18 U.S.C. § 2257A — Record keeping requirements for simu-

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; Page 538 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2257A 1 So in original. Probably should be ‘‘that’’. (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) and such other identifying information as may be prescribed by regula- tion. (c) Any person to whom subsection (a) applies shall maintain the records required by this sec- tion at their 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) 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 subsection (a)(1) in such manner and in such form as the Attorney Gen- eral shall by regulations 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) appears. (2) If the person to whom subsection (a) ap- plies is an organization the statement required by this subsection shall include the name, title, and business address of the individual employed by such organization responsible for maintain- ing 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) or any regulation promulgated under this sec- tion; (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; or (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, produced 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, that— (A) contains 1 or more visual depictions made after the date of enactment of this subsection of simulated 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. (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) As used in this section, the terms ‘‘pro- duces’’ and ‘‘performer’’ have the same meaning as in section 2257(h) of this title. (h)(1) The provisions of this section and sec- tion 2257 shall not apply to matter, or any image therein, containing one or more visual depic- tions of simulated sexually explicit conduct, or actual sexually explicit conduct as described in clause (v) of section 2256(2)(A), if such matter— (A)(i) is intended for commercial distribu- tion; (ii) is created as a part of a commercial en- terprise by a person who certifies to the Attor- ney General that such person regularly and in the normal course of business collects and maintains individually identifiable informa- tion regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer; and (iii) is not produced, marketed or made available by the person described in clause (ii) to another in circumstances such than 1 an or- dinary person would conclude that the matter contains a visual depiction that is child por- nography as defined in section 2256(8); or (B)(i) is subject to the authority and regula- tion of the Federal Communications Commis- sion acting in its capacity to enforce section 1464 of this title, regarding the broadcast of obscene, indecent or profane programming; and (ii) is created as a part of a commercial en- terprise by a person who certifies to the Attor- ney General that such person regularly and in the normal course of business collects and maintains individually identifiable informa- tion regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer. (2) Nothing in subparagraphs (A) and (B) of paragraph (1) shall be construed to exempt any Page 539 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2258A 2 So in original. 3 So in original. Probably should be ‘‘(j) The’’. matter that contains any visual depiction that is child pornography, as defined in section 2256(8), or is actual sexually explicit conduct within the definitions in clauses (i) through (iv) of section 2256(2)(A). (i)(1) Whoever violates this section shall be imprisoned for not more than 1 year, and 2 fined in accordance with the provisions of this title, or both. (2) Whoever violates this section in an effort to conceal a substantive offense involving the causing, transporting, permitting or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the pur- pose of producing a visual depiction of such con- duct in violation of this title, or to conceal a substantive offense that involved trafficking in material involving the sexual exploitation of a minor, including receiving, transporting, adver- tising, or possessing material involving the sex- ual exploitation of a minor with intent to traf- fic, in violation of this title, shall be imprisoned for not more than 5 years and 2 fined in accord- ance with the provisions of this title, or both. (3) Whoever violates paragraph (2) after having been previously convicted of a violation punish- able under that paragraph shall be imprisoned for any period of years not more than 10 years but not less than 2 years, and 2 fined in accord- ance with the provisions of this title, or both. The 3 provisions of this section shall not be- come effective until 90 days after the final regu- lations implementing this section are published in the Federal Register. The provisions of this section shall not apply to any matter, or image therein, produced, in whole or in part, prior to the effective date of this section. (k) On an annual basis, the Attorney General shall submit a report to Congress— (1) concerning the enforcement of this sec- tion and section 2257 by the Department of Justice during the previous 12-month period; and (2) including— (A) the number of inspections undertaken pursuant to this section and section 2257; (B) the number of open investigations pur- suant to this section and section 2257; (C) the number of cases in which a person has been charged with a violation of this section and section 2257; and (D) for each case listed in response to sub- paragraph (C), the name of the lead defend- ant, the federal district in which the case was brought, the court tracking number, and a synopsis of the violation and its disposi- tion, if any, including settlements, sen- tences, recoveries and penalties. (Added Pub. L. 109–248, title V, § 503(a), July 27, 2006, 120 Stat. 626.) Editorial Notes REFERENCES IN TEXT The date of enactment of this subsection, referred to in subsec. (f)(4)(A), means the date of enactment of Pub. L. 109–248, which was approved July 27, 2006. Final regulations implementing this section, referred to in the undesignated subsec. preceding subsec. (k), were published in the Federal Register on Dec. 18, 2008, see 73 F.R. 77432. § 2258. Failure to report child abuse A person who, while engaged in a professional capacity or activity described in subsection (b) of section 226 of the Victims of Child Abuse Act of 1990 on Federal land or in a federally operated (or contracted) facility, or a covered individual as described in subsection (a)(2) of such section 226 who, learns of facts that give reason to sus- pect that a child has suffered an incident of child abuse, as defined in subsection (c) of that section, and fails to make a timely report as re- quired by subsection (a) of that section, shall be fined under this title or imprisoned not more than 1 year or both. (Added Pub. L. 101–647, title II, § 226(g)(1), Nov. 29, 1990, 104 Stat. 4808; amended Pub. L. 109–248, title II, § 209, July 27, 2006, 120 Stat. 615; Pub. L. 115–126, title I, § 101(b), Feb. 14, 2018, 132 Stat. 319.) Editorial Notes REFERENCES IN TEXT Section 226 of the Victims of Child Abuse Act of 1990, referred to in text, is classified to section 20341 of Title 34, Crime Control and Law Enforcement. CODIFICATION Another section 2258 was renumbered section 2260 of this title. AMENDMENTS 2018—Pub. L. 115–126 inserted ‘‘or a covered individual as described in subsection (a)(2) of such section 226 who,’’ after ‘‘facility,’’. 2006—Pub. L. 109–248 substituted ‘‘fined under this title or imprisoned not more than 1 year or both’’ for ‘‘guilty of a Class B misdemeanor’’. § 2258A. Reporting requirements of providers (a) DUTY TO REPORT.— (1) IN GENERAL.— (A) DUTY.—In order to reduce the pro- liferation of online child sexual exploitation and to prevent the online sexual exploi- tation of children, a provider— (i) shall, as soon as reasonably possible after obtaining actual knowledge of any facts or circumstances described in para- graph (2)(A), take the actions described in subparagraph (B); and (ii) may, after obtaining actual knowl- edge of any facts or circumstances de- scribed in paragraph (2)(B), take the ac- tions described in subparagraph (B). (B) ACTIONS DESCRIBED.—The actions de- scribed in this subparagraph are— (i) providing to the CyberTipline of NCMEC, or any successor to the CyberTipline operated by NCMEC, the mailing address, telephone number, fac- simile number, electronic mailing address of, and individual point of contact for, such provider; and (ii) making a report of such facts or cir- cumstances to the CyberTipline, or any successor to the CyberTipline operated by NCMEC.