Can anyone over 18 be your custodian of records?

[kadudu]

Since the law was changed to allow third parties to be your custodian of records, does that mean if you have a friend who works from home who is willing to keep your records and put his address on your site, that you can appoint him to be your COR? Or does your custodian of records have to be someone with a legal background like an attorney or something?

What do the guys who produce their own content normally do? Just list themselves as the COR? Or is there some registration process that one has to go through in order to be allowed to act as a COR?

[NALEM]

Originally Posted by kadudu

Since the law was changed to allow third parties to be your custodian of records, does that mean if you have a friend who works from home who is willing to keep your records and put his address on your site, that you can appoint him to be your COR? Or does your custodian of records have to be someone with a legal background like an attorney or something?

What do the guys who produce their own content normally do? Just list themselves as the COR? Or is there some registration process that one has to go through in order to be allowed to act as a COR?

Any adult.

BTW - we have made the decision to not post on the website the full details, instead providing an email address where the COR can be reached. We further request that the person making the request identify themselves, and provide the specific reason for the request.

Anyone care to comment on this approach is welcome.

[Barry-xlovecam]

28 CFR 75.6 - Statement describing location of books and records. | LII / Legal Information Institute

[AaronM]

Originally Posted by NALEM

BTW - we have made the decision to not post on the website the full details, instead providing an email address where the COR can be reached. We further request that the person making the request identify themselves, and provide the specific reason for the request.

Anyone care to comment on this approach is welcome.

Sounds like a great plan if you don't care about following the law.

[pornlaw]

And one that can be easily crawled & indexed by a DOJ software program that could easily identify who is not in compliance with the regs. Anyone with an email address or PO Box gets a automatic warning email or letter.

I am actually surprised the govt hasn't done that just to fuck with people.

[AaronM]

Originally Posted by pornlaw

And one that can be easily crawled & indexed by a DOJ software program that could easily identify who is not in compliance with the regs. Anyone with an email address or PO Box gets a automatic warning email or letter.

I am actually surprised the govt hasn't done that just to fuck with people.

Can crawl or index the info if it's text on an image.

[fappingJack]

Originally Posted by Barry-xlovecam

28 CFR 75.6 - Statement describing location of books and records. | LII / Legal Information Institute

[pornlaw]

Aaron - true but I don't see too many people doing that. Most are text pages. Some don't even have 2257 links. It will be panic time again if emails & letters like that were ever sent out by DOJ.

[ravenazrael]

If the site only features topless models, should it disclose that there is no need to comply with the 2257 and that would be the end? However, there should be proof that the models are over 18. What if the site is just the place where models sell, but the models are the ones who are responsible for what they post?

[kadudu]

I am so pissed that I chose a third party custodian of records. The guy just disappeared, his website shut down, and the ftp server where I uploaded everything is also shut down meaning I have to spend hours and hours organizing all the 2257 info in an excel sheet. Gaaaah. D:<

[Joe Obenberger]

A pretty confused thread,here, but the true answer got through.

Anyone can be designated a custodian. Anywhere in the world, of any age. The Regulations call this person a "non-employee custodian". XXXLAW - Section 2257 - Text of Regulations at (h). There are no qualifications. (Well, definitionally, the person you appoint should not be your employee. If your custodian is your employee, it's a different situation, though the result is the same.) A custodian does not have to be a lawyer or accountant, have a driver's license, read or write English, have a grade school diploma, or be able to see or hear. They may be paralyzed or mentally incompetent. They may be profoundly mentally ill. They may have a place on the Sex Offender Registry. They may be felons or even incarcerated. You can appoint anyone. The trouble is that, if the custodian fails to discharge your duties on your behalf, it is you alone, and never him or her, who faces criminal responsibility.

But, like the posts suggest, using a third party custodian is dangerous as hell. You are putting your gonads in someone else's hands. Hands which always rest on the chopping block. You can't contract away your duty as a producer to anyone else. The 2008 changes that permitted third party custodians merely afforded producers another way to comply. Those changes do not shift responsibility or criminal liability. If your custodian screws up, you are the one to whom the law turns, the one who gets punished - perhaps sent to prison for five years - because compliance remains your responsibility, no matter with whom you have hired to do the job. Third Party Custodian or employee who does the job, notwithstanding. It's always about you as Producer.

