[House Report 107-468]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-468
======================================================================
CHILD SEX CRIMES WIRETAPPING ACT OF 2002
_______
May 16, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 1877]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1877) to amend title 18, United States Code, to
provide that certain sexual crimes against children are
predicate crimes for the interception of communications, and
for other purposes, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 6
Committee Consideration.......................................... 6
Vote of the Committee............................................ 6
Committee Oversight Findings..................................... 8
Performance Goals and Objectives................................. 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Constitutional Authority Statement............................... 9
Section-by-Section Analysis and Discussion....................... 10
Changes in Existing Law Made by the Bill, as Reported............ 11
Markup Transcript................................................ 13
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Sex Crimes Wiretapping Act of
2002''.
SEC. 2. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE
INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.
(a) In General.--Section 2516(1)(c) of title 18, United States
Code, is amended--
(1) by striking ``2251 and 2252'' and inserting ``2251,
2251A, 2252, and 2252A''; and
(2) by inserting ``section 2423(b) (relating to travel with
intent to engage in a sexual act with a juvenile),'' after
``motor vehicle parts),''.
(b) Transportation for Illegal Sexual Activity.--Section 2516(1) of
title 18, United States Code, is amended--
(1) by striking ``or'' at the end of paragraph (q);
(2) by inserting after paragraph (q) the following:
``(r) a violation of section 2422 (relating to coercion and
enticement) and section 2423(a) (relating to transportation of
minors) of this title, if, in connection with that violation,
the intended sexual activity would constitute a felony
violation of chapter 109A or 110, including a felony violation
of chapter 109A or 110 if the sexual activity occurred, or was
intended to occur, within the special maritime and territorial
jurisdiction of the United States, regardless of where it
actually occurred or was intended to occur; or''; and
(3) by redesignating paragraph (r) as paragraph (s).
Purpose and Summary
H.R. 1877 will assist law enforcement officials in
investigating certain sex crimes that may involve children. The
bill will amend 18 U.S.C. Sec. 2516 to authorize the
interception of wire, oral, or electronic communications in the
investigation of: (1) the selling and buying of a child for
sexual exploitation under 18 U.S.C. Sec. 2251A; (2) child
pornography under 18 U.S.C. Sec. 2252A; (3) the coercion and
enticement to engage in prostitution or other illegal sexual
activity under 18 U.S.C. Sec. 2422; and (4) the transportation
of minors to engage in prostitution or other illegal sexual
activity and travel with intent to engage in a sexual act with
a juvenile under 18 U.S.C. Sec. 2423.
Background and Need for the Legislation
Wiretap Authority and Limitations
Congress enacted title III of the Omnibus Crime Control and
Safe Streets Act of 1968 \1\, as amended, that outlines what is
and is not permissible with regard to wiretapping and
electronic eavesdropping.\2\ Title III restrictions go beyond
Fourth Amendment constitutional protections and include a
statutory suppression rule to exclude evidence that was
collected in violation of title III.\3\ Except under limited
circumstances, it is unlawful to intercept oral, wire and
electronic communications.\4\ Accordingly under the act,
Federal and State law enforcement may use wiretaps and
electronic surveillance under strict limitations.\5\ Congress
created these procedures to allow limited law enforcement
access to private communications and communication records for
investigations while protecting Fourth Amendment rights. In
addition to these restrictions, Congress has only provided
authority to use a wiretap in investigations of specifically
enumerated crimes, commonly called ``wiretap predicates.'' \6\
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\1\ 18 U.S.C. Sec. Sec. 2510-2520.
\2\ Charles Doyle & Gina Stevens, Congressional Research Service,
Library of Congress, Privacy: An Overview of Federal Statutes Governing
Wiretapping and Electronic Eavesdropping, at 6 (2001).
\3\ 18 U.S.C. Sec. 2510-2520.
\4\ 18 U.S.C. Sec. 2511.
\5\ 18 U.S.C. Sec. 2518.
\6\ 18 U.S.C. Sec. 2516.
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H.R. 1877 Adds New Predicates But Does not Affect the Procedures on
Wiretap Use
H.R. 1877 would add four new wiretap predicates under
section 2516 of title 18 that relate to sexual exploitation
crimes against children. This bill in no way changes the strict
limitations on how and when wiretaps may be used.
18 U.S.C. Sec. 2516 requires that the Department of Justice
authorize all applications for Federal wiretaps \7\ and the
principal prosecuting attorney of any State or any political
subdivision must apply for wiretaps to a State court judge of
competent jurisdiction as defined in 18 U.S.C. Sec. 2510.\8\
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\7\ 18 U.S.C. 2516 (1)(``The Attorney General, Deputy Attorney
General, Associate Attorney General, or any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant Attorney
General or acting Deputy Assistant Attorney General in the Criminal
Division specially designated by the Attorney General, may authorize an
application. . . .'')
\8\ 18 U.S.C. Sec. 2516(2).
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18 U.S.C. Sec. 2518 also sets strict procedures for the use
of a wiretap. Section 2518(1) requires the application to be
made under written oath or affirmation to a judge of competent
jurisdiction. Section 2518(1)(b) requires that the application
set forth, among other things, ``a full and complete statement
of the facts and circumstances relied upon by the applicant, to
justify his belief that an order should be issued . . .'' These
facts should include, among other things, the ``details as to
the particular offense that has been, is being, or is about to
be committed'' and ``the identity of the person, if known,
committing the offense and whose communications are to be
intercepted.'' \9\
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\9\ 18 U.S.C. Sec. 2518(1)(b).
---------------------------------------------------------------------------
Section 2518(3) also includes requirements that the Judge
believe (1) ``there is probable cause for belief that an
individual is committing, has committed, or is about to commit
a particular offense enumerated in section 2516 of [title
18];'' (2) there is probable cause for belief that particular
communications concerning that offense will be obtained through
such interception; and (3) normal investigative procedures have
been tried and have failed or reasonably appear to be unlikely
to succeed if tried or to be too dangerous.\10\ Additionally,
law enforcement is required ``to minimize the interception of
communications not otherwise subject to interception [that is
non-criminal conversations] under this chapter, and must
terminate upon attainment of the authorized objective.'' \11\
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\10\ 18 U.S.C. Sec. 2518 (emphasis added).
