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2257 Program—Verifying the Age of Performers in Sexually Explicit Matter

Prior federal statutory enactments, judicial interpretations, and criminal prosecutions have highlighted the urgency of protecting children against sexual exploitation and, consequently, the need to ensure the accurate identity and age of performers appearing in sexually explicit material.

Title 18 United States Code (USC) Section 2257 was enacted to require producers of sexually explicit matter to maintain certain records concerning the identity and age of performers to assist in monitoring the industry. The identity of every performer is critical to determining and ensuring that no performer is a minor. Congress has recognized that minors warrant special concern in this area as children are incapable of giving voluntary consent to perform, or enter into contracts to perform, in visual depictions of sexually explicit conduct. In addition, children often are involuntarily forced to engage in sexually explicit conduct. For these reasons, visual depictions of sexually explicit contact that involve persons under the age of 18 constitute child pornography. By requiring producers to ascertain the age of performers in their depictions and maintain records evidencing such compliance, 18 USC §2257 helps to ensure that producers will not exploit minors, either through carelessness, recklessness, or deliberate indifference.

The FBI's 2257 program is responsible for conducting inspections at pornography producers' places of business to ensure their compliance with 18 USC §2257 and Title 28, Code of Federal Regulations Section 75. FBI field personnel responsible for conducting inspections currently includes two field supervisory special agents, five retired special agents who work on contract, and one part-time support services technician. The producers who are subject to inspection are randomly selected from a database using a random number generator algorithm. On-site inspections at the producer's listed place of business are conducted without advance notice to the producer as designated by the regulations.

2257 Program Inspection Procedures

The following is intended to provide general guidance on the 2257 program and should not be construed as all-encompassing. This guidance is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor does it place any limitation on otherwise lawful investigative and litigation prerogatives of the Department of Justice.

Pre-Inspection

1. A producer is randomly selected using a computer program containing a database of producers of sexually explicit material.

2. A sample of sexually explicit material by that producer is obtained.

3. Each product is then reviewed by a contract inspector. The review includes determination of 2257 labeling compliance, creation of screen captures of each performer depicted, and completion of a spreadsheet of all performers by stage name or description.

Inspection

1. Upon arrival, the lead inspector will identify himself, display FBI credentials, and explain the purpose and the scope of the inspection. The inspection is limited to the 2257 records pertaining to the reviewed materials. A spreadsheet indicating the materials reviewed and the performers appearing in those materials is provided to the producer and/or custodian of records.

2. Photographs are taken of the exterior of the business, the location of the 2257 records storage, and the location where the records are examined.

3. Pertinent 2257 records are reviewed and copied. The accuracy of the cross-referencing system for the reviewed material is examined.

4. Inspectors complete inspection checklists regarding 2257 compliance. Inspectors compare screen captures taken from the reviewed material with the photo identification on file. Inspectors complete the initial spreadsheet to include performers' true names and dates of birth.

5. If any 2257 violations are found, an informal preliminary report is prepared by the lead inspector. The contents of the report are discussed with the producer/custodian of records, and a copy is left at the premises. The producer is given the opportunity (approximately one week) to resolve any 2257 violations prior to the submission of the final inspection report to the Department of Justice.