The new 2257 regulations are out and, naturally, the lawyers are circling the wagons looking for ways to assist their clients through the morass of sometimes confusing, sometimes overburdensome, sometimes inconsistent, but always intimidating, language of 28 CFR 75.1 et seq. One such article was recently published on YNOT about attorney J.D. Obenberger’s initial response to the widespread industry belief that the new regulations all but eliminate the use of foreign models by U.S.-based producers or content produced overseas. According to the article, Mr. Obenberger has discovered that the regulations permit a U.S. producer to use an “identification document” issued by a foreign government and, provided it contains a photo of the model, no “picture identification card” (as defined in the regulations) is required. See Obenberger Addresses 2257 Confusion Over Foreign IDs in the “Industry News” section of YNOT. While we applaud Mr. Obenberger for his creativity, we disagree with his results and are concerned about grave consequences for the webmaster or producer that does not consult with his or her own attorney for analysis. [Editor’s Note: Obenberger has since retracted his statements in the aforementioned article.]The article quotes the following language in 28 CFR 75.2(a)(1) to bolster the assertion:

”For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card.”

Under a fuller reading, 28 CFR 75.2(a) says that a producer shall create and maintain records containing the legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card. The immediately prior (2004) version of the proposed rules permitted a producer to examine “an identification document, as defined by 18 U.S.C. 1028(d)(3)…” [the definition and statutory section referred to explicitly by Mr. Obenberger in his article] “…and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card.” The regulations as adopted explicitly replace “identification document” with “picture identification card” in 75.2(a)(1). Therefore, the later use of “identification document” cannot be intended to refer to the “identification document” defined in 18 U.S.C. 1028(d)(3); rather, it can only be read as a failure to harmonize the remainder of the section with the newly inserted phrase, as compared to the original proposed regulations.

The comments (see 29616 in the Federal Register) included by the Department of Justice with the final regulations make it clear that they intended to completely eliminate reference to the “Identification Document.” A further examination of pages 35551-35552 in the Federal Register (proposed (2004) regulations, which include “identification document”) and pages 29619-29620 (adopted (2005) regulations eliminating “identification document” and substituting “picture identification card”) show persuasively that “picture identification card” is the sole form of identification that U.S. producers may obtain from U.S. models and still be within the dictates of the regulations.

We urge each webmaster and producer to confirm this interpretation of the regulations with his or her own attorney (and if you don’t have an attorney, get one, at least until these regulations have received judicial scrutiny and a determination has been made of their constitutionality and scope) so that an innocent error does not become a test case for overambitious law enforcement.