\11\ 18 U.S.C. Sec. 2518(5).
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The Need for Adding Four New Wiretap Predicates
While some crimes involving the sexual exploitation of
children are already wiretap predicates, others are not. H.R.
1877 would close the gap in this key investigative tool used to
protect children. The interception of communications through
the use of wiretaps significantly enhances law enforcement
ability to prevent the sexual exploitation of children. The
goal of H.R. 1877 is to provide law enforcement with the tools
necessary to prevent the ultimate harm planned for the targeted
children.
Many of the witnesses who testified on cybercrime issues
before the Subcommittee on Crime, which was recently renamed
the Subcommittee on Crime, Terrorism, and Homeland Security,
have also specifically warned the Subcommittee about the
increasing threat of predators to children due to the increased
use of computers and the Internet. Computer technology and 24
million children using the Internet has afforded child
molesters with easy access to potential victims and new
opportunities to carry out their depraved crimes.
The FBI has testified that computer technology is becoming
the technique of choice for pedophiles and other sex predators
and these unthinkable crimes are becoming more and more
prevalent. Many of these crimes begin on the Internet--where
predators engage children in conversations within ``chat
rooms'' or send pornography to them to lower their natural
defenses to the advances of adults. Through these acts, a
predator attempts to entice the child to travel to meet them,
or offer to travel themselves to meet the child, with the
intent to engage in sexual activities with the child. Often
such Internet conversations are continued on the telephone.
On May 24, 2001, before the Subcommittee, the Deputy
Attorney General for Criminal Justice of the State of Texas
testified:
Unfortunately, one of the biggest problems is that
computer criminals are targeting the most vulnerable of
our society--children. While the Internet has
revolutionized the ways in which the world
communicates, there is an equally awesome dark side.
According to the Federal Bureau of Investigation, child
pornography was virtually extinct prior to the advent
of the Internet. However, with increased Internet usage
in America and the world there has been an alarming
increase in child pornography cases. According to the
U.S. Postal Service, 40 percent of the offenders who
have been arrested with child pornography downloaded
from the Internet have sexually assaulted minors. The
National Center for Missing and Exploited Children and
the Crimes Against Children Research Center's June 2000
report entitled Online Victimization: A Report on the
Nation's Youth presents startling and disturbing
results. Based on interviews with a nationally
representative sample of 1,501 youths ages 10 to 17 who
use the Internet regularly, the report found:
Approximately one in five children received a
sexual solicitation or approach over the Internet in
the last year.
One in thirty-three received an aggressive
sexual solicitation--a solicitor who asked to meet them
somewhere; called them on the telephone; sent them
paper mail, money, or gifts.
One in four children had an unwanted exposure
on the Internet to pictures of naked people or people
having sex in the last year.
One in seventeen children was threatened or
harassed.
Approximately one quarter of the children who
reported these incidents were distressed by them.
The interviewed children reported less than
10 percent of the sexual solicitations and only 3
percent of the unwanted exposure episodes to law
enforcement, the Internet Service Provider, or a
hotline.
Only about 25 percent of the youth sexually
solicited or approached told a parent and only 40
percent of those who experienced unwanted exposure to
sexual material told a parent.
Only 17 percent of youth and approximately 10
percent of parents could name a specific authority
(such as the FBI CyberTipline, or an Internet service
provider) to which they could make a report, although
more said they had ``heard of'' such places.
In households with Internet access, one third
of parents said they had filtering or blocking software
on their computer at the time they were
interviewed.\12\
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\12\ Fighting Cyber Crime--Hearing 1 of 3: Efforts by State and
Local Officials, Subcommittee on Crime, Committee on the Judiciary (May
24, 2001) statement of Deputy Attorney General McCaul, Criminal
Justice, State of Texas citing (David Finklehor, Kimberly J. Mitchell,
& Janis Wolak, Online Victimization: A Report on the Nation's Youth
(The National Center For Missing and Exploited Children 2000) (June
2000)).
At that hearing, the Chairman for the National District
Attorneys' Association testified that ``[n]othing is as truly
revolting and heartbreaking as to get into hidden files on a
computer disk only to find movies and still photos of a small
child being brutalized, degraded and scarred for life. The
demand for these images is an international scandal, which
starts each time with one child who needs the protection of
local police and prosecutors.'' \13\
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\13\ Fighting Cyber Crime--Hearing 1 of 3: Efforts by State and
Local Officials, Subcommittee on Crime, Committee on the Judiciary (May
24, 2001).
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At the second cybercrime hearing on June 12, 2001, the
Assistant Attorney General of the Criminal Division of the U.S.
Department of Justice testified that ``one of the most
disturbing facets of cybercrime is the exploitation and abuse
of children, whether through distribution of child pornography
over the Internet or through the horrific conduct of sexual
predators who operate online.'' \14\
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\14\ Fighting Cyber Crime--Hearing 2 of 3: Efforts by Federal Law
Enforcement Officials, Subcommittee on Crime, Committee on the
Judiciary (June 12, 2001).
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In 2000, a U.S. Customs Service representative testified
before the Subcommittee that the U.S. Customs Service has seen
a dramatic rise in child exploitation investigations. During
fiscal year 1999, its investigations increased 36 percent and
in 2000 it rose an alarming 81 percent. The U.S. Customs
Service also found a growing trend that those who download
child pornography tend to molest children. Often those who
trade in child pornography also arrange and travel to meet
minors.
