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Joseph Leon
Joseph Leon, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 438
Experience:  General practitioner, including criminal law; practiced 15 years; licensed in 4 states.
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I am interested in hosting a live adult webcam chat service. The women would be dressed and act similar to the person shown in this video: http://www.youtube.com/watch?v=YOGlYz6P3R8 . Would such footage require a 2257 / 2257 exemption statement? Additionally, would I be required to record all video footage even if I don't need a 2257?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Joseph Leon replied 5 years ago.
Since you are not producing sexually explicit material, 2257 would probably not apply. Section 2257 requires 'producers' of visual depictions of 'actual sexually explicit conduct' (e.g., sexual intercourse, bestiality, masturbation or sadistic or masochistic abuse) to maintain records of the ages of the actors/participants and to 'affix' certain of this information to the visual depiction. On their face, these provisions would seem not to apply to BBS and Web site operators to the extent that they do not produce sexually explicit material.

Note, however, Subsection (f)(4) prohibits 'any person' from 'knowingly' selling, transferring or offering to sell or transfer, any such depiction that does not have the required information 'affixed thereto.' This subsection could be applied to any online service provider or BBS or Web site operator who fails to 'affix' such information to a downloadable image, although a lack of knowledge would be a valid defense.

I am including a link to an extensive discussion of all the laws that apply to the ONLINE distribution of child pornography, or the prevention thereof.

http://dl.getdropbox.com/u/469710/IOLAW_S_4_05_2-1-09_0013.pdf


Joseph Leon, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 438
Experience: General practitioner, including criminal law; practiced 15 years; licensed in 4 states.
Joseph Leon and 2 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.

You said the following

"Note, however, Subsection (f)(4) prohibits 'any person' from 'knowingly' selling, transferring or offering to sell or transfer, any such depiction that does not have the required information 'affixed thereto.' This subsection could be applied to any online service provider or BBS or Web site operator who fails to 'affix' such information to a downloadable image, although a lack of knowledge would be a valad defense.

What exactly does this mean in my case? And can you also provide me with an example scenario of how this subsection would apply for me?

 

Even if 2257 does not apply to me in any way, would I still need to record the actual live video footage for any reason?

 

If I used an exemption statement such as this even if I don't need it, would there be any negative results such as a visit from the authorities, etc, or would I be over protecting myself? I would rather over protect myself if possible.

 

example exemption statement:
This website (website name) is exempt from the record keeping requirements of 18 U.S.C. 2257(a)-(d). (website name) does NOT contain visual depictions of actual or simulated sexual explicit conduct under the definitions of such, described in 18 USC 2256, and, as such, is exempt from the record keeping requirements set forth in 18 USC 2257 and CFR 75 - per Sec. 75.7. All persons that appear in any visual depiction contained on (website name) were over the age of eighteen years at the time of creation of such depictions. This web site does not contain visual depictions of actual or simulated sexually explicit conduct as described in paragraphs (a)(1) and (a)(2) of 28 C.F.R. 75.7. or does not contain visual depictions of actual or simulated sexually explicit conduct under the definitions of such contained in 18 USC 2256, and, as such, are exempt from the record keeping requirements set forth in 18 USC 2257 and CFR 75 - per Sec. 75.7.

 

and finally,

would any of the following still images or live video feed videos below require 2257?

http://www.cypherware.com/DEMO/page33.html

http://www.cypherware.com/DEMO/page44.htm

 

 

 

I would greatly appreciate your feedback on these concerns! And If i totally understand, I will compensate you. I have another question regarding "terms of use" but I will make that a seperate question.

Expert:  Joseph Leon replied 5 years ago.
Okay, but I also want a free pass as a bonus.

Here's the approach I would take from a practical perspective, and to overprotect yourself.

First,do not put a statement disclaiming 2257 responsibility. It won't protect you. If you were covered by 2257, saying you're not does not help and just calls attention.

Second, to be totally safe, I would just record the stream to a hard drive and post the 2257 statement on the site, with the added caveat that you are not legally obligated to so provide. It would be almost no hassle, and it would make you safe.

Also, consider this: you don't know what the person sitting in front of the web cam may choose to do at any moment, including veer into masturbation. By the way, that is the situation addressed in "(f)(4)" above. Your defense would be that you did not do it knowingly or intentionally, but who wants to be in the situation of trying to prove that.

Even after you accept, I will continue to answer reasonable follow up questions until we determine your next steps.
Customer: replied 5 years ago.

Leon,

Not a problem. I will give you a free session! Just email me your phone number and email address.

 

Ok. Your two statements above seem to contradict themselves as follows:

 

You said in bold below:

"First,do not put a statement disclaiming 2257 responsibility. It won't protect you. If you were covered by 2257, saying you're not does not help and just calls attention." Are you referring to the standard 2257 record keeping statement here, or are you referring to the 2257 exemption statement here? Please explain.

