18 U.S.C. § 2257 — Record keeping requirements

Page 535 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2257 Editorial Notes CODIFICATION Pub. L. 99–591 is a corrected version of Pub. L. 99–500. AMENDMENTS 2018—Par. (2)(A)(v), (B)(iii). Pub. L. 115–299 sub- stituted ‘‘anus, genitals, or’’ for ‘‘genitals or’’. 2008—Par. (5). Pub. L. 110–401 struck out ‘‘and’’ before ‘‘data stored’’ and inserted ‘‘, and data which is capable of conversion into a visual image that has been trans- mitted by any means, whether or not stored in a per- manent format’’ before semicolon at end. 2003—Par. (2). Pub. L. 108–21, § 502(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘(2) ‘sexually explicit conduct’ means actual or simu- lated— ‘‘(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether be- tween persons of the same or opposite sex; ‘‘(B) bestiality; ‘‘(C) masturbation; ‘‘(D) sadistic or masochistic abuse; or ‘‘(E) lascivious exhibition of the genitals or pubic area of any person;’’. Par. (8)(B). Pub. L. 108–21, § 502(a)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;’’. Par. (8)(C). Pub. L. 108–21, § 502(a)(2), substituted a pe- riod for ‘‘; or’’ at end. Par. (8)(D). Pub. L. 108–21, § 502(a)(3), struck out sub- par. (D) which read as follows: ‘‘such visual depiction is advertised, promoted, presented, described, or distrib- uted in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct; and’’. Pars. (10), (11). Pub. L. 108–21, § 502(c), added pars. (10) and (11). 1996—Par. (5). Pub. L. 104–208, § 101(a) [title I, § 121[2(1)]], inserted ‘‘, and data stored on computer disk or by electronic means which is capable of conver- sion into a visual image’’ before semicolon at end. Pars. (8), (9). Pub. L. 104–208, § 101(a) [title I, § 121[2(2)–(4)]], added pars. (8) and (9). 1988—Par. (6). Pub. L. 100–690, § 7511(c), added par. (6). Par. (7). Pub. L. 100–690, § 7512(b), added par. (7). 1986—Pub. L. 99–500 and Pub. L. 99–591 renumbered section 2255 of this title as this section. Par. (5). Pub. L. 99–628, which directed that par. (5) be added to section 2255 of this title, was executed by add- ing par. (5) to section 2256 of this title to reflect the probable intent of Congress and the renumbering of sec- tion 2255 as 2256 by Pub. L. 99–500 and Pub. L. 99–591. 1984—Pub. L. 98–292, § 5(b), renumbered section 2253 of this title as this section. Par. (1). Pub. L. 98–292, § 5(a)(1), substituted ‘‘eight- een’’ for ‘‘sixteen’’. Par. (2)(D). Pub. L. 98–292, § 5(a)(2), (3), substituted ‘‘sadistic or masochistic’’ for ‘‘sado-masochistic’’ and struck out ‘‘(for the purpose of sexual stimulation)’’ after ‘‘abuse’’. Par. (2)(E). Pub. L. 98–292, § 5(a)(4), substituted ‘‘las- civious’’ for ‘‘lewd’’. Par. (3). Pub. L. 98–292, § 5(a)(5), struck out ‘‘, for pe- cuniary profit’’ after ‘‘advertising’’. Par. (4). Pub. L. 98–292, § 5(a)(6), substituted ‘‘ ‘organi- zation’ means a person other than an individual’’ for ‘‘ ‘visual or print medium’ means any film, photograph, negative, slide, book, magazine, or other visual or print medium’’. Statutory Notes and Related Subsidiaries CONFIRMATION OF INTENT OF CONGRESS IN ENACTING SECTIONS 2252 AND 2256 OF THIS TITLE For provisions declaring and confirming intent of Congress in enacting this section, see section 160003(a) of Pub. L. 103–322, set out as a note under section 2252 of this title. § 2257. Record keeping requirements (a) Whoever produces any book, magazine, pe- riodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which— (1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and (2) is produced in whole or in part with ma- terials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign com- merce; shall create and maintain individually identifi- able records pertaining to every performer por- trayed in such a visual depiction. (b) Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct— (1) ascertain, by examination of an identi- fication document containing such informa- tion, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; (2) ascertain any name, other than the per- former’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and (3) record in the records required by sub- section (a) the information required by para- graphs (1) and (2) of this subsection and such other identifying information as may be pre- scribed by regulation. (c) Any person to whom subsection (a) applies shall maintain the records required by this sec- tion at his business premises, or at such other place as the Attorney General may by regula- tion prescribe and shall make such records available to the Attorney General for inspection at all reasonable times. (d)(1) No information or evidence obtained from records required to be created or main- tained by this section shall, except as provided in this section, directly or indirectly, be used as evidence against any person with respect to any violation of law. (2) Paragraph (1) of this subsection shall not preclude the use of such information or evidence in a prosecution or other action for a violation of this chapter or chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information. (e)(1) Any person to whom subsection (a) ap- plies shall cause to be affixed to every copy of any matter described in paragraph (1) of sub- section (a) of this section, in such manner and in such form as the Attorney General shall by reg- ulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located. In this paragraph, the term ‘‘copy’’ includes every page of a website on which matter described in subsection (a) ap- pears. (2) If the person to whom subsection (a) of this section