Additionally, the growth in international travel has helped
to exploit children throughout the world. The ``[t]rafficking
in people, especially women and children, for prostitution and
forced labor is one of the fastest growing areas of
international criminal activity.'' \15\ Conservative estimates
hold the scope of the problem to involve more than 700,000
victims per year world-wide.\16\ The children and women are
forced into prostitution, the sex tourism industry and other
sexually exploitative criminal markets.
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\15\ Francis T. Miko & Grace Parks, Congressional Research Service,
Library of Congress, Trafficking in Women and Children: The U.S. and
International Response at 3 (2002).
\16\ Francis T. Miko & Grace Parks, Congressional Research Service,
Library of Congress, Trafficking in Women and Children: The U.S. and
International Response at 3 (2002).
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The Federal crimes that punish the acts which sex predators
commonly use to entice children into engaging in sex with them
are not currently wiretap predicates. Yet many times, some
aspect of the interaction between the predator and the child
will occur over the telephone. If law enforcement is unable to
monitor the predator's conversation with the child they are put
at a disadvantage in their effort to apprehend the predator
before he meets with and physically harms the child. H.R. 1877
would fill this gap in the investigative resources available to
law enforcement during these investigations.
Under current law, law enforcement officials are authorized
to seek court-authorized wiretaps when the investigation
indicates a violation of certain limited statutory provisions
dealing with the exploitation of children. Current law,
however, does not authorize the use of court-authorized
wiretaps to investigate cases involving the selling and buying
of a child for sexual exploitation under 18 U.S.C. Sec. 2251A;
``child pornography'' under 18 U.S.C. Sec. 2252A; coercion or
enticement into prostitution or other illegal sexual activities
under 18 U.S.C. Sec. 2422; and the transportation of minors to
engage in prostitution or other illegal activities and travel
with intent to engage in a sexual act with a juvenile under 18
U.S.C. Sec. 2423. Law enforcement is therefore at a
disadvantage in gathering evidence leading to the apprehension
of these predators before they physically harm their victims.
The bill will add these four crimes as new wiretap predicates.
The Committee believes that law enforcement officials
should be given every appropriate tool with which to protect
children from those who seek to harm them. Accordingly, the
Committee favorably reports this bill.
Hearings
The Committee's Subcommittee on Crime held one hearing on
H.R. 1877, the ``Child Sex Crimes Wiretapping Act of 2001,'' on
June 21, 2001. Testimony was received from three witnesses: the
Honorable Nancy Johnson (R-Conn.); Deputy Assistant Director
Francis A. Gallagher of Criminal Investigative Division of the
Federal Bureau of Investigation; and James Wardwell, Detective
Bureau of the New Britain Police Department, New Britain,
Connecticut.
Committee Consideration
On June 21, 2001, the Subcommittee on Crime met in open
session and ordered favorably reported the bill H.R. 1877, as
amended, by a voice vote, a quorum being present. On April 24,
2002, the Committee met in open session and ordered favorably
reported the bill H.R. 1877 without amendment by 20-4 vote, a
quorum being present.
Vote of the Committee
1. An amendment was offered by Mr. Scott on the addition of
wiretap authority for law enforcement officials investigating
violations of 18 U.S.C. Sec. 2422. Mr. Scott's amendment would
have required that wiretap authority for section 2422 would
only be allowed in cases involving a minor. The amendment
failed by voice vote.
2. An amendment was offered by Mr. Scott to require law
enforcement to prove that the child pornography contained
visual depictions that were of an identifiable child. The
amendment failed by a rollcall vote of 6-15.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Bryant......................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Conyers.....................................................
Mr. Frank.......................................................
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 6 15
----------------------------------------------------------------------------------------------------------------
3. Final passage. The motion to report favorably the bill
H.R. 1877 was adopted. The motion was agreed to by a rollcall
vote of 20-4.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Bryant......................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Conyers..................................................... X
Mr. Frank.......................................................
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 20 4
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
The bill is intended to fill the gap in the investigative
resources available to law enforcement and to assist law
enforcement in preventing sex predators who target children
from inflicting additional harm on children.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1877, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 30, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1877, the Child
Sex Crimes Wiretapping Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure.
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1877--Child Sex Crimes Wiretapping Act of 2001.
CBO estimates that implementing H.R. 1877 would not result
in any significant cost to the Federal Government. Enacting
H.R. 1877 could affect direct spending and receipts; therefore,
pay-as-you-go procedures would apply to the bill, but CBO
estimates that any such effects would not be significant. H.R.
1877 contains no intergovernmental or private-sector mandates
as defined in the Unfunded Mandates Reform Act and would not
affect the budgets of State, local, or tribal governments.
H.R. 1877 would add certain sexual crimes against children
to the list of offenses for which wiretaps and other
interceptions of communications can be authorized. Implementing
the bill could result in more successful investigations and
prosecutions in cases involving such crimes. CBO expects that
any increase in costs for law enforcement, court proceedings,
or prison operations would not be significant because of the
small number of cases likely to be affected. Any such
additional costs would be subject to the availability of
appropriated funds.
Because those prosecuted and convicted under H.R. 1877
could be subject to criminal fines, the Federal Government
might collect additional fines if the bill is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and later spent. CBO expects that any
additional receipts and direct spending would be negligible
because of the small number of cases involved.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, of the Constitution.
Section-by-Section Analysis and Discussion
Sec. 1. Short Title.
Section 1 of the bill states the short title of the act as
the ``Child Sex Crimes Wiretapping Act of 2002.''
Sec. 2. Authorization of Interception of Communications in the
Investigation of Sex Crimes Against Children.
Section 2 of the bill adds four sections of title 18 to the
list of wiretap predicates in section 2516 of title 18 of the
United States Code. While some crimes involving the sexual
exploitation of children are already wiretap predicates, the
Committee recognizes that the few that are not should be
included as wiretap predicates. The bill would authorize the
interception of wire, oral, or electronic communications in the
investigation of the selling and buying of a child for sexual
exploitation under title 18 U.S.C. Sec. 2251A, ``child
pornography'' under 18 U.S.C. Sec. 2252A, coercion and
enticement to engage in prostitution or other illegal sexual
activity under 18 U.S.C. Sec. 2422, and transportation of
minors to engage in prostitution or other illegal sexual
activity and travel with intent to engage in a sexual act with
a juvenile under 18 U.S.C. Sec. 2423.
