CYBERSPACE — In an article published Tuesday by Law.com covering a broad range of issues related to 18 U.S.C. §2257, the co-authors report that the U.S. Department of Justice has “indicated that it would issue proposed regulations in the early part of this year” that will define the record keeping requirements for content subject to 18 U.S.C. §2257A, the new subsection of 2257 added under the Adam Walsh Child Protection and Safety Act of 2006.The Law.com article, Government Gone Wild: Regulations for “Explicit” Materials Move Into the Mainstream, was co-authored by Katherine A. Fallow and Scott B. Wilkens, a partner and associate, respectively, from the Washington, D.C., office of the law firm Jenner & Block.

As the title suggests, the primary concern of the article is the potential reach of section 2257A, the scope of which is unknown, pending release of proposed regulations for the new section by the DOJ.

In their article, Fallow and Wilkens briefly address the unprecedented 2257-related actions taken by Congress, the DOJ and the FBI in 2006

“Until recently, the record-keeping regulations were commonly thought to be limited to the adult entertainment industry, and the government had never actively sought to enforce the inspections or penalty provisions,” the article states. “Last year seemed to have marked a turning point, however…the [DOJ] for the first time exercised its power to inspect the records required under §2257, with the [FBI] paying surprise visits to a number of adult entertainment companies in California’s San Fernando Valley in the last three months of 2006.”

Another major event related to 2257 in 2006, of course, was the passage of the Adam Walsh Act, which according to Fallow and Wilkens “expanded the record-keeping requirements in two important ways.”

Among other things, the Adam Walsh Act added “lascivious exhibition of the genitals and pubic area” to the types of sexually explicit material covered under 2257, and extended 2257 to cover “simulated sexually explicit conduct,” as codified at 18 U.S.C. §2257A..

“On their face, both changes could sweep a significant amount of mainstream entertainment into the ambit of the burdensome record-keeping requirements,” Fallow and Wilkens state in their article.

As has been noted by many adult industry attorneys, with regards to both past and present iterations of 2257, Fallow and Wilkens observe that ambiguous terminology and problematic definitions abound in the statutory language of 2257A.

“Among other things, the addition of ‘lascivious exhibition of the genitals and pubic area’ injects a highly ambiguous term into a criminal record-keeping statute,” the article states. “That term is generally applied in cases involving child pornography, and involves a highly fact-specific – and necessarily subjective – inquiry. The result is a test for ‘lascivious exhibition’ that is difficult if not impossible to apply with any reasonable degree of certainty – especially in the context of images of adults.”

Fallow and Wilkens also hone in on the problematic term “simulated sexually explicit conduct,” noting that the term “is not defined in the statute,” and is “highly ambiguous.”

“It is not clear, for example, whether ‘simulated sexually explicit conduct’ would include a scene in a mainstream film in which characters are supposed to be having sex but are only shown in bed from the waist up,” Fallow and Wilkens state.

As has been pointed out previously by legal experts, any potential constitutional problems contained in 2257 have only been amplified by the creation of 2257A; extending 2257 into areas of content that are not even arguably pornographic only strengthens the argument that the law is overbroad.

As Fallow and Wilkens put it, “a broad interpretation could cover a wide range of popular content, and subjecting such material to the record-keeping requirements – with their corresponding criminal penalties – would place significant burdens on a large amount of valuable and protected expression, thereby raising serious constitutional concerns.”

Fallow and Wilkens also address “safe harbor” provisions included in the Adam Walsh Act, but note that it is not at all clear which companies and content producers would, or would not, be eligible for the safe harbor protections.

“In order to qualify for the safe harbor, the company’s material must be intended for commercial distribution and the company must certify to the attorney general that it regularly and in the normal course of business collects and maintains certain identifying information about its performers ‘pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards’,” the article states. “Companies qualifying for the safe harbor are exempt from the record-keeping and labeling requirements and the corresponding criminal penalties.”

As Fallow and Wilkens note, the safe harbor provision “theoretically… should shield a large amount of popular entertainment from the onerous record-keeping requirements,” adding that it is “important that the safe harbor be applied in a streamlined and pragmatic way.”

For the full text of the Law.com article, refer to http://www.law.com/jsp/article.jsp?id=1171287476370