Wikilegal/Age Record Requirement

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Summary

Federal law 18 U.S.C. § 2257 imposes record-keeping requirements on producers of materials containing sexually explicit conduct to prevent child pornography (§ 2257A additionally covers simulated sexually explicit conduct). Although the Wikimedia Foundation should not be considered a producer for the purposes of § 2257, Wikimedia users arguably may be considered primary or secondary producers of sexually explicit content depending on their level of involvement with the sexually explicit images.

Extensive litigation has left the future application of § 2257 in doubt. See generally Electronic Frontier Foundation, Internet Law Treatise, 2257 Reporting Requirements. The government's position on § 2257, limits the law to instances where sexually explicit content is distributed for the purposes of "trade or sale", but this may include "informal trading" on websites. Additionally, several courts have criticized this narrow reading of the statute as highly problematic, signaling that it may be an invalid interpretation of the statutory text. Further, the constitutionality of the statute still remains in question. Courts have suggested that the statute would be unconstitutional as-applied to a producer of sexually explicit content clearly involving only adult actors and it remains possible that they will find the law facially unconstitutional. These decisions may take a number of years to develop and the present law has yet to be addressed by the Supreme Court.

Because of the broad nature of the statutory text, users who upload or manage sexually explicit images may potentially be personally responsible for § 2257 record-keeping requirements. However, it remains possible that a court would find that the statute is unconstitutional (facially or as-applied). Further, Department of Justice regulations and priorities might limit scope of § 2257 prosecution.

Discussion

Definitions

The statutory and regulatory definitions of sexually explicit content "producers" should exclude the Wikimedia Foundation but arguably could include some users. In 1988, Congress enacted § 2257 as a part of the Child Protection and Obscenity Act. Section 2257 imposes record-keeping requirements on producers of sexually explicit materials to prevent child pornography. Pursuant to § 2257, the Department of Justice promulgated 28 C.F.R. § 75.1 that defines producers as "primary" or "secondary" producers. A "primary producer" is a person who "films, videotapes, photographs, or creates ... or who digitizes" a sexually explicit image. § 75.1(c)(1). A "secondary producer" is someone who either 1) "produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues" an image "for commercial distribution" or 2) "inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains [sexually explicit material]." § 75.1(c)(2). The phrase "otherwise manages the sexually explicit content", § 75.1(c)(2), could be read to include users who did not create or upload content. Section 75.1(k) provides: "manage content means to make editorial or managerial decisions concerning the sexually explicit content of a computer site or service, but does not mean those who manage solely advertising, compliance with copyright law, or other forms of non-sexually explicit content." § 75.1(k). Although this does not seem a likely extension of the law, it is possible. The Wikimedia Foundation itself would not be a producer because the definition of a producer does not include involvement that is limited to "the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of that communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or alteration of the content of the communication." § 2257(h)(2)(B)(v). Section 230(c), "Protection for 'Good Samaritan' blocking and screening of offensive material", additionally prevents the Wikimedia Foundation from being treated as a provider even if it determines that some material must be blocked.

Interstate commerce

The transmission of sexually explicit content over the Internet may implicate interstate commerce as required for federal legislation generally and § 2257 specifically. Although content may theoretically not cross state borders, practically as long as the government could establish that it was transported into more than one state the material would be "transported" in interstate commerce for the purposes of § 2257(a)(2). See United States v. Schaff, 454 F. App'x 880, 883 (11th Cir. 2012) cert. denied, 11-9888, 2012 WL 1379009 (U.S. May 21, 2012) (explaining that the court need not address whether Internet transmission alone was sufficient when evidence established that content created in one state was accessed in another).

Constitutionality

Facial constitutionality

It is possible that a court will find that § 2257 violates the First Amendment by violating the overbreadth doctrine. In Connection Distribution Co. v. Holder, the Sixth Circuit, sitting en banc, held that although the statutory language was broad, there was "little basis for dispute that § 2257 complies with the First Amendment in most settings." 557 F.3d 321, 336 (6th Cir. 2009) (en banc). Recently, in Free Speech Coalition, Inc. v. Attorney General of U.S., the Third Circuit rejected the government's argument that the statute should be narrowly construed to avoid overbreadth. No. 10–4085, U.S. App. 2012 WL 1255056 at *13–14 (3d Cir. April 16, 2012). Like the Sixth Circuit, the court held that the relevant statutes were not susceptible to a limiting construction because the statutory text "makes clear that they apply broadly to all producers of actual or simulated sexually explicit depictions regardless of whether those depictions were created for the purpose of sale or trade." WL 1255056 at *13. Unlike the Sixth Circuit, the court remanded the claim to the District Court to allow the Plaintiffs to develop a factual record to allow the court to determine whether the law was unconstitutionally overbroad. Id. at *14. This ruling leaves open the possibility that the Third Circuit will find the statute unconstitutionally overbroad if the Plaintiffs establish that the number of obviously adult depictions substantially outweighs the number of potentially underage performers. Id. The potential circuit split caused by this ruling would leave the future of § 2257 very much in doubt.