The Committee believes that these crimes against children
are just as serious as the crimes that are already wiretap
predicates and that law enforcement must have adequate
investigative tools in these cases as well. Law enforcement
need this important tool to counter the proliferation of sexual
exploitation crimes against children.
The Committee is aware of the United States Supreme Court's
April 16, 2002 Ashcroft v. Free Speech Coalition \17\ decision
regarding the definition of child pornography in 18 U.S.C.
2256(8). In that decision, the Supreme Court held that the
portions of the definition of child pornography that prohibited
completely computer generated visual depictions of children or
visual depictions of young adults that were advertised to be
children engaging in sexually explicit activity were overbroad
and unconstitutional. The Supreme Court did not rule that
section 2252A, which covers computer generated pictures that
contain real children was unconstitutional. That provision of
the law was not challenged or considered by the Court.
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\17\ 535 U.S.__, 122 S. Ct. 1389 (2002).
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As it currently stands after the Ashcroft decision, a
pedofile or child pornographer cannot be charged with violating
the child pornography laws if the child pornography was wholly
generated from a computer. This means that the prosecutor will
have to prove that the material is a real child. It will be the
job of law enforcement to determine whether child pornography
contains real children or computer generated children to
prosecute child pornographers and child molesters. Wiretaps
will assist law enforcement in making this determination.
Accordingly, the Supreme Court decision makes the need for
court authorized wiretaps for these crimes all the more
necessary.
It is the Committee's view that the law should not make it
more difficult for police to fight child pornography and sexual
exploitation crimes against children than to fight other
crimes. After the Ashcroft decision, it is even more important
that Congress enact this legislation.
Section 2 also limits the wiretap predicates for 18 U.S.C.
Sec. Sec. 2422 and 2423(a) to activities that constitute
felonies and Federal crimes.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General,
Associate Attorney General, or any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General or acting Deputy Assistant Attorney General in
the Criminal Division specially designated by the Attorney
General, may authorize an application to a Federal judge of
competent jurisdiction for, and such judge may grant in
conformity with section 2518 of this chapter an order
authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a
Federal agency having responsibility for the investigation of
the offense as to which the application is made, when such
interception may provide or has provided evidence of--
(a) * * *
* * * * * * *
(c) any offense which is punishable under the
following sections of this title: section 201 (bribery
of public officials and witnesses), section 215
(relating to bribery of bank officials), section 224
(bribery in sporting contests), subsection (d), (e),
(f), (g), (h), or (i) of section 844 (unlawful use of
explosives), section 1032 (relating to concealment of
assets), section 1084 (transmission of wagering
information), section 751 (relating to escape), section
1014 (relating to loans and credit applications
generally; renewals and discounts), sections 1503,
1512, and 1513 (influencing or injuring an officer,
juror, or witness generally), section 1510 (obstruction
of criminal investigations), section 1511 (obstruction
of State or local law enforcement), section 1751
(Presidential and Presidential staff assassination,
kidnapping, and assault), section 1951 (interference
with commerce by threats or violence), section 1952
(interstate and foreign travel or transportation in aid
of racketeering enterprises), section 1958 (relating to
use of interstate commerce facilities in the commission
of murder for hire), section 1959 (relating to violent
crimes in aid of racketeering activity), section 1954
(offer, acceptance, or solicitation to influence
operations of employee benefit plan), section 1955
(prohibition of business enterprises of gambling),
section 1956 (laundering of monetary instruments),
section 1957 (relating to engaging in monetary
transactions in property derived from specified
unlawful activity), section 659 (theft from interstate
shipment), section 664 (embezzlement from pension and
welfare funds), section 1343 (fraud by wire, radio, or
television), section 1344 (relating to bank fraud),
sections [2251 and 2252] 2251, 2251A, 2252, and 2252A
(sexual exploitation of children), sections 2312, 2313,
2314, and 2315 (interstate transportation of stolen
property), section 2321 (relating to trafficking in
certain motor vehicles or motor vehicle parts), section
2423(b) (relating to travel with intent to engage in a
sexual act with a juvenile), section 1203 (relating to
hostage taking), section 1029 (relating to fraud and
related activity in connection with access devices),
section 3146 (relating to penalty for failure to
appear), section 3521(b)(3) (relating to witness
relocation and assistance), section 32 (relating to
destruction of aircraft or aircraft facilities),
section 38 (relating to aircraft parts fraud), section
1963 (violations with respect to racketeer influenced
and corrupt organizations), section 115 (relating to
threatening or retaliating against a Federal official),
section 1341 (relating to mail fraud), a felony
violation of section 1030 (relating to computer fraud
and abuse), section 351 (violations with respect to
congressional, Cabinet, or Supreme Court
assassinations, kidnapping, and assault), section 831
(relating to prohibited transactions involving nuclear
materials), section 33 (relating to destruction of
motor vehicles or motor vehicle facilities), section
175 (relating to biological weapons), section 1992
(relating to wrecking trains), a felony violation of
section 1028 (relating to production of false
identification documentation), section 1425 (relating
to the procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction
of naturalization or citizenship papers), section 1427
(relating to the sale of naturalization or citizenship
papers), section 1541 (relating to passport issuance
without authority), section 1542 (relating to false
statements in passport applications), section 1543
(relating to forgery or false use of passports),
section 1544 (relating to misuse of passports), or
section 1546 (relating to fraud and misuse of visas,
permits, and other documents);
* * * * * * *
(q) any criminal violation of section 229 (relating to
chemical weapons); or sections 2332, 2332a, 2332b, 2332d,
2339A, or 2339B of this title (relating to terrorism); [or]
(r) a violation of section 2422 (relating to
coercion and enticement) and section 2423(a) (relating
to transportation of minors) of this title, if, in
connection with that violation, the intended sexual
activity would constitute a felony violation of chapter
109A or 110, including a felony violation of chapter
109A or 110 if the sexual activity occurred, or was
intended to occur, within the special maritime and
territorial jurisdiction of the United States,
regardless of where it actually occurred or was
intended to occur; or
[(r)] (s) any conspiracy to commit any offense
described in any subparagraph of this paragraph.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, APRIL 24, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:09 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. [Presiding.] The Committee will be
in order.
