B. Proposal 2: Federal Criminal Law Record Keeping Requirements
Another federal regulatory approach would be to require adult services users and posters
to submit to record-keeping requirements, similar to those that are currently provided in the area
of pornography.257 In the pornography industry, this provision requires producers of sexually
explicit material to maintain records concerning the identity and age of performers or those
depicted and used in the images, in order to assist law enforcement in monitoring the industry.258
Congress enacted this record-keeping requirement because “[t]he identity of every performer is
critical to determining and ensuring that no performer is a minor.”259 Additionally, Congress
“recognized that minors warrant special concern in this area as children are incapable of giving
voluntary consent to perform, or enter into contracts to perform, in visual depictions of sexually
explicit conduct.”260 The FBI further explains that these requirements help ensure that producers
will not exploit minors, either deliberately or recklessly, since the producer is required to
ascertain the age of performers in their depictions and to maintain records evidencing such
The identity documents required under 18 U.S.C.A. § 2257 must include the performer's
name and date of birth262 and may include documents such as a passport, driver's license or
Permanent Resident Card.263 The statute requires producers to “maintain the records required by
this section at his business premises, or at such other place as the Attorney General may by
regulation prescribe and shall make such records available to the Attorney General for inspection
at all reasonable times.”264
Certainly, providing a similar record-keeping requirement in the adult services context
could be helpful. Adult services sections provided by ISPs like Backpage could similarly be
required to maintain records concerning the identity and age of the persons advertised, as required
by 18 U.S.C.A. § 2257. This information would assist law enforcement in monitoring the adult
services industry to determine if and when illegal activity, such as child exploitation or
prostitution, is taking place. If this record-keeping concept were employed in the adult services
arena, owners of adult services establishments and ISPs could be required to keep records of the
identity and age of the person posting the escort, as well as the customers who access the ad,
since all are required to be over eighteen.265 Further, the ISP offering adult services could be
fined if it fails to follow the regulatory record keeping requirements.
257 18 U.S.C.A. § 2257 (West 2013) (Sexual exploitation and other abuse of children – record keeping requirement).
259 2257 Program–Verifying the Age of Performers in Sexually Explicit Matter, FED. BUREAU INVESTIGATION,
http://www.fbi.gov/about-us/investigate/vc_majorthefts/cac/2257-program (last visited Oct. 30, 2013).
260 Id. Children under the age of eighteen often are involuntarily forced to engage in sexually explicit conduct, visual depictions of
which constitute child pornography. Id. Child pornography could also constitute human trafficking, and cases have involved both
charges. See, e.g., Matthew Burns, Fayetteville Man Faces Federal Sex Trafficking Charges, WRAL.COM (May 24, 2013),
http://www.wral.com/fayetteville-man-charged-with-sex-trafficking/12482317/ (detailing the story of a man who was charged with
both federal sex trafficking and child pornography crimes). When a child is not only subjected to having his or her picture taken in a
sexually explicit manner, but the photos also depict someone sexually molesting the child, the crime of human trafficking, as well as
child pornography, may be charged. See, e.g., News Release, Immigr. & Customs Enforcement, Los Angeles-Area Woman Accused
of Child Sex Trafficking (Feb. 5, 2013), https://www.ice.gov/news/releases/1302/130205losangeles.htm. Conversely, labor trafficking
may be charged even if the perpetrator kept the pictures for himself, since a child may be presumed to have been forced or coerced
into the sex act that is depicted in the pictures, resulting in labor trafficking. See The Laws, supra note 24.
261 2257 Program, supra note 259.
262 18 U.S.C.A. § 2257(b).
263 28 C.F.R. § 75. 1(b) (2013).
264 18 U.S.C.A. § 2257(c).
265 Because newspapers also offer adult services ads, they could be required to collect and maintain such records as well.