[House Report 107-526]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-526
======================================================================
CHILD OBSCENITY AND PORNOGRAPHY PREVENTION ACT OF 2002
_______
June 24, 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
together with
DISSENTING VIEWS
[To accompany H.R. 4623]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4623) to prevent trafficking in child pornography
and obscenity, to proscribe pandering and solicitation relating
to visual depictions of minors engaging in sexually explicit
conduct, to prevent the use of child pornography and obscenity
to facilitate crimes against children, 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.................................................... 2
Purpose and Summary.............................................. 8
Background and Need for the Legislation.......................... 8
Hearings......................................................... 14
Committee Consideration.......................................... 14
Vote of the Committee............................................ 14
Committee Oversight Findings..................................... 15
Performance Goals and Objectives................................. 15
New Budget Authority and Tax Expenditures........................ 15
Congressional Budget Office Cost Estimate........................ 15
Constitutional Authority Statement............................... 17
Section-by-Section Analysis and Discussion....................... 17
Changes in Existing Law Made by the Bill, as Reported............ 28
Markup Transcript................................................ 40
Dissenting Views................................................. 93
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 Obscenity and Pornography
Prevention Act of 2002''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Obscenity and child pornography are not entitled to
protection under the First Amendment under Miller v.
California, 413 U.S. 15 (1973) (obscenity), or New York v.
Ferber, 458 U.S. 747 (1982) (child pornography) and thus may be
prohibited.
(2) The Government has a compelling state interest in
protecting children from those who sexually exploit them,
including both child molesters and child pornographers. ``The
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance,''
New York v. Ferber, 458 U.S. 747, 757 (1982) (emphasis added),
and this interest extends to stamping out the vice of child
pornography at all levels in the distribution chain. Osborne v.
Ohio, 495 U.S. 103, 110 (1990).
(3) The Government thus has a compelling interest in
ensuring that the criminal prohibitions against child
pornography remain enforceable and effective. ``[T]he most
expeditious if not the only practical method of law enforcement
may be to dry up the market for this material by imposing
severe criminal penalties on persons selling, advertising, or
otherwise promoting the product.'' Ferber, 458 U.S. at 760.
(4) In 1982, when the Supreme Court decided Ferber, the
technology did not exist to: (A) create depictions of virtual
children that are indistinguishable from depictions of real
children; (B) create depictions of virtual children using
compositions of real children to create an unidentifiable
child; or (C) disguise pictures of real children being abused
by making the image look computer generated.
(5) Evidence submitted to the Congress, including from the
National Center for Missing and Exploited Children,
demonstrates that technology already exists to disguise
depictions of real children to make them unidentifiable and to
make depictions of real children appear computer generated. The
technology will soon exist, if it does not already, to make
depictions of virtual children look real.
(6) The vast majority of child pornography prosecutions
today involve images contained on computer hard drives,
computer disks, and/or related media.
(7) There is no substantial evidence that any of the child
pornography images being trafficked today were made other than
by the abuse of real children. Nevertheless, technological
advances since Ferber have led many criminal defendants to
suggest that the images of child pornography they possess are
not those of real children, insisting that the government prove
beyond a reasonable doubt that the images are not computer-
generated. Such challenges will likely increase after the
Ashcroft v. Free Speech Coalition decision.
(8) Child pornography circulating on the Internet has, by
definition, been digitally uploaded or scanned into computers
and has been transferred over the Internet, often in different
file formats, from trafficker to trafficker. An image seized
from a collector of child pornography is rarely a first-
generation product, and the retransmission of images can alter
the image so as to make it difficult for even an expert
conclusively to opine that a particular image depicts a real
child. If the original image has been scanned from a paper
version into a digital format, this task can be even harder
since proper forensic delineation may depend on the quality of
the image scanned and the tools used to scan it.
(9) The impact on the government's ability to prosecute
child pornography offenders is already evident. The Ninth
Circuit has seen a significant adverse effect on prosecutions
since the 1999 Ninth Circuit Court of Appeals decision in Free
Speech Coalition. After that decision, prosecutions generally
have been brought in the Ninth Circuit only in the most clear-
cut cases in which the government can specifically identify the
child in the depiction or otherwise identify the origin of the
image. This is a fraction of meritorious child pornography
cases. The National Center for Missing and Exploited Children
testified that, in light of the Supreme Court's affirmation of
the Ninth Circuit decision, prosecutors in various parts of the
country have expressed concern about the continued viability of
previously indicted cases as well as declined potentially
meritorious prosecutions.
(10) In the absence of congressional action, this problem
will continue to grow increasingly worse. The mere prospect
that the technology exists to create computer or computer-
generated depictions that are indistinguishable from depictions
of real children will allow defendants who possess images of
real children to escape prosecution, for it threatens to create
a reasonable doubt in every case of computer images even when a
real child was abused. This threatens to render child
pornography laws that protect real children unenforceable.
(11) To avoid this grave threat to the Government's
unquestioned compelling interest in effective enforcement of
the child pornography laws that protect real children, a
statute must be adopted that prohibits a narrowly-defined
subcategory of images.
(12) The Supreme Court's 1982 Ferber v. New York decision
holding that child pornography was not protected drove child
pornography off the shelves of adult bookstores. Congressional
action is necessary to ensure that open and notorious
trafficking in such materials does not reappear.
SEC. 3. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.
(a) Section 2256(8)(B) of title 18, United States Code, is amended
to read as follows:
``(B) such visual depiction is a computer image or
computer-generated image that is, or is
indistinguishable (as defined in section 1466A) from,
that of a minor engaging in sexually explicit conduct;
or''.
(b) Section 2256(2) of title 18, United States Code, is amended to
read as follows:
``(2)(A) Except as provided in subparagraph (B), `sexually
explicit conduct' means actual or simulated--
``(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex;
``(ii) bestiality;
``(iii) masturbation;
``(iv) sadistic or masochistic abuse; or
``(v) lascivious exhibition of the genitals or
pubic area of any person;
``(B) For purposes of subsection 8(B) of this section,
`sexually explicit conduct' means--
``(i) actual sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex, or
lascivious simulated sexual intercourse where the
genitals, breast, or pubic area of any person is
exhibited;
``(ii) actual or lascivious simulated;
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic abuse; or
``(iii) actual or simulated lascivious exhibition
of the genitals or pubic area of any person;''.
(c) Section 2252A(c) of title 18, United States Code, is amended to
read as follows:
``(c)(1) Except as provided in paragraph (2), it shall be an
affirmative defense to a charge of violating this section that the
alleged offense did not involve the use of a minor or an attempt or
conspiracy to commit an offense under this section involving such use.
``(2) A violation of, or an attempt or conspiracy to violate, this
section which involves child pornography as defined in section
2256(8)(A) or (C) shall be punishable without regard to the affirmative
defense set forth in paragraph (1).''.
SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code, is amended--
(1) in subparagraph (C), by striking ``or'' at the end and
inserting ``and''; and
(2) by striking subparagraph (D).
(b) Chapter 110 of title 18, United States Code, is amended--
(1) by inserting after section 2252A the following:
``Sec. 2252B. Pandering and solicitation
``(a) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to provide or sell a visual
depiction to another, and who in connection therewith knowingly
advertises, promotes, presents, or describes the visual depiction with
the intent to cause any person to believe that the material is, or
contains, a visual depiction of a minor engaging in sexually explicit
conduct shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases involving a
prior conviction.
``(b) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to receive or purchase from
another a visual depiction that he believes to be, or to contain, a
visual depiction of a minor engaging in sexually explicit conduct shall
be subject to the penalties set forth in section 2252A(b)(1), including
the penalties provided for cases involving a prior conviction.
``(c) It is not a required element of any offense under this
section that any person actually provide, sell, receive, purchase,
possess, or produce any visual depiction.
``(d) The circumstance referred to in subsection (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.'';
(2) in the analysis for the chapter, by inserting after the
item relating to section 2252A the following:
``2252B. Pandering and solicitation.''.
SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.
(a) Chapter 71 of title 18, United States Code, is amended--
(1) by inserting after section 1466 the following:
``Sec. 1466A. Obscene visual depictions of young children
``(a) Whoever, in a circumstance described in subsection (d),
knowingly produces, distributes, receives, or possesses with intent to
distribute a visual depiction that is, or is indistinguishable from,
that of a pre-pubescent child engaging in sexually explicit conduct, or
attempts or conspires to do so, shall be subject to the penalties set
forth in section 2252A(b)(1), including the penalties provided for
cases involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection (d),
knowingly possesses a visual depiction that is, or is indistinguishable
from, that of a pre-pubescent child engaging in sexually explicit
conduct, or attempts or conspires to do so, shall be subject to the
penalties set forth in section 2252A(b)(2), including the penalties
provided for cases involving a prior conviction.
``(c) For purposes of this section--
``(1) the term `visual depiction' includes undeveloped film
and videotape, and data stored on computer disk or by
electronic means which is capable of conversion into a visual
image, and also includes any photograph, film, video, picture,
or computer or computer-generated image or picture, whether
made or produced by electronic, mechanical, or other means;
``(2) the term `pre-pubescent child' means that (A) the
child, as depicted, is one whose physical development indicates
the child is 12 years of age or younger; or (B) the child, as
depicted, does not exhibit significant pubescent physical or
sexual maturation. Factors that may be considered in
determining significant pubescent physical maturation include
body habitus and musculature, height and weight proportion,
degree of hair distribution over the body, extremity proportion
with respect to the torso, and dentition. Factors that may be
considered in determining significant pubescent sexual
maturation include breast development, presence of axillary
hair, pubic hair distribution, and visible growth of the sexual
organs;
``(3) the term `sexually explicit conduct' has the meaning
set forth in section 2256(2); and
``(4) the term `indistinguishable' used with respect to a
depiction, means virtually indistinguishable, in that the
depiction is such that an ordinary person viewing the depiction
would conclude that the depiction is of an actual minor engaged
in sexually explicit conduct. This definition does not apply to
depictions that are drawings, cartoons, sculptures, or
paintings depicting minors or adults.
``(d) The circumstance referred to in subsections (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(e) In a case under subsection (b), it is an affirmative defense
that the defendant--
``(1) possessed less than three such images; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof--
``(A) took reasonable steps to destroy each such
image; or
``(B) reported the matter to a law enforcement
agency and afforded that agency access to each such
image.
``Sec. 1466B. Obscene visual representations of pre-pubescent sexual
abuse
``(a) Whoever, in a circumstance described in subsection (e),
knowingly produces, distributes, receives, or possesses with intent to
distribute a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that--
``(1) depicts a pre-pubescent child engaging in sexually
explicit conduct, and
``(2) is obscene, or who attempts or conspires to do so,
shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection (e),
knowingly possesses a visual depiction of any kind, including a
drawing, cartoon, sculpture, or painting, that--
``(1) depicts a pre-pubescent child engaging in sexually
explicit conduct, and
``(2) is obscene,
``or who attempts or conspires to do so, shall be subject to the
penalties set forth in section 2252A(b)(2), including the penalties
provided for cases involving a prior conviction.
``(c) It is not a required element of any offense under this
section that the pre-pubescent child depicted actually exist.
``(d) For purposes of this section, the terms `visual depiction'
and `pre-pubescent child' have respectively the meanings given those
terms in seciton 1466A, and the term `sexually explicit conduct' has
the meaning given that term in section 2256(2)(B).
``(e) The circumstance referred to in subsection (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(f) In a case under subsection (b), it is an affirmative defense
that the defendant--
``(1) possessed less than three such images; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof--
``(A) took reasonable steps to destroy each such
image; or
``(B) reported the matter to a law enforcement
agency and afforded that agency access to each such
image.''; and
(2) in the analysis for the chapter, by inserting after the
item relating to section 1466 the following:
``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual
abuse.''.
(b)(1) Except as provided in paragraph (2), the applicable category
of offense to be used in determining the sentencing range referred to
in section 3553(a)(4) of title 18, United States Code, with respect to
any person convicted under section 1466A or 1466B of such title, shall
be the category of offenses described in section 2G2.2 of the
Sentencing Guidelines.
(2) The Sentencing Commission may promulgate guidelines
specifically governing offenses under section 1466A of title 18, United
States Code, provided that such guidelines shall not result in
sentencing ranges that are lower than those that would have applied
under paragraph (1).
SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES AGAINST
MINORS.
Chapter 71 of title 18, United States Code, is amended--
(1) by inserting at the end the following:
``Sec. 1471. Use of obscene material or child pornography to facilitate
offenses against minors
``(a) Whoever, in any circumstance described in subsection (c),
knowingly--
``(1) provides or shows to a person below the age of 16
years any visual depiction that is, or is indistinguishable
from, that of a pre-pubescent child engaging in sexually
explicit conduct, any obscene matter, or any child pornography;
or
``(2) provides or shows any obscene matter or child
pornography, or any visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child engaging
in sexually explicit conduct, or any other material assistance
to any person in connection with any conduct, or any attempt,
incitement, solicitation, or conspiracy to engage in any
conduct, that involves a minor and that violates chapter 109A,
110, or 117, or that would violate chapter 109A if the conduct
occurred in the special maritime and territorial jurisdiction
of the United States,
shall be subject to the penalties set forth in section 2252A(b)(1),
including the penalties provided for cases involving a prior
conviction.
``(b) For purposes of this section--
``(1) the term `child pornography' has the meaning set
forth in section 2256(8);
``(2) the terms `visual depiction', `pre-pubescent child',
and `indistinguishable' have the meanings respectively set
forth for those terms in section 1466A(c); and
``(3) the term `sexually explicit conduct' has the meaning
set forth in section 2256(2).
``(c) The circumstance referred to in subsection (a) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction or obscene matter by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction or obscene matter involved in
the offense has been mailed, or has been shipped or transported
in interstate or foreign commerce by any means, including by
computer, or was produced using materials that have been
mailed, or that have been shipped or transported in interstate
or foreign commerce by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.'';
(2) in the analysis for the chapter, by inserting at the
end the following:
``1471. Use of obscene material or child pornography to facilitate
offenses against minors.''.
SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
Section 2251 is amended--
(1) by striking ``subsection (d)'' each place it appears in
subsections (a), (b), and (c) and inserting ``subsection (e)'';
(2) by redesignating subsections (c) and (d), respectively,
as subsections (d) and (e); and
(3) by inserting after subsection (b) a new subsection (c)
as follows:
``(c)(1) Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces any minor
to engage in, or who has a minor assist any other person to engage in,
any sexually explicit conduct outside of the United States, its
possessions and Territories, for the purpose of producing any visual
depiction of such conduct, shall be punished as provided under
subsection (e).
``(2) The circumstance referred to in paragraph (1) is that--
``(A) the person intends such visual depiction to be
transported to the United States, its possessions, or
territories, by any means including by computer or mail;
``(B) the person transports such visual depiction to, or
otherwise makes it available within, the United States, its
possessions, or territories, by any means including by computer
or mail.''.
SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.
Sections 2251(e) (as redesignated by section 7(2)), 2252(b), and
2252A(b) of title 18, United States Code, are each amended by inserting
``chapter 71,'' immediately before each occurrence of ``chapter
109A,''.
SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED
INFORMATION.
(a) Section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032) is amended--
(1) in subsection (b)(1)--
(A) by inserting ``2252B,'' after ``2252A,''; and
(B) by inserting ``or a violation of section 1466A
or 1466B of that title,'' after ``of that title),'';
(2) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
(3) by amending subsection (f)(1)(D) to read as follows:
``(D) where the report discloses a violation of
State criminal law, to an appropriate official of a
State or subdivision of a State for the purpose of
enforcing such State law.'';
(4) by redesignating paragraph (3) of subsection (b) as
paragraph (4); and
(5) by inserting after paragraph (2) of subsection (b) the
following new paragraph:
``(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National Center
for Missing and Exploited Children is authorized to forward any
such report to an appropriate official of a state or
subdivision of a state for the purpose of enforcing state
criminal law.''.
(b) Section 2702 of title 18, United States Code is amended--
(1) in subsection (b)--
(A) in paragraph (6)--
(i) by inserting ``or'' at the end of
subparagraph (A)(ii);
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraph (C) as
subparagraph (B);
(B) by redesignating paragraph (6) as paragraph
(7);
(C) by striking ``or'' at the end of paragraph (5);
and
(D) by inserting after paragraph (5) the following
new paragraph:
``(6) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''; and
(2) in subsection (c)--
(A) by striking ``or'' at the end of paragraph (4);
(B) by redesignating paragraph (5) as paragraph
(6); and
(C) by adding after paragraph (4) the following new
paragraph:
``(5) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''.
SEC. 10. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held invalid, the remainder of this
Act, and the application of such provision to other persons not
similarly situated or to other circumstances, shall not be affected by
such invalidation.
SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.
Section 3486(a)(1)(C)(i) of title 18, United States Code, is
amended by striking ``the name, address'' and all that follows through
``subscriber or customer'' and inserting ``the information specified in
section 2703(c)(2)''.
Purpose and Summary
H.R. 4623, the ``Child Obscenity and Pornography Prevention
Act of 2002,'' addresses the April 16, 2002 Supreme Court
decision in Ashcroft v. the Free Speech Coalition \1\ to ensure
the continued protection of children from sexual exploitation.
In response to the Court decision, this bill narrows the
definition of child pornography, strengthens the existing
affirmative defense, amends the obscenity laws to address
virtual and real child pornography that involves visual
depictions of pre-pubescent children, creates new offenses
against pandering visual depictions as child pornography, and
creates new offenses against providing children obscene or
pornographic material.
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\1\ 122 S.Ct. 1389 (2002).
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Background and Need for the Legislation
The Ashcroft v. Free Speech Coalition
On April 16, 2002, the Supreme Court, in Ashcroft v. Free
Speech Coalition, held that two parts of the Federal definition
of child pornography in title 18 of the United States Code were
overbroad and unconstitutional. Those two provisions are 18
U.S.C. Sec. 2256(8)(B), which defined child pornography to
include wholly computer generated pictures that appear to be of
a minor engaging in sexually explicit conduct, and 18 U.S.C.
Sec. 2256(8)(D), which defines child pornography to include a
visual depiction where it is advertised, promoted, or
presented, to convey the impression that the material contains
a visual depiction of a minor engaging in sexually explicit
conduct.