[Intervening business.]
The next item on the agenda is H.R. 1877, the ``Child Sex
Crimes Wiretapping Act of 2001.''
[The bill, H.R. 1877, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Texas, Mr. Smith, Chairman of the Subcommittee on Crime,
Terrorism, and Homeland Security, for a motion.
Mr. Smith. Mr. Chairman, the Subcommittee on Crime,
Terrorism, and Homeland Security reports favorably the bill
H.R. 1877 with the single amendment in the nature of a
substitute and moves its favorable recommendation to the full
House.
[The amendment follows:]
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and open for amendment at any point. The
Subcommittee amendment in the nature of a substitute which the
Members have before them will be considered as read and open
for amendment at any point and be considered as the original
text for purposes of amendment.
The Chair recognizes the gentleman from Texas for 5
minutes.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, H.R. 1877, the ``Child Sex Crimes Wiretapping
Act of 2001,'' protects our Nation's most vulnerable children.
It was introduced by our colleague from Connecticut, Nancy
Johnson. While the Supreme Court's recent decision affects the
underlying definition of child pornography, it does not alter
the necessity for this legislation. If anything, it strengthens
the need for this bill.
Wiretapping may be the only way for law enforcement
officials to determine whether an actual child is depicted in
the materials before they take their case to court.
Last year, the Subcommittee on Crime heard testimony on the
need for H.R. 1877. This bill will assist law enforcement
officials in investigating certain sex crimes that usually
involve children. Because of advances in computer technology,
as well as 24 million children who regularly use the Internet,
child molesters have easy access to potential victims and new
opportunities to ply their trade.
The FBI has testified that computer technology is becoming
the technique of choice and that those types of crimes are
increasing.
In 2000, the U.S. Customs Service testified before the
Subcommittee on Crime that it has seen a dramatic rise in child
exploitation investigations. During fiscal year 1999, its
investigations increased 36 percent, and in 2000 they rose an
alarming 81 percent.
The American Medical Association released a study last
summer on children who regularly use the Internet. The study
found that nearly 1 in 5 children surveyed received an unwanted
sexual solicitation online in the last year, yet few reported
the action to police. We cannot ignore this growing problem.
Law enforcement officials must have the tools necessary to
deal with these crimes. Often, child molesters use the Internet
to make initial contact with a child. They then convince the
child to go offline and use a telephone to set up meetings with
the children.
Current Federal criminal law authorizes law enforcement
officials to wiretap some child sexual exploitation crimes but
not others. The interception of oral communications through
wiretaps significantly enhances investigations. H.R. 1877 will
eliminate this gap in our criminal law. This bill will provide
Federal law enforcement officials with a consistent application
of the laws regarding its investigations.
The bill adds four crimes that deal with child pornography:
the enticement of children to engage in illicit sex; the
transportation of children to engage in sex; and selling and
purchasing children for sexual exploitation.
I urge my colleagues to support this bill and yield back
the balance of my time.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott?
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you in this markup of H.R. 1877, the ``Child Sex Crimes
Wiretapping Act.'' While I'm pleased that some of the
limitations we developed when the bill was considered in the
last Congress were retained in the bill, I believe that the
present bill still represents an unnecessary expansion of
Federal wiretap authority, a procedure so invasive of the
rights of citizens in a free society that it can only be made
available for use under circumstances specifically approved by
Congress.
Current congressionally approved wiretap authority dates
back to the 1968 crime bill. The primary intent of the law was
to permit a limited use of electronic surveillance of organized
syndicates, but as a tool--but only as a tool of last resort
even under those circumstances. Since that time, the act has
been amended over a dozen times to meet the demand by law
enforcement for more power over citizens--over private
activities of citizens. Now we have over 50 predicate crimes
for which wiretap authority may be obtained.
Once a wiretap or bug is in place, it captures all
conversations, innocent as well as criminal. Estimates I've
seen indicate that more than 80 percent of the information
obtained by wiretaps is innocent information, often involving
family members and others who are not even the target of the
investigation.
In 1980, when the crime rate was substantially higher than
it has been in recent years, 81 Federal wiretaps were issued.
In 1999, 601 Federal wiretaps were issued. Moreover, all the
activities covered by the current bill would involve activities
which are State crimes where there is State wiretap authority.
The fact that a few States have chosen not to authorize
wiretaps and the limited number of State wiretaps that are
authorized compared to the number of Federal wiretaps attests
to the level of concern citizens have in giving law enforcement
such power over their private conversations.
Approximately 98 percent of all criminal prosecutions are
conducted at the State level. Moreover, the total annual number
of all State wiretaps is approximately the same as the Federal
wiretaps, 749 State wiretaps, 601 Federal in 1999.
So, Mr. Chairman it's clear that much of the more serious
activity for which the proponents of the legislation are
seeking to justify wiretap extensions are already covered by
wiretap authority under State laws.
Mr. Chairman, there is one specific problem with the
legislation that has occurred just in the last couple of days,
and that is, with the recent Supreme Court decision regarding
computer-generated images of children not being the same as
real children, that part of the wiretap authority needs to be
revisited.
So, Mr. Chairman, while we want to vigorously enforce laws
against child abuse and exploitation, I do not believe the case
is made for the level of extension of wiretap authority sought
in H.R. 1877. If we're going to extend it to the provisions
listed in the bill, we should do so only to the extent
necessary to get to the purported objects of the bill,
prosecuting sex crimes against children, so I've prepared
several amendments that I'll offer during the markup to make
sure we limit it to authority involving actual crimes.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Chairman Sensenbrenner. Without objection, all Members may
insert opening statements in the record at this point.
