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18 USC §2257 & 28 CFR Part 75

Let’s talk about a somewhat obscure bit of US Law that you might not be familiar with, but if you’re involved with creating any kind of NSFW content, you should be very aware of it. It’s a law that establishes recordkeeping requirements for creators of adult content. It was designed (in theory) to prevent sexual imagery of children from getting produced or sold.

The law is called the “Child Protection and Obscenity Enforcement Act”, 18 USC §2257 and dates back to the 1980s. Like many US Laws, the law itself is actually pretty vague; Congress left it up to the executive branch to promulgate detailed regulations to actually implement the law. This is a common approach to certain types of legislation because the executive branch can move more quickly and respond to changing circumstances faster than Congress can (though, in this case, they haven’t). The implementing regulations for 18 USC §2257 can be found at 28 CFR Part 75.

This law—though at least partially well-intentioned—is deeply problematic for a number of reasons and—as I’ll discuss—it may be impossible for many content creators to fully comply with the law at all, or at least without sacrificing their personal safety.

Important: Since I’m discussing legal stuff here, I need to point out that I am not your attorney, I am no longer a practicing lawyer at all, and the information in this article should not be treated as legal advice. If you are a content creator concerned about your liability under the laws I’m discussing, I would suggest talking with an Attorney. If you can’t afford one, consider reaching out to your local Legal Aid Society.

The Basics

If you’re creating “visual depictions of actual sexually explicit content” in the US (or plan to distribute such works to the US), this law creates certain documentation requirements you must follow. Failing to comply with these requirements can result in a fine and up to five years of prison time per violation and up to 10 years (with a minimum of 2)  if you’ve been previously convicted under the same law. Those penalties apply per published image for which you don’t have the required documentation, so the stakes are high here.

Now, you might be thinking, “I don’t shoot sexually explicit content, just nudes, so I’m okay”, but “actual sexually explicit content” is a term of art defined by the law and it doesn’t mean what a rational reader might assume it means. You can be on the hook even if you’re shooting content that’s not actually sexually explicit.

Isn’t legal terminology great? 🙄

In photography forums and on social media, you’ll sometimes encounter people claiming that 18 USC §2257 has been ruled unconstitutional and does not need to be followed any more. That is absolutely not the case. One Circuit Court of Appeals did rule the recordkeeping requirements unconstitutional, but in an en banc re-hearing, that decision was reversed, and the case was never granted certiorari by the Supreme Court, meaning the statute, under current law, should be considered valid and enforceable. Until or unless one of these challenges makes it all the way to the Supreme Court and is successful, you would be foolish to disregard the record-keeping requirements unless you’re ready and willing to be a legal test case.

When You Need to Follow USC §2257

Technically speaking, you don’t need to follow the §2257 record-keeping requirements for straightforward art or figure nude shoots. Non-sexual nudity is constitutionally protected speech and 18 USC §2257 never even actually mentions the word “nudity”. That being said, some photographers choose to create the required records even for straightforward, non-sexual nude images just to be safe.

So when is §2257 actually required?

When you’re creating depictions of “actually sexually explicit content”, which is defined in 18 USC §2256, as follows:

  1. sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;
  2. bestiality;
  3. masturbation;
  4. sadistic or masochistic abuse; or
  5. lascivious exhibition of the anus, genitals, or pubic area of any person;

Now, at first glance, this seems pretty straightforward.

It is not.

For starters, there’s a contradiction between §2256 and §2257 (which incorporates 2256 by reference).  §2256 says “actual or simulated”, but §2257 specifies “actual sexually explicit”. This means the status of simulated sexual activity is unclear.

Unfortunately, the enabling regulations double-down on the inclusion of simulated content by including the following paragraph:

(o)Simulated sexually explicit conduct means conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean sexually explicit conduct that is merely suggested.

So, basically, if you simulate it believably enough, it’s covered.

Let’s go back to the specific acts outlined above, #1 and #3 are pretty much what you would expect when you hear the term “sexually explicit”. If you’re photographing people having sex or masturbating, you need to follow the §2257 requirements. No surprise there, but there is a bit of nuance you might have missed. The definitions do not require penetration, only “contact”¹.

I’ll skip #2. Bestiality is illegal in every state except Wyoming, New Mexico, and West Virginia and really doesn’t warrant further discussion. I hope.

The last two items on the list are not so straightforward.

Sadistic or Masochistic Abuse

“Sadistic or masochistic abuse” is an extremely vague description. A plain-language interpretation would seem to indicate that even fully clothed bondage-themed shoots require keeping §2257 records. If your shoot will include any BDSM or S&M content, it’s probably worth your time to create the records, though I suspect light or fully clothed bondage images are unlikely to ever result in prosecution. If you’re creating more explicit BDSM imagery, you should create the records to be safe.