This decision did not hold that all virtual child
pornography was protected by the First Amendment. For instance,
the Court mentions, in dicta, that ``[a]lthough morphed images
may fall within the definition of virtual child pornography,
they [morphed images] implicate the interests of real children
and are in that sense closer to the images in Ferber.'' \2\ In
New York v. Ferber, the Court found child pornography was not
entitled to First Amendment protection because of the State's
interest in protecting children.\3\ The Court reasoned that
``the use of [real] children as subjects of pornographic
materials is harmful to the physiological, emotional, and
mental health of the child.'' \4\ It should be noted that
computer technology did not exist in 1982 to create computer-
generated visual depictions that are indistinguishable from
depictions of real children.\5\
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\2\ Id. at 1397 (the Court discusses a third section of the
definition of child pornography under the Federal statute, which was
not challenged. That definition is under 18 U.S.C. Sec. 2256(8)(C) and
prohibits creating virtual images by morphing.)
\3\ 458 U.S. 747 (1982).
\4\ Id. at 758.
\5\ Hearing on the April 16, 2002 Supreme Court decision in
Ashcroft v. the Free Speech Coalition Before the House Subcomm.Crime,
Terrorism, and Homeland Security, Comm. on the Judiciary, 107th Cong.
(2002) (prepared statement of Ernest E. Allen, President & Chief
Executive Officer, National Center for Missing and Exploited Children).
---------------------------------------------------------------------------
Further, the Court did not hold that Congress was not
allowed to prohibit virtual child pornography when the
prohibition is narrowly-drawn to promote a compelling
government interest. In fact, the Court in its opinion,
expressly left that option open for Congress. The Court stated:
``We need not decide, however, whether the Government could
impose this burden on a speaker. Even if an affirmative defense
can save a statute from First Amendment challenge, here the
defense is incomplete and insufficient, even on its own
terms.'' \6\ Justice Thomas in his concurring opinion stated
that the ``Court does leave open the possibility that a more
complete affirmative defense could save a statute's
constitutionality, see ante, at 1405, implicitly accepting that
some regulation of virtual child pornography might be
constitutional.'' \7\ No member of the Court took exception
with his conclusion.
---------------------------------------------------------------------------
\6\ Free Speech Coalition, 122 S.Ct. at 1405 (2002).
\7\ Id. at 1407 (2002) (Thomas, J., concurring).
---------------------------------------------------------------------------
The Government's Compelling Interest to have Effective Prosecution of
those who Sexual Exploit Children
Congress clearly has a compelling interest to protect
children from sexual exploitation. That interest extends to the
prosecution of those who would or do exploit children.
A representative from the Department of Justice testified:
As Justice Thomas noted in his concurring opinion, ``if
technological advances thwart prosecution of `unlawful
speech,' the Government may well have a compelling
interest in barring or otherwise regulating some narrow
category of `lawful speech' in order to enforce
effectively laws against pornography made through the
abuse of real children.'' 122 S. Ct. at 1406-07
(Thomas, J., concurring in the judgment). Similarly,
Justice O'Connor noted in her opinion concurring in
part and dissenting in part that, ``given the rapid
pace of advances in computer-graphics technology, the
Government's concern is reasonable.'' Id. at 1409.
Moreover, to avert serious harms, Congress may rely on
reasonable predictive judgments, even when legislating
in an area implicating freedom of speech. See Turner
Broad. Sys. Inc. v. FCC, 520 U.S. 180, 210-11 (1997).
We believe that Congress has a strong basis for
concluding that the very existence of sexually explicit
computer images that are virtually indistinguishable
from images of real minors engaged in sexually explicit
conduct poses a serious danger to future prosecutions
involving child pornography. Indeed, we already have
some sense of the impact of the Court's decision. The
Ninth Circuit had invalidated the same provisions of
law in 1999, and all accounts indicate that the number
and scope of child pornography prosecutions brought by
our prosecutors in the Ninth Circuit has been adversely
impacted.\8\
---------------------------------------------------------------------------
\8\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong. (prepared statement of Dan Collins, Associate Deputy Attorney
General, Department of Justice).
Prosecutions are threatened because the vast majority of
child pornography prosecutions today involve images contained
on computer hard drives, computer disks, or related media. This
poses a serious problem for the effective prosecution of those
who sexually exploit children. Evidence submitted to the
Congress demonstrated that computer technology exists today to
disguise depictions of real children to make them
unidentifiable and to make depictions of real children appear
computer generated. Furthermore, the evidence illustrated that
the technology will soon exist, if it does not already, to make
depictions of virtual children look real and completely
indistinguishable. At a May 1, 2002 hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security, the
President and Chief Executive Officer (CEO) of the National
Center for Missing and Exploited Children (NCMEC) demonstrated
the difficulty in distinguishing depictions of real children
from computer-generated children. The NCMEC produced a 100
percent computer-generated picture with an ``off-the-shelf''
software product.\9\
---------------------------------------------------------------------------
\9\ Hearing on the April 16, 2002 Supreme Court decision in
Ashcroft v. the Free Speech Coalition Before the House Subcomm.Crime,
Terrorism, and Homeland Security, Comm. on the Judiciary, 107th Cong.
(2002).
---------------------------------------------------------------------------
Now, the mere possibility that this type of technology was
used provides sexual predators who utilized a computer with a
claim that the child pornography they possess does not contain
real children. Appeals for such convictions are occurring
throughout the Nation.
The San Antonio Express-News reported that on June 13, in a
``sharply worded order'' the U.S. District Judge refused to let
a doctor remain free pending appeal on his conviction of
possessing child pornography stating that the physician had
``manipulated the system,'' long enough in an attempt to delay
his punishment.\10\ The appeal came after the Free Speech
Coalition decision and challenged the conviction because the
government was not required to prove that the children depicted
in his pornographic images obtained online were real.\11\ In
the District Court order, the Judge did acknowledge that the
appeal raised a ``substantial question'' that emerged from the
Ashcroft v. Free Speech Coalition decision and ``that presents
a quandary for prosecutors and courts.'' \12\ The article noted
that similar challenges are pending across the Nation.\13\
---------------------------------------------------------------------------
\10\ Maro Robbins, Doc must serve in porn case, San Antonio
Express-News, June 2002.
\11\ Id.
\12\ Id.
\13\ Id.
---------------------------------------------------------------------------
The quandary is that, while there is no substantial
evidence that any of the child pornography images being
trafficked today were made in any other way than by the abuse
of real children, technological advances are leading many
criminal defendants to suggest otherwise. These defendants are
claiming that the images they possess are not those of real
children, insisting that the government prove beyond a
reasonable doubt that the images are not computer-generated.
This is not a new defense, but without a narrowly drafted
statute intended to prohibit the use of virtual child
pornography that an ordinary person viewing the depiction could
not distinguish from a depiction of a real child, it may be
impossible for the government to prosecute child pornography
cases involving computer images.
The possibility that technology exists to produce
depictions of virtual children identical to depictions of real
children not only threatens the prosecution of current and
future cases, but that of past cases. Compounding the problem
that such technology exists is the fact that a computer image
seized from a child pornographer is rarely a first-generation
product. These pictures are e-mailed over and over again or
scanned in from photographs of real children being abused and
exploited. The transmission of images over an e-mail system can
alter the image and make it impossible even for an expert to
know whether or not a particular image depicts a real child. If
the original image has been scanned from a paper version into a
digital format, this task can be even harder since proper
forensic delineation may depend on the quality of the image
scanned and the tools used to scan it.
To prove a child is real will require identifying the
actual child. This is usually impossible. Many of the
victimized children are from third world countries.
Moreover, the existence of computer generated images of
child pornography that are indistinguishable from depictions of
real children will bolster the child pornography market and
those who abuse children to produce such pictures. The majority
opinion in Free Speech Coalition stated, in dicta, that ``if
virtual images were identical to illegal child pornography, the
illegal images would be driven from the market by the
indistinguishable substitutes.'' \14\ Contrary to that belief,
the President and CEO of NCMEC ``believe[s] that the Court's
decision will result in the proliferation of child pornography
in America, unlike anything we have seen in more than twenty
years.'' \15\ He concluded that ``as a result of the Court's
decision, thousands of children will be sexually victimized,
most of whom will not report the offense.'' \16\
---------------------------------------------------------------------------
\14\ 122 S.Ct. at 1404.
\15\ Hearing on the April 16, 2002 Supreme Court decision in
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong. (2002) (prepared statement of Ernest E. Allen, President & Chief
Executive Officer, National Center for Missing and Exploited Children).
\16\ Id.
---------------------------------------------------------------------------
The Court stated that ``[f]ew pornographers would risk
prosecution by abusing real children if fictional, computerized
images would suffice.'' \17\ This conclusion is simply wrong.
The individuals who produce, trade, and exchange child
pornography are rarely profit motivated. Pictures of real
children being abused are sold, but they are also traded and
displayed--they are trophies and signs of validation for
deviant behavior. While the Supreme Court has certainly opened
the door for the adult entertainment industry to enter the
child pornography market, legalizing virtual child pornography
will not reduce the market for real children.
---------------------------------------------------------------------------
\17\ Free Speech Coalition, 122 S.Ct. 1389, 1404 (2002).
---------------------------------------------------------------------------
Rather, the result will be a market that contains both real
and virtual children (as it does now). The only difference is
that now child molesters will be able to hide their abuse with
altered or merely e-mailed photographs of their victims and the
market will no longer be underground but will return to the
public ``adult book stores.''
Child pornography--virtual or otherwise--is detrimental to
the nation's most precious and vulnerable asset--our children.
Regardless of the method of its production, child pornography
is used to promote and incite deviant and dangerous behavior in
our society. As the President and CEO of the NCMEC testified
``there is compelling evidence that visual depictions of
sexually explicit conduct involving children cause real
physical, emotional and psychological damage not only to
depicted children but also to non-depicted children. It is just
as insidious, whether it is a photographic record of a child's
actual victimization, or a photographic depiction used as a
tool or device to subsequently victimize other children.'' \18\
---------------------------------------------------------------------------
\18\ Hearing on the April 16, 2002 Supreme Court decision in
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong.(2002) (prepared statement of Ernest E. Allen, President & Chief
Executive Officer, National Center for Missing and Exploited Children)
---------------------------------------------------------------------------
Sex predators produce, trade, and use child pornography for
several insidious purposes. Pedophiles not only like to create
a permanent record for arousal and gratification, but also like
to trade these pictures with other pedophiles to validate their
actions. Additionally, sex offenders use child pornography to
lower children's inhibitions to make them believe that such
behavior is acceptable and normal. There are also those who
sell it for profit.\19\
---------------------------------------------------------------------------
\19\ Child Pornography: The Criminal-Justice-System Response, the
American Bar Association Center for Children and the Law for the
National Center for Missing & Exploited Children (March 2001) p.6.
---------------------------------------------------------------------------
Prior to 1982, child pornography lined the shelves of many
``adult'' entertainment stores. This changed after the 1982
Supreme Court's New York v. Ferber decision that found child
pornography was not entitled to First Amendment protection.\20\
In Ferber, the Court found that: ``[i]t is evident beyond the
need for elaboration that a State's interest in `safeguarding
the physical and psychological well-being of a minor' is
`compelling.' '' \21\ Further the Court found that: ``[t]he
distribution of photographs and films depicting sexual activity
by juveniles is intrinsically related to the sexual abuse of
children in at least two ways. First, the material produced are
a permanent record of the children's participation and the harm
to the child is exacerbated by their circulation. Second, the
distribution network for child pornography must be closed if
the production of material which requires the sexual
exploitation of children is to be effectively controlled.''
\22\
---------------------------------------------------------------------------
\20\ 458 U.S. at 764.
\21\ Id. at 756-757(citing Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 607 (1982)).
\22\ Id. at 759.
---------------------------------------------------------------------------
While child pornography disappeared from bookstores
following Ferber, it did not disappear from existence. \23\ The
child pornography market merely went underground, but this
underground market was spurred by the advent of the
Internet.\24\ Nevertheless, law enforcement had begun to make
enormous strides in the enforcement and prosecution of child
pornography crimes.\25\
---------------------------------------------------------------------------
\23\ Hearing on the April 16, 2002 Supreme Court decision in
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong. (2002) (prepared statement of Ernest E. Allen, President & Chief
Executive Officer, National Center for Missing and Exploited Children)
\24\ At a May 24, 2001 before the Subcommittee, the Deputy Attorney
General for Criminal Justice of the State of Texas testimony
(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.)
\25\ Hearing on the April 16, 2002 Supreme Court decision in
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong.______-______ (2002) (prepared statement of Ernest E. Allen,
President & Chief Executive Officer, National Center for Missing and
Exploited Children that, ``The FBI created its Innocent Images Task
Force. The Customs Service expanded its activities through its
CyberSmuggling Center. The Postal Inspection Service continued and
enhanced its strong attack on child pornography. The Congress funded
thirty Internet Crimes Against Children Task Forces at the state and
local levels across the country. Child pornography prosecutions have
increased an average of 10% per year in every year since 1995.'')
---------------------------------------------------------------------------
Again, the Government has a compelling interest in
protecting children from those who sexually exploit them,
including both child molesters and child pornographers. The
Supreme Court in New York v. Ferber, concluded that ``[t]he
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance.''
\26\ In Osborne v. Ohio, the Court recognized that this
compelling state interest extends to stamping out the vice of
child pornography ``at all levels in the distribution chain.''
\27\
---------------------------------------------------------------------------
\26\ 458 U.S. at 757.
\27\ 495 U.S. 103, 110 (1990)
---------------------------------------------------------------------------
It follows that the Government has a compelling interest to
ensure that the criminal prohibitions against child pornography
remain enforceable and effective. As the Court stated in
Ferber, ``[t]he most expeditious if not the only practical
method of law enforcement may be to dry up the market for this
material by imposing severe criminal penalties on persons
selling, advertising, or otherwise promoting the product.''
\28\
---------------------------------------------------------------------------
\28\ 458 U.S. at 760.
---------------------------------------------------------------------------
It became apparent in the 1990's that advances in technoloy
threatened the Government's compelling state interest in
protecting real children through the effective prosecution of
the child pornography laws that cover the visual depictions of
real children. In 1996, the Congress attempted to address this
concern with the Child Pornography Prevention Act.\29\ The 1996
language included a prohibition of any virtual depictions as
well as pictures of youthful-looking adults. The Supreme Court
found the 1996 statutory language overbroad, and therefore,
unconstitutional.
---------------------------------------------------------------------------
\29\ Pub. L. No. 104-208, Div. A, Title I, Sec. 101(a), 110 Stat.
3009-28 (codified as amendment at 18 U.S.C. 2252A(1996)).
---------------------------------------------------------------------------
Unless we amend the statute, this Country faces a
proliferation of child pornography. At risk are the
prosecutions against child pornographers who are frequently
child molesters.\30\
---------------------------------------------------------------------------
\30\ Andres E. Hernandex, Psy.D. Federal Bureau of Prisons, Self-
Reported Contact Sexual Offenses by Participants in the Federal Bureau
of Prisons' Sex Offender Treatment Program: Implications for Internet
Sex Offenders. (In November 2000, the Federal Bureau of Prisons
released a study on Internet sex offenders who used the Internet to
download, trade, and distribute child pornography as well as offenders
who lure children for sexual abuse and exploitation. The study examined
two groups: those convicted of sexual contact crimes against children
and those convicted of nonsexual contact crimes against children. The
nonsexual contact crimes consisted of those convicted under the child
pornography laws and those convicted of traveling to meet a child with
the intent to sexually exploit that child. Of the 90 subjects of the
study 66 were convicted of crimes that did not include sexual contact.
Out of the 66 who were convicted of non-contact crimes, 62 were still
related to the sexual exploitation of children through child
pornography or traveling to meet a child with the intent to sexually
abuse a child. Of the 62, 49 were convicted of child pornography
(trading or possessing child pornography) and 13 were convicted for
traveling to meet a child. None of those convicted were producers of
pornography. Of the 62 convictions for non-contact crimes against
children, 76 percent of offenders admitted to sexually abusing or
exploiting a child. These offenders admitted to an average of 30.5
victims per offender.)
---------------------------------------------------------------------------
In any criminal case, the prosecution must prove beyond a
reasonable doubt that a crime was committed. A prosecutor would
face an impossible burden if a distinction must be proved
between virtual child pornography, which may include parts of
real children or be completely generated by a computer but
indistinguishable from a real child, and child pornography that
depicts an actual child or part of an actual child when the
child is still identifiable.
The section-by-section analysis of this report describes in
more detail how this legislation addresses the Supreme Court's
concerns. Briefly, however, this legislation narrows the
definition in significant ways and strengthens the affirmative
defense. The Court gave the Congress an opportunity to
addresses these concerns, and the Congress has an obligation to
do so.
Hearings
The Committee's Subcommittee on Crime, Terrorism, and
Homeland Security held 2 days of hearings on H.R. 4623.
Testimony was received on May 1, 2002, from three witnesses:
(1) Michael J. Heimbach, Unit Chief, Crimes Against Children
Unit, Federal Bureau of Investigation; (2) Ernie Allen,
President and Chief Executive Officer for the National Center
for Missing & Exploited Children; and (3) Lt. Bill Walsh, with
the Dallas Internet Crimes Against Children Taskforce .
Testimony was received on May 9, 2002, from one witness: Daniel
Collins, Associate Deputy Attorney General, Office of the
Attorney General, U.S. Department of Justice.
Committee Consideration
On May 9, 2002, the Subcommittee on Crime, Terrorism, and
Homeland Security met in open session and ordered favorably
reported the bill H.R. 4623, as amended, a voice vote, a quorum
being present. On May 15, 2002, the Committee met in open
session and ordered favorably reported the bill H.R. 4623 with
amendment by a recorded vote of 22 to 3, a quorum being
present.
Vote of the Committee
1. Final Passage. The motion to report favorably the bill
H.R. 4623 was adopted. The motion was agreed to by rollcall
vote of 22 to 3.
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. Chabot...................................................... X
Mr. Barr........................................................
Mr. Jenkins..................................................... X
Mr. Cannon......................................................
Mr. Graham...................................................... X
Mr. Bachus......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 22 3
----------------------------------------------------------------------------------------------------------------
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
H.R. 4623 does not authorize funding. Therefore, clause
3(c) of rule XIII of the Rules of the House of Representatives
is inapplicable.
