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. Record keeping requirements
(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;
shall
create 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.
CREDIT(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 STATUTORY 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]."
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
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