Lascivious Exhibition Clause

Finally, we have the “lascivious exhibition” clause that extends the documentation requirements to any imagery featuring “lascivious exhibition of the anus, genitals, or pubic area”. This is the part of the law that really throws a monkey wrench into everything. We know that nudity in art, in and of itself, is Constitutionally protected expression, but at what point, does nudity become “lascivious”, and does “lasciviousness” actually cause its Constitutional protections to disappear²?

The OED definition of lascivious is “feeling or revealing an overt sexual interest or desire”, which doesn’t provide any clarity at all, because it describes a wholly subjective thing. The inclusion of “pubic area” in addition to genitals and anus means images don’t even need to be that explicit for this clause to apply. Arguably, an image of a model suggestively pulling down their bikini bottom to reveal nothing more than a bit of their upper mons pubis, could be interpreted as a “lascivious exhibition” of “the pubic area”. It probably wouldn’t be, but it could the way the law is written (though that interpretation would almost certainly give grounds for a Constitutional challenge).

The huge gray area created by this clause is why many photographers and content creators opt to follow §2257 even when shooting non-sexual nudity. It’s not that hard to imagine why someone might prefer filling out a little extra paperwork to facing potential jail time in a federal penitentiary.

I wish I could give you more concrete guidance about where the line of lascivity is, but the law is vague and the meaning has never been clarified by an appeals court as far as I can tell.

Up until recently, I would have argued that it’s highly likely that the entire “lascivious exhibition” clause would fail a Constitutional challenge. Unfortunately, we now have an extremely conservative and ideologically-driven Supreme Court, and I don’t have any confidence that they would respect precedent (or even rule rationally) on this issue.

If I had to guess how this would be interpreted, it almost certaintly applies to close-up images of genitals, especially images that include an erect penis, a vagina with labia spread or pulled apart, or of the anus with butt cheeks pulled apart. It’s not impossible, however, that much tamer depictions, such as Hustler-style open-leg nudes, or even less explicit types of nudes where genitals are visible could fall under this vague clause.

When in doubt, it’s safer to comply… if you can. For many creators, it simply isn’t possible to fully comply. Let’s talk about why.

Roles Under §2257

Before we get into that, let’s talk about the “roles” that come into play, because the requirements under the law apply to people based on their role or roles relative to the shoot:

  • Producer: The person paying to create the images and who is legally responsible for making sure the record-keeping requirements are met.
  • Talent (or sometimes Model or Actor): This is any person who will appear on camera during scenes containing “actually sexually explicit” conduct. All talent must provide government-issued photo identification that is not expired and shows that they are at least eighteen years old. The way it’s worded, this requirement applies even if they are not directly involved in sexually explicit activity.
  • Document Checker: This is the person who inspects the talent’s identification to ensure they are a legal adult, that the identification is not expired, and has not been been tampered with or altered.
  • Crew / Photographer / Director: The people behind the camera involved with the technical details of actually producing the images or video.
  • Custodian of Record: The person, designated by the Producer, who is responsible for keeping the records and making them available to the Attorney General if they are requested.

In many cases, the photographer or content creator will also be the Document Checker, the Custodian of Record, and the Producer. On larger productions, these roles are more often filled by several different people. A Producer, for example, might hire a photographer and/or video crew, and designate their attorney or an employee to be the Custodian of Records. A photographer’s assistant or production assistant will often be responsible for checking and taking a copy of the identification documents.

Complying with §2257

The records that you MUST keep to be compliant with §2257 are:

  • An unsworn statement³ under penalty of perjury signed by all on-screen talent that declares the following:
    • they are over the age of 18;
    • they have disclosed their full and correct legal name;
    • they have disclosed all other names that they have ever been known by;
    • they have produced a legal form of government identification;
    • they have not provided any false or misleading information;
    • each of the identification documents they provided were lawfully obtained by them and have not been forged or altered;
  • A copy of the identification documents the model provided, including at least one that is government-issued, unexpired, and contains a photograph. The copy may be digital, photographic, or photostatic.

You can download an empty form for creating the unsworn statement here.

These documents should be kept separate and apart from your model release and any other contracts or agreements. 18 USC §2257 gives the U.S. Attorney General the right to access these documents without a warrant, so it’s best to keep them separate from your other business records; combining them means that the government must be granted access to the entirety of the combined documents upon request and without a warrant.

In addition, if the document checker and custodian of records are not the same person, it’s a good idea to have your document checker create an unsworn statement under penalty of perjury or affidavit stating that they personally checked the identification, the model was of legal age, and there were no signs of tampering or alteration of the documents they checked. This is not required by §2257, but if at some point in the future, the document checker can’t be reached, having that document will mean you can still provide admissible proof that the ID verification happened and was compliant with the law.

The final requirement under §2257 is that when the producer publishes the “actual sexually explicit” material, they must “affix” a statement “to every copy” that identifies who the Custodian of Record is, including a street address which can’t be a post office box. If you’ve ever watched any professionally produced porn created in the last thirty years, you’ve probably noticed the wall of legal text at the beginning or end.