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. 4623, 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, June 24, 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. 4623, the Child
Obscenity and Pornography Prevention Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for Federal costs), who can be reached at 226-2860,
and Jean Talarico (for the private-sector impact), who can be
reached at 226-2940.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 4623--Child Obscenity and Pornography Prevention Act of 2002.
H.R. 4623 would establish new Federal crimes and increase
penalties for existing crimes relating to child pornography.
CBO estimates that implementing the bill would not result in
any significant cost to the Federal Government. Because
enactment of H.R. 4623 could affect direct spending and
receipts, pay-as-you-go procedures would apply to the bill;
however, CBO estimates that any impact on direct spending and
receipts would not be significant.
Because H.R. 4623 would establish new Federal crimes, the
Government would be able to pursue cases that it otherwise
would not be able to prosecute. CBO estimates that any increase
in costs for law enforcement, court proceedings, or prison
operations would not be significant because of the small number
of additional cases likely to be affected. Any such costs would
be subject to the availability of appropriated funds.
Since those prosecuted and convicted under H.R. 4623 could
be subject to criminal fines, the Federal Government might
collect additional fines if the legislation 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 affected.
H.R. 4623 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on State, local, or tribal governments. The bill would
impose a private-sector mandate, as defined in UMRA, by
expanding reporting requirements on electronic communication
service providers to include additional activities related to
child pornography. Since those service providers are currently
required to report many such activities violating the law, CBO
estimates that the costs to report the additional activities
would not exceed the annual threshold specified in UMRA ($115
million in 2002, adjusted annually for inflation).
The CBO staff contacts for this estimate are Mark Grabowicz
(for Federal costs), who can be reached at 226-2860, and Jean
Talarico (for the private-sector impact), who can be reached at
226-2940. 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.
The short title is the ``Child Obscenity and Pornography
Prevention Act of 2002.''
SEC. 2. FINDINGS
Congress finds the following:
(1) Obscenity and chid pornography are not entitled
to protection under the First Amendment, and thus may
be prohibited.
(2) The Government has a compelling interest in
protecting children from those who sexually exploit
them, including both child molesters and child
pornographers.
(3) The Government thus has a compelling interest in
ensuring that the criminal prohibitions against child
pornography remain enforceable and effective.
(4) In 1982, when the Supreme Court decided New York
v. Ferber, 458 U.S. 747, technology did not exist to:
(A) create depictions of virtual children that are
indistinguishable from depictions of real children; (B)
create depictions of virtual children using
compositions of real children to create an
unidentifiable child; or (C) disguise pictures of real
children being abused by making the image look computer
generated.
(5) Evidence submitted to Congress demonstrates that
today technology exists to disguise depictions of real
children to make them unidentifiable and to make
depictions of real children appear computer generated.
The technology will soon exist, if it does not already,
to make depictions of virtual children look real.
(6) The vast majority of child pornography
prosecutions today involve images contained on computer
hard drives, computer disks, and or related media.
(7) There is no substantial evidence that any of the
child pornography images being trafficked today were
made other than by the abuse of real children.
Nevertheless, technological advances since Ferber have
led many criminal defendants to suggest that the images
of child pornography they possess are not those of real
children, insisting that the government prove beyond a
reasonable doubt that the images are not computer
generated. Such challenges will likely increase after
the Ashcroft v. Free Speech Coalition decision.
(8) Child pornography circulating on the Internet
has, by definition, been digitally uploaded or scanned
into computers and has been transferred over the
Internet, often in different file formats, from
trafficker to trafficker. An image seized from a
collector of child pornography is rarely a first-
generation product, and the retransmission of images
can alter the image so as to make it difficult for even
an expert conclusively to opine that a particular image
depicts a real child. If the original image has been
scanned from a paper version into a digital format,
this task can be even harder since proper forensic
delineation may depend on the quality of the image
scanned and the tools used to scan it.
(9) The impact of the Government's ability to
prosecute child pornography offenders is already
evident. The Ninth Circuit has seen a significant
adverse effect on prosecutions since the 1999 Ninth
Circuit Court of Appeals decision in Free Speech
Coalition. After that decision, prosecutions generally
have been brought in the Night Circuit only in the most
clear-cut cases in which the government can
specifically identify the child in the depiction or
otherwise identify the origin of the image. This is a
fraction of meritorious child pornography cases. The
National Center for Missing and Exploited Children
testified that, in light of the Supreme Court's
affirmation of the Ninth Circuit decision, prosecutors
in various parts of the country have expressed concern
about the continued viability of previously indicted
cases as well as declined potentially meritorious
prosecutions.
(10) In the absence of congressional action, this
problem will continue to grow increasingly worse. The
mere prospect that the technology exists to create
computer or computer-generated depictions that are
indistinguishable from depictions of real children will
allow defendants who possess images of real children to
escape prosecution, for it threatens to create a
reasonable doubt in every case of computer images even
when a real child is abused. This threatens to render
child pornography laws that protect real children
unenforceable.
(11) To avoid this grave threat to the Government's
unquestioned compelling interest in effective
enforcement of the child pornography laws that protect
real children, a statute must be adopted that prohibits
a narrowly-defined subcategory of images.
(12) The Supreme Court's 1982 Ferber v. New York
decision holding that child pornography was not
protected by the First Amendment drove child
pornography off the shelves of adult bookstores.
Congressional action is necessary to ensure that open
and notorious trafficking in such materials does not
reappear.
SEC. 3. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.
Sections Sec. Sec. 2251-2260 of title 18, United States
Code, contains prohibitions against sexual exploitation of
children including child pornography. Section 2251 makes it a
Federal crime to use a minor to make child pornography if the
pornography is connected to interstate or foreign commerce.
Section 2252 makes it a crime to knowingly (1) transport or
ship child pornography; (2) receive or distribute child
pornography; or (3) reproduce child pornography for
distribution in interstate or foreign commerce by any means
including by computer or through the mail. Additionally,
Sec. 2252 makes it a crime to possess child pornography.
In 1996, Congress amended the Federal prohibitions against
sexual exploitation of children to address technological
advances.\31\ These advances have assisted child pornographers
in every aspect of the crime--from production to transmission
to molestation. The Child Pornography Prevention Act of
1996,\32\ created new section 2252A of title 18. The
prohibitions in Sec. 2252A are basically the same as Sec. 2252,
but also include the use of a computer in the prohibitions
against the production, distribution, and possession of ``child
pornography.'' The Act also added a new definition of what
constitutes child pornography under Sec. 2256(8)(A)-(D).
---------------------------------------------------------------------------
\31\ S. Rep. No. 104-358, at 7 (1996).
\32\ Child Pornography Prevention Act of 1996, Pub. L. No. 104-208,
Div. A, Title I, Sec. 101(a), 110 Stat. 3009-28. (codified as amendment
at 18 U.S.C. 2252A(1996)).
---------------------------------------------------------------------------
On April 16, 2002, Supreme Court ruled that sections
2256(8)(B) and (D) were overbroad, and therefore
unconstitutional.\33\ This section narrows the definition for
section 2256(8)(B) in three significant ways under sections
3(a)-(c) of the bill. Section 2256(8)(D) is addressed in
section 4 of the bill.
---------------------------------------------------------------------------
\33\ Free Speech Coalition, 122 S.Ct. 1389.
---------------------------------------------------------------------------
Sec. 3(a)--tightening the definition of child pornography under
Sec. 2256(8)(B)
Section 3(a) of the bill amends 18 U.S.C. Sec. 2256(8)(B),
which currently defines ``child pornography'' to include ``any
visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture''
that ``is, or appears to be'' of a minor engaging in sexually
explicit conduct.
The Supreme Court held that the definition under
Sec. 2256(8)(B) was overbroad and unconstitutional because the
statute extended the definition of child pornography to include
visual depictions that were computer-generated and were of
adults who looked like minors.\34\ Because the statute covered
adults and computer-generated images as well as real children,
the Court found the statute went beyond Ferber. \35\ The Court
found in Ferber that child pornography was not entitled to
First Amendment protection because of the State's interest in
protecting children.\36\ The Court reasoned that ``the use of
[real] children as subjects of pornographic materials is
harmful to the physiological, emotional, and mental health of
the child.'' \37\
---------------------------------------------------------------------------
\34\ Free Speech Coalition, 122 S.Ct. 1389 (2002).
\35\ Id.
\36\ 458 U.S. 747 (1982).
\37\ Id. at 758.
---------------------------------------------------------------------------
In response to the Free Speech Coalition decision, section
3(a) of this bill narrows the definition of child pornography
so that ``[it] is a computer image or computer-generated image
that is, or is indistinguishable from, that of a minor engaging
in sexually explicit conduct.''
This provision narrows the definition in several ways.
First, it limits the definition to computer images or computer-
generated images. Second, it limits the definition by requiring
the virtual images be indistinguishable from real images.
Third, it uses the newly defined definition for ``sexually
explicit conduct.''
LIMITING THE DEFINITION TO COMPUTER IMAGES OR COMPUTER
GENERATED IMAGES
Section 3(a) of the bill narrows the definition of child
pornography under section 2256(8)(B) to depictions that are
``computer images'' (e.g., pictures scanned into a computer) or
``computer-generated images'' (e.g., images created or altered
with the use of a computer). The Supreme Court was concerned in
Free Speech Coalition that the breadth of the language would
prohibit legitimate movies like ``Traffic'' or plays like
``Romeo and Juliet.'' Limiting the definition to computer
images or computer-generated images will help to exclude
ordinary motion pictures from the coverage of ``virtual child
pornography.''
LIMITING THE DEFINITION BY REQUIRING THE VIRTUAL
IMAGES TO BE INDISTINGUISHABLE FROM REAL IMAGES.
This section further narrows the definition by replacing
the phrase ``appears to be'' with the phrase ``is
indistinguishable from.'' That new phrase addresses the Court's
concern that cartoon-sketches would be banned under the
statute. ``The substitution of `is indistinguishable from' in
lieu of `appears to be' more precisely reflects what Congress
intended to cover in the first instance, and eliminates an
ambiguity that infected the current version of the definition
and that enabled those challenging the statue to argue that it
`capture[d] even cartoon-sketches and statues of children that
were sexually suggestive.' '' \38\
---------------------------------------------------------------------------
\38\ Department of Justice Transmittal letter with draft
legislation to the Speaker of the House at 3 (May 2002). citing Free
Speech Coalition 122 S. Ct. at 1409 (O'Connor, J., concurring in part
and dissenting in part).
---------------------------------------------------------------------------
The term ``indistinguishable'' is defined in subsection
4(c) of the bill and provides that ``indistinguishable'' means
``virtually indistinguishable, in that the depiction is such
that an ordinary person viewing it would conclude the depiction
is of a minor engaged in sexually explicit conduct.'' To clear
up any ambiguity the bill further limits the definition of
``indistinguishable'' by clarifying that this definition does
not apply to depictions that are drawings, cartoons,
sculptures, or paintings depicting minors or adults.
LIMITING THE DEFINITION OF CHILD PORNOGRAPHY BY
NARROWING THE DEFINITION OF ``SEXUALLY EXPLICIT CONDUCT''
The bill further narrows the definition of child
pornography through an amendment to 18 U.S.C. Sec. 2256(2) that
requires a simulated image to be lascivious to constitute child
pornography under the new definition in 2256(8)(B). Thus, child
pornography that simulates sexually explicit conduct must be
lascivious as well as meet the other requirement of the
definition.
Sec. 3(b)--tightening the definition of ``sexually explicit conduct''
as it applies to virtual child pornography.
As mentioned above, subsection (b) attempts to further
tighten the definition of child pornography under
Sec. 2256(8)(B) by amending Sec. 2256(2) that defines
``sexually explicit conduct.'' The amendment adds a new section
creating a separate definition of ``sexually explicit conduct''
for child pornography under Sec. 2256(8)(B).
That new section of the definition covers both real and
simulated conduct as does the old criminal code provision. The
difference, however, is that the new section requires
``simulated'' conduct to be lascivious.
Sec. 3(c)--strengthening the affirmative defense under 18 U.S.C.
Sec. 2252A
The Supreme Court did not rule on the affirmative defense
in Sec. 2252A(c), which provides a defense for violations of
subsections 2252A(a)(1)-(4) where the person producing the
material used adults and did not distribute the material so as
to convey the impression that the material was child
pornography.
Subsection 3(c) amends the existing statutory provision in
the code to conform with the Supreme Court's holding by
replacing 18 U.S.C. Sec. 2252A(c), the affirmative defense for
violations of Sec. 2252A, with a statement that it shall be an
affirmative defense to a charge of violating this section that
the alleged offense did not involve the use of a minor engaging
in sexually explicit conduct or attempt to or conspire to
commit an offense involving such child pornography. Unlike the
current law, this defense applies to possession as well as the
other crimes under section 2252A.
The affirmative defense would only apply when the
production of the visual depiction did not involve a minor.
Additionally, while this defense applies to the child
pornography section, it would not apply to the old or new
obscenity provisions. Accordingly, the defense only applies
when no real child was used and when the materials are not
obscene. Producers, distributors, and possessors may still be
charged and convicted with obscenity charges under Chapter 71
of title 18, United States Code, including the new violations
under sections1466A and 1466B.
The committee finds that section 3(c) strengthens the
affirmative defense in existing law. If the existing
affirmative defense had been more complete, the Court left open
the possibility that the 1996 statute might have survived the
constitutional challenge, even though it was overbroad.
Specifically, the Court stated ``We need not decide, however,
whether the Government could impose this burden [of an
affirmative defense] on a speaker. Even if an affirmative
defense can save a statute from First Amendment challenge, here
the defense is incomplete and insufficient, even on its own
terms.'' \39\ Justice Thomas, in his concurring opinion, stated
that the ``Court does leave open the possibility that a more
complete affirmative defense could save a statute's
constitutionality.'' \40\ The Committee believes that such an
opening by the Court was an implicit acceptance that some
regulation of virtual child pornography might be
constitutional.
---------------------------------------------------------------------------
\39\ Free Speech Coalition, 122 S.Ct. at 1405.
\40\ Free Speech Coalition, 122 S.Ct. at 1407. (Thomas, J.,
concurring).
---------------------------------------------------------------------------
SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.
This section amends the law to address the Court's
conclusion that 18 U.S.C. Sec. 2256(8)(D) is overbroad and
unconstitutional. That section defined ``child pornography'' to
include ``any visual depiction, including any photography,
film, video, picture, or computer or computer-generated image
or picture'' that ``is advertised, promoted, presented,
described, or distributed in such a manner that conveys the
impression that the material is or contains a visual depiction
of a minor engaging in sexually explicit conduct.''
The Court found that this part of the definition of child
pornography was overbroad because it punishes even those
possessors who took no part in pandering and may not even have
been aware that it was once so pandered as child pornography.
Sec. 4(a)--eliminating subparagraph (D) in Sec. 2256(8) for the
definition of child pornography.
Section 4(a) of the bill deletes Sec. 2256(8)(D) in the
definition of ``child pornography,'' which the Supreme Court
found unconstitutional.\41\ The Court found this prohibition as
overbroad because it punishes even those possessors who took no
part in pandering. ``Once a work has been described as child
pornography, the taint remains on the speech in the hands of
subsequent possessors, making possession unlawful even though
the content otherwise would not be objectionable.'' \42\
---------------------------------------------------------------------------
\41\ Free Speech Coalition, 122 S.Ct. 1397.
\42\ Id. at 1398.
---------------------------------------------------------------------------
Sec. 4(b)--creating two new offenses for pandering related to child
pornography.
Section 4(b) adds a new section 2252B to title 18. This new
section of title 18 provides two new offenses related to child
pornography. Section 2252B(a) makes it an offense for a person
who offers, agrees, attempts, or conspires to provide or sell a
visual depiction to another, and who in connection therewith
knowingly advertises, promotes, presents, or describes the
visual depiction with the intent to cause any persons to
believe that the material is a visual depiction of a minor
engaging in sexually explicit conduct. This section makes it
illegal for anyone to pander material they are offering as
child pornography.
Section 2252B(b) makes it an offense for a person who
offers, agrees, attempts, or conspires to receive or purchase
from another person a visual depiction that he believes to be,
or to contain, a visual depiction of a minor engaging in
sexually explicit conduct.
Section 2252B(c) provides that the offense does not require
the element of actually providing, selling, receiving,
purchasing, possessing, or producing any visual depiction.
Section 2252(d) provides the circumstances for which Federal
jurisdiction would apply.
The Committee agrees with the Department of Justice's
position that this new section should resolve the
constitutional problems with the definition under section
2256(8)(D) as this section deals with inchoate offenses (i.e.,
attempt, conspiracy, solicitation) with respect to conduct that
is aimed at other unlawful conduct that is not constitutionally
protected and with the prohibition of advertising of an
unlawful transaction. An analogy the Department of Justice
presented is the example of criminalizing an individual
offering to provide or sell illegal drugs, even where the
offeror does not actually have such drugs in hand.\43\
---------------------------------------------------------------------------
\43\ Department of Justice Transmittal letter with draft
legislation to the Speaker of the House at 4 (May 2002) (citing Cf.
Ginzburg v. United States, 383 U.S. 463, 474-76 (1966) (materials can
be characterized as obscene based in part on the manner in which they
are marketed).
---------------------------------------------------------------------------
SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.
In addition to responding directly to the Court's
constitutional concerns, this bill adds new obscenity offenses
by adding two new sections in Chapter 71 of title 18. Section 5
of the bill would add new Sec. 1466A entitled Obscene visual
depictions of young children and new Sec. 1466B entitled
Obscene visual representations of pre-pubescent sexual abuse.
The Court found that the definition of child pornography under
the Federal statute went beyond speech that was obscene.
This more narrowly focused section ``takes into account the
fact that the Free Speech Coalition Court relied entirely on
post-pubescent materials in finding that the prior law was
substantially overbroad.'' \44\ ``Moreover, the Court
specifically noted in its opinion that the age of the child
depicted was an important consideration in determining whether
a particular depiction was constitutionally unprotected
obscenity: `Pictures of young children engaged in certain acts
might be obscene where similar depictions of adults, or perhaps
even older adolescents, would not' '' \45\
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\44\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong. 8 (statement of Dan Collins, Associate Deputy Attorney General,
Department of Justice).
\45\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong. 7-8 (statement of Dan Collins, Associate Deputy Attorney General,
Department of Justice) (quoting Ashcroft v. Free Speech Coalition, 122
S.Ct. 1389, 1396 (2002).
