One commenter commented that the exception under Sec.  
75.1(c)(4)(iv-v) for Web hosting, electronic communication, and remote 
computing services should be extended to 18 U.S.C. 2257(f)(4). 
Providers of Web hosting, bulletin boards, or electronic mail services 
could be found liable for not ascertaining that the appropriate label 
was affixed to a depiction transferred by one of their users. The 
Department declines to adopt this comment, which would require an 
amendment to the statute and is beyond the authority of the Department 
to change by regulation. Moreover, the Department notes that 18 U.S.C. 
2257(f)(4) makes it a crime for a person ``knowingly to sell or 
otherwise transfer'' any sexually explicit material that does not have 
a statement affixed describing the location of the records. Thus, 
knowledge on the part of the transferor is an element of the offense.
    One commenter commented that the proposed rule's record-keeping 
requirements were troublesome in light of the 2003 amendment to section 
2257(d), which authorizes the use of such records as evidence in 
prosecuting obscenity or child pornography cases. According to the 
commenter, this violates the Fifth Amendment right against mandatory 
self-incrimination. The Department declines to adopt this comment, for 
two reasons. First, the comment is not directly related to the rule but 
rather is directed at the statute. Second, the amendment to section 
2257(d) does not violate the Fifth Amendment since some sexually 
explicit materials are protected speech and not obscene. Hence, the 
reporting requirement is not directed at ``a highly selective group 
inherently suspect of criminal activities.'' Albertson v. Subversive 
Activities Control Bd., 382 U.S. 70, 79 (1965).
    One commenter commented that the definition of producer is too 
broad, such that one depiction may have multiple primary producers, 
including, e.g., the photographer and a different individual who 
digitizes the image. The commenter argued that the definition should be 
written so that each depiction has only one primary producer. The 
Department declines to adopt this comment. The Department does not 
believe that logic, practicability of record-keeping or inspections, or 
the statue dictates that there be one and only one primary producer for 
any individual sexually explicit depiction. Any of the persons defined 
as primary producers has easy access to the performers and their 
identification documents and should therefore each have responsibility 
individually and separately of maintaining the records of those 
documents.
    Two commenters commented that the definition of producer in the 
proposed rule was too broad and would encompass a convenience store 
that sold sexually explicit magazines or a movie theater that screened 
R-rated movies. The Department declines to adopt this comment. As the 
rule makes clear, mere distributors of sexually explicit material are 
excluded from the definition of producers and under no plausible 
construction of the definition would a movie theater be covered merely 
by screening films produced by others.
    One commenter commented that it was not clear in the proposed rule 
whether, in cases in which it is discovered that a performer is 
underage, the possessors of those images are required to destroy copies 
of images required in the records in order to comply with the child 
pornography laws. The Department declines to adopt this comment because 
existing statutes make clear that it is unlawful knowingly to produce, 
advertise, distribute, transport, receive, or possess child 
pornography. See 18 U.S.C. 2251, 2252, and 2252A. Producers, like all 
citizens, must comply with those statutes. Nothing in the rule changes 
or obscures these existing legal obligations. Furthermore, there is a 
good-faith defense to possession of child pornography for the 
destruction or reporting to law enforcement of its existence. See 18 
U.S.C. 1466A(e).