applies is an organization the statement Page 536 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2257 1 So in original. The comma probably should not appear. required by this subsection shall include the name, title, and business address of the indi- vidual employed by such organization respon- sible for maintaining the records required by this section. (f) It shall be unlawful— (1) for any person to whom subsection (a) ap- plies to fail to create or maintain the records as required by subsections (a) and (c) or by any regulation promulgated under this section; (2) for any person to whom subsection (a) ap- plies knowingly to make any false entry in or knowingly to fail to make an appropriate entry in, any record required by subsection (b) of this section or any regulation promulgated under this section; (3) for any person to whom subsection (a) ap- plies knowingly to fail to comply with the pro- visions of subsection (e) or any regulation pro- mulgated pursuant to that subsection; (4) for any person knowingly to sell or other- wise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce, which— (A) contains one or more visual depictions made after the effective date of this sub- section of actual sexually explicit conduct; and (B) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; which does not have affixed thereto, in a man- ner prescribed as set forth in subsection (e)(1), a statement describing where the records re- quired by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept; and (5) for any person to whom subsection (a) ap- plies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c). (g) The Attorney General shall issue appro- priate regulations to carry out this section. (h) In this section— (1) the term ‘‘actual sexually explicit con- duct’’ means actual but not simulated conduct as defined in clauses (i) through (v) of section 2256(2)(A) of this title; (2) the term ‘‘produces’’— (A) means— (i) actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipu- lated image of an actual human being; (ii) digitizing an image, of a visual depic- tion of sexually explicit conduct; or, as- sembling, manufacturing, publishing, du- plicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, dig- ital image, or picture, or other matter in- tended for commercial distribution, that contains a visual depiction of sexually ex- plicit conduct; or (iii) inserting on a computer site or serv- ice a digital image of, or otherwise man- aging the sexually explicit content,1 of a computer site or service that contains a visual depiction of, sexually explicit con- duct; and (B) does not include activities that are limited to— (i) photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enter- prise, with no other commercial interest in the sexually explicit material, printing, and video duplication; (ii) distribution; (iii) any activity, other than those ac- tivities identified in subparagraph (A), that does not involve the hiring, con- tracting for, managing, or otherwise ar- ranging for the participation of the de- picted performers; (iv) the provision of a telecommuni- cations service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or (v) the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the con- tent of the communication, except that de- letion 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 commu- nication; and (3) the term ‘‘performer’’ includes any per- son portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct. (i) Whoever violates this section shall be im- prisoned for not more than 5 years, and fined in accordance with the provisions of this title, or both. Whoever violates this section after having been convicted of a violation punishable under this section shall be imprisoned for any period of years not more than 10 years but not less than 2 years, and fined in accordance with the provisions of this title, or both. (Added Pub. L. 100–690, title VII, § 7513(a), Nov. 18, 1988, 102 Stat. 4487; amended Pub. L. 101–647, title III, §§ 301(b), 311, Nov. 29, 1990, 104 Stat. 4816; Pub. L. 103–322, title XXXIII, § 330004(14), Sept. 13, 1994, 108 Stat. 2142; Pub. L. 108–21, title V, § 511(a), Apr. 30, 2003, 117 Stat. 684; Pub. L. 109–248, title V, § 502(a), July 27, 2006, 120 Stat. 625.) Editorial Notes REFERENCES IN TEXT For effective date of this subsection, referred to in subsec. (f)(4)(A), see section 312 of Pub. L. 101–647, set out as an Effective Date of 1990 Amendment note below. Page 537 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2257A AMENDMENTS 2006—Subsec. (a). Pub. L. 109–248, § 502(a)(1), inserted ‘‘digital image, digitally- or computer-manipulated image of an actual human being, picture,’’ after ‘‘video- tape,’’. Subsec. (e)(1). Pub. L. 109–248, § 502(a)(2), inserted at end ‘‘In this paragraph, the term ‘copy’ includes every page of a website on which matter described in sub- section (a) appears.’’ Subsec. (f)(5). Pub. L. 109–248, § 502(a)(3), added par. (5). Subsec. (h). Pub. L. 109–248, § 502(a)(4), added subsec. (h) and struck out former subsec. (h) which defined ‘‘ac- tual sexually explicit conduct’’, ‘‘identification docu- ment’’, ‘‘produces’’, and ‘‘performer’’. 2003—Subsec. (d)(2). Pub. L. 108–21, § 511(a)(1), sub- stituted ‘‘of this chapter or chapter 71,’’ for ‘‘of this section’’. Subsec. (h)(3). Pub. L. 108–21, § 511(a)(2), inserted ‘‘, computer generated image, digital image, or pic- ture,’’ after ‘‘video tape’’. Subsec. (i). Pub. L. 108–21, § 511(a)(3), substituted ‘‘not more than 5 years’’ for ‘‘not more than 2 years’’ and ‘‘10 years’’ for ‘‘5 years’’. 