---------------------------------------------------------------------------
Section 5 creates a narrowly focused prohibition that
responds to the Court's dicta. Obscene materials are not
protected by the Constitution and may be banned. An official of
the Department of Justice testified before the Subcommittee on
May 9, 2002, that:
Congress may reasonably conclude that the very narrow
class of materials covered by the new section [5] are
the sort that would invariably satisfy the
constitutional standards for obscenity set out in
Miller v. California, 413 U.S. 15 (1973), and that such
materials therefore may be fully proscribed because
they are constitutionally unprotected obscenity. The
narrow class of images reached by section [5] are
precisely the sort that appeal to the worst form of
prurient interest, that are patently offensive in light
of any applicable community standards, and that lack
serious literary, artistic, political, or scientific
value in virtually any context.\46\
---------------------------------------------------------------------------
\46\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong. 8 (statement of Dan Collins, Associate Deputy Attorney General,
Department of Justice)
An offense under these new sections are subject to a higher
penalty than the existing penalties under Federal obscenity
prohibitions, as the offense deals directly with the child
pornography market.
Section 1466A(a) would prohibit a person from producing,
distributing, receiving, or possessing with the intent to
distribute, a visual depiction that is, or is nearly
indistinguishable, from a pre-pubescent child as a violation of
Federal obscenity law. Pre-pubescent child is defined in new
Sec. 1466A(c).
Because section 1466A(a) covers depictions of pre-pubescent
children, the prohibition is narrower than the concept of
``child pornography'' under chapter 110 of title 18. Child
pornography covers visual depictions of persons below the age
of 18.
Section 1466A(b) prohibits the possession of obscene pre-
pubescent visual depictions. Although this is an obscenity
provision that prohibits possession, the Department of
Justice's position is that this provision is constitutionally
sound:
In 1969, the Supreme Court held in Stanley v. Georgia,
394 U.S. 557 (1969), that a state could not
constitutionally criminalize the simple possession of
obscenity in the privacy of a person's residence. In
Osborne v. Ohio, 495 U.S. 103 (1990), however, the
Court held that Stanley does not apply to the
possession of child pornography involving actual
children. Id. at 108-11. Moreover, the Court has
explicitly ``rejected'' the contention ``that Stanley
has firmly established the right to possess obscene
material in the privacy of the home and that this
creates a correlative right to receive it, transport
it, or distribute it.'' United States v. Orito, 413
U.S. 139, 141 (1973). See also Smith v. United States,
431 U.S. 291, 307 (1977) (``The [Orito Court] held that
Stanley did not create a right to receive, transport,
or distribute obscene material, even though it had
established the right to possess the material in the
privacy of the home.'' \47\
---------------------------------------------------------------------------
\47\ Department of Justice Transmittal letter with draft
legislation to the Speaker of the House at 5 (May 2002) (emphasis
added).
The Department of Justice's position points to the fact
that several ``Courts of appeals have extended the rationale of
Orito \48\ to, in effect, cover such `home receipt' situations
under several [F]ederal obscenity and child pornography laws.''
\49\ The Committee agrees with the Department of Justice.
---------------------------------------------------------------------------
\48\ United States v. Orito, 413 U.S. 139, 141 (1973).
\49\ Department of Justice Transmittal letter with draft
legislation to the Speaker of the House at 5-6 (May 2002) (citing See,
e.g., United States v. Hurt, 795 F.2d 765 (9th Cir. 1986), cert.
denied, 484 U.S. 816 (1987); United States v. Kuennen, 901 F.2d 103
(8th Cir.), cert. denied, 498 U.S. 958 (1990); United States v. Hale,
784 F.2d 1465 (9th Cir.), cert. denied, 479 U.S. 829 (1986); see also,
e.g., United States v. Andersson, 803 F.2d 903, 906-07 (7th Cir. 1986),
cert. denied, 479 U.S. 1069 (1987); United States v. Mercado, 828 F.2d
20, 1987 WL 38588, at *2 (6th Cir. 1987), cert. denied, 485 U.S. 907
(1988); United States v. Nelson, 847 F.2d 285, 288 (6th Cir. 1988);
United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988), cert.
denied, 490 U.S. 1005 (1989); United States v. Fordyce, 878 F.2d 1431,
1989 WL 74900, at *1 [sic](4th Cir. 1989) (per curiam)).
---------------------------------------------------------------------------
The Department concluded that ``the new 1466A(b) will not
depart from current constitutional doctrine in any material
respect.'' \50\ While child pornography does not have to be
obscene,\51\ any obscene picture of real children engaging in
sexually explicit conduct is by its very definition child
pornography. There is no right to possess child pornography in
one's home; \52\ thus, the ban on possession of visual
depictions of pre-pubescent children engaging in sexually
explicit conduct is constitutional.
---------------------------------------------------------------------------
\50\ Department of Justice Transmittal letter with draft
legislation to the Speaker of the House at 6 (May 2002).
\51\ Ferber, 458 U.S. at 764 (1982) (``The Miller formulation is
adjusted in the following respects: A trier of fact need not find that
the material appeals to the prurient interest of the average person; it
is not required that sexual conduct be portrayed in a patently
offensive manner; and the material need not be considered as a
whole.'')
\52\ Osborne v. Ohio, 495 U.S. 103 (1990).
---------------------------------------------------------------------------
The extension of the ban on possession of obscene visual
depictions that are indistinguishable from that of a real pre-
pubescent child would be, in all likelihood, computer-generated
images. If it is a computer-generated image, the possessor
either produced it in violation of 1466A(a) or received it in
violation of 1466A(a). As the Department of Justice indicated:
the possession prohibition in section 1466A(b) would
not be premised ``on the desirability of controlling a
person's private thoughts.'' Stanley, 394 U.S. at 566.
Instead, it would be premised on the government's
substantial and legitimate interest in preventing
obscenity from ``entering the stream of commerce'' in
the first instance, see Orito, 413 U.S. at 143, and on
the reasonable assumption that a defendant's possession
of computer-generated obscenity is fairly dispositive
proof that the defendant caused, induced, or effected,
the interstate transmission or commerce of the obscene
materials (e.g., by ordering or requesting their
transmission).\53\
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\53\ Department of Justice Transmittal letter with draft
legislation to the Speaker of the House at 6 (May 2002).
Section 1466A(c) provides the definitions for ``visual
depiction,'' ``pre-pubescent child,'' and ``sexual explicit
conduct.'' Section 1466A(d) provides the circumstances for
which Federal jurisdiction would apply.
Section 1466A(e) incorporates an affirmative defense
similar to the existing defense in 18 U.S.C. Sec. 2252A(d)
which applies to situations where someone comes into possession
of one or two items of child pornography (e.g., through spammed
material) and promptly destroys the material or notifies law
enforcement.
Section 5(a) also includes a new obscenity provision, 1466B
that applies to obscene visual representations of pre-pubescent
sexual abuse. This section applies to depictions of virtual
children that are distinguishable from real children. This new
section was added during Full Committee consideration in
response to what appears to be a newly posted web site that
displays pictures of children being raped and sodomized by
adults, where the pictures are clearly virtual, but obscene.
This provision would enhance the penalties for such obscenity.
The Committee believes that this web site was clearly
created in response to the Supreme Court's Free Speech
Coalition decision. The site proudly states that it is there
for ``whetting the appetites of pedophiles everywhere.'' The
website goes on to state that:
On April 16, 2002, in a 6-3 decision (Ashcroft v. Free
Speech Coalition), the Supreme Court struck down the two
sections of the 1996 Child Pornography Prevention Act that
forbid virtual child pornography, stating that these sections
were overbroad and unconstitutional. Well, here we go. . . .
Virtual Child Porn Headquarters:
The first and only source for virtual child porn Here
at Virtual Child Porn Headquarters, we strive to be a
source you can trust for the best in virtual child
pornography. With the law by our side, we are embarking
on a marvelous journey, exploring the very frontiers of
your rights as a[sic] American. And as you stand
proudly next to us, fellow citizen, you can recite our
motto to boost your morale:
Give me virtual child pornography, or give me death!
Section 5(b) of this bill directs that the Sentencing
Commission may establish guidelines specifically governing
offenses under 18 U.S.C. Sec. Sec. 1466A and 1466B.
SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES AGAINST
MINORS
Section 6 of the bill would add new Sec. 1471 entitled
``Use of obscene material or child pornography to facilitate
offenses against minors.'' Section 1471 would (1) punish adults
who provide unsuitable materials to children and (2) punish
adults who do so to aid in the solicitation of minors for
sexual exploitation.
Among other things, sex offenders use visual depictions of
children having sex with adults or performing sexual acts to
lower the inhibitions of children to engage in sex with the
pedophile. ``Child pornography is not used simply for the
viewing pleasure of an individual, it is also used as a means
to an end--that end being the victimization of children and in
some cases the end of a child's life.'' \54\ The Supreme Court
stated that ``[t]he government, of course, may punish adults
who provide unsuitable materials to children.'' \55\ The Court
mentioned that ``Osborne also noted that the State's interest
in preventing child pornography from being used as an aid in
the solicitation of minors.'' \56\
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\54\ Hearing on the April 16, 2002 Supreme Court decision in
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th
Cong. (2002) (prepared statement of Ernest E. Allen, President & Chief
Executive Officer, National Center for Missing and Exploited Children).
\55\ Free Speech Coalition, 122 S.Ct. at 1402 (citing Ginsberg v.
New York, 390 U.S. 629 (1968)).
\56\ Id. at 1401 (citing Brandenburg v. Ohio, 395 U.S. 444, 447
91969)(per curiam).
---------------------------------------------------------------------------
Section 1471(a)(1) would prohibit providing or showing to a
person below the age of 16 years any obscene material or child
pornography.
Section 1471(a)(2) would prohibit providing a person below
the age of 16 years any obscene materials or child pornography
to participate in any conduct that violates chapter 109A
(relating to sexual abuse), 110 (relating to sexual
exploitation of children), or 117 (relating to transportation
for illegal sexual activity and related crimes). This provision
includes language prohibiting attempts, incitements,
solicitations, or conspiracy to engage in any of the prohibited
conduct.
SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
This section adds a new subparagraph to 18 U.S.C. Sec. 2251
to prohibit a person from producing child pornography outside
of the United States with the intent to transport it to the
United States, or does transport it into (or otherwise makes it
available in) the United States after that person has produced
it outside the United States. The purpose of this section is to
stop efforts by producers of child pornography to avoid
criminal liability based on the fact that the child pornography
was produced outside of the United States.\57\
---------------------------------------------------------------------------
\57\ See, e.g., United States v. Thomas, 893 F. 2d 1066 (9th Cir.
1990).
---------------------------------------------------------------------------
SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS
This section amends chapter 110, the child pornography
chapter of title 18, which provides enhanced penalties for
recidivists in that chapter as well as chapters 109A (related
to sexual abuse) and 117 (related transportation for illegal
sexual activity and related crimes) to include the offenses
under the obscenity chapter, chapter 71. Recidivism is a huge
problem in sexual exploitation cases. This amendment addresses
this problem by enhancing the penalties for repeat offenders
and ensuring adequate penalties for recidivists who commit the
offenses under the new chapter 71 provisions in this bill.
SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED
INFORMATION.
This section amends 42 U.S.C. Sec. 13032 which requires
providers of electronic communications and remote computing
services to report apparent offenses that involve child
pornography. Under the current law, communications providers
must report to the National Center for Missing and Exploited
Children (NCMEC) when the provider obtains knowledge of facts
or circumstances from which a violation of sexual exploitation
crimes against children.\58\ A provider of electronic
communication services may be fined for knowingly and willfully
failing to make a report.\59\ Federal criminal law provides
that ``[n]o provider or user of an electronic communication
service or a remote computing service to the public shall be
held liable on account of any action taken in good faith to
comply with this section.'' \60\
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\58\ 42 U.S.C. Sec. 13032(b)(1).
\59\ 42 U.S.C. Sec. 13032(b)(3).
\60\ 42 U.S.C. Sec. 13032(c).
---------------------------------------------------------------------------
After receiving these reports from communication providers,
the NCMEC must forward them to law enforcement agencies that
are designated by the Attorney General.
This section of the bill strengthens this reporting system
by adding the new offenses under Sec. Sec. 2252B, 1466A and
1466B.
Section 9(b) amends 18 U.S.C. Sec. 2702 to be consistent
with 42 U.S.C. 13032(d), which provides that, in addition to
the required information that is reported to NCMEC, the reports
may include ``additional information.'' This should make it
clear, for example, that an Internet service provider can
disclose the identity of a subscriber who sent a message
containing child pornography, in addition to the required
reporting of the contents of such a communication. However, the
corresponding provisions in 18 U.S.C. Sec. 2702(b)(6)(B) only
authorize disclosure of content information required by 42
U.S.C. Sec. 13032, and contains no language which appears to
cover relevant non-content information, such as the identity of
the sender of the child pornography in the example described
above. This section corrects that inconsistency.
At the request of the NCMEC the amendment includes a
provision to fix a deficiency in the current law that will not
allow the Federally funded Internet Crimes Against Children
Task Forces to receive reports from the Cyber Tipline. These
Task Forces are state and local police agencies that have been
identified by the National Center as competent to investigate
and prosecute computer facilitated crimes against children.
Only the designated Federal agencies--FBI and Customs--are
authorized to receive direct access to these reports. Since the
9-11 attacks, the resources of the FBI have been stretched in a
way which does not optimize the overall ability of law
enforcement to effectively deal with the volume of cases being
sent by the National Center for Missing and Exploited Children.
The proposed language would authorize Internet Crimes
Against Children Task Forces access to the Cyber Tipline
Reports. The vast majority of cases in this area are being
investigated and prosecuted by state and local law enforcement.
SEC 10. SEVERABILITY.
This section provides that the provisions of the bill are
severable, if any part is found to be unconstitutional.
SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.
This section is technical in nature. This section updates
the current law regarding the use of administrative subpoenas.
Section 3486 of title 18 covers administrative subpoenas.
Recent changes to the law updated the transactional information
that may be obtained under section 2703(c)(2) through an
administrative subpoena. To update Sec. 3486, which covers
subpoenas issued involving the sexual exploitation or abuse of
children, this provision inserts the information specified in
section 2703(c)(2) for the list of transactional information in
Sec. 3486. Transactional information includes billing records
and other similar records.
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 71--OBSCENITY
Sec.
1460. Possession with intent to sell, and sale, of obscene matter on
Federal property.
* * * * * * *
1466A. Obscene visual depictions of young children.
1466B. Obscene visual representations of pre-pubescent sexual abuse.
* * * * * * *
1471. Use of obscene material or child pornography to facilitate
offenses against minors.
* * * * * * *
Sec. 1466A. Obscene visual depictions of young children
(a) Whoever, in a circumstance described in subsection (d),
knowingly produces, distributes, receives, or possesses with
intent to distribute a visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child engaging
in sexually explicit conduct, or attempts or conspires to do
so, shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
(b) Whoever, in a circumstance described in subsection (d),
knowingly possesses a visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child engaging
in sexually explicit conduct, or attempts or conspires to do
so, shall be subject to the penalties set forth in section
2252A(b)(2), including the penalties provided for cases
involving a prior conviction.
(c) For purposes of this section--
(1) the term ``visual depiction'' includes
undeveloped film and videotape, and data stored on
computer disk or by electronic means which is capable
of conversion into a visual image, and also includes
any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means;
(2) the term ``pre-pubescent child'' means that (A)
the child, as depicted, is one whose physical
development indicates the child is 12 years of age or
younger; or (B) the child, as depicted, does not
exhibit significant pubescent physical or sexual
maturation. Factors that may be considered in
determining significant pubescent physical maturation
include body habitus and musculature, height and weight
proportion, degree of hair distribution over the body,
extremity proportion with respect to the torso, and
dentition. Factors that may be considered in
determining significant pubescent sexual maturation
include breast development, presence of axillary hair,
pubic hair distribution, and visible growth of the
sexual organs;
(3) the term ``sexually explicit conduct'' has the
meaning set forth in section 2256(2); and
(4) the term ``indistinguishable'' used with
respect to a depiction, means virtually
indistinguishable, in that the depiction is such that
an ordinary person viewing the depiction would conclude
that the depiction is of an actual minor engaged in
sexually explicit conduct. This definition does not
apply to depictions that are drawings, cartoons,
sculptures, or paintings depicting minors or adults.
(d) The circumstance referred to in subsections (a) and (b)
is that--
(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction by
the mail, or in interstate or foreign commerce by any
means, including by computer;
(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported in
interstate or foreign commerce by any means, including
by computer, or was produced using materials that have
been mailed, or that have been shipped or transported
in interstate or foreign commerce by any means,
including by computer; or
(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.
(e) In a case under subsection (b), it is an affirmative
defense that the defendant--
(1) possessed less than three such images; and
(2) promptly and in good faith, and without
retaining or allowing any person, other than a law
enforcement agency, to access any image or copy
thereof--
(A) took reasonable steps to destroy each
such image; or
(B) reported the matter to a law
enforcement agency and afforded that agency
access to each such image.
Sec. 1466B. Obscene visual representations of pre-pubescent sexual
abuse
(a) Whoever, in a circumstance described in subsection (e),
knowingly produces, distributes, receives, or possesses with
intent to distribute a visual depiction of any kind, including
a drawing, cartoon, sculpture, or painting, that--
(1) depicts a pre-pubescent child engaging in
sexually explicit conduct, and
(2) is obscene, or who attempts or conspires to do
so, shall be subject to the penalties set forth in
section 2252A(b)(1), including the penalties provided
for cases involving a prior conviction.
(b) Whoever, in a circumstance described in subsection (e),
knowingly possesses a visual depiction of any kind, including a
drawing, cartoon, sculpture, or painting, that--
(1) depicts a pre-pubescent child engaging in
sexually explicit conduct, and
(2) is obscene,
or who attempts or conspires to do so, shall be subject to
the penalties set forth in section 2252A(b)(2), including the
penalties provided for cases involving a prior conviction.
(c) It is not a required element of any offense under this
section that the pre-pubescent child depicted actually exist.
(d) For purposes of this section, the terms ``visual
depiction'' and ``pre-pubescent child'' have respectively the
meanings given those terms in seciton 1466A, and the term
``sexually explicit conduct'' has the meaning given that term
in section 2256(2)(B).
