Deadline for Safe Harbor Certification under Anti-Child Pornography Regs Fast Approaching

For years, the adult entertainment industry has been required to maintain records verifying the age of all performers. However earlier this year, new regulations implementing § 2257 and § 2257(A) of the Child Protection and Obscenity Enforcement Act went into effect which impose similar record keeping requirements on many mainstream media companies. However, the regulations contain a "safe harbor" to help minimize the effect of the regulations by enabling mainstream media companies to file a certification with the Attorney General's Office. The deadline for this important certification is June 16th, 2009. The new DOJ regulations implement the expanded age-verification requirements enacted in the Adam Walsh Act. Now primary and secondary producers of depictions of "simulated sexually explicit conduct" and "lascivious exhibition" must also comply with age-verification record keeping requirements. The regulations define a primary producer as the individual who records the depiction of the sexually explicit conduct, whether it's by videotape, photography, or a digitally manipulated image. Primary producers also include anyone who digitizes an image of sexually explicit conduct. A secondary producer includes anyone who "produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, videotape, or digitally or computer-manipulated image, picture, or other matter" that is intended for commercial distribution. This definition also encompasses anyone who includes sexually explicit depictions on a computer site or service or otherwise manages the sexually explicit content on a computer site or service. The breadth of the initial definition of secondary producer raised protest from the media industry and it was later amended to exclude those who merely distribute sexually explicit conduct, without altering or editing the content. Simulated sexually explicit conduct includes conduct that would cause a reasonable viewer to believe that the performers were actually engaged in sexually explicit conduct. However, the depiction must amount to more than the mere suggestion of sexually explicit conduct. While lascivious exhibition is not defined within the regulations, the DOJ website describes a few components of a lascivious depiction: "(1) the focal point is on the subject's genitalia or pubic area, (2) the setting of the visual depiction is sexually suggestive . . . (3) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or (4) the visual depiction is intended to elicit a sexual response in the viewer." Under this description, producers who show only fleeting nudity might still be subject to the age-verification recording procedures. The new regulations require the primary producer to examine a government issued photo ID of every performer before the production of the sexually explicit depiction. The producer must then make a record of the performer's name, aliases, date of birth, the date of the production of the sexually explicit image, and make a photocopy of the identification. These records must be maintained in accordance with specific requirements and the visual depiction must be labeled with the location of the record. A secondary producer of sexually explicit content must obtain all age-verification records from the primary producer, but does not have to independently verify the age of the performers. While these requirements might have proven burdensome for mainstream media, the DOJ regulations contain an important safe harbor which offsets some of this burden: Specifically, the record keeping provisions do not apply to a producer of simulated sexual conduct or lascivious images if the images are intended for commercial distribution as part of a commercial enterprise and they meet one of two requirements: (1) if the visual depiction is not "produced, marketed, or made available in circumstances such that an ordinary person would conclude that the matter contains a visual depiction that is child pornography" or (2) the depiction is subject to regulation by the FCC in its regulation of the broadcast of obscene, indecent, or profane programming. Producers seeking eligibility for the exemption must send a letter of certification to the Attorney General. The certification letter must state the statutory basis for eligibility, and, in the required language, state that the producer, in the regular course of business, collects and maintains identifying information for all performers. The letter must be signed by an executive officer of the entity or, if the entity does not have executive officers, by a senior manager who oversees the entity's activities. There are specific requirements for foreign entities seeking certification, or entities which have used foreign performers. The deadline for submitting the certification is June 16, 2009. For all production that begins after June 16, 2009, the certification is due within 60 days of the start of the production. After the initial certification, there is no need to recertify unless there are any material changes to the information provided in the certification. In that case, a subsequent certification must be filed within 60 days of the material change. Our New Media, Entertainment and Technology practice group has been closely monitoring these regulations and would be happy to answer any questions regarding the impact of the same on your content production, broadcast and distribution initiatives or assist you in filing your own certification letters.