requirement for Hustler or "Debbie Does Dallas." The statute does not merely require that a producer have on record a basis for determining the age of the individual, but mandates that he also ascertain other names (including maiden names and aliases) and "such other identifying information as may be prescribed by regulation". Presumably, this statute is aimed in part at being able to locate persons who are depicted, which suggests that "other identifying information" could include address or telephone number.

There is simply no justification for requiring this level of disclosure for the production of presumptively lawful

materials.

In our view, the statute is not salvaged by the provision that this identifiable information may not be used "as evidence against any person with respect to any violation of law". The Justice Department notes that this "is constitutionally required to sustain the validity of the recordkeeping requirements" and relies on U.S. v. Freed 401 U.S. 601 (1971).

However, Freed

upheld certain recordkeeping requirements in regard to the transfer of handgrenades. Since the Supreme Court has never upheld the constitutional right to possess firearms, much less grenades, there was no inhibition of the exercise of a

constitutional right by requiring purchasers to disclose identifying information.

Here, however, if the model choose not

to give this information, the publication would not occur. These requirements, then, are a highly significant discouragement to

the production of all sexually-oriented material produced for any

purpose. This problem is exacerbated since the Justice

Department insists that failure to keep these records is a

violation of 18 U.S.C. 1001, furnishing of false information to a government official.

This problem is then compounded by creating a rebuttable presumption that if the records are not kept, a performer is in fact a minor in violation of Section 2251 (a) of Title 18, and that indeed all other performers in the matter were also minors. It seems to be more sensible to couch some ascertainment of legal age as an affirmative defense to prosecution under all sections of the Child Protection Act.

Similar presumptions are present in regard to Section 2252, prohibiting interstate transportation, mailing, or distribution of a visual depiction of a minor engaged in sexually explicit conduct. Under the proposal, if the matter did not contain a statement describing where the records could be examined, it would be presumed that everyone depicted therein was a minor. This is again an unfair and unconstitutional shift in the burden of proof to the producer of presumably lawful material.

Since these recordkeeping requirements are imposed in regard to any picture taken within the last twenty-five years, the chilling effect is even greater. A video retailer, for example, would be very nervous about distributing any film made prior to the year this provision went into effect, because it would lack the necessary certification and would open the retailer to all

the mischief worked by the presumption that all models in the

film were minors.

Section 104:

This provision would make the provisions of the Child Protection Act predicate offenses under the Racketeer Influenced and Corrupt Organizations statute. (RICO), 18 U.S.C. 1961 As you are aware, a case on whether obscenity as a predicate under state RICO statutes acts as a prior restraint will be argued next fall before the United States Supreme Court; in Fort Wayne Books Inc. v. Indiana. Although it could be argued that child exploitation is more obviously a crime than disseminating obscenity, the scope of forfeiture under these statutes would arguably be even broader than under the obscenity laws. Section 2252 (a) (2) of the Child Protection Act makes "receipt" of the material a crime. Would this mean that any person convicted of the requisite RICO predicate offenses would have the place of receipt (his business, her home) subject to seizure because it was the locus of the receipt of the proscribed material? We believe it is time for Congress to look at narrowing the items subject to forfeiture in these complex First Amendment cases, not expanding them. At the very least, it would be prudent to await the decision in Fort Wayne Books before including more speech-related crimes under RICO.

Section 201:

The provision in Section 201 (a) would make it a crime to "knowingly receive or possess with intent to distribute any

obscene" item which "has been shipped or transported in interstate or foreign commerce" at any time, even prior to enactment of this statute.

It does not contain any "commercial purpose" limitation, and indeed the Justice Department memorandum in support of this legislation specifically notes that it could reach even the "consumers of obscene material who also sell it or offer it for sale or transfer". If, for example, two neighbors routinely trade magazines from their personal collection of adult material, they would be liable for possible prosecution and two years imprisonment in a federal penitentiary under subsection (a) of this act. Further, the Department intends that the word "knowingly" mean only that the person must intend to act to receive the material in question and know of its general contents, not that he know it is obscene.

Essentially, this section would make virtually everything which is now a state or local obscenity violation, a federal crime. It does so by a presumption in Section 1469 (a) that material was "transported, shipped, or carried in interstate commerce" if the matter was produced in one state and is subsequently located in another state. This eviscerates the requirement in current law that interstate transportation must be demonstrated by the prosecution in an affirmative manner. This vast expansion of federal jurisdiction is particularly unwise since the very gravamen of obscenity offenses is that the materials violate local community standards. California and its progeny wisely hold that there is no "national

Miller v.

standard" for obscenity. It is precisely the meaning of Miller's "community standards" concept that no national arbiter, but

rather the local community, will determine what is sufficiently "patently offensive" to be regulable.

This section of H.R. 3889 radically alters the existing, and quite sufficient, balance of federal and local powers over obscenity. It is particularly unwise public policy to grant to the federal government the power to reach conduct of this sort which is not criminal under state law. Recently in Hawaii, for

example, the state Supreme Court in Hawaii v. Kam (January 8, 1988) ruled that the Hawaii Constitution protects the intrastate distribution of so-called "obscene" material on privacy grounds. Rejecting what are crabbed decisions by the United States Supreme Court which protect the right to possess obscenity, but not to receive it in public places, the Hawaii court found that the will of the people of the state of Hawaii was to "give each and every individual the right to control certain highly personal and intimate affairs of his own life" absent a "compelling state interest". The court found no such compelling interest in obscenity cases and concluded that: "[I]t is obvious that an adult person cannot read or view pornographic material in the privacy of his or her home if the government prosecutes the sellers of pornography...and consequently bans any commercial distribution". Wise or unwise, it is inappropriate to give the federal government greater power to make it difficult to obtain this material from outside the state. It is bad enough that a