Publishing to Social Media

Compliance with §2257 is tricky if you’re primarily publishing to social media or other websites that you don’t fully control. The law was designed back in the days of porn primarily being produced and sold on physical media through traditional distribution channels like adult stores and catalog orders. The regulations had their last substantive update in the early days of the web before social media took off, so has never been changed to reflect the modern reality of adult content production. As a result, it’s nearly impossible to comply with the letter of the law when posting to social media because the regulations require that “every copy” have the Custodian of Records information “affixed” to it.  Good luck fitting all that into 240 characters.

Additionally, the requirement that a physical address be provided for the Custodian of Records is problematic for small and individual creators who don’t have a separate business address or an attorney. This is especially true for women creators, many of whom already receive a lot of hateful and inappropriate messages simply because they choose to publish images of themselves online. For most content creators, including their physical address on their content would mean putting their physical safety in jeopardy, which is an unfair thing for the law to require.

Applicability to Self-Published Content

18 USC §2257 was written back in the 1980s in response to a handful of specific, high-profile situations, including the career of then-underage porn star Traci Lords⁴. The law was also written in an age when porn was distributed on physical media like VCR tape and distribution was handled by a small number of increasingly large production and distribution companies. It’s very obvious that none of the people involved with drafting this law were imagining a day when millions of people would be self-publishing adult content on a daily basis.

Although the enabling regulations were significantly revised and clarified in 1995, they have been largely unchanged since then other than small clarifications in 2005 and 2008. There have been zero substantive changes to the regulations since the advent of OnlyFans or Twitter, and the regulations, as written, are impractical or impossible for most small-scale content producers who distribute through social media to comply with.

So, where does that leave the individual content creator distributing images and videos online? In a bit of a pickle, honestly.

It is virtually impossible to comply with the regulations if you’re self-publishing explicit content either using a site like OnlyFans, or on forms of social media that allow explicit content like Twitter, Mastodon, or PixelFed (a federated Instagram-clone that allows nudity and explicit content).

As an individual content creator publishing images of just yourself, you are technically a “Producer” under this law, but there’s a weird catch-22 at play, in that if you are actually underage, you’d be tried as a minor, and if you’re not underage, the content is completely legal (though the record keeping requirements still apply.  Checking your own ID and signing your own unsworn statement seems kinda silly since you know your age and it’s relatively trivial for you to prove it if it ever becomes an issue. This is clearly not the situation the law was intending to address and I would hope that a federal prosecutor wouldn’t ever bother going after an individual content creator for posting images of themselves… but they would appear to have the authority under the law to do so if they wished.

Where things get even more problematic is if you’re collaborating with other content-creators. In those situations, you definitely are a “Producer” under this law and technically are on the hook for the required documentation.

The Current State of Things

In short, the situation sucks. The law was designed to create accountability under a publishing model that largely doesn’t exist any more and the regulations haven’t been updated to reflect the modern reality of the home-grown porn creation. For many content creators, the law can’t actually be complied with when publishing to the most common platforms because the wording of the regulations is hopelessly out of date.

The good news is, there are so many individual content creators now that it’s very unlikely that federal prosecutors would waste their limited resources going after them except in truly egregious situations. “Unlikely” is not “impossible”, though, and even outside of §2257, publishing content that includes underage people is a very serious offense that can be prosecuted either Federally or at the state level and can potentially result in having to register as a sex offender… even if you had a good faith belief that all the people involved were adults.

Even though you may not be able to fully comply the letter of the law, at very least you do need to be making absolutely sure that everybody involved is a legal adult and keeping records that proves it.

Until and unless the implementing regulations are revised, individual adult content creators are in a bit of a no-win situation and the only saving grace is that there are so many adult content creators now that the chances of any individual creator being asked for documentation or charged under this law is pretty miniscule.

  1. Curiously, #1 does not specifically list hand-genital contact, meaning one reasonable intepretation is that even though someone touching their own genitals is specifically covered because of #3, touching somebody else’s genitals is not covered by the law at all. I would not expect that interpretation to be very successful in court, however.
  2. Technically speaking, a work must be “obscene”, not just “lascivious”, for it to lose First Amendment protection. However, since this law just requires records to be kept and does not actually prohibit production of the images, there may not be a Constitutional issue as a result.
  3. An “unsworn statement” or “unsworn declaration” is a legal document similar, in some ways, to an affidavit, but is not made under oath. The document also doesn’t have have to be notarized or witnessed, but it is still made under penalty of perjury, which means that it is a crime to lie on it. These declarations are admissable as evidence in court in certain situations, such as when they are required by law or regulation, as is the case here, or when the person who made the declaration has died or is otherwise unavailable to appear in court.
  4. The ironic, but not unusual thing, is that this law would not have prevented the Traci Lords situation at all. She had convincing fake ID which was checked by several of the production companies that hired her. In the Traci Lords situation, all this law would have done is provide legal cover for the big porn production companies as long as they had documented the fact that they did, in fact, check her ID, but it would have done absolutely nothing to stop her underage porn from being produced in the first place.

Banner photo by Tingey Injury Law Firm from Unsplash.

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