Are there amendments? The gentleman from New York.
Mr. Nadler. I don't have an amendment. I have a question.
Chairman Sensenbrenner. The gentleman strikes the last word
and recognized for 5 minutes.
Mr. Nadler. I just have a simple question. The bill, I
think, would enable--would grant wiretap authority to
determine--to investigate alleged crimes in the nature of
electronic portrayals of child sex, and that underlying
predicate felony was declared unconstitutional by the Supreme
Court. Has the bill been changed to reflect that?
Chairman Sensenbrenner. The gentleman from Texas?
Mr. Smith. Mr. Chairman, let me consult with staff here for
a second.
[Pause.]
Mr. Smith. Mr. Chairman, to respond to the gentleman from
New York, it's our understanding that Section 2252A----
Mr. Nadler. I can't hear the gentleman.
Mr. Smith. I'm sorry?
Mr. Nadler. I said I couldn't hear you.
Mr. Smith. Okay. To respond to the gentleman from New York,
it's our understanding that Section 2252A covers morphed images
that might include partially computer-generated but partial use
of an actual child and, therefore, is still constitutional.
Mr. Nadler. But it would not cover----
Mr. Smith. In other words, as long as a real child's
involved, it's going to be constitutional. The Supreme Court,
as the gentle-
man----
Mr. Nadler. It would not cover a purely computer-
generated--investigation of a purely computer-generated image?
Mr. Smith. That's correct.
Chairman Sensenbrenner. Are there amendments?
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. Does the gentleman from Virginia
have an amendment? The clerk will report the amendment.
The Clerk. Amendment to the amendment in the nature of a
substitute to H.R. 1877 offered by Mr. Scott. Page 2, line 4,
after the parentheses, insert ``against a minor.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, this limits the wiretap authority
to the title of the bill that it would be to help assist
prosecutions of those who commit crimes against minors. Not all
offenses under those sections include a minor, even attempted
acts such as attempted to--attempting to entice someone to
travel by bus to engage in an illegal sexual act would be
covered. No basis has been suggested for why a wiretap is
necessary in these cases, so I would urge my colleagues to
support the amendment which would limit the use of wiretap
authority to those involving minors.
I yield back.
Chairman Sensenbrenner. The gentleman from Texas?
Mr. Smith. Mr. Chairman, I oppose the amendment.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Smith. Mr. Chairman, while this amendment does not
adversely affect investigations for sexual exploitation of a
minor, it could inhibit investigations of such crimes as a sex
slave trade, and the gentleman from Virginia may not be aware
of that.
According to a March 2002 Congressional Research Service
report, ``The trafficking in people for prostitution and forced
labor is one of the fastest growing areas of international
criminal activity and one that is of increasing concern to the
U.S. and the international community. The overwhelming majority
of those trafficks are women and children. More than 700,000
people are believed to be trafficked each year worldwide, some
50,000 to the United States. Trafficking is now considered the
third largest source of profits for organized crime behind only
drugs and weapons, generating billions of dollars annually.''
Mr. Chairman, trafficking victims are raped, starved,
forced into drug use, and denied medical care. Law enforcement
officials must be given every tool available, including
wiretapping, to investigate and stop this trafficking. In
addition, the current list of crimes that law enforcement is
allowed to investigate with wiretaps do not have qualifiers.
Under this amendment, some crimes in Section 2422 qualify and
others do not. We need to have some consistency.
If the underlying law is too broad, then we should examine
that, but we should not hamper law enforcement officials by
narrowing the criminal code.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California seek recognition?
Ms. Waters. Strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. I would like to speak in support of the
gentleman from Virginia's amendment. It's easy to expand
wiretapping authority, and certainly since 9/11 we've been
doing a considerable amount of that.
This is the kind of legislation that would try and, I
suppose, signal to the public that we're getting tough on
people who would exploit children and that we're going to do
something about a certain kind of computer imaging that could
be harmful to children at the same time that we go through
these lightweight attempts to prove how we're protecting
children. We have the greatest scandal in this country going on
right now in the Catholic Church. Everybody is mute. I haven't
heard anybody say one word. Have you found a way to expand
wiretapping into an area where thousands of children have been
harmed and the numbers are rising each day, and they are over
at the Vatican trying to decide whether or not they should be
reporting what they know and when they know it? The Pope and
the cardinals are in a big discussion, the moral authorities of
the world are in a big discussion about whether or not they
should support sex crimes that are being committed by people of
the cloth.
Give me a break. This is not real. This is absolutely not
real.
Mr. Smith. Would the gentlewoman yield for a minute?
Ms. Waters. No, I don't think so. This is my day to just
kind of let it all out. No, I will not yield. I simply want to
draw to the attention of those who come in with these kinds of
bills that you're just taking up everybody's time. The Supreme
Court has ruled on this. And I don't know how much more
wiretapping you can do, but let's get real and get at what we
can do to make a Federal crime molestation of children who
place their--the parents and the children place their trust in
people that are supposed to be of high moral authority. If you
want to get real about protecting children, let's do something
real, and let's not continue to come in with this kind of
legislation that causes us to sit here for hours pretending
that we are in some kind of serious debate about protecting
children again. You don't even give recognition to the fact
that the Supreme Court just said this is silly, don't do this,
it's unconstitutional.
Again, I guess this is election year, and this kind of
stuff plays well in Timbuktu somewhere. But----
Mr. Scott. Will the gentlelady yield?
Ms. Waters.--let's not do this--no, I don't want to yield.
Let me just finish, even to my colleague.
I am profoundly disturbed about what is happening to
children and what we have learned about what is happening in
the Catholic Church. Those of us who are strict
constructionists of law, et cetera, can say but those are not
Federal crimes, it's up to the States to decide about
reporting.
