Hooray for the United States Court of Appeals for the Sixth Circuit.  (Never thought I'd ever write that, but I'll be darned, there it is.)

On October 23, 2007, the Sixth Circuit finally overturned the infamous 2257 Rule.  Not all of you are familiar with 2257, and so I'll explain what the law is—or was.

Wait, you know what? I'm going to let YOU tell ME why we should be cheering the demise of 2257 in the Sixth Circuit.  This will be fun.....

Imagine, if you will, that there is a law that requires anyone who "produces" a picture containing sexually explicit content to gather certain information from everyone who appeared in the picture. 
For the purposes of this blog, let's pretend that the word 'produces' means "creates."  Oh, it also means a few more things, like, "videotapes", "photographs", "computer manipulates", "assembles", "manufactures", "publishes", "duplicates", "reproduces", and/or "reissues." 

Ok, back to our example....

Now, imagine that under this law, producers of sexually explicit content need to do the following: 
    (i)     Get U.S.-issued identification from everyone who appears in the content.  If one or more
             of the people in the picture are not from the U.S. and don't have U.S. identification, 
             you're violating the law. 
    (ii)    Get everyone in the picture to tell you their names, dates of birth, as well as any other 
             names that they are known by (such as stage names, aliases, etc.).
    (iii)     Keep a copy of the identification and other information you gathered on a piece of 
               paper, and paste a copy of the sexually explicit content to the paper.  By the way, 
               the paper can not contain any other information whatsoever.  (If, for example, 
               you write down the person's telephone number on the paper, you're violating the law.)
   (iv)    File the paper in alphabetical or numerical order so that it can be cross-referenced
             with other records of other people who appear in the photograph.
    (v)    Allow the record to be examined by the Attorney General's Office, which can show up at
             your door without advance notice, up to three times each year.

Now, let's say you want to produce an adult-content video.  (Yes, I'm talking about a porn video.  Don't tell me you haven't seen one.)  You would need to follow all of the steps above, or else you could go to federal prison for 5 years.  Ouch—5 years.

I know what you're thinking.  You're thinking, "Hmmm, adult video producers should have to keep this type of information.  What's wrong with that?" 

Perhaps nothing, other than the fact that drunk drivers, drug dealers, and burglers normally face less jail time than people who violate this law. 

But ok, I'm not going to argue the case for porn. Let's hit a little "closer to home."

Now let's say you and your spouse or significant other want to have some fun and take sexually explicit videos of each other.  (I hear that people do that sometimes.)

Under this law, you would have to keep your spouse's identification, along with a copy of the video, in a location that could be inspected by the government.  Yes, you read that correctly—you would need to cross-reference each record, and each video of your spouse, in such a way that would satisfy the U.S. Attorney General's Office. 

And if the FBI knocked on your door demanding to see those records, you would have to surrender them to law enforcement.  Oh, what fun.

See the problem?  Yes?  Well now you know why the Sixth Circuit did what it did in the case of Connection Distribution Co. v. Peter D. Keisler, Acting Attorney General of the United States.  You can see a copy of the opinion here.  Read it, and see our Constitution being enforced in real time.

"It's not where you aim; it's where you hit."

My Tort Law professor (Professor Kessler—one of the best at Hofstra University School of Law) used to say, “It’s not where you aim, it’s where you hit.”  What he meant was that a law could aim to accomplish one goal, but “hit” an entirely different (and unexpected) goal.  That’s what happened with 2257.
Where Congress aiming?  Well, the 2257 law (which gets its name from its location in the federal code—18 USC 2257) was passed to help stem the tide of child pornography.  Congress figured that if producers of pornography were required to keep extensive records of the actors appearing in the content —and backed up the requirements with the threat of extensive prison time for noncompliance—fewer people would produce child porn.

They were wrong. 

In reality, Congress “hit” private citizens in their bedrooms—not pornographers.  What ended up happening was that (i) pornographers moved their servers, and bank accounts, offshore and continued their activities with impunity, (ii) smaller porn companies got spooked and sold their assets to larger porn companies, which resulted in a wider distribution of porn materials than ever before, and/or (iii) people ignored (and continue to ignore) the law, believing (perhaps correctly) that law enforcement will likely go after the “big fish” in the industry, and not the smaller players. 

I believe that it is always better to have no law, than to have a bad law.  And, simply put, 2257 is bad law.

So let’s not lament the passing of 2257 in the Sixth Circuit.  Instead, let’s hope that this decision spurs Congress to pass a more focused, appropriate law. 

CAUTIONARY NOTE: The decision ONLY impacts states in the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee.  If you’re not in one of those states, then 2257 is still the law in your forum state….