The September, 1984 issue of Penthouse Magazine was particularly controversial even before it hit the newsstands. For starters, it contained a nude pictorial of the reigning Miss America, Vanessa Williams, engaging in simulated interracial lesbian acts, taken from a shoot conducted before she won the crown.

Every Webmaster’s Primer on Section 2257 Compliance, Part I

By Attorney J. D. Obenberger

The September, 1984 issue of Penthouse Magazine was particularly controversial even before it hit the newsstands. For starters, it contained a nude pictorial of the reigning Miss America, Vanessa Williams, engaging in simulated interracial lesbian acts, taken from a shoot conducted before she won the crown. This was all over page-one news in 1984, and the ensuing outcry compelled Miss Williams to turn the Tiara back in to the pageant But seeds that would grow into far greater controversy, with far greater societal and legal effects in the adult entertainment industry, existed elsewhere in the same issue, though scarcely noticed for what they were at the time.

The Pet of the Month in September, 1984 was a newcomer to modeling who had just recently been “discovered” by a talent agency while sunbathing at Malibu Beach. She reportedly carried a driver’s license identifying her as the twenty-two year old Kristie Elizabeth Nussman, but, the reports go on, she sometimes called herself Christie Lee Nussman.

She immediately became something of a phenomenon in the world of glamour photography. In 1984 and 1985, she appeared as the centerfold or in a major pictorial feature at least once in nearly all of the men’s magazines that counted: Oui, Hustler, High Society, Swank (photo credits to the renown Suze Randall), and Club, and she made multiple appearances in some of them as a result of her amazing popularity with the readers.

During the same year, Miss September was paid $10,000.00 for a four-day shoot of her first hardcore adult video, What Gets Me Hot. The 1985 Adam Film World Directory of Adult Films described her performance with Tom Byron as “erotic and compelling”, and called her an “overnight sensation” in the adult film business. From the beginning, she appeared with all of the biggest names in porn video and rapidly became a reigning porn starlet of the first rank with an intense national following. Those who saw the tapes say that to describe her performance as merely “enthusiastic” would be to risk serious understatement: Though her looks were a significant factor in her popularity with the viewers, it was her blazing sexual performance on camera that propelled her to AVN award nominations and undisputed status at the top of the heap. She went on to appear in at least 107 hardcore adult tapes before it all came to a sudden end in 1987.

In the first place, her name was neither Kristie Elizabeth Nussman nor Christie Lee Nussman, but Nora Louise Kuzma.

In the second place, she was only sixteen years old when this story began.

You would probably know her better as Traci Lords.

The fallout from the Traci Lords story came fast and furious, and included a round of criminal prosecutions of video distributors, the appeal of at least one of which crossed the threshold of the United States Supreme Court. Tens, if not hundreds of thousands of dollars worth of adult tapes were hurriedly pulled from the shelves of adult bookstores all across America so fast that you could almost hear a collective “thump” as the Traci Lords calliope crashed to the ground.

For years afterwards law enforcement agents across America regularly trolled the shelves of adult bookstores looking for stray Traci Lords tapes that the owners had missed.

The aftershocks reached the Halls of Congress and the outcry was that something had to done.

As the old adage goes, when your only tool is a hammer, all of your problems become nails. And inasmuch as Congress had to do something, and all that Congress can do is to investigate and pass laws, investigate and pass laws is what it did. (However, it is highly debatable whether, had the law presently expressed in Section 2257 existed in 1984, whether it would have made any significant difference in this story.)

Traci Lords was never marketed to the pedophile fringe. Instead, she was portrayed as an object of sexual fantasy to the mass of American men. Her age was given as 22 in Penthouse and 23 in Oui at the beginning of her adult career in 1984. She socialized with a very grown-up crowd and had a grown-up boyfriend or two. Innocence, reticence about matters sexual, and inexperience are the exact opposite of what she projected.

Though she was the centerfold attraction in magazines aspiring to meet the sexual tastes of as large and mainstream an audience as possible, and though those who photographed her and published her reasonably believed her to be of age, what emerged was a law designed to combat pedophilia and its commercial exploitation.

The result was a law, signed by the President on October 18, 1986, imposing certain obligations on the producers of graphical representations of explicit sexual conduct. These obligations are codified in the United States Code at 18 U.S.C §2257. Additionally, the Attorney General, directed by Congress in that law to establish regulations for the enforcement of the Section, has promulgated a series of regulations found at 28CFR Ch. I, Part 75, the validity of some portion of which have been rejected by the federal court considering them.

The reader is cautioned that this article contains a summary treatment of the law, and it is the law itself that should be consulted for legal guidance, with the guidance of an experienced lawyer, rather than this or any other summary of the law.

