New 2257 Compliance Guide

[DannyCox]

It's this stuff that can create quite a problem for Canadian producers. While we do maintain our records per 2257, and have always done so, it is illegal for us to share that information with anyone unless we have prior written consent from the talent or have been issued a Queen's Writ (court order) to do so. Canadian Privacy Laws are quite clear on that point. We just cannot send releases to anyone, it is against the law.

Michael, You seem to be arbitrarily BOLDING text, and missing some key points. I read it as:

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.

I read it as I must maintain records of any primary producer I have content from, and that the primary producer must also send me a letter stating that they have checked the required records for the talent they are using. It really does seem pretty straight forward. Nowhere do I see that as a secondary producer I must also keep a set of records for the talent.

[miz_wright]

Originally Posted by DannyCox

It's this stuff that can create quite a problem for Canadian producers. While we do maintain our records per 2257, and have always done so, it is illegal for us to share that information with anyone unless we have prior written consent from the talent or have been issued a Queen's Writ (court order) to do so. Canadian Privacy Laws are quite clear on that point. We just cannot send releases to anyone, it is against the law.

I actually just had a conversation about this internally for Canadian producer concerns.

This clause:
4.5 Principle 5 — Limiting Use, Disclosure, and Retention
Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. Personal information shall be retained only as long as necessary for the fulfilment of those purposes.

seems to indicate that if the information is collected for the purpose of age verification, that can be used as applicable for those particular business purposes. Additionally, the model release could be worded to proactively outline those purposes. Also, certain personally identifying information can be redacted from submitted data.

[gonzo]

So all in all .....after this long wait. The Fed have made ZERO progress in making this regulation easily workable to us in the biz.

[softball]

Originally Posted by LizAEBN

I actually just had a conversation about this internally for Canadian producer concerns.

This clause:
4.5 Principle 5 — Limiting Use, Disclosure, and Retention
Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. Personal information shall be retained only as long as necessary for the fulfilment of those purposes.

seems to indicate that if the information is collected for the purpose of age verification, that can be used as applicable for those particular business purposes. Additionally, the model release could be worded to proactively outline those purposes. Also, certain personally identifying information can be redacted from submitted data.

Here is the dilemma for Canadians and Europeans. It is against the law to disclose any private information of employees to anyone. If the FBI comes calling outside the US, they are just plain people with no more authority than any normal person. Extraterratoriality is anathema to any free country. Imagine if the Nigerian secret police demanded information on a US citizen from their employer. All hell would break loose. So 4.5 Principle 5 is unenforcable outside the US.

[DannyCox]

Originally Posted by LizAEBN

4.5 Principle 5 — Limiting Use, Disclosure, and Retention
Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. Personal information shall be retained only as long as necessary for the fulfilment of those purposes.

seems to indicate that if the information is collected for the purpose of age verification, that can be used as applicable for those particular business purposes. Additionally, the model release could be worded to proactively outline those purposes. Also, certain personally identifying information can be redacted from submitted data.

The purpose they are talking about is for the producer, not for anyone else. Within Canada, I may be able to show a lottery winner, but I cannot disclose their personal information. Also in Canada, we really don't care how an American attorney may read our Privacy Act as we are here, and we have to deal with it. Long ago, I retained an Attorney here to read the Act and to let me know in writing what I may and may not do. It came down to; DO NOT disclose personal information to anyone for any reason unless presented with a court order to do so. Most other civilized countries have the same privacy laws.

The main thing is that people can throw as much legal opinion as they want, but unless we are all right here in Canada, I have to ignore it. I need to worry about the laws in Canada, no where else.

Anyway, the section of 2257 that is being discussed takes care of all that. If someone is using or distributing my content in the US, all they need is my corporate legal information and a letter from me saying that all model releases and identification have been duly verified.

[RawAlex]

Originally Posted by DannyCox

I read it as I must maintain records of any primary producer I have content from, and that the primary producer must also send me a letter stating that they have checked the required records for the talent they are using. It really does seem pretty straight forward. Nowhere do I see that as a secondary producer I must also keep a set of records for the talent.

Sorry, I have to disagree here. It says "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"

Read carefully. It doesn't say you have to maintain records of the participants, only records that identify the primary producer (the company that made the content) and that verify that the records were checked. A notarized "we have checked the documents" would cover this, no?

[softball]

Originally Posted by RawAlex

Sorry, I have to disagree here. It says "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"

Read carefully. It doesn't say you have to maintain records of the participants, only records that identify the primary producer (the company that made the content) and that verify that the records were checked. A notarized "we have checked the documents" would cover this, no?

But would the Americans accept a notarized Canadian document as legal verification? More to the point, would an American company?

[DannyCox]

Originally Posted by rhetorical

But would the Americans accept a notarized Canadian document as legal verification? More to the point, would an American company?

Yes, I have sent many notarized documents to the US for business, and have also received many. They are acceptable in both countries and legal. I don't believe the document would have to be notarized in any case.

The problem here is that the various distributors in the US are really just too lazy to do their own due diligence with all this, and throw it back on us, the Canadian producers. You would think that a company that really does want to do business, and is a true business, would put a little effort in working with their foreign associates. I just see very few Adult Internet companies actually act like a proper business!

[DannyCox]

Originally Posted by RawAlex

Sorry, I have to disagree here. It says "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"

Read carefully. It doesn't say you have to maintain records of the participants, only records that identify the primary producer (the company that made the content) and that verify that the records were checked. A notarized "we have checked the documents" would cover this, no?

Alex, that's what I said. I said "I read it as I must maintain records of any primary producer I have content from" meaning that I must have a record of who the content is from, not the actual records from the talent. I also said "and that the primary producer must also send me a letter stating that they have checked the required records for the talent they are using". So basically, you just reiterated what I had already written

[RawAlex]

Originally Posted by DannyCox

Alex, that's what I said. I said "I read it as I must maintain records of any primary producer I have content from" meaning that I must have a record of who the content is from, not the actual records from the talent. I also said "and that the primary producer must also send me a letter stating that they have checked the required records for the talent they are using". So basically, you just reiterated what I had already written

Okay, good, sorry, I missed that. I am just thinking that this is the way that secondary producers get out of having to maintain duplicate records, by only having to know who the primary producer is. The downside for programs providing "sponsor content" is that they will have to identify to their affiliates who the primary producer actually is for each scene.

[pornlaw]

Originally Posted by RawAlex

Sorry, I have to disagree here. It says "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"

Read carefully. It doesn't say you have to maintain records of the participants, only records that identify the primary producer (the company that made the content) and that verify that the records were checked. A notarized "we have checked the documents" would cover this, no?

Instead of just reading the compliance guide you need to read the actual law...28 CFR 75... which reads in relevant part and is quite clear...

75.2 Maintenance of Records

(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.

Its not OR its ALSO. You must have the actual 2257 docs and IDs as a secondary and ALSO keep a list of where the content came from.

As for privacy laws of the EU countries - your model releases can be written so that the model waives rights and you are allowed to share the information necessary for 18 USC 2257.

And just so we are clear here is the what is required under Section (a) that is bolded in my response...

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.