERY PUBLICATION AND WEBSITE THAT HAS IMAGES OF NUDITY OR PARTIAL NUDITY.

ANALYSIS:

1) The record keeping requirements of 2257 DO NOT take into account any age requirement. Thus, the records, where they are required, involve very specific record keeping on EVERY model or person appearing in an image.

2) 2257 exempted (before Pence's amendment) images of "simulated" sexually explicit content. UNLESS there was ACTUAL sexually explicit content the images were exempt from record keeping. Pence's bill does away with that distinction and includes simulated sexually explicit content as well as actual content.

3) 2257 before Pence's amendment exempted images of nudity alone. Pence's bill will include within the record keeping requirements of 2257 (at 2257) nudity ALONE as defined in 2256 (2)(A)(v).

4) Pence's bill requires that a broad range of previously exempt images be brought under the 2257 record keeping rules. The actual detailed mechanics of the rules are 28 CFR Part75. This is retrospective for 10 to 15 years and applies to images made from a certain date either 1995 or 1990. If you don't have and can't produce the REQUIRED records the images are effectively useless. Publishing or distribution of them without having and maintaining the required records is a criminal offence respective of anyone in the chain of production, publication or distribution.

Part of the required records involve keeping and being able to produce ACTUAL copies of ACTUAL MODEL ID showing their full (REAL) name; date of birth; any other name or stage name by which they have EVER been known; etc... and the kinds of ID are specified (college or work ID cards, for example, are NOT acceptable for this purpose - the ID used MUST be of specific types that are government issued and traceable such as passports or driver's licenses). Most photographers / publishers will have model releases; some will have examined the model's ID but not kept copies of the actual ID; some will have accepted ID that is not of an approved type. Images made on this basis will probably NOT be supportable by suitable records for 2257 purposes.

5) Under 2257, and where records have previously been required, the scope of who was required to keep those records was limited. Distributors and retailers didn't have to keep or maintain copies of the records. Until the recent changes to 28 CFR Part75, in June 2005, even websites didn't have to maintain actual records - only a reference to the holder of the records. No records at all were required for exempt (e.g. mere nudity) images. Under Pence's bill EVERYONE in the chain of production, and now to include images of nudity but even without sexual context or content will be required to keep a set of records INCLUDING the ID copies. Same for web publishers such as photography websites. The same would be true, after Pence, for an art gallery; or any other distributor / exhibitor / seller with commercial interest in the images. These ID records MUST be cross referenced to such as URL's where the model's image appears; or publications, if printed; and there is a lot more to the detailed record keeping ins-and-outs in 28 CFR Part75.

6) As a result of, among other cases, US v Knox, even some clothed images (think here Calvin Kline ads) may fall foul of the 2256 definition of "graphic or simulated lascivious exhibition of the genitals or pubic area of any person"... Knox established that even non-nude images where the genitals or pubic area was "defined" even though not "exposed" could be held to be sufficiently graphic and lascivious to run foul of the law. Think bikini, underwear or lingerie shots.

Make no mistake here; this Pence amendment will impact everyone in photography, publishing, distribution, web publishing, and many, many others in the chain of production and distribution. It will affect big Hollywood studios, broadcasters, and individual fine arts photographers. It will affect legitimate publishers who were previously exempt; it will affect sex education and health publishers and websites; it will definitely affect the legitimate modeling / advertising industries where we all KNOW that 14 - 17 YO models are used in ways that would run foul of the 2256 definitions where previously they did not (topless or partial or implied nudity) or posing in clothed work in ways that would run foul of the definition of "graphic" and in light of the US v Knox ruling.

This fight should shape up just like the Child Online Protection Act [COPA] Mark2.

Found this here: http://forums.dpreview.com/forums/re...ssage=15065052

[ohenry]

Don't jump the gun yet. This bill has just been introduced and most bills never make it out of committee, much less be passed by both the House and the Senate.

[dougjgreen]

Nonetheless, it's still pretty onerous. Last year, I'd have said that this bill would be unconstitutional on it's face, but with the reconstituted Supreme Court, all bets are off regarding the protection of personal liberties when stacked against the government's right to interject itself into the right to communicate.

[Rokcet Scientist]

Boy, am I glad I don't live in that "land of the free"!

[AlbertP]

Originally Posted by Rokcet Scientist

Boy, am I glad I don't live in that "land of the free"!

America is nothing if not a great marketing machine.

[ohenry]

# United States Code

* TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
o PART I - CRIMES
+ CHAPTER 110 - SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
# Section 2251. Sexual Exploitation Of Children
# Section 2251A. Selling Or Buying Of Children
# Section 2252. Certain Activities Relating To Material Involving The Sexual Exploitation Of Minors
# Section 2252A. Certain Activities Relating To Material Constituting Or Containing Child Pornography
# Section 2253. Criminal Forfeiture
# Section 2254. Civil Forfeiture
# Section 2255. Civil Remedy For Personal Injuries
# Section 2256. Definitions For Chapter
# Section 2257. Record Keeping Requirements
# Section 2258. Failure To Report Child Abuse
# Section 2259. Mandatory Restitution
# Section 2260. Production Of Sexually Explicit Depictions Of A Minor For Importation Into The United States

How many people are still upset? This is the CHILD PORNOGRAPHY law!