(e) The circumstance referred to in subsection (a) and (b)
is that--
(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction by
the mail, or in interstate or foreign commerce by any
means, including by computer;
(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported in
interstate or foreign commerce by any means, including
by computer, or was produced using materials that have
been mailed, or that have been shipped or transported
in interstate or foreign commerce by any means,
including by computer; or
(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.
(f) In a case under subsection (b), it is an affirmative
defense that the defendant--
(1) possessed less than three such images; and
(2) promptly and in good faith, and without
retaining or allowing any person, other than a law
enforcement agency, to access any image or copy
thereof--
(A) took reasonable steps to destroy each
such image; or
(B) reported the matter to a law
enforcement agency and afforded that agency
access to each such image.
* * * * * * *
Sec. 1471. Use of obscene material or child pornography to facilitate
offenses against minors
(a) Whoever, in any circumstance described in subsection
(c), knowingly--
(1) provides or shows to a person below the age of
16 years any visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, any obscene
matter, or any child pornography; or
(2) provides or shows any obscene matter or child
pornography, or any visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, or any other
material assistance to any person in connection with
any conduct, or any attempt, incitement, solicitation,
or conspiracy to engage in any conduct, that involves a
minor and that violates chapter 109A, 110, or 117, or
that would violate chapter 109A if the conduct occurred
in the special maritime and territorial jurisdiction of
the United States,
shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
(b) For purposes of this section--
(1) the term ``child pornography'' has the meaning
set forth in section 2256(8);
(2) the terms ``visual depiction'', ``pre-pubescent
child'', and ``indistinguishable'' have the meanings
respectively set forth for those terms in section
1466A(c); and
(3) the term ``sexually explicit conduct'' has the
meaning set forth in section 2256(2).
(c) The circumstance referred to in subsection (a) is
that--
(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction or
obscene matter by the mail, or in interstate or foreign
commerce by any means, including by computer;
(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
(4) any visual depiction or obscene matter involved
in the offense has been mailed, or has been shipped or
transported in interstate or foreign commerce by any
means, including by computer, or was produced using
materials that have been mailed, or that have been
shipped or transported in interstate or foreign
commerce by any means, including by computer; or
(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.
* * * * * * *
CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
Sec.
2251. Sexual exploitation of children.
* * * * * * *
2252B. Pandering and solicitation.
* * * * * * *
Sec. 2251. Sexual exploitation of children
(a) Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, or who has a minor
assist any other person to engage in, or who transports any
minor in interstate or foreign commerce, or in any Territory or
Possession of the United States, with the intent that such
minor engage in, any sexually explicit conduct for the purpose
of producing any visual depiction of such conduct, shall be
punished as provided under [subsection (d)] subsection (e), if
such person knows or has reason to know that such visual
depiction will be transported in interstate or foreign commerce
or mailed, if that visual depiction was produced using
materials that have been mailed, shipped, or transported in
interstate or foreign commerce by any means, including by
computer, or if such visual depiction has actually been
transported in interstate or foreign commerce or mailed.
(b) Any parent, legal guardian, or person having custody or
control of a minor who knowingly permits such minor to engage
in, or to assist any other person to engage in, sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct shall be punished as provided under
[subsection (d)] subsection (e) of this section, if such
parent, legal guardian, or person knows or has reason to know
that such visual depiction will be transported in interstate or
foreign commerce or mailed, if that visual depiction was
produced using materials that have been mailed, shipped, or
transported in interstate or foreign commerce by any means,
including by computer, or if such visual depiction has actually
been transported in interstate or foreign commerce or mailed.
(c)(1) Any person who, in a circumstance described in
paragraph (2), employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any
other person to engage in, any sexually explicit conduct
outside of the United States, its possessions and Territories,
for the purpose of producing any visual depiction of such
conduct, shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that--
(A) the person intends such visual depiction to be
transported to the United States, its possessions, or
territories, by any means including by computer or
mail;
(B) the person transports such visual depiction to,
or otherwise makes it available within, the United
States, its possessions, or territories, by any means
including by computer or mail.
[(c)] (d)(1) Any person who, in a circumstance described in
paragraph (2), knowingly makes, prints, or publishes, or causes
to be made, printed, or published, any notice or advertisement
seeking or offering--
(A) to receive, exchange, buy, produce, display,
distribute, or reproduce, any visual depiction, if the
production of such visual depiction involves the use of
a minor engaging in sexually explicit conduct and such
visual depiction is of such conduct; or
(B) participation in any act of sexually explicit
conduct by or with any minor for the purpose of
producing a visual depiction of such conduct;
shall be punished as provided under [subsection (d)] subsection
(e).
(2) The circumstance referred to in paragraph (1) is that--
(A) such person knows or has reason to know that
such notice or advertisement will be transported in
interstate or foreign commerce by any means including
by computer or mailed; or
(B) such notice or advertisement is transported in
interstate or foreign commerce by any means including
by computer or mailed.
[(d)] (e) Any individual who violates, or attempts or
conspires to violate, this section shall be fined under this
title or imprisoned not less than 10 years nor more than 20
years, and both, but if such person has one prior conviction
under this chapter, chapter 71, chapter 109A, or chapter 117,
or under the laws of any State relating to the sexual
exploitation of children, such person shall be fined under this
title and imprisoned for not less than 15 years nor more than
30 years, but if such person has 2 or more prior convictions
under this chapter, chapter 71, chapter 109A, or chapter 117,
or under the laws of any State relating to the sexual
exploitation of children, such person shall be fined under this
title and imprisoned not less than 30 years nor more than life.
Any organization that violates, or attempts or conspires to
violate, this section shall be fined under this title. Whoever,
in the course of an offense under this section, engages in
conduct that results in the death of a person, shall be
punished by death or imprisoned for any term of years or for
life.
* * * * * * *
Sec. 2252. Certain activities relating to material involving the sexual
exploitation of minors
(a) * * *
(b)(1) Whoever violates, or attempts or conspires to
violate, paragraphs (1), (2), or (3) of subsection (a) shall be
fined under this title or imprisoned not more than 15 years, or
both, but if such person has a prior conviction under this
chapter, chapter 71, chapter 109A, or chapter 117, or under the
laws of any State relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward, or
the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child pornography,
such person shall be fined under this title and imprisoned for
not less than 5 years nor more than 30 years.
(2) Whoever violates, or attempts or conspires to
violate, paragraph (4) of subsection (a) shall be fined under
this title or imprisoned not more than 5 years, or both, but if
such person has a prior conviction under this chapter, chapter
71, chapter 109A, or chapter 117, or under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person
shall be fined under this title and imprisoned for not less
than 2 years nor more than 10 years.
* * * * * * *
Sec. 2252A. Certain activities relating to material constituting or
containing child pornography
(a) * * *
(b)(1) Whoever violates, or attempts or conspires to
violate, paragraphs (1), (2), (3), or (4) of subsection (a)
shall be fined under this title or imprisoned not more than 15
years, or both, but, if such person has a prior conviction
under this chapter, chapter 71, chapter 109A, or chapter 117,
or under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward, or the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of child
pornography, such person shall be fined under this title and
imprisoned for not less than 5 years nor more than 30 years.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned
not more than 5 years, or both, but, if such person has a prior
conviction under this chapter, chapter 71, chapter 109A, or
chapter 117, or under the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 2 years nor
more than 10 years.
[(c) It shall be an affirmative defense to a charge of
violating paragraphs (1), (2), (3), or (4) of subsection (a)
that--
[(1) the alleged child pornography was produced
using an actual person or persons engaging in sexually
explicit conduct;
[(2) each such person was an adult at the time the
material was produced; and
[(3) the defendant did not advertise, promote,
present, describe, or distribute the material in such a
manner as to convey the impression that it is or
contains a visual depiction of a minor engaging in
sexually explicit conduct.]
(c)(1) Except as provided in paragraph (2), it shall be an
affirmative defense to a charge of violating this section that
the alleged offense did not involve the use of a minor or an
attempt or conspiracy to commit an offense under this section
involving such use.
(2) A violation of, or an attempt or conspiracy to violate,
this section which involves child pornography as defined in
section 2256(8)(A) or (C) shall be punishable without regard to
the affirmative defense set forth in paragraph (1).
* * * * * * *
Sec. 2252B. Pandering and solicitation
(a) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to provide or sell a
visual depiction to another, and who in connection therewith
knowingly advertises, promotes, presents, or describes the
visual depiction with the intent to cause any person to believe
that the material is, or contains, a visual depiction of a
minor engaging in sexually explicit conduct shall be subject to
the penalties set forth in section 2252A(b)(1), including the
penalties provided for cases involving a prior conviction.
(b) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to receive or purchase
from another a visual depiction that he believes to be, or to
contain, a visual depiction of a minor engaging in sexually
explicit conduct shall be subject to the penalties set forth in
section 2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
(c) It is not a required element of any offense under this
section that any person actually provide, sell, receive,
purchase, possess, or produce any visual depiction.
(d) The circumstance referred to in subsection (a) and (b)
is that--
(1) any communication involved in or made in
furtherance of the offense is communicated or
transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in
furtherance of the commission of the offense;
(2) any communication involved in or made in
furtherance of the offense contemplates the
transmission or transportation of a visual depiction by
the mail, or in interstate or foreign commerce by any
means, including by computer;
(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of the
offense;
(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported in
interstate or foreign commerce by any means, including
by computer, or was produced using materials that have
been mailed, or that have been shipped or transported
in interstate or foreign commerce by any means,
including by computer; or
(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the United
States.
* * * * * * *
Sec. 2256. Definitions for chapter
For the purposes of this chapter, the term--
(1) * * *
[(2) ``sexually explicit conduct'' means actual or
simulated--
[(A) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or
opposite sex;
[(B) bestiality;
[(C) masturbation;
[(D) sadistic or masochistic abuse; or
[(E) lascivious exhibition of the genitals
or pubic area of any person;]
(2)(A) Except as provided in subparagraph (B),
``sexually explicit conduct'' means actual or
simulated--
(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or
opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals
or pubic area of any person;
(B) For purposes of subsection 8(B) of this
section, ``sexually explicit conduct'' means--
(i) actual sexual intercourse, including
genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same
or opposite sex, or lascivious simulated sexual
intercourse where the genitals, breast, or
pubic area of any person is exhibited;
(ii) actual or lascivious simulated;
(I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic
abuse; or
(iii) actual or simulated lascivious
exhibition of the genitals or pubic area of any
person;
* * * * * * *
(8) ``child pornography'' means any visual
depiction, including any photograph, film, video,
picture, or computer or computer-generated image or
picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit
conduct, where--
(A) the production of such visual depiction
involves the use of a minor engaging in
sexually explicit conduct;
[(B) such visual depiction is, or appears
to be, of a minor engaging in sexually explicit
conduct;]
(B) such visual depiction is a computer
image or computer-generated image that is, or
is indistinguishable (as defined in section
1466A) from, that of a minor engaging in
sexually explicit conduct; or
(C) such visual depiction has been created,
adapted, or modified to appear that an
identifiable minor is engaging in sexually
explicit conduct; [or] and
[(D) such visual depiction is advertised,
promoted, presented, described, or distributed
in such a manner that conveys the impression
that the material is or contains a visual
depiction of a minor engaging in sexually
explicit conduct; and]
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2702. Voluntary disclosure of customer communications or records
(a) * * *
(b) Exceptions for disclosure of communications.-- A
provider described in subsection (a) may divulge the contents
of a communication--
(1) * * *
* * * * * * *
(5) as may be necessarily incident to the rendition
of the service or to the protection of the rights or
property of the provider of that service; [or]
(6) to the National Center for Missing and
Exploited Children, in connection with a report
submitted thereto under section 227 of the Victims of
Child Abuse Act of 1990 (42 U.S.C. 13032); or
[(6)] (7) to a law enforcement agency--
(A) if the contents--
(i) were inadvertently obtained by
the service provider; and
(ii) appear to pertain to the
commission of a crime; or
[(B) if required by section 227 of the
Crime Control Act of 1990; or]
[(C)] (B) if the provider reasonably
believes that an emergency involving immediate
danger of death or serious physical injury to
any person requires disclosure of the
information without delay.
(c) Exceptions for Disclosure of Customer Records.--A
provider described in subsection (a) may divulge a record or
other information pertaining to a subscriber to or customer of
such service (not including the contents of communications
covered by subsection (a)(1) or (a)(2))--
(1) * * *
* * * * * * *
(4) to a governmental entity, if the provider
reasonably believes that an emergency involving
immediate danger of death or serious physical injury to
any person justifies disclosure of the information;
[or]
(5) to the National Center for Missing and
Exploited Children, in connection with a report
submitted thereto under section 227 of the Victims of
Child Abuse Act of 1990 (42 U.S.C. 13032); or
[(5)] (6) to any person other than a governmental
entity.
* * * * * * *
CHAPTER 223--WITNESSES AND EVIDENCE
* * * * * * *
Sec. 3486. Administrative subpoenas
(a) Authorization.--(1)(A) * * *
* * * * * * *
(C) A subpoena issued under subparagraph (A) with respect
to a provider of electronic communication service or remote
computing service, in an investigation of a Federal offense
involving the sexual exploitation or abuse of children shall
not extend beyond--
(i) requiring that provider to disclose [the name,
address, local and long distance telephone toll billing
records, telephone number or other subscriber number or
identity, and length of service of a subscriber to or
customer of such service and the types of services the
subscriber or customer] the information specified in
section 2703(c)(2) utilized, which may be relevant to
an authorized law enforcement inquiry; or
* * * * * * *
----------
SECTION 227 OF THE VICTIMS OF CHILD ABUSE ACT OF 1990
SEC. 227. REPORTING OF CHILD PORNOGRAPHY BY ELECTRONIC COMMUNICATION
SERVICE PROVIDERS.
(a) * * *
(b) Requirements.--
(1) Duty to report.--Whoever, while engaged in
providing an electronic communication service or a
remote computing service to the public, through a
facility or means of interstate or foreign commerce,
obtains knowledge of facts or circumstances from which
a violation of section 2251, 2251A, 2252, 2252A, 2252B,
or 2260 of title 18, United States Code, involving
child pornography (as defined in section 2256 of that
title), or a violation of section 1466A or 1466B of
that title, is apparent, shall, as soon as reasonably
possible, make a report of such facts or circumstances
to the Cyber Tip Line at the National Center for
Missing and Exploited Children, which shall forward
that report to a law enforcement agency or agencies
designated by the Attorney General.
* * * * * * *
(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National
Center for Missing and Exploited Children is authorized
to forward any such report to an appropriate official
of a state or subdivision of a state for the purpose of
enforcing state criminal law.
[(3)] (4) Failure to report.--A provider of
electronic communication services or remote computing
services described in paragraph (1) who knowingly and
willfully fails to make a report under that paragraph
shall be fined--
(A) * * *
* * * * * * *
(c) Civil Liability.--No provider or user of an electronic
communication service or a remote computing service to the
public shall be held liable on account of any action taken in
good faith to comply with or pursuant to this section.
* * * * * * *
(f ) Conditions of Disclosure of Information Contained
Within Report.--
(1) In general.--No law enforcement agency that
receives a report under subsection (b)(1) shall
disclose any information contained in that report,
except that disclosure of such information may be
made--
(A) * * *
* * * * * * *
[(D) as permitted by a court at the request
of an attorney for the government, upon a
showing that such information may disclose a
violation of State criminal law, to an
appropriate official of a State or subdivision
of a State for the purpose of enforcing such
State law.]
(D) where the report discloses a violation
of State criminal law, to an appropriate
official of a State or subdivision of a State
for the purpose of enforcing such State law.
* * * * * * *
Markup Transcript
BUSINESS MEETING
TUESDAY, JUNE 18, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order.
[Intervening business.]
The next item on the agenda is H.R. 4623, the ``Child
Obscenity and Pornography Prevention Act of 2002.''
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Texas, Mr. Smith, the 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 to bill H.R.
4623 with a 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, and the
Subcommittee amendment in the nature of a substitute, which
Members have before them, will be considered as read,
considered as the original text for purposes of amendment, and
open for amendment at any point.
The Chair recognizes the gentleman from Texas, Mr. Smith,
to strike the last word.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, child pornography and obscenity are not
protected speech under the Constitution and therefore may be
prohibited by the Government. In addition, where there is a
compelling Government interest to do so, the Government may
prohibit speech that would otherwise be protected if the
prohibition is narrowly drawn to meet that compelling need.
The Government has a compelling interest in protecting
children from those who exploit them. The Supreme Court of New
York v. Ferber concluded that, ``The prevention of sexual
exploitation and abuse of children constitutes a Government
objective of surpassing the importance,'' and that this
compelling State interest extends to stamping out the vice of
child pornography, ``at all levels in the distribution chain.''
The Supreme Court further stated in Ferber, ``The most
expeditious if not the only practical method of law enforcement
may be to dry up the market for this material by imposing
severe criminal penalties on persons selling, advertising or
otherwise promoting the product.''
The technological advances since Ferber have led many
criminal defendants to insist that the images of child
pornography they possess are not those of real children,
forcing the Government to prove beyond a reasonable doubt that
the images are depictions of real children.
Child pornography circulating on the Internet has, by
definition, been digitally uploaded or scanned into computers
and has been transferred over the Internet, often in different
file formats from trafficker to trafficker. An image seized
from a child pornographer is rarely a first generation product,
and the retransmission of images can alter the image so as to
make it impossible, even for when expert to testify, whether or
not a particular image depicts a real child. The 1996 statutory
language included any virtual depiction, and included pictures
of youthful-looking adults. Thus the Supreme Court found to be
overbroad.
H.R. 4623, the ``Child Obscenity and Pornography Prevention
Act of 2002'' is a bipartisan bill that responds to the
Ashcroft v. Free Speech Coalition Supreme Court decision. The
bill narrows the definition of child pornography so as to meet
the Government's compelling interest in a constitutionally-
accepted way. The negative impact of Free Speech Coalition on
the Government's ability to prosecute child pornographers is
already evident. The National Center for Missing and Exploited
Children testified that prosecutors nationwide have dismissed
previously indicted cases as well as declined meritorious
prosecutions in light of the Supreme Court's recent affirmation
of the Ninth Circuit decision. In the absence of congressional
action, this problem will continue to grow increasingly worse.
A website that states it is, ``whetting the appetites of
pedophiles everywhere,'' recently posted information on the
ruling and announced, ``We strive to be a source you can trust
for the best in virtual child pornography. With the law by our
side, we are embarking on a marvelous journey, exploring the
very frontiers of your rights as an American, and as you stand
proudly next to us, fellow citizen, you can recite our motto to
boost your morale: give me virtual pornography or give me
death.''