The Obligations of Section 2257 and Penalties for Violation

Title 18 USC Section 2257 imposes certain obligations on the producers of material containing depictions of actual sexually explicit conduct, made after November 1, 1990. It imposes no record-keeping or disclosure obligations on persons who are not producers. More about that later.

It imposes no obligations on producers of material that does not include actually sexually explicit conduct; Thus there is no obligation under this provision for graphical representations of mere erotic nudity or of simulated sex. But it does cover the waterfront on actual conduct: It includes all varieties of sexual intercourse, vaginal, anal, or oral, straight or gay, and bestiality, masturbation, and sadistic or masochistic abuse. The determination of whether the act applies to images that do not clearly display penetration or the other covered activities is simple: If it was really going on, the Section

applies, even if the actual sexual conduct can’t be seen in the image, due to obscuring, covering, or for any other reason.

However, the obligations that it does impose on the persons who are reached by the statute and who are producing the kind of material specified in the statute are enforced though the imposition of a criminal sanction: Failure to comply with the obligations of the Section is a felony upon the first conviction, punishable by up to two years confinement and a fine, and two to five years and a fine on a second conviction. A person may be convicted for violation of the statue because he or she fails to comply with the affirmative duties of

identification and inquiry, record keeping, and disclosure imposed by statute or regulation, or because he or she knowingly makes any false entry in those records, or in interstate commerce sells or otherwise transfers without a “custodian of records” statement any of the material specified in the statue and required to have such a statement.

Those affirmative obligations of 2257 are four in number and may be summarized as follows:

1) The Duty to Identify and Inquire. The producers of visual images with explicit sexual conduct are required to obtain and examine an identification document containing the performer’s name and date of birth. They are also required to ascertain, apparently from the performer, though this is not clear in the statute, any other name ever used by the performer, including maiden name, alias, nickname, and stage or professional names. Under the regulations, one of the approved, government-issued, official identification documents mentioned at 18 U.S.C 1028 (d) suffices if it contains a photo. If it does not bear the holder’s photo, a copy of a picture identification card must be produced under the Regulations. It is a wiser course to follow the practice of most legal content producers and obtain the multiple forms of identification with the best chances of reliability, including at least a driver’s license, passport, or state identity card.(Under the Regulations, a legible copy of the identification document examined shall be made and maintained with the other records which must be maintained.)

2) The Duty to Create and Maintain Retrievable Records. The producers of the graphic materials covered within the ambit of Section 2257 must create certain records of the name and date of birth of the performers, those records must permit the retrieval of information by the various names of the performer and by the name or number of the work, and those records must be maintained at the producer’s place of business and for a period of five years after the dissolution of any business. The law does not address what is to happen should the records be destroyed or taken, as for example in the execution of a search warrant by local officials. The prudent content producer will maintain a duplicate off premises copy of all required records so that he or she is not compelled to blaze a new trail in litigation concerning the unexplored frontier of Section 2257. There are special regulations concerning a duty to modify or amend the records when the material is released in another form.

3) The Duty to Make Disclosure in the Work of the Location of Records and the Identity of the Records Custodian. Each copy of a work covered by the law must contain a statement of compliance which identifies the title of the work, the date of production, the identity of the custodian of records (always a real person) and the address where the records are maintained. There are specific provisions in the regulations concerning where that disclosure statement is to appear in books and magazines and videotapes and films. There are specific rules on matter exempt from the law because of its date of creation. There are no such specific requirements specifying where the disclosure or exemption statement is to appear on a web page or other computer image, and a person seeking to comply with the law can only look to guidance for the provision in Section 75.8 of the Regulation stating that the disclosure should be “prominently displayed consistent with the manner of display required” in books, magazines, films, and tapes; in other words, up front and prominent. (In a book or magazine, the disclosure must be printed on the cover or copyright page, and in a videotape, it must appear in the first minute, before the first scene, or during the closing credits, and it must appear long enough to be read by the average viewer.)

4) The Duty to Make the Records Available for Inspection by the Attorney General. The producer of works within the scope of the law must make the required records available for inspection, by the Attorney General or those the Attorney General appoints, at the producer’s business premises at all reasonable times.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution. His firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the “real world”. His practice extends to First Amendment cases, municipal zoning and licensing, the law of privacy, criminal law and civil rights. He can be reached in the office at 312 558-6420 or paged at 312 250-4118, at any time, in any emergency. His e-mail address is xxxlaw@execpc.com

The September, 1984 issue of Penthouse Magazine was particularly controversial even before it hit the newsstands. For starters, it contained a nude pictorial of the reigning Miss America, Vanessa Williams, engaging in simulated interracial lesbian acts, taken from a shoot conducted before she won the crown.

Every Webmaster’s Primer on Section 2257 Compliance, Part I

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