If the matter you publish does not contain depictions governed by Section 2257 or 2257A, there is no obligation to publish any kind of disclaimer. While it is your option to do so, you don't ever need to publish a statement that the images are too old to be governed or that the material isn't regulated by the statute. Depictions of boobs alone do not implicate Section 2257. But sex itself is not necessary before the statute applies: actual or simulated images of the genitals or pubic area, of sadistic or masochistic abuse, and/or bestiality are enough. A naked lady in handcuffs in a sexualized context is probably enough.

The latest lawsuit challenging this law has now been in the trial court twice and now has bounced up to the Third Circuit for the second time. It is fully briefed and oral argument was conducted in December. Eventually it will render its decision. More about that lawsuit at XXXLAW - Section 2257 - 2257 HOME PAGE

[arock10]

Originally Posted by kadudu

I am so pissed that I chose a third party custodian of records. The guy just disappeared, his website shut down, and the ftp server where I uploaded everything is also shut down meaning I have to spend hours and hours organizing all the 2257 info in an excel sheet. Gaaaah. D:<

he is dead if that makes you feel any better about the situation...

[Marshal]

I guess it could be any adult person.

[Joe Obenberger]

Originally Posted by Marshal

I guess it could be any adult person.

But I would definitely state that appointing or continuing to use a dead person is a very bad idea. :-)

[epitome]

Originally Posted by NALEM

Any adult.

BTW - we have made the decision to not post on the website the full details, instead providing an email address where the COR can be reached. We further request that the person making the request identify themselves, and provide the specific reason for the request.

Anyone care to comment on this approach is welcome.

It seems weird that you'd comply with part of the law (having a custodian), while completely ignoring another part of the law (not posting their info as required).

There is nothing to discuss about your setup. You are not in compliance with federal law.

[NALEM]

Originally Posted by epitome

It seems weird that you'd comply with part of the law (having a custodian), while completely ignoring another part of the law (not posting their info as required).

There is nothing to discuss about your setup. You are not in compliance with federal law.

I completely understand what you are writing here. Nonetheless we have placed faith in our lawyers instructions.

[Joe Obenberger]

Originally Posted by NALEM

I completely understand what you are writing here. Nonetheless we have placed faith in our lawyers instructions.

It's really hard to believe that any attorney who is knowledgeable in this area would advise a 2257 compliance statement that does not disclose a physical, on-the-ground address. Perhaps this is miscommunication between the two of you? I'd suggest that you go back to him and zero in exactly on that issue. Some provisions in the 2257 scheme are murky. This isn't. The statute (18 USC 2257 (e)) and the Regulations (28 CFR 75.6) could not be clearer.

[TheSquealer]

Originally Posted by NALEM

I completely understand what you are writing here. Nonetheless we have placed faith in our lawyers instructions.

Don't worry, no one is shocked to find that your judgement and your "attorney" are every bit as shitty as your photography.

[NALEM]

Originally Posted by Joe Obenberger

It's really hard to believe that any attorney who is knowledgeable in this area would advise a 2257 compliance statement that does not disclose a physical, on-the-ground address. Perhaps this is miscommunication between the two of you? I'd suggest that you go back to him and zero in exactly on that issue. Some provisions in the 2257 scheme are murky. This isn't. The statute (18 USC 2257 (e)) and the Regulations (28 CFR 75.6) could not be clearer.

Hi Joe, hope you are doing well.

Whenever something doesn't make sense, or doesn't follow the pattern that everyone else seems to follow, we will push back. I don't recall their exact reasoning, but I think a part of it has much to do with where the companies and third party vendors (hosting, billing, etc.) are based. Our agreements with legal counsel include indemnification clauses and professional liability insurance/bonds in case they are absolutely wrong and the advice followed caused harm.

See you in Tempe!