The mere existence of computer-generated depictions that
are indistinguishable from depictions of real children allows
defendants who possess either real or virtual depictions to
escape prosecution. And that, Mr. Chairman is why we need this
bill.
I'll yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, sexual abuse of children, child pornography,
including obscene computer-generated child pornography and
other sex-related crimes against children are serious crimes
that warrant prosecution and punishment. Such crimes and their
punishments were left intact by the Supreme Court decision in
Ashcroft v. Free Speech Coalition, issued just a few weeks ago
on April 16th. What the Court struck down was the
criminalization of computer-generated and other depictions of
children in undesirable but not obscene situations where no
child was actually involved in making of the material.
Mr. Chairman, the Supreme Court has ruled that a computer-
generated depiction of a child, including the image of a
teenager or other child engaged in sexually explicit activity
is not an image--that is not an image of a real child, is
protected speech. While such a depiction may be deplorable, the
Court made it clear through several decisions that the right to
free speech cannot be denied simply because some find the
speech deplorable. The computer-generated depiction of a child
that is not a real child is essentially no different than the
22-year-old who looks--plays the role of a 15-year-old engaged
in a sex scene in a movie such as we recently saw and was cited
in the Supreme Court decision, ``American Beauty'' and
``Traffic.'' Neither image is that of a real minor. Both
involved an expression of ideas and thoughts that many find
upsetting.
The law called into question in Ashcroft is the Child
Pornography Prevention Act of 1996, the CPPA. The problem the
Court found with the law is that while it prohibited images
that constitute child pornography, it also prohibited speech
that may have serious literary, artistic, political or
scientific value. As currently formed, it would be applied to a
picture in a psychological manual, as well as a movie depicting
the horrors of sexual abuse. The conduct and expression that
the CPPA was aimed at preventing is essentially--is certainly
despicable and unlawful, but the Court made it clear that
protected speech may not be banned as a means to ban
unprotected speech, which would turn the First Amendment upside
down. The Court said the Government may not suppress lawful
speech as a means of suppressing unlawful speech. Protected
speech does not become unprotected merely because it resembles
the latter. The Constitution requires the reverse.
So, Mr. Chairman, whether you agree with the decision or
not, the Court ruled just a few weeks ago. And I will offer an
amendment at the appropriate time aimed at having the bill
conform to that decision.
Thank you, Mr. Chairman. Yield back.
Chairman Sensenbrenner. Without objection, Member opening
statements will appear in the record at this time.
Are there amendments?
Mr. Smith. Mr. Chairman?
Chairman Sensenbrenner. Gentleman from Texas.
Mr. Smith. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the Subcommittee amendment in the
nature of a substitute to H.R. 4623, offered by Mr. Smith of
Texas. ``Insert after section 1 the following: Section 2.
Findings. Congress finds the following''----
Chairman Sensenbrenner. Without objection, the amendment
will be considered as read, and the gentleman from Texas is
recognized for 5 minutes.
[The amendment follows:]
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, I'm offering----
Mr. Watt. Mr. Chairman, a point of order.
Mr. Smith.--an amendment to H.R. 46----
Chairman Sensenbrenner. Does the gentleman wish to reserve
a point of order?
Mr. Watt. Well, my point is we don't have the amendment.
They seem to be distributing only on one side of the Committee,
and we don't--it's hard to deal with an amendment we haven't
seen.
Chairman Sensenbrenner. We'll start the clock again.
The gentleman from Texas.
Mr. Smith. Mr. Chairman, I am offering an amendment to H.R.
4623 to make a few key changes that will further strengthen the
bill.
First, the amendment includes congressional findings. I've
added these findings to highlight the compelling Government
interest. The Government has a compelling interest in ensuring
that the criminal prohibitions against child pornography remain
enforceable and effective.
Second, the amendment would narrow the definition of child
pornography even further than the bill did as introduced.
Initially section 2 of the bill narrowed the definition of
child pornography in several ways. Section 2(a) of the bill
narrows the definition of child pornography under section 2256
to depictions that are, ``computer images,'' that is, pictures
scanned into a computer, or ``computer generated images.''
The Court was concerned in Free Speech Coalition that the
breadth of the language would prohibit legitimate movies like
``Traffic'' or plays like ``Romeo and Juliet.'' Limiting the
definition to computer images or computer generated images will
help to exclude ordinary motion pictures from the coverage of
virtual child pornography.
Next the bill would narrow the definition by replacing the
phrase ``appears to be'' with the phrase ``is indistinguishable
from.'' That new phrase addresses the Court's concern that
cartoon sketches and statues of children would be banned under
the statute. At Subcommittee we added a definition to the term
``indistinguishable'' to mean virtually indistinguishable in
that the depiction is of a minor engaged in sexually explicit
conduct.
To clear up any ambiguity the amendment further limits the
definition of ``indistinguishable'' by clarifying that this
definition does not apply to depictions that are drawings,
cartoons, sculptures or paintings depicting minors or adults.
This amendment also amends section 8 of the bill to remove
a confusing new reporting provision. At the request of the
National Center for Missing and Exploited Children, the
amendment includes a provision to fix a deficiency in the
current law that will not allow the federally-funded Internet
Crimes Against Children Task Forces to receive reports from the
Cyber Tip Line. These task forces are State and local police
agencies that have been identified by the National Center as
competent to investigate and prosecute computer facilitated
crimes against children.
Only the designated Federal agencies, FBI and Customs, are
authorized to receive direct access to these reports. Since 9-
11 the resources of the FBI have been stretched in a way which
does not optimize the overall ability of law enforcement to
effectively deal with the volume of cases being sent to the
National Center for Missing and Exploited Children. The
proposed language would authorize Internet Crimes Against
Children Task Forces access to Cyber Tip Line reports. The vast
majority of cases in this area are being investigated and
prosecuted by State and local law enforcement. Accordingly,
this amendment would allow the task forces to receive the
information as well. The Department of Justice and the National
Center have agreed to the language.
Finally, in response to a new website that displays
pictures of children being raped and sodomized by adults, where
the pictures are clearly virtual but obscene, this amendment
includes a provision that would enhance the penalties for such
obscenity. This website was clearly created in response to the
Supreme Court decision, and proudly states that it is there for
whetting the appetites of pedophiles everywhere.
The Supreme Court's 1982 decision in New York v. Ferber,
which declared child pornography was not constitutionally
protected speech, helped drive the child pornography market
underground. It is apparent that the Supreme Court's recent
decision may have done the opposite and brought that market
out. Accordingly, I believe that these changes to the bill are
needed to strengthen it, and Mr. Chairman, I will yield back
the balance of my time.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, first I'd like to say that some of
the findings, like Finding No. 11, and some of the others, this
is the first time I've seen this and may need to ask some
questions. And I guess the first question to the gentleman from
Texas would be whether or not the provision in the original
bill requires a finding of obscenity before conviction can take
place in any part of the bill if this amendment is adopted.
Mr. Smith. If the gentleman will yield, it's my
understanding that it would not require that for child
pornography.
Mr. Scott. Reclaiming my time to ask another question, on
page 1 of the Committee amendment in the nature of a
substitute, section 2, on line 9, would it still be illegal,
under the bill if the amendment is adopted, for computer-
generated images indistinguishable, is that language still in
the bill? On page 1 of the Committee amendment in the nature of
a substitute, line 9, are we still prohibiting non-obscene
computer-generated images that do not involve real children?
Mr. Smith. If the gentleman will yield?
Mr. Scott. I'll yield.
Mr. Smith. That language, computer image or computer-
generated image that is nearly indistinguishable is still in
the----
Mr. Scott. Now, you struck ``nearly.''
Mr. Smith. Excuse me?
Mr. Scott. You struck ``nearly'' in your amendment.
Mr. Smith. That's correct. That would be the one change.
Mr. Scott. But the computer-generated image is still
prohibited even though it is not obscene?
Mr. Smith. The answer is yes, when it applies to child
pornography just simply because child pornography can be
prohibited even if not technically under the obscene
definition.
Mr. Scott. Reclaiming my time, that is exactly what the
Supreme Court said you couldn't do under Ashcroft, and that is
the entire issue of this legislation, whether or not you can
declare child pornography that is not obscene under the
obscenity measure, whether or not you can prohibit it. And the
Supreme Court, five Justices, at least five, with a couple
concurring in part, said you cannot do that. The ruling was
just a few weeks ago.
Mr. Smith. If the gentleman will yield, we simply have a
different reading of what the Supreme Court said, and I believe
that this bill, as drafted, because it is much more narrow than
the law that was found to be unconstitutional will be found
constitutional by a majority of the Supreme Court members.
Mr. Scott. Reclaiming my time. Then, Mr. Chairman, I think
the only thing indistinguishable going on is that this statute
is indistinguishable from the one the Supreme Court threw out
just a few weeks ago, and I yield back my time.
Ms. Lofgren. Would the gentleman yield for a question?
Mr. Scott. Excuse me. I'll yield.
Ms. Lofgren. For the Chairman of the Committee. I don't
know whether it's the intention of the Chairman to recess for
lunch, but this is a long and reasonably complicated amendment
that I think is offered in good faith to try and reach the
issues raised by the Supreme Court. I have a number of
questions about the 1466B on page 8.
I am eager to meet the issues raised by the Court so that
we can have a strong response, but I'm not sure we're going to
be able to really----
Chairman Sensenbrenner. The gentlewoman from California
makes a good suggestion, and the Chair is prepared to recess
now until 1:15 so that Members and staff can look at this
amendment.
Before doing so, however, let the Chair state that we have
a number of other bills on the calendar, and the Chair intends
to go to about 3:30 p.m. If we get done with the other bills on
the calendar, excluding Mr. Frank's immigration bill, because
we've still got a little more work to do on that, then we won't
have to come back tomorrow. But if we don't get through the
other bills, the remaining part of the calendar, then we will
have to come back tomorrow. It's my hope that we will be able
to get things done by then.
The gentleman from Massachusetts.
Mr. Frank. Mr. Chairman, I would ask if I could strike the
last word, and I agree. I don't want to hold up a recess, but I
have a Subcommittee markup in the Housing Subcommittee, where
I'm Ranking Member and I may not be able to get back. And I did
just want to express my concern over the implications of it,
hoping it gets discussed further.
In the amendment, Section 2 Findings, lines 8 through 10,
``Even otherwise protected speech may be regulated pursuant to
a statute that is narrowly drawn to promote a compelling
Government interest.'' One that doesn't seem to me to be
necessary to the bill since the bill asserts that child
pornography is not entitled to protection.
But I am troubled by that and by the implications of it.
Perhaps I shouldn't be because it does seem to me it would be a
strong argument to be used in defense of the Shays-Meehan Bill,
which is protected speech that was being regulated. But I am
troubled about that. I don't know why it's necessary, and I
would hope we could have some discussion on this. I mean
protected speech, I assume this means more than time, place and
manner regulation, which is--wouldn't rise to that. So I'd
yield to the gentleman from Texas, but I would hope that would
get some focus.
Mr. Smith. Thank you, Mr. Frank, for yielding. I just want
to make a couple points. One, that particular statement is from
the Supreme Court decision as you say, United States v.
Playboy, but I think you do make a valid point that may not be
relevant to the subject at hand, and for that reason, I'd be
willing to take that sentence out.
Mr. Frank. I thank the gentleman.
Chairman Sensenbrenner. The Committee stands recessed until
1:15 p.m. Members should be prompt so we don't have to come
back tomorrow.
[Whereupon, at 11:58 a.m., the Committee recessed, to
reconvene at 1:15 p.m., the same day.]
AFTERNOON SESSION
Chairman Sensenbrenner. The Committee will be in order.
When the Committee recessed for lunch, the gentleman from
Texas, Mr. Smith, had made a motion to report favorably H.R.
4623. Pending at that time was an amendment in the nature of a
substitute approved by the Subcommittee and an amendment to the
Subcommittee amendment in the nature of a substitute offered by
Mr. Smith of Texas.
For what purpose does the gentleman from Texas seek
recognition for unanimous consent?
Mr. Smith. Mr. Chairman, I have an unanimous consent
request at the desk.
Chairman Sensenbrenner. The clerk will report the U.C.
Is it not at the desk?
The Clerk. No, sir.
Mr. Smith. Mr. Chairman, I will be happy to read it, if
that will facilitate the consideration.
Chairman Sensenbrenner. The clerk now has it.
Mr. Smith. Okay.
The Clerk. Unanimous consent offered by Subcommittee
Chairman Smith. Mr. Chairman, I ask unanimous consent that the
pending amendment be modified as follows: On page 1, line 8,
strike the sentence beginning with the word ``even,'' and the
accompanying citation. And on page 5, strike line 19 through
23, and put a period after the word ``images'' on line 18.
Chairman Sensenbrenner. Without objection, the amendment is
modified to reflect the unanimous consent just reported by the
clerk.
Further debate?
If not, the question is on the amendment to the
Subcommittee amendment in the nature of a substitute as
modified.
Mr. Smith. Parliamentary inquiry, Mr. Chairman.
Chairman Sensenbrenner. The gentleman will state his
inquiry.
Mr. Smith. You're voting on?
Chairman Sensenbrenner. The question is on the amendment to
the subcommittee amendment in the nature of a substitute as
modified, offered by the gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California seek recognition?
Ms. Lofgren. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I will not use the 5 minutes. I would just
like to commend the gentleman from Texas for this effort. And I
believe that these provisions are very carefully crafted and
are constitutional. And I'm proud to support the effort.
And I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the other
gentleman from California, Mr. Schiff, seek recognition?
Mr. Schiff. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I also want to join in support of the amendment
to the amendment, as well as the substitute amendment.
I started out somewhat skeptical of our ability to craft
legislation around the Supreme Court decision in Ashcroft. But
after further study of the Ashcroft decision and consultation
with the Subcommittee Chair and the Department of Justice, I
think there are a couple of reasons why this legislation
narrowly crafted is likely to survive constitutional muster,
although it will be a very close question.
The first is that the Court in Ashcroft said that the
Government could not rely on the Ferber decision to support its
case but left open a small window of opportunity, that on a
basis other than Ferber, a law precluding certain not obscene
but nonetheless child pornography might be upheld. And I think
the compelling interest in our trying to fit within that narrow
window is the technological fact that we are now at a point
where we really cannot distinguish between virtual and real
child pornography, or we're very close to that point.
And given that problem, if we only go after pornography
that is produced using real children, and we do not go after
that which is virtually indistinguishable from such, we will
effectively preclude any prosecution of child pornography.
So I think there's a compelling reason to try to avail
ourselves of the window that the Supreme Court left open. And
the precise window they left open was the use of an affirmative
defense.
And I think by targeting this prohibition to child
pornography that is virtually indistinguishable from real, that
is computer-generated, we have defined it as narrowly as
possible while at the same time leaving the Government its
ability to prosecute these cases.
I want to compliment the gentleman for his craftsmanship
and urge my colleagues to support----
Mr. Smith. Would the gentleman yield briefly?
Mr. Schiff. I'd be happy to yield.
Mr. Smith. Mr. Chairman, I just want to thank the gentleman
from California, as well as the gentlewoman from California,
both for their comments and for their support. And Mr. Schiff
has, along in the process, made several suggestions which we
have adopted and which I appreciate as well.
I'll yield back.
Chairman Sensenbrenner. The question is on the Smith
amendment to the Subcommittee amendment in the nature of a
substitute as modified.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it.
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. 4623, offered by Mr. Scott.
Page 1, line 6, strike all of subsection (a) and
redesignate succeeding subsections accordingly.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, this amendment would actually
conform the bill to the Supreme Court's actual decision in
Ashcroft v. Free Speech Coalition, as opposed to trying to
conform it to an opinion which has been opposed by at least
five judges in that case.
Proponents of the bill believe the Court left open the
question of whether the Government can criminalize computer-
generated images that are not obscene and do not involve real
children. Obscene images can always be prosecuted, but the
Court clearly said that the Government cannot criminalize
images which are not obscene unless the product involved actual
children.
In striking down the offending portions of the CPPA and
upholding its decision in Ferber from 1982, the Court stated:
In contrast to the speech in Ferber, speech that itself is the
record of sexual abuse, the CPPA prohibits speech that records
no crime and creates no victims by its production. Virtual
child pornography is not intrinsically related to the sexual
abuse of children as were the materials in Ferber.
Ferber then not only referred to the distinction between
actual and virtual child pornography, it relied on it as a
reason supporting its holding. Ferber provides no support for a
statute that eliminates a distinction and makes the alternative
mode criminal as well.
It further cited Osborne, a 1990 case, which said the
distribution of descriptions or other depictions of sexual
conduct not otherwise obscene, which do not involve live
performance or photographic or other visual reproduction of
live performance, retains First Amendment protection.
Now, the proponents also argue that the Court did not
consider the harm done to children that will occur through
technological advances when you can't tell real children from
virtual children.
And it addressed the Government's ability to prosecute. It
said that the idea that the Government can't prosecute as a
problem, it says the hypothesis is somewhat implausible. If
virtual images were identical to illegal child pornography, the
illegal images would be driven from the market by the
indistinguishable substitutes. Few pornographers would risk
prosecution by abusing real children if fictional computerized
images would suffice.
They went on to say that the argument that protected speech
may be banned as a means to ban unprotected speech, that this
analysis turns the First Amendment upside down. The Government
may not suppress lawful speech as a means of suppressing
unlawful speech.
It also said that the Government raises serious
constitutional difficulties by seeking to impose on the
defendant the burden of proving his speech was not unlawful. An
affirmative defense applies only after the prosecution has
begun, and the speaker must himself prove, on pain of felony
conviction, that his conduct falls within the affirmative
defense.
In cases under CPPA, the evidential burden is not trivial.
Where the defendant is not the producer of the work, he may
have no way of establishing the identity or even the existence
of the actors. If the evidentiary issue is a serious problem
for the Government, as it asserts, it will be at least as
difficult for an innocent possessor.
The proposed statute, however, makes by its very words
illegal what the Court just said was legal. If it were an
evidentiary rule that said that proving the real child case
would be made with the introduction of indistinguishable
images, subject, I guess, to an affirmative defense, that might
be different. But here the proposed criminal statute itself
makes illegal exactly what the Court said was protected speech.