Well, no. When we want to, we forget about States' rights.
We find ways to federalize everything that we want to
federalize. If the gentleman wants to withdraw this namby-pamby
little piece of nothing legislation and talk about some real
federalizing of crimes against children, I want to work with
you. I want to be law and order on this. I want to be as
conservative as you can get. Who would want to take me up on
that offer? If you don't, let's just stop this farce.
Now I yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amend-
ment----
Ms. Jackson Lee. Mr. Chairman?
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt?
Mr. Watt. I move to strike the last word and yield to Mr.
Scott.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Scott. I thank the gentleman for yielding. I just want
to say that the gentleman from Texas talked about some very
serious offenses, but the sections we're talking about also
include illegal but consensual acts of prostitution. That is
not the kind of offense for which you ought to authorize a
Federal wiretap. If States want to get into that, that would be
a State decision, but not Federal, making a Federal case. We
want to limit Federal wiretapping to serious cases, and this
amendment would at least limit it to those against a minor
which would focus on serious offenses and not on things that
the Federal Government ought not be using wiretap authority and
Federal investigations for.
I thank the gentleman for yielding.
Mr. Watt. Reclaiming my time, I certainly agree with Mr.
Scott and think we should pass his amendment, and I yield back
the balance of my----
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. Let me
acknowledge the concern, I think the legitimate concern, of
many of the groups who have stood in the doorway of protecting
the privacy and civil liberties of the people of this Nation
and that we should pride ourselves and the underlying purpose
and instructions of the Fourth Amendment, the right to
reasonable search and seizure.
I think the amendment of the gentleman, for those who may
be supportive of this legislation--I happen to be one of those.
I am completely cognizant of sometimes the hypocrisy of what we
do here and the difficulty of balancing the rights of
individuals to try to make sense out of some kind of
legislation. I believe there should be a Federal statement on
the heinousness of sex crimes with children and as it relates
to the new electronic tool.
But what his legislation does, for those who are serious
about only referring this to children, it qualifies the
language to ensure that it deals with a minor because that's
who we're trying to protect, minors that may be solicited,
minors who get on Greyhound buses, minors who are picked up by
people like one of the constituents of mine who was picked up
by a lady that drove in from Detroit and got him halfway out of
the State on the basis of electronic communication and other
type activity.
So I think that a reasonable attempt by Mr. Scott--I know
his opposition, and I respect him for it. This is a very good
amendment that confines us to what many of us would like to be
confined to, and that is protecting children.
I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Virginia, Mr. Scott. Those in
favor will say aye? Opposed, no?
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments? The gentleman from Virginia,
Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment in the nature of a
substitute to H.R. 1877 offered by Mr. Scott. Page 1, line 10,
after ``2252A,'' insert ``violations involving an identifiable
minor.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes in support of his amendment.
Mr. Scott. Mr. Chairman, this amendment is fairly
straightforward. We're trying to limit the wiretap--Federal
wiretap authority to very serious crimes for which you need
probable cause of a very serious crime to get a wiretap. Last
week, the Supreme Court said that one of the code sections as a
predicate to getting a wiretap isn't even a crime. This would
limit the wiretap authority to at least those violations which
constitute a crime. Otherwise, without this amendment, you will
be allowing wiretap authority not only on frivolous crimes--not
serious crimes, but you've got wiretap authority when it isn't
even a crime. I would hope that this amendment would be
adopted.
I yield back.
Chairman Sensenbrenner. The gentleman from Texas?
Mr. Smith. Mr. Chairman, I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognize.
Mr. Smith. Mr. Chairman, this amendment would require law
enforcement officials to prove that the image is a real child
and not computer-generated prior to using the investigative
tool of a wiretap to help make that very determination.
This amendment would change Section 2252A covering the
transporting, transmission, mailing, receiving, and
distribution of child pornography. A wiretap is an
investigative tool that requires law enforcement officials to
demonstrate probable cause that a crime is being or is about to
be committed. Under the law, law enforcement officials are
authorized to use a wiretap to intercept wire, oral, or
electronic communications that may provide evidence of a crime
under 18 U.S.C.
After the Supreme Court case last week, a child
pornographer cannot be charged with violating the child
pornography laws if the child pornography was wholly generated
by a computer. This means that the prosecutor will have to
prove a real child is involved. Law enforcement officials must
prove that there is probable cause to suspect that an ongoing
crime or that the suspect is about to commit a crime. A wiretap
is authorized when an interception of a wire, oral, or
electronic communication may provide or has provided evidence
of a predicate crime. A wiretap is an investigative tool used
by law enforcement to collect evidence and prevent future
crimes.
Why would we want to make it more difficult for police to
fight child pornography than to fight other crimes? We cannot
expect law enforcement personnel to prove the case before
gathering the evidence. If law enforcement has a wiretap on a
suspected child pornographer and that pornographer states that
he is only using computer-generated images, the police would
have to shut down the wiretap.
After the Supreme Court case, it is even more important
that we do not pass this amendment. Law enforcement officials
must determine whether child pornography uses real children or
computer-generated children before prosecuting child
pornographers. Wiretaps will assist law enforcement in making
this very determination.
Mr. Chairman, I yield back.
Chairman Sensenbrenner. The question is on the----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Watt. Just briefly, it seems to me that we are treading
in an area that the Supreme Court just recently gave us some
guidance, and it seems to me that Mr. Scott's amendment seeks
to make the underlying bill comply with the recent Supreme
Court decision. So perhaps I could give Mr. Scott--yield to Mr.
Scott to comment on implications of this in light of the recent
Supreme Court decision in this area.
Mr. Scott. Thank you. I thank the gentleman for yielding.
The gentleman from Texas I think has indicated that you can't
even allege probable cause that a crime is being committed
before you want to go on a fishing expedition. You're using a
section that has been found not to even be a crime, and you're
going to use that section to authorize a Federal wiretap to go
searching around to see if you can see whether crimes are being
committed.