You said in bold below:
"Second, to be totally safe, I would just record the stream to a hard drive and post the 2257 statement on the site, with the added caveat that you are not legally obligated to so provide. It would be almost no hassle, and it would make you safe."

1) Recording the stream to my hard drive is not a problem.

2) Posting the 2257 statement on my site with the added caveat (exemption) that I am not legally obligated to so provide. Does this simply mean the exemption? It seems like you are contradicting your first statement here. Please explain in detail of what you mean here.

 

Also, if I need to use an exemption statement, word-for-word, what should it say?

 

I would also like for you to look at my website "Privacy Policy" and my "Terms of Use" however I may address this as a seperate question or in this question. If I address it in this question I will provide you with a bonus.

 

Waiting Patiently for your response!!!!!

Customer: replied 5 years ago.
my email is XXXXX@XXXXXX.XXX, lets discuss all legal information in the website. I will provide you with the website access to your email once we finish and the site is complete.
Customer: replied 5 years ago.
Leon, please reply ASAP, I need to get this done and I want to compensate you.
Expert:  Joseph Leon replied 5 years ago.
I actually have to go out for awhile, but let me give you some quick comments.

If you post a statement that says you are not complying with 2257 requirements, that is a red flag.

If you post a statement saying your ARE complying with 2257 requirements, and that compliance does not constitute an admission that they do apply, that is fine.

Drafting an exemption statement, terms of use and privacy policy is another thing, and I am not allowed to give you my email online, so try this. Send me a fax with your proposed language, and we'll go from there.

You can send the fax to Just Answer, and they will forward it to me.
Attn: Robert
Re: Fax for Expert ID "leon6749"
Fax No.: 4 1 5 4 8 0 2 1 2 1

Don't worry about accepting, I won't leave you high and dry just because you did.
Customer: replied 5 years ago.

I hope you can provide me with the drafts for the exemption statement, privacy policy and terms of use today, i really need to get this done ASAP. Check your fax in 30 minutes. Its 2:00 pm eastern time, by 2:30 you should have the fax!

Customer: replied 5 years ago.

Also when you get back please reply to my previous statement:

 

Leon,

Not a problem. I will give you a free session! Just email me your phone number and email address.

 

Ok. Your two statements above seem to contradict themselves as follows:

 

You said in bold below:

"First,do not put a statement disclaiming 2257 responsibility. It won't protect you. If you were covered by 2257, saying you're not does not help and just calls attention." Are you referring to the standard 2257 record keeping statement here, or are you referring to the 2257 exemption statement here? Please explain.

You said in bold below:
"Second, to be totally safe, I would just record the stream to a hard drive and post the 2257 statement on the site, with the added caveat that you are not legally obligated to so provide. It would be almost no hassle, and it would make you safe."

1) Recording the stream to my hard drive is not a problem.

2) Posting the 2257 statement on my site with the added caveat (exemption) that I am not legally obligated to so provide. Does this simply mean the exemption? It seems like you are contradicting your first statement here. Please explain in detail of what you mean here.

 

Also, if I need to use an exemption statement, word-for-word, what should it say?

 

I would also like for you to look at my website "Privacy Policy" and my "Terms of Use" however I may address this as a seperate question or in this question. If I address it in this question I will provide you with a bonus.

 

Waiting Patiently for your response!!!!!

Expert:  Joseph Leon replied 5 years ago.
N/a

Customer: replied 5 years ago.
Leon, I just faxed the information to you. Please reply ASAP. I am going to accept now so you can receive the funds. I will trust you and take your word that you will provide me with the information I need after I accept.
Customer: replied 5 years ago.

Leon, I just compensated you. I am not sure how long it takes for you to get the fax. For now, don't worry about the Terms of Use and the Privacy policy. I will make a new question for that and you will get a seperate compensation. For now my main concern is 2257. I just sent the fax. In the mean time while you wait to receive it, please answer the following questions the best way you can:

 

You said the following:

"If you post a statement that says you are not complying with 2257 requirements, that is a red flag."

Would this be an exemption statement or something else?

If you post a statement saying your ARE complying with 2257 requirements, and that compliance does not constitute an admission that they do apply, that is fine.

This sounds like I am saying that I would be a custodian of records? I don't want to be a custodian of records. I simply want to say that my material is exempt from 2257 because it doesn't contain any of the material listed from 2256, etc. cfr etc.

Customer: replied 5 years ago.
Leon, when will you be available please?
Expert:  Joseph Leon replied 5 years ago.
Check back at around 7. I won't be able to get the fax until Monday, so I'll focus on 2257 first.
Customer: replied 5 years ago.

Leon,

I really need this done today. Please go to the following website below, it contains the same info as the fax:

http://www.cypherware.com/DEMO/leon.htm

 

Customer: replied 5 years ago.
Patiently waiting...
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we take
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we take care of
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we take care of 2257,
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we take care
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we take care of 2257
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we take care of 2257, I
Customer: replied 5 years ago.