Five Justices joined in the majority opinion. One
concurred, one concurred in part and dissented in part, and two
dissented. With five Justices agreeing with the whole decision
and two agreeing in part, this isn't a close, split decision.
So, Mr. Chairman, I think my amendment would bring this
bill in compliance with the clear provisions of Ashcroft v.
Free Speech Coalition and avoid the necessity of the Court
telling us again that we cannot prosecute child pornography
unless real children were in fact involved in the production of
the material, unless the material was legally obscene.
I hope we would adopt the amendment to conform the bill to
the Constitution. And I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Texas.
Mr. Smith. Mr. Chairman, I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. And I noticed that Mr. Schiff was seeking to be
recognized, so I'll be happy to yield part of my time to him.
Mr. Schiff. I thank the gentleman for yielding.
One observation I wanted to make, because the concern the
gentleman from Virginia has raised was one that I shared as
well, but I think the Court in Ashcroft explicitly states that
we need not decide, however, whether the Government could
impose this burden on a speaker. Even if an affirmative defense
can save a statute from First Amendment challenge, here the
defense is incomplete and insufficient even on its own terms.
So the Court said that we don't decide here whether you can
establish affirmative defense, because affirmative defense in
the preexisting law was inadequate. This is a different
affirmative defense established in this bill. I think this
affirmative defense is precisely the one the Court says it left
open.
Now, if the Court is saying that we haven't decided today
whether you could prohibit virtual as well as real, if you
provided an affirmative defense that allowed the defendant to
prove that in fact it was all virtual, if the Court has said
we're leaving that open, the Court has invited the Congress to,
if it finds in its judgment appropriate, establish that
affirmative defense.
And the only way that an affirmative defense makes sense is
if what you're attacking is child pornography that is
indistinguishable, real from virtual, because if this statute
were now rewritten to prohibit only real child pornography,
what would the point be of an affirmative defense? There would
be no need to show that it was produced using a computer,
because that would not even be precluded. That would not be an
affirmative defense; that would be a real defense by any means.
So the Court must have contemplated that the new statute,
if there was one to be passed by Congress establishing an
affirmative defense, would have to prohibit conduct that was
slightly broader than only real.
And what we have crafted here I think is something that is
as narrow as possible; that is pornography indistinguishable
from real, that basically we can't really tell whether it's
real or it's virtual.
So I think that by the Court inviting an affirmative
defense, they are in fact saying that it's an open question,
whether the Congress could prohibit something slightly more
than only real.
And I think that a real good faith effort has been made to
craft this law in the narrowest way possible to test that
theory of an affirmative defense, which I think the Court will
likely support.
I yield back to the gentleman.
Mr. Smith. I thank the gentleman for his comments.
Mr. Chairman, Congress does have a compelling State
interest to protect children from exploitation, and that
interest extends to the prosecution of those who would or do
exploit children. The problem is that a computer image seized
from a child pornographer is rarely a first generation product
and the retransmission of images can alter the image and make
it impossible even for an expert to testify whether or not a
particular image depicts a real child.
Realizing that this technology threatened the Government's
compelling State interests in protecting real children to the
effective prosecution of the child pornography laws that cover
the visual depictions of real children, Congress in 1996
attempted to address this concern. The 1996 statutory language
included any virtual depictions and included pictures of
youthful-looking adults and didn't just limit it to children.
That, understandably, the Supreme Court found to be overbroad.
This bill narrows the definition to a subcategory of visual
depictions that trigger a compelling State interest. Evidence
submitted to the Congress demonstrates that technology is
available today that allows child pornographers to create
depictions of virtual children that an ordinary person viewing
the depictions could not distinguish from real children. It
also allows child pornographers to disguise depiction of real
children to look like computer-generated pictures and allows
child pornographers to disguise depictions of real children to
make those children unidentifiable.
The Court does not prohibit the Congress from prohibiting
virtual child pornography when the prohibition is narrowly
drawn to promote a compelling Government interest. And that's
what we do in this particular bill.
I'll only add one thing to what the gentleman from
California has said so well, and that is in regard to the
affirmative defense, and I'll quote Justice Thomas in his
concurring opinion: ``The Court does leave open the possibility
that a more complete affirmative defense could save a statute's
constitutionality, implicitly accepting that some regulation of
virtual child pornography might be constitutional.'' And no
member of the Court took exception to that statement.
Mr. Chairman, we have narrowed the definition in
significant ways and have pointedly addressed the Court's
concerns about affirmative defense. The Court gave us an
opportunity, and I believe we have an obligation to take it to
protect our children.
And I'll yield back the balance of my time.
Chairman Sensenbrenner. The question is on----
Mr. Scott. Mr. Chairman, the gentleman has some time. I'd
like to read----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Scott. I'd ask unanimous consent that he be given 2
additional minutes.
Chairman Sensenbrenner. Without objection.
Mr. Scott. And if the gentleman would yield, so I could
read----
Mr. Smith. I'll be happy to yield to the gentleman from
Virginia.
Mr. Scott. The paragraph that begins: "We do not decide,
however, whether the Government could impose this burden on a
speaker, even if the affirmative defense can save the statute
from the First Amendment challenge, here the defense is
incomplete."
But they conclude that paragraph by saying: "For this
reason, the affirmative defense cannot save the statute, for it
leaves unprotected a substantial amount of speech not tied to
the Government's interest in distinguishing images produced
using real children from virtual ones."
The concurring opinion on Thomas is one vote. Five people
signed the majority opinion, which disagreed with Thomas'
opinion.
Mr. Schiff. Would the gentleman yield?
Mr. Smith. You can't find anything in the Ashcroft opinion,
in the main opinion, with five judges signing it, that agrees
with Thomas' concurring opinion.
Mr. Schiff. Would the gentleman yield?
Chairman Sensenbrenner. The time belongs to the gentleman
from Texas.
Mr. Smith. Let me respond briefly, and then I'll be happy
to yield to the gentleman from California.
I'll mention a couple of things. First of all, you
mentioned only Justice Thomas referred or mentioned affirmative
defense. However, in the quote I just mentioned, I also pointed
out that no other member took exception to what he said.
But I will say, we expect to pick up one or more other
Supreme Court Justices, if the gentleman wants to know the
strategy--particularly, for instance, Sandra Day O'Connor,
perhaps Kennedy--by focusing specifically on minors and not
having the constitutionally--the unconstitutionally overbroad
language of perhaps including adults.
So by narrowing the scope both in regard to the age of
individuals involved and narrowing the scope of virtually
indistinguishable between one image and another, and also by
having a better affirmative defense, we expect to pick up a
number of votes of Supreme Court Justices.
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. I yield to Mr. Scott.
Mr. Scott. Thank you. And I appreciate the gentleman
yielding so I can read again what I read the Supreme Court
said: "The distribution of descriptions or other depictions of
sexual conduct not otherwise obscene, which do not involve live
performances or photographic or other visual productions of
live performances, retains First Amendment protection."
Five judges signed that. The Five judges also signed the
opinion that said: The Government raises serious constitutional
difficulties by seeking to impose on the defendant the burden
of proving a speech was not lawful, and affirmative defense
applies only after prosecution has begun. And the speaker must
himself prove, on the pain of felony conviction, that his
conduct falls within the affirmative defense. In cases under
the CPPA, the evidentiary burden is not trivial. Where the
defendant is not the producer of the work, he may have no way
of establishing the identity or even the existence of the
actors. The evidentiary issue--if the evidentiary issue is a
serious problem for the Government, as it asserts, it will be
at least as difficult for the innocent possessor.
They've already dealt with the problem of prosecution. They
said that's too bad. You may agree or disagree with that
decision, but they said it's too bad.
Mr. Schiff. Will the gentleman yield?
Mr. Watt. I'll yield to the gentleman from California.
Mr. Schiff. I thank the gentleman for yielding.
The Court's majority opinion, though, also provides the
language that we've been referring to with respect to an
affirmative defense. The particular portion that the gentleman
read takes issue with the affirmative defense that existed in
the law that was struck down.
But what the Court majority opinion also said is that: We
leave open the question whether a better-framed affirmative
defense would succeed in saving the statute.
The flaw that was identified in the preexisting statute and
its affirmative defense was that the affirmative defense
``provides no protection to persons who produce speech by using
computer imaging or through other means that do not involve the
use of adult actors who appear to be minors.''
That flaw, that inadequate affirmative defense, has been
cured by this bill, which does provide an affirmative defense,
if the speech was produced using computers or using adult
actors who appear to be minors.
So the flaw that the Court identified in the preexisting
affirmative defense has been cured. And the question of whether
a better affirmative defense, such as we have here, will
survive constitutional scrutiny was explicitly left open by the
majority of the Court.
So I think that the most that can be said, and the least
that can be said, is that the Court has specifically left open
the issue of whether this would be constitutional. And I think
the compelling reason why we ought to test this question is, in
the absence of this action, I simply think it will be
impossible for the Government to prosecute child pornography
because it will always be a defense that the material could
have been computer-produced. It simply will be an unmeetable
burden for the Government to show that whatever the photograph
or image is could not have been produced using a computer.
Mr. Nadler. Would the gentleman yield for a question?
Mr. Schiff. I'd be happy to yield back to the gentleman.
Mr. Watt. I'll yield to Mr. Nadler.
Mr. Nadler. Thank you.
Isn't it a question of fact, whether in fact the alleged
child pornography is in fact child pornography or is virtual,
and the Government has to prove the case?
Mr. Schiff. Will the gentleman yield?
Mr. Nadler. And let me just say that if the Government
can't prove it under the Supreme Court decision, it's
constitutionally protected.
Mr. Schiff. If the gentleman will yield?
Mr. Watt. I'll yield to the gentleman.
Mr. Schiff. It is true under the current law, and in light
of the Ashcroft decision, that you cannot prosecute child
pornography unless you prove it's real. The problem is, as
we're finding from prosecution offices around the country, that
they cannot generally meet that burden because computer
technology has gotten so good.
So if we are going to allow the prosecution to prosecute
child pornography, the only way to do it is to prohibit
pornography that is virtually indistinguishable from real----
Mr. Nadler. Would the gentleman yield again for a question?
Mr. Schiff.--and allow an affirmative defense where the
defendant can show that in fact it was not real.
Mr. Watt. Let me just reclaim my time quick enough to say--
because it's about to run out--that it seems to me that what
you're doing, though, is shifting the burden of proof to the
defendant. And I just--I mean, with the presumption of
innocence, this affirmative defense thing really has the effect
of shifting the burden of proof. And I don't see how you get
around that in this bill. Maybe I'm wrong.
I'll yield back.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The question is on--the gentleman
from New York, Mr. Nadler.
Mr. Nadler. Thank you.
I don't--I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized.
Mr. Nadler. Let me make a comment first, and then I think
Mr. Watt wanted some time.
Mr. Watt. Mr. Scott.
Mr. Nadler. No, I meant Mr. Watt. I thought you wanted
time. Mr. Scott.
Mr. Chairman, if in fact the Supreme Court has said, as it
has, that only the actual picture, not the virtual image, may
be prosecuted as child pornography constitutionally, and the
evil, obviously--the particular evil of child pornography is
the fact that you use children to produce it, that children are
being exploited--whereas, in creating a virtual image, there
are no children being used or exploited.
Standard criminology, you know, Criminal Law 101 says that
the prosecution must prove every element of the crime. And one
of the elements of the crime is that, in fact, a child was
used. That's what the Supreme Court said.
So I don't see how you can shift the burden of proof to the
defense to prove that he didn't do something which the
prosecution hasn't proved he did. So I can't see how this bill
or shifting the burden to an affirmative defense can get around
the Supreme Court decision, which is very clear.
And I think this bill is the newest in a serious of
attempts to do what the Supreme Court keeps telling us we can't
do and will be just as futile as the previous attempts.
Mr. Smith. Would the gentleman yield very briefly?
Mr. Nadler. I think Mr. Scott wanted me to yield first.
Mr. Scott. Yes. This is actually worse than shifting the
burden of proof. The Supreme Court said you can't prohibit
child pornography that does not use real children, unless it's
obscene. This puts in the criminal statute exactly that, that
it could be virtual child pornography and that's illegal.
Now, the affirmative defense comes in and proves, if that's
the case, if that's the evidence that's presented, that virtual
child pornography--the exact same thing the Supreme Court said
you can't prohibit--if that's what you put on as your prime
facie case, you've got a conviction. You've got a conviction
under language the Supreme Court said you can't do.
Now, if the statute said real, live children, and you can
introduce evidence that's virtually indistinguishable and then
try to shift the burden on that, that's one thing. But you have
in the prime facie case, in the criminal statute, language
which clearly the Court said, every different kind of way it
can, you can't prohibit.
And that's different from the burden of proof. The Supreme
Court said it's not illegal. And if that's your prime facie
case, why do you need any defense?
Mr. Schiff. Will the gentleman yield?
Mr. Nadler. I'll yield.
Mr. Schiff. I think the gentleman from New York is correct
in that, when you use an affirmative defense, you are in effect
shifting the burden of proof on an element of what is being
charged. The fact is there are many affirmative defenses
throughout the criminal law. They generally exist in areas
where the defense rather than the prosecution is in unique
position to know the truth of the merits as to that element.
Sometimes it has to do with a defendant's mental state or their
diminished capacity to commit a crime.
In this case, the knowledge of whether something was
produced using a real child or using a computer is more often
going to be uniquely in the possession of the person creating
the image.
Now, I recognize the discomfort in shifting----
Mr. Nadler. Reclaiming my time, the problem with what
you're saying is that affirmative defenses cannot be used to
relieve the prosecution of the burden of proving an essential--
a constitutionally essential element of the crime, which in
this case has been specifically stated by the Supreme Court to
be constitutionally essential.
Mr. Scott. Will the gentleman yield?
Mr. Nadler. Yes, I will.
Mr. Scott. And another problem is, the Supreme Court dealt
with that when it said: "If the evidentiary issue is a serious
problem for the Government, as it asserts, it will be at least
as difficult for the innocent possessor."
They dealt with that problem, and they knocked it out of
the park. You can't use that argument.
Mr. Smith. Will the gentleman----
Mr. Schiff. Will the gentleman----
Mr. Scott. Five judges signed that opinion.
Mr. Schiff. If the gentleman will yield one more moment?
Mr. Nadler. Yes.
Mr. Schiff. The fact is, the majority of the Supreme Court
said they were leaving open the question of whether an
affirmative defense would save the statute.
So far from deciding in the case that you could not have a
shifting of the burden on this point, the Supreme Court
explicitly said: We are not deciding this question.
Mr. Smith. Would the gentleman----
Mr. Nadler. Reclaiming my time, and then I'll yield to Mr.
Smith, I'll simply say they left it open because they didn't
have to reach it for decision, because they said that the
prosecution has to prove it was a real child.
I'll yield to Mr. Smith.
Mr. Smith. Very briefly, I just want to make the point
that----
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the Scott amendment to the Committee
amendment in the nature of a substitute.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment to the Subcommittee amendment in the nature of a
substitute is not agreed to.
Are there further amendments?
Ms. Hart. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Pennsylvania,
Ms. Hart.
Ms. Hart. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the Subcommittee amendment in the
nature of a substitute to H.R. 4623 offered by Ms. Hart.
Add at the end the following: Section, investigative
authority relating to child pornography.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. And the gentlewoman is recognized
for 5 minutes.
Ms. Hart. Thank you, Mr. Chairman.
This amendment makes technical changes to update the
current law regarding the use of administrative subpoenas in
the child pornography investigations.
Under section 3486, the use of administrative subpoenas in
child pornography investigations is permitted pursuant to
section 2703 of the Electronic Communications Privacy Act.
We recently updated the type of information that may be
acquired through an administrative subpoena in section 2703 but
failed to update the same language in section 3486.
The best way to change this oversight, in my opinion, is by
referencing the language of section 2703 in section 3486, which
is what my amendment will do.
The practical implications of this change are important to
vigorous investigations of online crimes against children.
Currently, section 3486 only allows the collection of
information such as the name, address, and length of service of
the service provider.
With child pornographers able to hide behind false
identities, my amendments will allow investigators to collect
the important billing information that can show the true
identity of these individuals and further the investigation in
a more timely manner.
The protection of children from harmful material and online
predators in an important issue. And I thank the Chairman and
the Committee for acting so quickly on this issue, and so
thoughtfully, to address the concerns raised by the recent
Supreme Court decision. But because protecting our children
from dangerous individuals is also very important, I believe
it's necessary we provide law enforcement with tools to track
these criminals who travel in cyberspace to prey on children.
One of the major issues raised in the Ashcroft v. Free
Speech Coalition decision, and in the commentary after the
decision, was law enforcement's concerns about tracking online
predators. My amendment simply updates criminal law and
provides law enforcement with reasonable authority to identify
online offenders. In short, this amendment makes a necessary
clarification to recent updates to the criminal code, which
will ultimately assist in the investigation and apprehension of
child pornographers.
I ask the Committee to adopt the amendment and further want
to alert the Committee, Mr. Chairman, that recently in
Pittsburgh there was a case where, fortunately, the predator
had registered for his Internet service under his own name and
his own address and so was easily tracked. If that same
predator had not done so, the girl that he held for only 3
days, tied to a bed in his apartment, would have been there for
much longer, and we just don't know what could have happened to
her. Fortunately, she was rescued safely by law enforcement,
because she was easily tracked.
I yield back.
Mr. Nadler. Will the gentlelady yield for a question?
Chairman Sensenbrenner. Does the gentlelady from
Pennsylvania yield to the gentleman from New York?
Ms. Hart. Sure. Yes, thanks, Mr. Chairman.
Mr. Nadler. Yes, Mr. Chairman, I apologize for not having
had an opportunity to peruse all these sections of Title 18. I
have to ask this question.
You've giving this extra information--the Government
demands this information from whom? From the ISP?
Ms. Hart. That's correct. This is similar to what we
recently did, where we allow the administrative subpoena to
have law enforcement get more information from the ISP
regarding who is actually getting the service.
Mr. Nadler. That 2703(c)(2) that your referencing deals
with what situation?
Ms. Hart. It is a situation where an administrative
subpoena can be used to receive information through the ISP.
Mr. Nadler. And 3486--what I'm confused about----
Ms. Hart. We're adding to this section----
Mr. Nadler. The same language.
Ms. Hart.--a similar section that we had added to a
different section.
