C.F.R. » Title 28 » CHAPTER I—DEPARTMENT OF JUSTICE › PART 75—CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT OF 1990; PROTECT ACT; ADAM WALSH CHILD PROTECTION AND SAFETY ACT OF 2006; RECORDKEEPING AND RECORD-INSPECTION PROVISIONS

28 C.F.R. § 75.2

Maintenance of records

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(a) Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that is produced in whole or in part with materials that have been mailed or shipped in interstate or foreign commerce, or is shipped, transported, or intended for shipment or transportation in interstate or foreign commerce, and that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after July 3, 1995, or one or more visual depictions of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, shall, for each performer portrayed in such visual depiction, create and maintain records containing the following:

(1) The legal name and date of birth of each performer, obtained by the producer's examination of a picture identification card prior to production of the depiction. For any performer portrayed in a depiction of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after July 3, 1995, or of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, the records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible hard copy of a picture identification card. For any performer portrayed in a depiction of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after June 23, 2005, or of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, the records shall include a copy of the depiction, and, where the depiction is published on an Internet computer site or service, a copy of any URL associated with the depiction. If no URL is associated with the depiction, the records shall include another uniquely identifying reference associated with the location of the depiction on the Internet. For any performer in a depiction performed live on the Internet, the records shall include a copy of the depiction with running-time sufficient to identify the performer in the depiction and to associate the performer with the records needed to confirm his or her age.

(2) Any name, other than the performer's legal name, ever used by the performer, including the performer's maiden name, alias, nickname, stage name, or professional name. For any performer portrayed in a visual depiction of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after July 3, 1995, or of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, such names shall be indexed by the title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, picture, URL, or other matter. Producers may rely in good faith on representations by performers regarding accuracy of the names, other than legal names, used by performers.

(3) Records required to be created and maintained under this part shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, picture, URL, or other matter.

(4) The primary producer shall create a record of the date of original production of the depiction.

(b) A producer who is a secondary producer as defined in § 75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in § 75.1(c), copies of the records described in paragraph (a) of this section. Such a secondary producer shall also keep records of the name and address of the primary producer from whom he received copies of the records. The copies of the records may be redacted to eliminate non-essential information, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm the name and age may not be redacted.

(c) The information contained in the records required to be created and maintained by this part need be current only as of the date of original production of the visual depiction to which the records are associated. If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service) that contains one or more visual depictions of an actual human being engaged in actual or simulated sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer may add the additional title or identifying number and the names of the performer to the existing records maintained pursuant to § 75.2(a)(2). Producers of visual depictions made after July 3, 1995, and before June 23, 2005, may rely on picture identification cards that were valid forms of required identification under the provisions of part 75 in effect during that time period.

(d) For any record of a performer in a visual depiction of actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) created or amended after June 23, 2005, or of a performer in a visual depiction of simulated sexually explicit conduct or actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, all such records shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service). If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service) that contains one or more visual depictions of an actual human being engaged in actual or simulated sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer shall add the additional title or identifying number and the names of the performer to the existing records, and such records shall thereafter be maintained in accordance with this paragraph.

(e) Records required to be maintained under this part shall be segregated from all other records, shall not contain any other records, and shall not be contained within any other records.

(f) Records required to be maintained under this part may be kept either in hard copy or in digital form, provided that they include scanned copies of forms of identification and that there is a custodian of the records who can authenticate each digital record.

(g) Records are not required to be maintained by either a primary producer or by a secondary producer for a visual depiction of sexually explicit conduct that consists only of lascivious exhibition of the genitals or pubic area of a person, and contains no other sexually explicit conduct, whose original production date was prior to March 18, 2009.

(h) A primary or secondary producer may contract with a non-employee custodian to retain copies of the records that are required under this part. Such custodian must comply with all obligations related to records that are required by this Part, and such a contract does not relieve the producer of his liability under this part.

