This is not legal advice. 18 U.S.C. 2257 and 2257A are still on the books. They require many producers of explicit images to check performers' ages, keep records, and label the image with where those records are. A 2020 Third Circuit decision limited some of those duties for the plaintiffs in that case. It did not repeal the statutes, and it did not create an exemption you can adopt by reading a webpage.
What to take from this
- The statutes exist so investigators can tell an adult performer from a minor. They do not make any image of a minor legal.
- The duties, in short, are to examine a government ID, keep the required records, and put a statement on the depiction saying where the records are.
- 28 C.F.R. Part 75 is the regulation that defines primary and secondary producers and the form of that statement. Copying a statement from a blog, including this one, is how the statement comes out wrong.
- In 2016 the Third Circuit held the warrantless inspection provisions facially unconstitutional. That is not immunity from a warrant or a subpoena.
- In 2020 the same court held the age-check, record, and label duties unconstitutional as applied to the plaintiffs' depictions of performers who were at least 30 and clearly shown. The court refused a nationwide injunction. If you are not those plaintiffs, do not skip the records on that basis without a lawyer.
What the statutes are for
Congress enacted section 2257 in 1988, and section 2257A in 2006, because explicit images of people who look young create a practical problem for police. Without a record of identity and age, an investigator cannot tell a young-looking adult from a child, and the child-sexual-abuse statutes are a different crime with much heavier penalties. The record-keeping law is the system's attempt to force producers to make that distinction before publication and to leave a trail.
The government's interest in keeping minors out of this material is not controversial in the case law. The fights have been about who counts as a producer, whether the paperwork burden is legal when every person on camera is obviously an adult, and whether inspectors could demand the records without a warrant.
Who has the duty
Section 2257 applies to producers of visual depictions of actual sexually explicit conduct. Section 2257A applies to certain simulated sexually explicit conduct and to some lascivious exhibition. "Produces," in section 2257(h), includes filming, photographing, or otherwise creating the depiction. It also includes publishing, reproducing, or managing the explicit content of a website, in the situations the statute lists. The same subsection excludes some narrow activities, including mere distribution, certain processing, and hosting that does not select or alter the content. Hiring the performers, or managing the explicit content, is a reason you are probably outside that exclusion.
The regulation uses the same split in plainer operational language. A primary producer creates the depiction. A secondary producer publishes it, reproduces it, or manages the explicit content of a site that contains it, when the regulation's commercial-distribution terms are met. An event photographer who shoots explicit conduct is in the primary-producer conversation. A site that organizes that photographer's images for sale or membership is in the secondary-producer conversation. A hotel, a dungeon, or a model release does not decide the federal question. Neither does a house rule that says "no photos." If photos were taken anyway, the statute still asks who created them and who published them.
Do not treat "we only made it for ourselves" as an exemption this page can grant. The Third Circuit has read the statutory text as reaching private, noncommercial depictions as well as commercial ones. The court later refused to strike the statutes down as overbroad, which means that broad text is still the starting point. A lawyer can tell you whether your facts are actually covered. A caption on a blog cannot.
What the records are, without a form to copy
At the statute level, a covered producer has to ascertain the performer's name and date of birth by examining a government-issued identification document, keep individually identifiable records of that information, and affix a statement to the depiction describing where the records can be found. The statute also sets criminal penalties for violations: not more than five years for a violation, and for a later conviction not less than two years and not more than ten, plus fines. Those are the maximums the statute authorizes. They are not a prediction of what a prosecutor will do, and they do not apply to a duty a court has held unconstitutional in your actual case.
Part 75 of Title 28 of the Code of Federal Regulations is where the operational detail lives: who the custodian is, how records are indexed, where they are kept, and the wording and placement of the statement, including on websites. That text changes when the Department of Justice amends it. A sample statement frozen into an article becomes wrong the moment the regulation does. Read the current section, then have a lawyer apply it to the specific shoot, site, or license. Do not invent an address, a stage name, or an edited image in place of what the current text requires. This article will not print a fill-in statement, because a fill-in statement is how confident people create a record that does not satisfy the regulation.
Section 2257A has a separate certification route for some simulated depictions, set out in the statute and in the regulation. It is not a route around records for actual sexual conduct. Filing a certificate you do not qualify for does not create the exemption.
What the courts changed, and what they left in place
The early cases went both ways. The D.C. Circuit upheld the statute against a First Amendment attack in American Library Association v. Reno (1994). The Tenth Circuit in Sundance Association v. Reno (1998) read an earlier version more narrowly, as aimed at primary producers. Later Justice Department rules brought secondary producers back into the duties. The Sixth Circuit, sitting en banc, largely upheld the regime under intermediate scrutiny in Connection Distributing v. Holder (2009).
The Third Circuit litigation, Free Speech Coalition v. Attorney General, is the one that cut into the regime. In 2016 the court held the inspection provisions facially unconstitutional. Those provisions had required producers to make records available for inspection at all reasonable times, without the constraints the Fourth Amendment requires for that kind of search. The holding rejects that warrantless model. It does not mean records need not exist, and it does not mean a warrant, a grand-jury subpoena, or a later lawful process cannot reach them.
On September 1, 2020, the Third Circuit decided the remaining First Amendment claims. The age-verification, record-keeping, and labeling requirements violate the First Amendment as applied to the plaintiffs in depictions of performers who are at least 30 years old and clearly shown. The government had conceded that a performer of that age, clearly visible, could not reasonably be mistaken for a child, so the paperwork was not the least restrictive way to pursue the child-protection interest for those plaintiffs. The court held that the association plaintiffs lacked standing to bring as-applied claims for their members. It held that the plaintiffs had not proved the statutes were facially overbroad. It refused a nationwide injunction. A win for those plaintiffs is not a win for every photographer in the country, and it is not a rule that "everyone on set was over 30" ends the duty. Other circuits have not adopted that as-applied limit. If you are outside the Third Circuit, you should assume they have not.
Minors, parties, and the mistake this page will not help you make
Nothing in 2257 authorizes a sexual image of a person under 18. A record-keeping statute is how adult productions are distinguished from criminal images of minors. It is not a defense to making those images. Age-play between adults, described in the age-play article, does not move that line. If a person in the image is a minor, stop. Do not publish it, do not keep it as a "record," and talk to a criminal lawyer.
If you organize events or run a site, decide the photo policy before the party, in writing, with the people who will actually be holding cameras. A ban you do not enforce is not a legal strategy. A release that says the model is an adult is a contract. It is not the identification document the statute tells a producer to examine. If you are about to publish explicit images, or you already have, the next step is a lawyer who works on this statute, not a longer search result. The National Coalition for Sexual Freedom, at ncsfreedom.org, publishes civic and legal information for this community. It is not your counsel either.