U.S. Department of Justice
Publication Date: January 16, 2009
28 C.F.R. Part 75 SMALL BUSINESS COMPLIANCE GUIDE
Recordkeeping for Visual Depictions of Actual and Simulated Sexually
18 U.S.C. § 2257 imposes name- and age-verification, recordkeeping,
and labeling requirements on producers of visual depictions of actual
human beings engaged in actual sexually explicit conduct. Likewise,
18 U.S.C. § 2257A imposes name- and age-verification, recordkeeping,
and labeling requirements on producers of visual depictions of actual
human beings engaged in simulated sexually explicit conduct. The
statutes require producers of such material to ascertain, by examining
identification documents, that performers are of legal age, as well
as to record and maintain this information. With respect to depictions
of actual sexually explicit conduct, failure to do so is a criminal
offense punishable by imprisonment of not more than five years for
a first offense and not more than 10 years for subsequent offenses.
With respect to depictions of simulated explicit conduct, failure
to do so is a misdemeanor punishable with up to a year in prison
and a fine. Matter containing such visual depictions must be labeled
with a statement indicating where the records are located, and those
records are subject to inspection by the government.
These statutory requirements are implemented through Part 75 of
Title 28 of the Code of Federal Regulations. This compliance guide
offers information in a question and answer format on the duties
of affected entities to adhere to their legal obligations under
those regulations. It is not a substitute for Part 75 itself, and
all persons who are subject to the regulation should review Part
75 to ensure they comply with its requirements. In addition, Part
75 has been updated and changed twice since its initial promulgation,
in 2005 and, most recently, in 2008, with an effective date of January
20, 2009. All persons subject to the regulation may want to refer
to the Federal Register notices promulgating the final rules that
formed the basis for the regulation for further explanatory information.
See Inspection of Records Relating to Depiction of Sexually Explicit
Performances, 70 Fed. Reg. 29607 (May 24, 2005), and Revised Regulations
for Records Relating to Visual Depictions of Sexually Explicit Conduct;
Inspection of Records Relating to Depiction of Simulated Sexually
Explicit Conduct, 73 Fed. Reg. 77432 (Dec. 18, 2008).
Summary of Part 75's Requirements
Part 75 requires that, prior to producing a visual depiction of
actual or simulated sexually explicit conduct, a primary producer
must examine a government-issued picture identification card belonging
to each performer in the visual depiction that demonstrates that
the performer is 18 years old or older. The primary producer must
then record the legal name, any aliases, and the date of birth of
the performer, record the date of production of the depiction, and
make a copy of the picture identification card. Once production
is complete, a copy of the visual depiction must be maintained along
with these records. All information on a performer may be redacted
other than the name, date of birth, and information that identifies
the type and validity of the picture identification card (e.g.,
drivers license or passport number). All of the primary producer's
records for all its visual depictions must also be cross-referenced
by name and alias of the performers. If a secondary producer produces
a copy of the visual depiction, the secondary producer must obtain
from the primary producer the records associated with that depiction.
Finally, the visual depiction must be labeled with the location
of the records.
These requirements vary slightly depending on the type of sexually
explicit conduct depicted and when a visual depiction was produced.
The requirements apply in full to any visual depiction of actual
sexually explicit conduct produced after July 3, 1995, either by
a primary producer or secondary producer, with the exception of
visual depictions of lascivious exhibition of the genitals or pubic
area of a person ("lascivious exhibition"). The requirements for
depictions of lascivious exhibition apply only to depictions produced
after March 18, 2009. Likewise, the requirements for visual depictions
of simulated sexually explicit conduct apply only to depictions
produced after March 18, 2009. In addition to these variations,
some specific differences as to the form of records apply based
on these dates and types of material, which are explained in detail
in the regulation.
As provided by 18 U.S.C. § 2257A, the regulation also provides a
"safe harbor" for depictions of lascivious exhibition and simulated
sexually explicit conduct. A producer who regularly and in the regular
course of business collects and maintains records that confirm and
the identification and age of performers can send a letter to the
Attorney General of the United States stating that is does so, for
any visual depiction that (1) is intended for commercial distribution;
(2) is created as a part of a commercial enterprise; and (3) either
(i) is not produced, marketed or made available in circumstances
such that an ordinary person would conclude that the matter is child
pornography, or (ii) is subject to regulation by the Federal Communications
Commission regarding the broadcast of obscene, indecent, or profane
Frequently Asked Questions
Q. Which depictions are covered by the regulation?
A. The regulation applies to visual depictions of actual human beings
engaged in actual or simulated sexually explicit conduct. However,
with respect to depictions of actual sexually explicit conduct consisting
of only lascivious exhibition or depictions of simulated sexually
explicit conduct, the regulation applies only with respect to such
depictions that are originally produced after March 18, 2009.
