The new DOJ regulations implement the expanded age-verification requirements enacted in the Adam Walsh Act.  Now primary and secondary producers of depictions of “simulated sexually explicit conduct” and “lascivious exhibition” must also comply with age-verification record keeping requirements. The regulations define a primary producer as the individual who records the depiction of the sexually explicit conduct, whether it’s by videotape, photography, or a digitally manipulated image.  Primary producers also include anyone who digitizes an image of sexually explicit conduct.  A secondary producer includes anyone who “produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, videotape, or digitally or computer-manipulated image, picture, or other matter” that is intended for commercial distribution.  This definition also encompasses anyone who includes sexually explicit depictions on a computer site or service or otherwise manages the sexually explicit content on a computer site or service.  The breadth of the initial definition of secondary producer raised protest from the media industry and it was later amended to exclude those who merely distribute sexually explicit conduct, without altering or editing the content. Simulated sexually explicit conduct includes conduct that would cause a reasonable viewer to believe that the performers were actually engaged in sexually explicit conduct.  However, the depiction must amount to more than the mere suggestion of sexually explicit conduct.  While lascivious exhibition is not defined within the regulations, the DOJ website describes a few components of a lascivious depiction: “(1) the focal point is on the subject’s genitalia or pubic area, (2) the setting of the visual depiction is sexually suggestive . . . (3) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or (4) the visual depiction is intended to elicit a sexual response in the viewer.”  Under this description, producers who show only fleeting nudity might still be subject to the age-verification recording procedures. 

The new regulations require the primary producer to examine a government issued photo ID of every performer before the production of the sexually explicit depiction.  The producer must then make a record of the performer’s name, aliases, date of birth, the date of the production of the sexually explicit image, and make a photocopy of the identification.  These records must be maintained in accordance with specific requirements and the visual depiction must be labeled with the location of the record.  A secondary producer of sexually explicit content must obtain all age-verification records from the primary producer, but does not have to independently verify the age of the performers.

While these requirements might have proven burdensome for mainstream media, the DOJ regulations contain an important safe harbor which offsets some of this burden:  Specifically, the record keeping provisions do not apply to a producer of simulated sexual conduct or lascivious images if the images are intended for commercial distribution as part of a commercial enterprise and they meet one of two requirements: (1) if the visual depiction is not “produced, marketed, or made available in circumstances such that an ordinary person would conclude that the matter contains a visual depiction that is child pornography” or (2) the depiction is subject to regulation by the FCC in its regulation of the broadcast of obscene, indecent, or profane programming. 

Producers seeking eligibility for the exemption must send a letter of certification to the Attorney General. The certification letter must state the statutory basis for eligibility, and, in the required language, state that the producer, in the regular course of business, collects and maintains identifying information for all performers. The letter must be signed by an executive officer of the entity or, if the entity does not have executive officers, by a senior manager who oversees the entity’s activities.  There are specific requirements for foreign entities seeking certification, or entities which have used foreign performers. 

The deadline for submitting the certification is June 16, 2009.  For all production that begins after June 16, 2009, the certification is due within 60 days of the start of the production.   After the initial certification, there is no need to recertify unless there are any material changes to the information provided in the certification.  In that case, a subsequent certification must be filed within 60 days of the material change. 

Our New Media, Entertainment and Technology practice group has been closely monitoring these regulations and would be happy to answer any questions regarding the impact of the same on your content production, broadcast and distribution initiatives or assist you in filing your own certification letters. 

We would like to thank Kate O’Donnell, a summer associate with the Firm, for her assistance in the preparation of this alert.

On Wednesday, the Internet Safety Technical Task Force, led by The Berkman Center for Internet & Society at Harvard University, issued a report entitled “Enhancing Child Safety & Online Technologies.”  The report was compiled at the request of the Multi-State Working Group on Social Networking, comprised of 50 state Attorneys General.  The task force includes representatives from several well-known Internet social network and online service providers, including Google, AOL, Facebook and MTV Networks/Viacom.  The report, which was a year in the making, sought to determine the extent to which currently-available technology could help to address online safety risks to youths in the U.S., with a primary focus on social networking. 

The task force consulted with experts in the field of youth online safety and technology and sought input from the public upon which to base its findings.  Most significantly, eight leading social networking sites (including AOL, Bebo and Orkut (Google)) provided submissions to the task force detailing their efforts to enhance online safety for children, including the development and implementation of technologies focused on age and identity verification/authentication, filtering and auditing, text analysis and biometrics. 

While “cautiously optimistic” about the innovations they’ve observed, the task force cautioned against overreliance on technology, and noted that there is no one technological solution, or combination of solutions, that can provide complete online safety for minors.  Rather (and probably one of the more obvious solutions), the task force noted that the importance of parental oversight and education in use of the Internet must not be underestimated.  Ultimately the task force does not believe that the Attorneys General should endorse any one technology or set of technologies, but should work collaboratively with all stakeholders in pursuing a multi-faceted approach in protecting children from the risks of Internet usage.

Above all else, it is important to recognize that child safety, whether online or offline, in the virtual world or the real world, starts at home.  Putting that aside, it is definitely interesting to see social network providers coming around and taking a proactive role, particularly those that traditionally took a “hands-off” approach to filtering and monitoring the content on their sites and/or implementing security and safety procedures to protect minors.