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.)
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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