Q. What is "lascivious exhibition of the genitals or pubic area"?
A. The regulation does not define the term "lascivious exhibition
of the genitals or pubic area," but the Department of Justice will
rely on precedent from child pornography prosecutions for 18 U.S.C.
§ 2257 investigations and prosecutions involving such depictions.
In that context, judicial precedent indicates that a depiction can
constitute lascivious exhibition if, among other things: (1) the
focal point is on the subject's genitalia or pubic area; (2) the
setting of the visual depiction is sexually suggestive, i.e., in
a place or pose generally associated with sexual activity; (3) the
visual depiction suggests sexual coyness or a willingness to engage
in sexual activity; or (4) the visual depiction is intended or designed
to elicit a sexual response in the viewer. For more detail, see
73 Fed. Reg. at 77433 and 77440-41.
Q. What is "simulated sexually explicit conduct"?
A. Simulated sexually explicit conduct is conduct engaged in by
performers that is depicted in a manner that would cause a reasonable
viewer to believe that the performers engaged in actual sexually
explicit conduct, even if they did not in fact do so. It does not
mean sexually explicit conduct that is merely suggested. See 28
C.F.R. § 75.1(o) In addition, it does not include virtual representations
of such conduct, i.e., cartoons or computer-generated images that
do not depict real human beings.
Q. Who is required to maintain records?
A. Both primary and secondary producers of covered materials. A
primary producer "is any person who actually films, videotapes,
photographs, or creates a digitally- or computer-manipulated image,
a digital image, or a picture of, or who digitizes an image of,
a visual depiction of an actual human being engaged in actual or
simulated sexually explicit conduct." 28 C.F.R. § 75.1(c)(1). A
secondary producer "is any person who produces, assembles, manufactures,
publishes, duplicates, reproduces, or reissues a book, magazine,
periodical, film, videotape, or digitally- or computer-manipulated
image, picture, or other matter intended for commercial distribution
that contains a visual depiction of an actual human being engaged
in actual or simulated sexually explicit conduct, or who 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 a visual depiction of, an actual human being engaged in
actual or simulated sexually explicit conduct, including any person
who enters into a contract, agreement, or conspiracy to do any of
the foregoing." 28 C.F.R. § 75.1(c)(2).
Q. Who is not required to maintain records?
A. Individuals or entities are not covered producers if their role
with respect to covered materials is limited to photo or film processing;
distribution; services that do not involve the hiring, managing,
or arranging of the participation of depicted performers; providing
telecommunications or Internet services; transmission, storage,
retrieval, hosting, formatting, or translation of a communication,
without selection or alteration of the content of the communication;
or dissemination of a depiction without selection or alteration
of its content. See 28 C.F.R. § 75.1(c)(4).
Q. How does the rule apply to social networking sites?
A. Most social networking sites would not be covered by the rule
because its definition of "produces" excludes "the transmission,
storage, retrieval, hosting, formatting, or translation (or any
combination thereof) of a communication, without selection or alteration
of the communication." Social networking sites would not then normally
need to comply with the rule's record-keeping requirements, labeling
requirements, or be required to maintain information concerning
their users, and the rule would therefore have no effect on the
operations of the site. However, users of social networking sites
who post sexually explicit activity on "adult" networking sites
may well be primary or secondary producers. Therefore, users of
social networking sites may be subject to the rule, depending on
Q. How must a producer of covered material verify the age of performers?
A. Each producer must check a picture identification card issued
by a United States or State government entity for a performer who
is an American citizen, whether the production occurs in the United
States or abroad. The identification card must contain the performer's
date of birth. A producer abroad may rely on foreign government
identification cards for foreign performers, but must maintain a
copy of that identification. A producer may not rely on a foreign
identification card for a foreign citizen when production occurs
in the United States, but must check a United States identification
card in that circumstance.
Q. Can information on a performer be redacted in order to protect
his or her privacy?
A. Yes. All information on a performer (such as home address and
social security number) may be redacted other than the name, date
of birth, and information that identifies the type and validity
of the picture identification card (e.g., drivers license or passport
Q. Is the producer required to maintain records demonstrating that
each performer is of legal age as of the date of original production?
