Guest Poster: Kelly Shibari, http://privatexxxstudio.net
Although countries other than the United States really don’t have their version of the 2257 regulations, most content producers know that a large bulk of their profit is made via American consumers. Foreign countries are not obligated to comply with the 2257 regulations per se, but American webmasters are consistently rejecting foreign content that does not come with 2257 compliance paperwork.
American webmasters know that if any content is shown on their site without the correct backup paperwork, they themselves run the risk of being fined not only for non-compliance, which is a federal offense in and of itself, but if the model shown turns out to be underage, they also run the risk of a 2-year prison term per incident. In addition, American sponsors are more than likely to shy away from sites that carry content that don’t comply with the 2257 legislation. Because of the consistent rejection of foreign content without 2257 paperwork, the American regulation is becoming more and more of a global standard for the creation of sexually explicit content.
Most American laws are not generally presumed to have any effect outside of its borders unless Congress makes it clear that the extent of whatever law they have passed is intended to extend outside of the territorial boundaries of the United States of America. So you’d think that the 2257 law wouldn’t apply to foreign content, especially if the content was created outside of the US. An American webmaster could always claim that he’s not really the “producer” of the content if all he is doing is “reselling” content that was purchased from a foreign content producer, much like a cable company like HBO or Cinemax is not a producer of a film produced by, say, Universal Studios or Paramount Pictures.
The problem, though, is that the American webmaster, as a domestic distributor, still needs to have a 2257 Compliance notice on their website. Title 18 United States Code Section 2257 (f) (4) makes it a crime when materials which have moved in interstate or foreign commerce are distributed without the notice required by the Statute. People have tried in the past to get past this piece of legislature by saying that the 2257 law shouldn’t apply to foreign content. The Court of Appeals for the District of Columbia in 1994 stated that “Foreign producers who wish to peddle their products in the United States should be expected to abide by our laws no less than domestic producers.” (American Library Association v. Reno, 33 F.3d 78, 94 (C.A.D.C., 1994)).
The possession and distribution of child pornography is forbidden in the United States and come with serious legal consequences. In addition to the 2257 (which is for filmed and photographic content), there is also 18 U.S.C. Section 2241, which imposes serious penalties (including life imprisonment) for those that cross state lines for the sexual abuse of minors. That law is enacted with “special territorial and maritime jurisdiction” of the United States, and can be used to prosecute crimes outside of the United States, including, literally on the Moon and on all other celestial bodies and on spacecraft in flight, under the definition of that jurisdiction. (See 18 U.S.C. Section 7).
A lot of adult content websites are run outside of the jurisdiction of the United States. Unfortunately, if the webmaster is not set up in the United States, the 2257 law cannot extend to them. A lot of countries formerly known for their offshore-banking “privileges” to help those hiding from American tax laws are now becoming havens for adult content webmasters as well as places such as the Netherlands, which has always been a haven for liberal expression.
The current 2257 laws also get in the way of foreigners who come to the United States either for work, play, or both, who decide to model or act in a pornographic project. Not only do general American immigration laws prohibit non-Americans from working for pay within its borders without the proper visa, the current 2257 restrictions prohibit a foreign actor or model from working without an American passport, American driver’s license, or green card.
The 2257 law not only applies to foreign actors and content by proxy in this way, but also applies to “old” content which was shot or filmed prior to the 2257 law going into effect. All of that is of no matter should these images be detected on a site run by an American webmaster. Those images are unlawful child pornography and may put you in an American prison. Attorney Paul Cambria apparently had spoken in 2005 with Janet Reno, who was Attorney General at the time, and established that “the earliest date for 2257 compliance as July 3, 1995, thereby legalizing all product shot before that date.”. This seems to be a loophole for producers who have older content, and is being contested, much like most of the contents of the 2257 legislation, by both sides of the legal fence.
The new 2257 legislation really puts a clamp on foreign content producers, foreign talent, and imposes an incredible amount of paperwork requirements on American producers and webmasters. Its current version and restrictions are being fought by the Free Speech Coalition on so many different levels that it really merits it own blog post. In the meantime, both American and foreign adult content producers and webmasters must comply with the current legislation if they intend to distribute their product to American consumers.
