Burdensomeness

    Thirty-six commenters commented that even if the effective date 
were changed to July 3, 1995, the regulation would be overly burdensome 
on secondary producers because producers would be required to obtain 
records for thousands--even hundreds of thousands--of sexually explicit 
depictions dating back a number of years. These commenters claimed that 
secondary producers would likely be unable to locate many of those 
records from primary producers who may have moved, shut down, or 
otherwise disappeared. According to the commenters, those secondary 
producers who could not locate such records would be forced to remove 
the sexually explicit depictions, which would be a limit on 
constitutionally protected material.
    The Department declines to adopt these comments. Producers were on 
notice that records had to be kept at least by primary producers for 
depictions manufactured after July 3, 1995. In addition, commenters 
were similarly on notice that the D.C. Circuit, in American Library 
Ass'n v. Reno, had upheld the requirement that secondary producers 
maintain records. The Department is not responsible if secondary 
producers chose to rely on the Tenth Circuit's holding in Sundance and 
not to maintain records while ignoring the D.C. Circuit's holding in 
American Library Ass'n v. Reno. A prudent secondary producer would have 
continued to secure copies of the records from primary producers after 
July 3, 1995. If those records, which are statutorily required, are not 
currently available, then the commenters are correct that they will be 
required to comply with the requirements of all applicable laws, 
including section 2257(f). They are incorrect, however, to claim that 
this would result in an impermissible burden on free speech. As the 
D.C. Circuit held, the government has a compelling state interest in 
protecting children from sexual exploitation. If the producers (primary 
and secondary) of sexually explicit depictions cannot document that 
children were not used for the production of the sexually explicit 
depictions, then they must take whatever appropriate actions are 
warranted to comply with the child exploitation, obscenity, and record-
keeping statutes. The First Amendment is not offended by making it 
unlawful knowingly to fail or refuse to comply with the record-keeping 
or labeling provisions of this valid statute.
    Two commenters commented that secondary producers should not be 
required to maintain records at all because they are not proximate 
enough to the production of the depictions to secure the requisite 
information, and their retention of records would not further the 
purpose of the statute. One commenter commented that secondary 
producers should only be required to

[[Page 29613]]

retain on file the contact information for the primary producers' 
custodians of records. The Department declines to adopt these comments. 
As publishers of sexually explicit material, secondary producers are 
equally responsible for protecting minors from exploitation as the 
primary producers who photograph sexually explicit acts. Most 
importantly, secondary producers are equally covered by the terms of 
section 2257. In addition, the D.C. Circuit in American Library Ass'n 
v. Reno, held that such a requirement was not unconstitutionally 
burdensome.
    Thirty-five commenters commented that the indexing and cross-
indexing requirements are unduly burdensome and argued that the records 
should be indexed only by the performer's legal name, the name used in 
the depiction, or the title of the depiction. The Department declines 
to adopt these comments. As the D.C. Circuit held in American Library 
Ass'n v. Reno, the indexing and cross-indexing requirements were not 
unduly burdensome. Word-processing, bookkeeping, and database software 
commonly in use by businesses and even for home computers can 
accomplish the indexing and cross-indexing required by the rule. The 
Department continues to believe that investigators must be able to 
access records through cross-indexing in order to ensure completeness 
and to enable investigation on the basis of less-than-full information.