Mr. Nadler. No, I understand that. What I want to know is,
what do these two different sections deal with? And, therefore,
what's the impact of importing language from the one to the
other? In other words, if they dealt with the same thing, then
you wouldn't need to do this.
Ms. Hart. 2703 lists specifically the information that can
be acquired through an administrative subpoena, and 3486 allows
its use.
Mr. Nadler. Allows the use of the same----
Ms. Hart. Of the administrative subpoena.
Mr. Nadler. Of the information gathered under section 2703?
Ms. Hart. That's correct.
Mr. Nadler. So they're dealing with the same situation,
just different stages in the same investigation?
Ms. Hart. Yes. Different stages, right. Or instructions on
what can be acquired.
Mr. Nadler. Okay, thank you.
Chairman Sensenbrenner. Does the gentlewoman yield back
now?
The question is on the Hart amendment to the Subcommittee
amendment in the nature of a substitute.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment to the Subcommittee amendment in the nature of a
substitute is agreed to.
Are there further amendments?
Ms. Jackson Lee. I have an amendment at the desk.
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Does the gentlewoman from Texas have an amendment?
Ms. Jackson Lee. Yes, I'm sorry. I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the Subcommittee amendment in the
nature of a substitute to H.R. 4623, offered by Ms. Jackson Lee
of Texas.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. And the gentlewoman from Texas is
recognized for 5 minutes.
Ms. Jackson Lee. I thank you very much.
I think the Chairman of the Crime Subcommittee and the
Ranking Member have some commonality in their approach. And
that is that this bill is being rewritten because we realize
that the original legislation was ruled unconstitutional, and
we're trying to ensure that we protect our children--that's my
concern, protecting our children--but ensuring that we
recognize that we have three branches of Government, the
executive, the judiciary--the judicial and the executive.
And for that reason, I'd ask my colleagues to review the
amendment that I have that speaks to the controversy of the
legislation but does not take away from the legislation's
intent, and that is to protect our children.
Having just come back from the U.N. special session on
children, realizing that there's not been an international
focus on children in 12 years, I would hope that we could find
compromise in this legislation. It is aimed at getting rid of
pornography--unsightly, horrific, abusive, violent pornography
that goes against our children.
Therefore, I offer an amendment that would eliminate the
context issue of the pending legislation, something that the
Supreme Court referred to. By adding this, I propose to give
the judiciary a more definitive standard to evaluate a
pornography case. One of the issues raised in Ashcroft is that
Child Pornography and Prevention Act of 1996 did not prevent
prosecution of the makers of the movie ``Traffic.''
For instance, the literal terms of the statute embrace a
Renaissance painting depicting a scene from classical
mythology, a picture that appears to be of a minor engaging in
sexually explicit conduct. The statute also prohibits Hollywood
movies filmed without any child actors if a jury believes that
an actor appears to be a minor engaging in actual or simulated
sexual intercourse.
My amendment would apply the Miller v. California test to
the content of the material. In this test, the Government must
prove that the work taken as a whole appeals to the prurient
interests; is patently offensive in light of community
standards; and lacks serious literary, artistic, political or
scientific value.
I think this helps to narrow this particular legislation to
ensure that our focus is on children and not on the artistic
beliefs and the artistic tastes of adults that may include
artistic, political or scientific value.
I would hope that what we are trying to do today is to get
after the bad guys who are attacking our children and not begin
to argue about the content.
I would offer to say to my colleagues, when a well-known
mayor of New York attempted to stop a display of art, whether
it be questionable or not, in one of its major museums, we will
find that the courts ruled against him.
And so I would hope that we would not send this legislation
out of this Committee to the floor of the House and back out to
be again ruled unconstitutional. The key element of what we're
trying to do is to eliminate pornography as it relates to the
attack on our children. And I believe that we're also
recognizing that the First Amendment does exist and that we
must adhere to some of the standards that have been accepted by
our court system, in this instance, the Miller v. California
case.
Having had it struck out in the case of the Supreme Court,
I'd like to make note of this. In sum, it says: 2256(8)(b)
covers material beyond the categories recognized in Ferber and
Miller. And the reasons the Government offers in support of
limiting the freedom of speech have no jurisdiction in our
precedents or in the law of the First Amendment.
And so I would ask that my colleagues look at this so that
we can truly get a bill that is going to respond to the key
element. Again, I believe it is the issue of pornography and
children. The Court has already made its position known. And I
ask my colleagues to support this amendment.
At this time, I yield back.
Chairman Sensenbrenner. The gentleman Texas, Mr. Smith.
Mr. Smith. Mr. Chairman, I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman, I know the gentlewoman from Texas
has a special interest in this legislation, since she's an
original co-sponsor, which I appreciate. But I still have to
oppose this amendment simply because the Supreme Court has
determined that child pornography does not have to be obscene.
And this amendment, unfortunately, would ignore that decision.
This amendment incorporates the three-pronged test for
obscenity established by the Supreme Court in Miller v.
California and thus would limit the prohibition on virtual
child pornography only to obscene materials. This defeats the
whole purpose of the bill, which is to narrow the definition of
computer-generated child pornography so that it remains covered
by prohibitions of child pornography laws.
Without the bill, the tougher obscenity standard would have
to be met. Obscenity and child pornography are two separate
exceptions to the First Amendment protection afforded
pornography. These exceptions should not be confused. The
compelling State interest to protect children is overwhelming,
and part of that interest is to prosecute those who exploit
children.
Section 2 of the bill was drafted to salvage as much as
possible the existing child pornography laws without having to
limit them to obscene materials. Prosecutors need the full
range of tools to combat this horrific crime. The Supreme Court
has not held that prosecutors are limited to relying on the
obscenity laws, and we should not handicap prosecutors in that
way.
In summary, Mr. Chairman, the amendment would legalize non-
obscene child pornography, and I believe strongly that we must
not legalize not-obscene child pornography. And for those
reasons, I oppose the amendment and urge my colleagues to
oppose it as well.
And I'll yield back the balance of my time.
Chairman Sensenbrenner. The question is on the Jackson Lee
amendment to the Subcommittee amendment in the nature of a
substitute.
Mr. Scott. Mr. Chairman, move to strike the last word.
Chairman Sensenbrenner.
The gentleman from Virginia is recognized.
Mr. Scott. Mr. Chairman, what we are talking about is the
very essence of the legislation. The Supreme Court struck out
the idea that you could declare child pornography as obscene.
They said you could criminalize child pornography if you use
live children, but made it clear every different kind of way
they could that you could not criminalize child pornography
that did not use real children if it was not otherwise obscene.
Now, this language--I'm not sure that it gets in the right
section, but I mean this would make it clearly constitutional
because the language in the amendment is essentially the
language determining--that you have to consider whether or not
something is obscene.
But the idea that we're going to pass this legislation
doing exactly what the Supreme Court said you couldn't do is an
insult to the Judiciary Committee.
I yield to the gentlelady from Texas.
Ms. Jackson Lee. I thank the gentleman very much.
And I would like to acknowledge Mr. Smith's comment. You
are correct. I have a very special interest in this
legislation. I want it to withstand constitutional muster. I am
an original co-sponsor, because I believe in attacking at the
heart of the problem, which is pornographic materials directed
toward our children.
At the same time, I would ask my good friend and colleague
to, if you would, digest and analyze the comments of the
Ranking Member and, as well, the intent of this amendment.
Obviously, I will look to any modifications as to its location.
But I think where we're trying to go as we move this bill
out of Committee is to make it, if you will, subject to
constitutional muster in the right way and that we go after the
heart of the problem.
We're always going to come up against the issues of
literary content, artistic content, political content, or
scientific content, using such depictions for these reasons.
And there will always be the ability of someone to raise this
and bring this to the attention of the courts on the basis of:
``I was using this for scientific reasons and political
reasons,'' ``I was using this for artistic reasons,'' et
cetera.
I believe we would do well in the Judiciary Committee to
respect the three branches of Government, attempt to pass
legislation that will reach constitutional muster. And I would
ask my colleagues to support this.
And I would yield back to the distinguished gentleman from
Virginia.
Do you need the time?
With that, Mr. Chairman, I'll yield back my time.
Chairman Sensenbrenner. The gentleman from Virginia?
The question is on the Jackson Lee amendment to the
Subcommittee amendment in the nature of a substitute.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment to the Subcommittee amendment is not agreed to.
Are there further amendments?
If not, the question is on the Subcommittee amendment in
the nature of a substitute as amended.
Those in favor will say aye.
Opposed, no.
The aye appears to have it. [Laughter.]
The aye has it.
Mr. Smith. Mr. Chairman, I'd like a recorded vote at the
final passage.
Chairman Sensenbrenner. Well, let's see if we have a
reporting quorum. A reporting quorum is present. The question
now occurs on the motion to report the bill H.R. 4623
favorably.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it.
The gentleman from Texas?
Mr. Smith. Mr. Chairman, I'd like a recorded vote, please.
Chairman Sensenbrenner. A recorded vote is requested.
Those in favor of reporting the bill 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?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. 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. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there Members in the chamber
who wish to cast or change their vote?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are 16 ayes and two nays.
Chairman Sensenbrenner. And the motion--a reporting quorum
is not present.
Without objection, the vote will be vitiated. And without
objection, the previous question on the motion to report
favorably is ordered. And we will take it up when a reporting
quorum appears.
* * * * *
The Committee met, pursuant to notice, at 10:29 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present.
[Intervening business.]
The unfinished business is the motion to report the bill
H.R. 4623, upon which the previous question had been ordered.
The Chair notes the presence of a reporting quorum.
And for the information of the Members, H.R. 4623 is the
``Child Obscenity and Pornography Prevention Act of 2002.''
Those in favor of the motion to report the bill favorably
will say aye.
Mr. Smith. Mr. Chairman, I'd like a recorded vote on that
as well.
Chairman Sensenbrenner. Okay.
Opposed, no.
The ayes appear to have it. The ayes have it. A recorded
vote is requested.
Those in favor of reporting H.R. 4623 favorably will, as
your names 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?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye.
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?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye.
Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye.
Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye.
Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. No.
The Clerk. Mr. Frank, no.
Mr. Berman?
[No response.]
The Clerk. 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?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye.
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 chamber
who wish to cast or change their votes?
The gentleman from California, Mr. Issa.
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their vote?
The gentleman from North Carolina, Mr. Coble.
Mr. Coble.
The Clerk. Mr. Coble, aye.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are 22 ayes and three nays.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute, incorporating the amendments heretofore adopted.
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.
And all Members will be given 2 days, as provided by House
rules, in which to submit additional, dissenting, supplemental,
or minority views.
Dissenting Views
H. R. 4623, the ``Child Obscenity and Pornography
Prevention Act of 2002'' is a hasty attempt drafted by the
Department of Justice to override the United States Supreme
Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S.
____ (2002). While the intentions of the authors may be good,
the bill is fatally flawed.
H.R. 4623 seeks to ban ``virtual child pornography.'' It
not only defines child pornography as virtual child pornography
that is ``indistinguishable'' from real child pornography, but
makes even possession of an image that is ``indistinguishable''
a crime.
Child pornography is despicable and illegal, and must be
banned and prosecuted. However, pornography that does not
involve a child is just that--pornography, which, if not
obscene, is not illegal. To constitute ``child pornography,'' a
real child must be involved. Computer generated images
depicting child-like characters which do not involve real
children do not constitute child pornography any more than a
movie with a 22 year old actor who plays, and looks, the role
of a 15 year old engaging in explicit sexual activities.
Pornography, computer generated or not, which is produced
without using real children, and is not otherwise obscene, is
protected under the First Amendment. H.R. 4623, like the Child
Pornography Prevention Act (CPPA) struck down in Ashcroft v.
Free Speech Coalition, attempts to ban this protected material,
and therefore is likely to meet the same fate. The fatal flaw
in the (CPPA) was its criminalization of speech that was
neither ``obscene'' under Miller v. California, nor ``child
pornography'' involving the abuse of real children under New
York v. Ferber. H. R. 4623 repeats that mistake. Like the CPPA,
this bill would not only criminalize speech that is not
obscene, but also speech that has redeeming literary, artistic,
political or other social value. For example, the bill would
punish therapists and academic researchers who used computer-
generated images in their research, and film makers who create
explicit anti-child abuse documentaries.
H.R. 4623 creates a strict liability offense. Under the
bill, prohibited images may not be possessed for any reason,
however legitimate. Therefore, any scholarly research that may
be used to verify or refute the underlying assumptions of the
bill is rendered impossible.
Proponents of the bill believe the court left open the
question of whether the government can criminalize computer
generated images that are not obscene and do not involve real
children. Obscene images can always be prosecuted, but the
Court clearly said that the government cannot criminalize
images which are not obscene unless the product involved actual
children. In striking down the offending portions of CPPA and
upholding its decision in New York v. Ferber, 458 U.S. (1982),
the court stated:
``In contrast to the speech in Ferber, speech that
itself is the record of sexual abuse,the CPPA prohibits
speech that records no crime and creates no victims by
its production. Virtual child pornography is not
`intrinsically related' to the sexual abuse of
children, as were the materials in Ferber, at 759.''
(page 12)
``Ferber, then, not only referred to the distinction
between actual and virtual child pornography, it relied
on it as a reason supporting its holding. Ferber
provides no support for a statute that eliminates the
distinction and makes the alternative mode criminal as
well.'' (Page 13)
Also, in interpreting the case of Osborne v. Ohio, 495
U.S.103 (1990), the Court stated:
``Osborne also noted the State's interest in
preventing child pornography from being used as an aid
in the solicitation of minors. Id., at 111. The Court,
however, anchored its holding in the concern for the
participants, those whom it called the ``victims of
child pornography.'' Id., at 110. It did not suggest
that, absent this concern, other governmental interests
would suffice. See infra, at 13-15. (page 12)
``The case reaffirmed that where the speech is
neither obscene nor the product of sexual abuse, it
does not fall outside the protection of the First
Amendment. See id.,at 764-765 (`[T ]he distribution of
descriptions or other depictions of sexual conduct, not
otherwise obscene, which do not involve live
performance or photographic or other visual
reproduction of live performances, retains First
Amendment protection').'' (Page 13)
Proponents also argue that the Court did not consider the
harm to real children that will occur when, through
technological advances, it will become impossible to tell real
children from ``virtual'' children, thereby allowing harm to
real children because the government cannot tell the difference
for purposes of bringing prosecution. The Court clearly did
consider it and Stated:
``The Government next argues that its objective of
eliminating the market for pornography produced using
real children necessitates a prohibition on virtual
images as well. Virtual images, the Government
contends, are indistinguishable from real ones; they
are part of the same market and are often exchanged. In
this way, it is said, virtual images promote the
trafficking in works produced through the exploitation
of real children. The hypothesis is somewhat
implausible. If virtual images were identical to
illegal child pornography, the illegal images would be
driven from the market by the indistinguishable
substitutes. Few pornographers would risk prosecution
by abusing real children if fictional, computerized
images would suffice.'' (Page 16)
Nor was the court persuaded by the argument that virtual
images will make it very difficult for the government to
prosecute cases. As to this concern, the Court stated the
following:
Finally, the Government says that the possibility of
producing images by using computer imaging makes it
very difficult for it to prosecute those who produce
pornography by using real children. Experts, we are
told, may have difficulty in saying whether the
pictures were made by using real children or by using
computer imaging. The necessary solution, the argument
runs, is to prohibit both kinds of images. The
argument, in essence, is that protected speech may be
banned as a means to ban unprotected speech. This
analysis turns the First Amendment upside down.
``The Government may not suppress lawful speech as
the means to suppress unlawful speech.'' (Pages 16-17)
And, finally, the government suggests that because the
Court determined that it need not decide whether an affirmative
defense could save an otherwise unconstitutional statute, it
left open that possibility. That may be true, but, despite its
recognition it need not decide the issue of affirmative
defenses in the case before it, the Court went out of its way
to make clear how it views such efforts with the following
language:
``To avoid the force of this objection, the
Government would have us read the CPPA not as a measure
suppressing speech but as a law shifting the burden to
the accused to prove the speech is lawful. In this
connection, the Government relies on an affirmative
defense under the statute, which allows a defendant to
avoid conviction for non-possession offenses by showing
that the materials were produced using only adults and
were not otherwise distributed in a manner conveying
the impression that they depicted real children. See 18
U.S.C.Sec. 2252A(c).''
``The Government raises serious constitutional
difficulties by seeking to impose on the defendant the
burden of proving his speech is not unlawful. An
affirmative defense applies only after prosecution has
begun, and the speaker must himself prove, on pain of a
felony conviction, that his conduct falls within the
affirmative defense. In cases under the CPPA, the
evidentiary burden is not trivial. Where the defendant
is not the producer of the work, he may have no way of
establishing the identity, or even the existence, of
the actors. If the evidentiary issue is a serious
problem for the Government, as it asserts, it will be
at least as difficult for the innocent possessor.''
(Pages 17-18)
The Ashcroft decision, essentially reiterated the
principles of Ferber regarding the boundaries for fighting
child pornography:
1. Non-obscene descriptions or depictions of sexual
conduct that do not involve real children are a form of
speech, even if it is despicable speech, protected by
the First Amendment. (Reaffirming Ferber.)
2. The government should focus its efforts on
education and on punishment for violations of the law
by those who actually harm children in the creation of
child pornography rather than on abridgment of the
rights of free speech of those who create something
from their imagination. Slip Opinion at 7 [Kingsley
Int'l Pictures Corp. v. Regents of Univ. of N.Y., 360
U.S. 684, 689 (1959)]
3. The fact that speech may be used to perpetrate a
crime, for example, enticement or seduction, is
insufficient reason to ban the speech. ``The government
may not prohibit speech because it increases the chance
an unlawful act will be committed `at some indefinite
future time.' '' Slip Opinion at 15 [Hess v. Indiana,
414 U.S. 105, 108 (1973) (per curiam)]
4. ``The Government may not suppress lawful speech as
the means to suppress unlawful speech.'' Slip Opinion
at 17. Banning protected speech (virtual child porn) in
order to ban unprotected speech (child porn using real
children) ``turns the First Amendment upside down.''
Id. ``Protected speech does not become unprotected
merely because it resembles the latter.'' Id.
CONCLUSION
Because H. R. 4623 repeats the same mistakes condemned in
Ashcroft v. Free Speech Coalition, it is not likely to be
upheld.
John Conyers, Jr.
Barney Frank.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.