[Order No. 2765-2005, 70 FR 29619, May 24, 2005, as amended at 73 FR 77469, Dec. 18, 2008]
Notes of Decisions
Cited in 16 cases, 1992–2018 · leading case: Free Speech Coalition, Inc. v. Attorney Gen. of the United States, 677 F.3d 519 (3rd Cir. 2012).
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Free Speech Coalition, Inc. v. Attorney Gen. of the United States, 677 F.3d 519 (3rd Cir. 2012). · cites it 8× “, 28 C.F.R. § 75.2 (a). Secondary producers may satisfy these requirements by accepting copies of the records created and maintained by primary producers.”
Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. 2009). · cites it 8× “§ 2257(b); 28 C.F.R. § 75.2 . It must make these records available for inspection by the government upon request.”
Free Speech Coalition, Inc. v. Attorney Gen. United States, 825 F.3d 149 (3rd Cir. 2016). · cites it 2× “28 C.F.R. § 75.2 (a)(1). If the image is published on the Internet, the records also must contain either a URL or a “uniquely identifying reference associated with the location of the depiction on the Internet.”
Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007). · cites it 8× “3d at 806 (quoting 28 C.F.R. § 75.2 (a)). In 1998, the Tenth Circuit held that the regulations were invalid as ultra vires to the extent they regulated those whose activity “does not involve hiring, contracting for managing, or otherwise arranging for the participation of the…”
Free Speech Coalition v. Gonzales, 406 F. Supp. 2d 1196 (D. Colo. 2005). · cites it 6× “3d at 806 (quoting 28 C.F.R. § 75.2 (a)). In 1998, the Tenth Circuit held that the regulations were invalid as ultra vires to the extent they regulated those whose activity “does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the…”
Connection Distrib. Co. v. Keisler, 505 F.3d 545 (6th Cir. 2007). · cites it 4× “§ 2257 (b)(1) (2006); 28 C.F.R. § 75.2 (a)(1). The producer must then make a photocopy of the ID, ascertain and record any aliases the person has used in the past, photocopy the image, record where the image is published if it is published on the Internet, and then file in…”
Am. Library Ass'n v. Janet Reno, Attorney Gen. of the United States Dep't of Just., 33 F.3d 78 (D.C. Cir. 1994). · cites it 2× “Primary producers of sexually explicit materials are required to obtain information of the performer’s age and identity, 28 C.F.R. § 75.2 (a), and secondary producers are prohibited from reproducing such materials without obtaining this information from the primary producers.”
Sundance Assocs., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998). · cites it 2× “” 28 C.F.R. § 75.2 (a) (emphasis added). The regulation defines “producer” as: [A] person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer.”
Free Speech Coalition, Inc. v. Holder, 957 F. Supp. 2d 564 (E.D. Pa. 2013). · cites it 2× “” 28 C.F.R. § 75.2 (a). Therefore, images created by Nitke and Alper before 1995 do not *586 require Section 2257 paperwork.”
Free Speech Coalition, Inc. v. Holder, 729 F. Supp. 2d 691 (E.D. Pa. 2010). “images into ‘Blu Ray’ formats”; (2) whether 28 C.F.R. § 75.2 (a)(4)’s requirement that “[t]he primary producer shall create a record of the date of original production of the depiction” applies “only to recordings occurring after the effective date of the regulations”; and (3)…”
Am. Library Ass'n v. Barr, 794 F. Supp. 412 (D.D.C. 1992). · cites it 2× “28 C.F.R. § 75.2 . In addition, a primary producer must ascertain every alias, nickname, stage name or professional name of each model engaged in sexually explicit conduct.”
Free Speech Coalition, Inc. v. Attorney Gen. United States, 787 F.3d 142 (3rd Cir. 2015). “28 C.F.R. § 75.2 (a)(1). Producers must also generate an index tying each depiction to all names used by each performer.”
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— 28 C.F.R. § 75.2(a)(1) — 1 case
Connection Distr v. Gonzales (6th Cir. 2007).
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