1994—Subsecs. (f), (g). Pub. L. 103–322 struck out sub- secs. (f) and (g) as enacted by Pub. L. 100–690. Subsec. (f) authorized Attorney General to issue regulations to carry out this section and subsec. (g) defined ‘‘actual sexually explicit conduct’’, ‘‘identification document’’, ‘‘produces’’, and ‘‘performer’’. 1990—Subsec. (a)(1). Pub. L. 101–647, § 301(b), sub- stituted ‘‘November 1, 1990’’ for ‘‘February 6, 1978’’. Subsec. (d). Pub. L. 101–647, § 311, substituted pars. (1) and (2) for former pars. (1) and (2) which were substan- tially the same and struck out par. (3) which read as follows: ‘‘In a prosecution of any person to whom sub- section (a) applies for an offense in violation of sub- section 2251(a) of this title which has as an element the production of a visual depiction of a minor engaging in or assisting another person to engage in sexually ex- plicit conduct and in which that element is sought to be established by showing that a performer within the meaning of this section is a minor— ‘‘(A) proof that the person failed to comply with the provisions of subsection (a) or (b) of this section con- cerning the creation and maintenance of records, or a regulation issued pursuant thereto, shall raise a re- buttable presumption that such performer was a minor; and ‘‘(B) proof that the person failed to comply with the provisions of subsection (e) of this section concerning the statement required by that subsection shall raise the rebuttable presumption that every performer in the matter was a minor.’’ Subsec. (e). Pub. L. 101–647, § 311, substituted pars. (1) and (2) for former pars. (1) and (2) which were substan- tially the same and struck out par. (3) which read as follows: ‘‘In any prosecution of a person for an offense in violation of section 2252 of this title which has as an element the transporting, mailing, or distribution of a visual depiction involving the use of a minor engaging in sexually explicit conduct, and in which that element is sought to be established by a showing that a per- former within the meaning of this section is a minor, proof that the matter in which the visual depiction is contained did not contain the statement required by this section shall raise a rebuttable presumption that such performer was a minor.’’ Subsec. (f). Pub. L. 101–647, § 311, added subsec. (f) re- lating to unlawful acts and omissions. Subsec. (g). Pub. L. 101–647, § 311, added subsec. (g) re- lating to issuance of regulations. Subsecs. (h), (i). Pub. L. 101–647, § 311, added subsecs. (h) and (i). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–647, title III, § 312, Nov. 29, 1990, 104 Stat. 4817, provided that: ‘‘Subsections (d), (f), (g), (h), and (i) of section 2257 of title 18, United States Code, as added by this title shall take effect 90 days after the date of the enactment of this Act [Nov. 29, 1990] except— ‘‘(1) the Attorney General shall prepare the initial set of regulations required or authorized by sub- sections (d), (f), (g), (h), and (i) of section 2257 within 60 days of the date of the enactment of this Act; and ‘‘(2) subsection (e) of section 2257 and of any regula- tion issued pursuant thereto shall take effect 90 days after the date of the enactment of this Act.’’ EFFECTIVE DATE Pub. L. 100–690, title VII, § 7513(c), Nov. 18, 1988, 102 Stat. 4488, provided that: ‘‘Section 2257 of title 18, United States Code, as added by this section shall take effect 180 days after the date of the enactment of this Act [Nov. 18, 1988] except— ‘‘(1) the Attorney General shall prepare the initial set of regulations required or authorized by section 2257 within 90 days of the date of the enactment of this Act; and ‘‘(2) subsection (e) of section 2257 of such title and of any regulation issued pursuant thereto shall take effect 270 days after the date of the enactment of this Act.’’ CONSTRUCTION Pub. L. 109–248, title V, § 502(b), July 27, 2006, 120 Stat. 626, provided that: ‘‘The provisions of section 2257 [of title 18, United States Code] shall not apply to any de- piction of actual sexually explicit conduct as described in clause (v) of section 2256(2)(A) of title 18, United States Code, produced in whole or in part, prior to the effective date of this section [July 27, 2006] unless that depiction also includes actual sexually explicit conduct as described in clauses (i) through (iv) of section 2256(2)(A) of title 18, United States Code.’’ REPORT Pub. L. 108–21, title V, § 511(b), Apr. 30, 2003, 117 Stat. 685, provided that, not later than 1 year after Apr. 30, 2003, the Attorney General was to submit to Congress a report detailing the number of times since January 1993 that the Department of Justice had inspected records pursuant to this section and section 75 of title 28 of the Code of Federal Regulations, and the number of viola- tions prosecuted as a result of those inspections. § 2257A. Record keeping requirements for simu- lated sexual conduct (a) Whoever produces any book, magazine, pe- riodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter that— (1) contains 1 or more visual depictions of simulated sexually explicit conduct; and (2) is produced in whole or in part with ma- terials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign com- merce; shall create and maintain individually identifi- able records pertaining to every performer por- trayed in such a visual depiction. (b) Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of simulated sexually ex- plicit conduct— (1) ascertain, by examination of an identi- fication document containing such informa- tion, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;