[dougjgreen]

Originally Posted by ohenry

# United States Code

* TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
o PART I - CRIMES
+ CHAPTER 110 - SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
# Section 2251. Sexual Exploitation Of Children
# Section 2251A. Selling Or Buying Of Children
# Section 2252. Certain Activities Relating To Material Involving The Sexual Exploitation Of Minors
# Section 2252A. Certain Activities Relating To Material Constituting Or Containing Child Pornography
# Section 2253. Criminal Forfeiture
# Section 2254. Civil Forfeiture
# Section 2255. Civil Remedy For Personal Injuries
# Section 2256. Definitions For Chapter
# Section 2257. Record Keeping Requirements
# Section 2258. Failure To Report Child Abuse
# Section 2259. Mandatory Restitution
# Section 2260. Production Of Sexually Explicit Depictions Of A Minor For Importation Into The United States

How many people are still upset? This is the CHILD PORNOGRAPHY law!

That's not at all clear from the section you posted. Unless we saw the contents of sections 2256 and 2257, there's no way of knowing, just because the rest of the law is particular to child pornography. It's fairly typical to bury an onerous restriction within the details of a law that's otherwise completely reasonable.

[ohenry]

http://www4.law.cornell.edu/uscode/h..._I_20_110.html

There you go. Go read the code and decide for yourself.

[dougjgreen]

OHenry,

The bill as you described it is, as you say, an anti-child-porn bill which imposes record keeping requirements as to the age of each of the models involved. The problem is not with this bill - the text of which you produced as it existed a couple of months ago. As the original poster mentions, the problem is with a newly attached amendment that imposes these same record-keeping burdens on ANY photography that includes frontal nudity, NOT just porn, and NOT just child porn. It's these new amendments that make this bill onerous, not the original bill, the text of which you cited.

[ohenry]

here's the actual amendment proposed http://thomas.loc.gov/cgi-bin/query/.../~c109zDKulE::


Child Pornography Prevention Act of 2005 (Introduced in House)

HR 3726 IH

109th CONGRESS

1st Session

H. R. 3726

To enhance prosecution of child pornography and obscenity by strengthening section 2257 of title 18, United States Code, to ensure that children are not exploited in the production of pornography, prohibiting distribution of child pornography used as evidence in prosecutions, authorizing assets forfeiture in child pornography and obscenity cases, expanding administrative subpoena power to cover obscenity cases, and prohibiting the production of obscenity, as well as its transportation, distribution, and sale, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

September 12, 2005

Mr. PENCE introduced the following bill; which was referred to the Committee on the Judiciary


I could be wrong, but I've perused the bill and the amendment and could not find any references to changing the definition of minor found in section 2256 that would indicate that the provisions of the bill or the amended bill would apply to any photography other than that of minors. Then again, I'm not a lawyer.

oh well....enough of this for me ... all this legal jargon has given me a headache

[dougjgreen]

The original bill does not impose record keeping on minors only. Section 2257 imposes record keeping on the production of ALL explicit sexual content, including all adults who are involved in it. No problem so far - I think most of us don't have any problem with some regulations on pornographers that require them to prove that it only is being done by consenting adults.

The original poster claimed that the Pence amendment extended the record keeping requirement to the creation of images containing nudity (defined as the display of the genitals), requiring valid IDs on record for all people shown in the images containing nudity, and not just the images containing explicit sexual content. This would essentially add a substantial burden of bureaucratic overhead to the creation of any nude photo. Effectively, that would extend all of the regulatory requirements that currently burden the production of pornography onto the production of any image containing nudes. That, were it the case, would certainly be an onerous extension that would have a stifling effect on legitimate art.

However, after a careful reading the the text of the Pence amendment, I believe that it does NOT actually extend these regulatory burdens to mere nudes, but rather, it just extends the burdens further up and down the production and supply chain for the creation and distribution of Pornography, or, as the bill calls it:"Sexually explicit images or videos" So, in essence, what this amendment does is toughen the laws and regulatory burdens imposed on Pornography - all pornography, not just child porn, for the purpose of forcing the producers to be able to prove that their porn is NOT child porn. This amendment does not cover images that contain nudity, but not sexually explicit content. So, whatever one's views on porn, at least this law only relates to porn, and NOT to images containing mere nudity. Of course, how it would relate to something like the homoerotic images of Helmut Newton would certainly be subject to the interpretation of the beholder. But, for simple nude glamour shots, it's a non-issue.