Vagueness/Overbreadth

    Thirty-two commenters commented that the definitions of URL and URL 
associated with the depiction are vague. According to the commenters, 
it is not clear what constitutes a copy of a Web page, which may be 
constantly changing, for purposes of maintaining a copy of the 
depiction. The commenters claim that some sites may use technologies 
that may not even use a URL for downloading a picture (e.g., peer-to-
peer systems, telephonic bulletin boards, and other technologies). 
Furthermore, they claim, requiring the use of certain technologies to 
comply with the statute presents a situation in which unconstitutional 
restrictions are placed upon the manner and media in which content is 
presented. The Department declines to adopt this comment with regard to 
the concern that web pages are constantly changing. It is for this very 
reason that the proposed rule required producers to maintain copies of 
every iteration of a web page in order to create a record of which 
performers were featured over the course of time. The Department adopts 
this comment insofar as it notes that some sites do not utilize URLs 
for downloading, and will modify the rule to require records of the URL 
or, if no URL is associated with the depiction, another uniquely 
identifying reference associated with the location of the depiction on 
the Internet.
    In addition, thirty-three commenters commented that it is unclear 
whether the term copy in the rule refers to only digital images, 
computer-generated images, and web cam images, or whether there must be 
a copy of the image that was in the magazine and film in the records, 
as well. The Department has amended the rule to clarify that there must 
be copy of any and every depiction, whether digital, computer-
generated, print in a magazine, or on film. Maintaining copies of each 
depiction is critical to making the inspection process meaningful, 
whether those copies be in digital, paper, or videotape format. 
Reviewing identification records in a vacuum would be meaningless 
without being able to cross-reference the depictions, and having the 
depictions on hand is necessary to determine whether in fact age-
verification files are being maintained for each performer in a given 
depiction. In addition, without the depictions, inspectors could not 
confirm that each book, magazine, periodical, film, videotape or other 
matter has affixed to it a statement describing the location of the 
records, as required by the existing regulations.
    Twenty-four commenters commented that the exclusion of providers of 
web-hosting services who do not manage the content of the site or 
service is vague and may be under-inclusive because some services 
manage or control certain website content, e.g., advertisements, but 
not the sexually explicit content. According to the commenters, it is 
similarly unclear whether editing content only for copyright 
infringement purposes would constitute control of content. The 
Department adopts this comment. The exclusion of providers of web-
hosting services who reasonably cannot manage the content of the site 
will be clarified to exclude providers of web-hosting services who 
reasonably cannot manage the sexually explicit content of the site (for 
either technical or contractual reasons).
    Three commenters also commented that the definition of secondary 
producers as those who ``manage content'' on a computer site could be 
construed to include those who operate posting services such as Usenet, 
bulletin boards, and other similar services. According to those 
commenters, someone who removes illegal material such as child 
pornography could thereby submit themselves to the requirements of Part 
75, while if that person did not remove such material, the person would 
be liable to prosecution for hosting child pornography. The Department 
declines to adopt this comment. Operators of such sites are obligated 
by law to remove child pornography from their sites and to report the 
attempt to post such pornography to law enforcement. Compliance with 
that legal obligation could not be construed as converting the operator 
into a producer of pornography for purposes of section 2257 and this 
regulation.