The predicate that we usually require is that you've got
probable cause that a crime is being committed. This--without
this amendment, you're getting a wiretap because you think
people are doing something you don't like them to do that isn't
even a crime. And so we wanted--we are trying to limit Federal
wiretap authority to serious crimes. Here you have a situation
where the Supreme Court just told you this week that what is
alleged in that section isn't even a crime, and you're still
trying to use it to get a Federal wiretap, and I think that
violates the----
Mr. Smith. Would the gentleman yield?
Mr. Scott.--entire principle of limiting wiretap authority
to serious crimes.
Mr. Watt. I'll yield if you can explain to me how you can
authorize a wiretap using as a predicate for the--for the
wiretap a law which the Supreme Court has now said is
unconstitutional. How can you do that?
Mr. Smith. Let me make two points, and I'll----
Mr. Watt. I'll yield to the gentleman.
Mr. Smith.--directly to your question. The first point is
that I know the gentleman from Virginia used the word, I think,
``fishing'' and ``searching.'' But we're not changing probable
cause. You still have to have probable cause before you can get
a----
Mr. Watt. For what, though? If you don't have an
underlying----
Mr. Smith. Right, and in this case----
Mr. Watt. If you don't have an underlying criminal
violation and the Supreme Court has said this is not a criminal
violation, how can you be on anything other than a fishing
expedition?
Mr. Smith. A couple of responses, if the gentleman will
continue to yield.
Mr. Watt. I'll yield.
Mr. Smith. First of all, I'm sure you're familiar with the
Supreme Court decision. It did not declare 2252A
unconstitutional. If anything, it clarified for us the need for
us to make sure that a real child, an actual child is involved
in the crime.
Mr. Watt. But isn't that exactly what Mr. Scott's amendment
does?
Mr. Smith. What it does----
Mr. Watt. Isn't that exactly what his amendment does? It
says ``involving an identifiable minor.''
Mr. Smith. I'd like to respond if the gentleman would let
me. What Mr. Scott's amendment does is to prevent us from
finding out--because we can't use the wiretap after probable
cause, it prevents us from finding out whether a real child has
been used or not. It makes it much difficult to prosecute child
pornography as defined by the Supreme Court. I don't understand
why we would want to make it more difficult to determine
whether a child pornographer is using a real child or not.
That's all we're----
Mr. Watt. It's not--I don't----
Mr. Smith.--talking about using the wiretap for.
Mr. Watt.--think it's a question of whether we want to make
it more or less. We must act within the confines of the law. We
can't just sit here in the Judiciary Committee, of all places,
and say we would like for it to be less difficult for police.
It's our responsibility to act within the confines of the law,
and this amendment seems to me to make us act within those
confines.
Now, we may not like that. I'd be the first to grant you,
you may not think that that's--you probably don't like the
Supreme Court's decision, but the Supreme Court has ruled on
this----
Mr. Smith. This isn't----
Mr. Watt.--there is no other court above the United States
Supreme Court in this country----
Mr. Smith. If the gentleman will yield, this is not an
attempt to get around the Supreme Court decision by any means
at all. It's actually an attempt to live within the Supreme
Court decision and be able to determine whether or not the
image generated has used a real child or has been computer-
generated. We're also not trying to change probable cause. All
we're doing is expanding the number of crimes that can be
detected by using a wiretap.
Chairman Sensenbrenner. The gentleman's time----
Mr. Smith. We're not changing the probable cause itself.
Chairman Sensenbrenner.--has expired. The question is on
the second amendment offered by the gentleman from Virginia,
Mr. Scott. Those in favor will say aye? Opposed, no.
The noes appear to have it----
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia?
Mr. Scott. I'd ask for a recorded vote.
Chairman Sensenbrenner. A recorded vote is ordered. Those
in favor of the Scott amendment will, as your names are called,
answer aye, those opposed no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Bryant?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
[No response.]
The Clerk. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
[No response.]
The Clerk. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
Mr. Berman. Pass.
The Clerk. Mr. Berman, pass. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members who wish to cast
and change their votes? The gentleman from Florida, Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Chairman Sensenbrenner. The gentleman from Tennessee, Mr.
Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the clerk will----
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are 6 ayes and 15 nays.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments? If not, the question is on
the Subcommittee amendment in the nature of a substitute. All
those in favor will say aye? Opposed, no?
The ayes appear to have it. The ayes have it, and the
amendment in the nature of a substitute is agreed to. The Chair
notes the presence of a reporting quorum.
The question occurs on the motion to report the bill H.R.
1877 favorably----
Mr. Smith. I'd like a recorded vote, Mr. Chairman.
Chairman Sensenbrenner.--as amended by the nature of a
substitute. Those in favor will say aye? Opposed, no?
The aye appears to have it. The aye has----
Mr. Smith. Mr. Chairman, I'd like a recorded vote.
Chairman Sensenbrenner. And a recorded vote is ordered.
Those in favor of reporting H.R. 1877 favorably will, as your
names are called, answer aye, those opposed no, and the clerk
will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Bryant?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
[No response.]
The Clerk. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Ms. Hart?
[No response.]
The Clerk. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there Members in the room who
wish to cast or change their votes? The gentleman from Florida,
Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the clerk will report--Mr.
Goodlatte? Mr. Goodlatte just walked into the room. The
gentleman from Virginia?
Mr. Goodlatte. Aye.
Mr. Issa. Mr. Chairman, how am I recorded?
Chairman Sensenbrenner. How is the gentleman from
California, Mr. Issa, recorded?
The Clerk. Mr. Issa, you're recorded as an aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? The clerk will try again.
The Clerk. Mr. Chairman, there are 20 ayes and 4 nays.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to. Without objection, the Chairman is authorized to
move to go to conference pursuant to House rules. Without
objection, the staff is directed to make any technical and
conforming changes. All Members will be given 2 days, as
provided by House rules, in which to submit additional
dissenting, supplemental, or minority views.