As-applied constitutionality

Several courts have suggested in dicta that § 2257 may be unconstitutional as-applied to a producer of sexually explicit content that clearly includes only adult performers. For an as-applied challenge to a content-neutral statute, courts apply intermediate scrutiny analysis. Among the intermediate scrutiny factors is the requirement that a statute is narrowly tailored to avoid burdening "substantially more speech than is necessary." WL 1255056 at *10. Courts have suggested that when the performers are clearly above the age of consent, the statute may not be narrowly tailored as applied to those producers and therefore unconstitutional. See Free Speech Coalition WL 1255056 at *12 ("if [a producer] employs performers no reasonable person could conclude were minors, then that [producer] may be able to demonstrate that the Statutes burden substantially more of that [producer's] speech than is necessary to protect children from sexual exploitation"); Connection, 557 F.3d at 334 (agreeing with dissent position that the statute might be unconstitutional as applied to content "only of readily identifiable mature adults"); Am. Library Ass'n v. Reno, 33 F.3d 78, 90 (D.C. Cir. 1994) (noting record-keeping requirements for an "illustrated sex manual for the elderly" may be unconstitutional). However, non-expert estimations of age may not be sufficiently authoritative if there is any doubt as to the age of the performer. See Connection 557 F.3d at 332.

Enforcement

Discretion

Government policies and practices may limit the scope of § 2257 prosecutions. Under the current Department of Justice Criminal Resource Manual, prosecutors are directed to give "substantial deference" to obscenity factors including whether the material has "serious literary, artistic, political, or scientific value." But see Department of Justice, 28 C.F.R. Part 75 Small Business Compliance Guide (stating "users of social networking sites who post sexually explicit activity on 'adult' networking sites may well be primary or secondary producers"). In addition, some have noted that the Department of Justice may choose not to prosecute in cases where enforcement could impinge on constitutionally protected speech. See Electronic Frontier Foundation, Legal Guidelines for Bloggers: Adult Materials (noting that the questionable legality of the statute "should discourage the DOJ from going after borderline sites").

Interpretation

The government has taken the position that § 2257 should only apply to sexually explicit content for "sale or trade", but this interpretation is questionable and arguably may include users who "informally trade" sexually explicit content even if made for educational or artistic purposes. Department of Justice Regulations based on § 2257 assert that although its scope is not limited to paid performers, "it is limited to pornography intended for sale or trade." 73 Fed. Reg. at 77,456. Courts have criticized this narrow interpretation of the statute as being unsupported by the text of the statute. See Connection, 557 F.3d at 337 (arguing the statutory language applies "regardless of whether the images are sold, traded, or otherwise distributed"); Free Speech Coalition WL 1255056 at *13 (stating the statute is not susceptible to such a limiting construction). Additionally, the government has argued that sharing images over the internet may be a form of "trading" for the purposes of § 2257. Free Speech Coalition, Inc. v. Attorney General of U.S., Br. for Appellee at 48–51. The government interpretation could therefore be read to include individual users even in noncommercial capacities. Further, the government position expressly rejects an educational or artistic purpose exception. Id. at 32–33.

Conclusion

There is still much uncertainty regarding the application of § 2257. The potential circuit split on the constitutionality of § 2257 and lack of clarity on basic definitions including "trading" and "otherwise managing" leave its future application in doubt. It would not apply to a hosting site such as the Wikimedia Foundation under § 2257(h)(2)(B)(v). However, unless it is found unconstitutional, some argue the law may apply to users posting content they personally created and users uploading or managing relevant content created by others. Even under the government's limited interpretation of § 2257's scope, users posting to the site may be viewed as "trading" images. Although the government may choose not to prosecute § 2257 violations against individual users, its scope remains theoretically broad.