[L-Pink]

"indemnification clauses" Like in, "Your Honor, Please allow me to do prison time instead of my client"


.

[pornlaw]

All lawyers indemnify their clients when they give bad advice - it's called malpractice. You don't need a clause for that.

Joe's right about this... 2257 and 28 CFR 75.6 couldn't be any more clear on the need for an address in your notice.

[TheSquealer]

Originally Posted by L-Pink

"indemnification clauses" Like in, "Your Honor, Please allow me to do prison time instead of my client"


.

Crazy is always fun to watch. He's actually attempting to counter an attorney who has specific knowledge of the subject by fabricating rambling, incoherent and irrational answers. The amusing thing is the law is perfectly clear on the requirements so he clearly has never even given this so much as a fleeting moment of thought. Instead, he fabricated an attorney and all sorts of justifications why he 1) went the opposite way of the crowd and 2) for his fake "attorney" being horrible at his job

[NALEM]

Originally Posted by pornlaw

All lawyers indemnify their clients when they give bad advice - it's called malpractice. You don't need a clause for that.

Michael not all countries gov agencies that regulate lawyers and medical practitioners require what you refer to as malpractice insurance.

[pornlaw]

Nalem - all lawyers in this country are regulated by various State Bar Associations and all states allow clients to sue negligent attorneys for bad advice resulting in a loss of some type. That's called malpractice not insurance, malpractice is a cause of action (lawsuit). Insurance is what attorneys purchase so when they give you bad advice and you go to jail for not having an address on your 2257 Notice they don't have to give you their house when you get out.

If your attorney is not in the US why are you taking advice on a US law from a non US based & licensed attorney ?

[kadudu]

Originally Posted by Joe Obenberger

A pretty confused thread,here, but the true answer got through.

Anyone can be designated a custodian. Anywhere in the world, of any age. The Regulations call this person a "non-employee custodian". XXXLAW - Section 2257 - Text of Regulations at (h). There are no qualifications. (Well, definitionally, the person you appoint should not be your employee. If your custodian is your employee, it's a different situation, though the result is the same.) A custodian does not have to be a lawyer or accountant, have a driver's license, read or write English, have a grade school diploma, or be able to see or hear. They may be paralyzed or mentally incompetent. They may be profoundly mentally ill. They may have a place on the Sex Offender Registry. They may be felons or even incarcerated. You can appoint anyone. The trouble is that, if the custodian fails to discharge your duties on your behalf, it is you alone, and never him or her, who faces criminal responsibility.

But, like the posts suggest, using a third party custodian is dangerous as hell. You are putting your gonads in someone else's hands. Hands which always rest on the chopping block. You can't contract away your duty as a producer to anyone else. The 2008 changes that permitted third party custodians merely afforded producers another way to comply. Those changes do not shift responsibility or criminal liability. If your custodian screws up, you are the one to whom the law turns, the one who gets punished - perhaps sent to prison for five years - because compliance remains your responsibility, no matter with whom you have hired to do the job. Third Party Custodian or employee who does the job, notwithstanding. It's always about you as Producer.

If the matter you publish does not contain depictions governed by Section 2257 or 2257A, there is no obligation to publish any kind of disclaimer. While it is your option to do so, you don't ever need to publish a statement that the images are too old to be governed or that the material isn't regulated by the statute. Depictions of boobs alone do not implicate Section 2257. But sex itself is not necessary before the statute applies: actual or simulated images of the genitals or pubic area, of sadistic or masochistic abuse, and/or bestiality are enough. A naked lady in handcuffs in a sexualized context is probably enough.

The latest lawsuit challenging this law has now been in the trial court twice and now has bounced up to the Third Circuit for the second time. It is fully briefed and oral argument was conducted in December. Eventually it will render its decision. More about that lawsuit at XXXLAW - Section 2257 - 2257 HOME PAGE

Thanks a lot for this info.

Originally Posted by arock10

he is dead if that makes you feel any better about the situation...

Yeah I found that out later when typing up his name and finding his obituary. I feel kinda bad for thinking he just flaked out on me.