I will be back on at 7pm eastern time, I hope we can get this all figured out....Once

we take care of 2257, I will ask another question for the privacy policy, terms, etc. and will compensate you for that question/answer seperately.
Customer: replied 5 years ago.
Did you get a chance to review everything yet?
Expert:  Joseph Leon replied 5 years ago.
First, the bad news, then the good news. At the end, let me know if you are happy, or not, with the service provided and we can probably work something out.

One, let me be clear. the service we are both using is solely to help educate people about the law. It is not to give legal advice, and we do not have an attorney-client relationship. Our relationship is more like a friend you bump into in the street, who is an attorney, and who gives you his best take on something. In the business, we call it "curbside advice."

Another piece of bad news. You are not going to be able to proceed with your web site based on what we do here tonight. That would be entirely irresponsible given the serious federal laws at issue.

On to the good news: I still think I can help you by informing you that I believe you are legally required to implement a 2257 compliance program.

Quickly, you need to know that you have to keep records based on an extremely recent change in the law. In fact, the DOJ has JUST NOW created rules that will go in effect in March 2009 that require record-keeping of the "lascivious exhibition of the genitals or pubic area," which is what you site will be.

Judicial precedent provides that a depiction can constitute lascivious exhibition if, among other things:

(1) the focal point is on the subject's genitalia or pubic area;

(2) the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or

(4) the visual depiction is intended or designed to elicit a sexual response in the viewer.

Note that, until recently, 2257 applied only to websites that produced or distributed actual or pretend sexually explicit activities (for example, sexual intercourse, bestiality, masturbation or sadistic or masochistic abuse). But they did not apply to lascivious exhibition.

The last piece of good news. I can give link you to the DOJ's compliance guide. And I will be available to provide further education about that compliance guide, if you ask further questions. In the end, if you are able to do it yourself, without an attorney, you will save thousands of dollars. Here is the link to the compliance guide.
http://www.usdoj.gov/criminal/optf/links/2257-compliance-guide.html.

Again, I will be available to answer questions you have about the compliance guide, to provide education to help you understand it yourself, but if that is not good enough, you need to hire an attorney.
Customer: replied 5 years ago.

Leon,

please review this video:

http://www.youtube.com/watch?v=YOGlYz6P3R8

 

the woman in this image is only displaying cleavage. The lower part of the model will NEVER been shown on the camera. Thus the genitals would never be shown. Only from the chest up. If all of my models act like this one on this video, only displaying cleavage, I am pretty sure I am exempt from 2257.

 

Please review the web sites below:

http://www.brattytrisha.com/

www.moneyprincess.com/

 

Those sites use a 2257 exemption statement, my idea is to use a similar statement. I already dealt with a lawyer on this matter and they said I am ok with the content. I just want to go the extra step and use a 2257 exemption statement if possible.

Customer: replied 5 years ago.

My site will not have "lascivious exhibition of the genitals or pubic area,"

the models will only be shown on camera from the waist up. Cleavage would be the most which would be shown.

Expert:  Joseph Leon replied 5 years ago.
First, the websites you are linking me to definitely are lascivious. They just have not adjusted for the change in law that is coming, or at least that is what I believe.

Second, I think you meet the elements of lascivious materials. Note that the fourth element of lascivious is: "(4) the visual depiction is intended or designed to elicit a sexual response in the viewer." You definitely meet that criteria. And that makes some sense. Remember, the point of all these record keeping requirements is to make sure you don't accidentally end of with a 14 year old showing her cleavage for pedophiles to get his rocks off.
Expert:  Joseph Leon replied 5 years ago.
luck1, was what I did for you last night helpful at all? fax me at Just Answer again, and include typed or written letterhead.

You can send the fax to Just Answer, and they will forward it to me.
Attn: Robert
Re: Fax for Expert ID "leon6749"
Fax No.: 4 1 5 4 8 0 2 1 2 1
Customer: replied 5 years ago.

Ok, I will in an hour.

Customer: replied 5 years ago.
been busy, will try soon
Expert:  Joseph Leon replied 5 years ago.
i have it, but without letterhead, and I mean your company letterhead, I cannot help any more than i have. if you can't get me the company letterhead, I don't know what more I can do. I cannot draft the necessary privacy policy, terms of use policy, and 2257 policy on-line for you at this site, because that is beyond what this site does.
Customer: replied 5 years ago.
If I provide you with the info on a letterhead, what can you do for me?
Expert:  Joseph Leon replied 5 years ago.
Actually, probably not that much more. So you don't have to, if you don't want to, but it might help.
Customer: replied 5 years ago.
Ok, thanks for your help. Just to keep you in the loop. I spoke with 2 other lawyers who specialize in this area and both claim that I am in the clear based on the new laws. What I really want to do is get a response from the department of justice, but its so difficult to get anything from them on this issue.

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Joseph Leon
Joseph Leon
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General practitioner, including criminal law; practiced 15 years; licensed in 4 states.