A. The producer must record the date of original production. A performer
need not be 18 as of the date of original production as long as
the performer is 18 when he or she is first depicted in actual or
simulated sexually explicit conduct. Producers who keep records
demonstrating that performers are 18 as of the date of original
production conform to the rule, as will records demonstrating that
the performer was 18 on the first date that the performer was actually
filmed for the production at issue.
Q. What is the date of original
production for depictions made over the course of multiple dates?
A. The single and earliest of those dates.
Q. What is the date of original production for productions that
consist of compilations of earlier produced material?
A. For compilations, the date of original production is the date
that the depicted conduct occurred.
Q. When is the producer required to make a record documenting that
the performer was of legal age?
A. At the time that the producer examines the identification document.
Q. Is a secondary producer required to check identification documents
A. A secondary producer is not required to check identification
requirements. The secondary producer is required to maintain records
that identify the primary producer for any depiction and that verify
that the primary producer checked the legal age of performers prior
to the date of original production.
Q. Must the required records be kept in hard copy?
A. No. The producer may retain the required records in electronic
Q. Must the producer itself retain the required records?
A. No, a third party can retain the records.
Q. What are the regulation's labeling requirements?
A. Each page must contain a label stating where the records required
to be maintained may be located. Although the producer need not
provide the label on every page of the website that contains actual
or simulated sexually explicit material, the regulation requires
that if the full label does not appear on each such page, then a
hypertext link to the required statement appear on each such page.
Further, the name of the individual required to be listed on the
disclosure statement may consist only of the title of the individual
rather than a specified person. Finally, for a DVD which contains
multiple depictions, the disclosure statement may be located in
a single place covering all depictions on the DVD.
Q. How do eligible entities comply with the "safe harbor" exemption?
A. Entities seeking to claim the exemption may certify for itself
and for all sub-entities that it owns or controls. Both United States
and foreign entities may certify. In the case of a certification
by a foreign entity, the foreign entity, which may be unlikely to
collect and maintain information in accordance with United States
federal and state tax and other laws, may certify that it maintains
the required information in accordance with their foreign equivalents.
The certification is to be signed by the chief executive officer
of the entity making the certification, or in the event an entity
does not have a chief executive officer, the senior manager responsible
for overseeing the entity's activities. A producer of materials
not covered by the certification regime as well as materials covered
by the certification regime is not disqualified from using the certification
regime for materials covered by the certification regime. Those
entities who wish to use the certification process must file an
initial certification within 180 days after publication of the 2008
final rule, that is, by June 16, 2009. This will provide sufficient
time for entities to determine if they wish to certify and come
into compliance with the certification requirements. Initial certifications
of producers who begin production after the expiration of the 180
day period are due within 60 days of the start of production. See,
28 C.F.R. § 75.9.
Q. How is the certification enforced?
that are knowingly and willingly false subject the signer to criminal
prosecution for making a false statement regarding a matter within
the jurisdiction of the U.S. government
Q. What is the required
format of the certification?
A. The certification must (1) outline
the statutory basis for eligibility for the safe harbor; (2) state
in specified language that in the regular course of business, the
producer and sub-entities collect and maintain individually identifiable
information concerning all performers; and, if appropriate, (3)
state in specified language that the visual depictions were produced
outside the United States, but that either records were kept by
the foreign producer on foreign performers or that the U.S. producer
took reasonable steps to confirm that foreign performers were not
minors. See 28 C.F.R. § 75.9(b) and (c) for the form and specific
content of the certification.
Q. What are the recordkeeping obligations for a producer who is
eligible for certification once the rule takes effect?
A. The recordkeeping requirements take effect at the same time as
the certification regime. Producers who are eligible for the certification
will be able to make such certifications without the necessity of
having to comply with the recordkeeping requirements.
Q. What steps did the Department of Justice take to minimize the
burdens of this regulation on producers?
A. The Department ensured that the regulatory requirements applicable
to depictions of actual sexually explicit conduct consisting of
lascivious exhibition of the genitals apply starting on the date
of availability of the statutorily provided safe harbor. It also
permitted third-party custodians, rather than producers themselves,
to hold required records, and it permitted records to be maintained
digitally. In addition, it permitted the labeling requirement to
be complied with through hyperlinks on Internet depictions. Finally,
the Department adopted a simpler certification regime than originally