[Senate Report 108-2]
[From the U.S. Government Publishing Office]
Calendar No. 7
108th Congress Report
SENATE
1st Session 108-2
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THE PROTECT ACT OF 2003
_______
February 11, 2003.--Ordered to be printed
_______
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 151]
The Committee on the Judiciary, to which was referred the
bill (S. 151) to amend title 18, United States Code, with
respect to the sexual exploitation of children, and for other
purposes, having considered the same, reports favorably
thereon, with amendments, and recommends that the bill, as
amended, do pass.
CONTENTS
Page
I. Purpose..........................................................1
II. Legislative history..............................................2
III. Discussion.......................................................3
IV. Vote of the Committee...........................................11
V. Section-by-section analysis.....................................12
VI. Cost estimate...................................................15
VII. Regulatory impact statement.....................................15
VIII.Additional views................................................16
IX. Changes in existing law.........................................37
I. Purpose
The purpose of S. 151, the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act or ``PROTECT Act
of 2003,'' is to restore the government's ability to prosecute
child pornography offenses successfully. The bill, as amended
and reported by the Senate Judiciary Committee, would improve
the prosecution of child pornography offenses by: (1) creating
a new definition of ``identifiable minor'' that would include
images that are ``virtually indistinguishable'' from actual
children; (2) creating an absolute affirmative defense for any
pornographic image that was not produced using any actual
children; (3) creating a new offense for certain offers to buy
or sell child pornography; (4) creating a new offense for
obscene child pornography; (5) creating a new civil cause of
action for those aggrieved by the production, distribution or
possession of child pornography; and (6) expanding the
categories of sexually explicit images covered by existing
record keeping requirements. S. 151 also would accomplish
several other changes in existing law to aid in the
investigation and prosecution of child pornography offenses,
such as creating extraterritorial jurisdiction and requiring
that additional prosecutors be assigned to focus on these
crimes.
II. Legislative History
S. 151 was introduced in the 108th Congress by Senator
Orrin Hatch on January 13, 2003. Senator Leahy was the
principal cosponsor and five other Senators joined as
cosponsors, Senators Bennett, Grassley, DeWine, Edwards,
Schumer and Shelby. The bill was referred to the Committee on
the Judiciary. The Judiciary Committee met in executive
session, with a quorum present, to consider S. 151 on January
30, 2003. Two amendments were proposed and adopted. The first
was offered by Senators Hatch and Leahy; the second was offered
by Senator Hatch. The Hatch-Leahy amendment was approved by
unanimous consent. The Hatch amendment was approved by voice
vote, with Senator Leahy noting his objection to it. The bill,
as amended, was approved by the Judiciary Committee by voice
vote, and ordered favorably reported to the Senate.
S. 151 previously had been introduced in the 107th Congress
by Senator Orrin Hatch on May 15, 2002, as S. 2520. Senator
Leahy was the principal cosponsor and seven other Senators
joined as cosponsors, Senators Sessions, Hutchinson, Brownback,
Grassley, DeWine, Edwards, Bennett, and Lincoln. The bill was
referred to the Committee on the Judiciary.
The Judiciary Committee held a hearing on S. 2520 on
October 2, 2002, and heard testimony from Daniel P. Collins,
Associate Deputy Attorney General and Chief Privacy Officer,
United States Department of Justice; Frederick Schauer,
Professor of Law, John F. Kennedy School of Government, Harvard
University; Anne M. Coughlin, Professor of Law, University of
Virginia School of Law; and Daniel S. Armagh, Director, Legal
Resource Division, National Center for Missing and Exploited
Children. At that time, the Committee also considered the
evidence and testimony presented on June 4, 1996, during the
hearing on the Child Pornography Prevention Act of 1996,
detailing the problems of child pornography and the
technological changes in the production and dissemination of
these materials.
The Judiciary Committee met in executive session to
consider S. 2520 on November 14, 2002, during the post-
election, ``lame duck'' session of the 107th Congress. A
substitute amendment offered by Senators Hatch and Leahy was
approved by unanimous consent, as was an additional amendment
offered by Senator Leahy. Two other amendments by Senator Hatch
were approved by the Judiciary Committee, although Senator
Leahy noted his objection to these. The bill, as amended, was
ordered favorably reported to the Senate.
S. 2520, as reported by the Judiciary Committee, was
approved by the Senate by unanimous consent in the evening of
November 14, 2002. The House of Representatives had passed a
similar bill, H.R. 4623, on June 25, 2002. Because that bill
was non-identical to S. 2520, however, neither version could be
approved by both houses before the 107th Congress adjourned.
III. Discussion
A. Background and history: The Child Pornography Prevention Act of 1996
In 1996, the Judiciary Committee held hearings and
conducted extensive research into the problem of child
pornography. The Committee concluded that the problem was
immense. Child pornography generated huge sums of illicit
money. Worse yet, it played a central role in the exploitation
and sexual abuse of children. The Committee found that child
pornography results in the actual abuse of children in two
ways. First, ``[c]hild pornography stimulates the sexual
appetites and encourages the activities of child molesters and
pedophiles, who use it to feed their sexual fantasies.'' S.
Rep. No. 104-358, pp. 12-13 (1996). Second, ``[c]hild molesters
and pedophiles use child pornography to convince potential
victims that the depicted sexual activity is normal practice;
that other children regularly participate in sexual activities
with adults or peers.'' Id. at 13-14.
The harms caused by child pornography were not new. By
1996, however, technology had changed in a manner that
materially impacted the enforcement of child pornography laws.
The Committee found that ``[c]omputers can also be used to
alter sexually explicit photographs, films and videos in such a
way as to make it virtually impossible for prosecutors to
identify individuals, or to prove that the offending material
was produced using children.'' Id. at 16. In response to this
concern, the Committee approved the Child Pornography
Prevention Act of 1996 (``CPPA'') and expanded then-existing
law, which only prohibited sexually explicit depictions of
actual children, to include depictions that ``appear to be'' of
actual children. After approval by both the Senate and the
House of Representatives, the President signed the CPPA into
law on September 30, 1996.
B. Ashcroft v. Free Speech Coalition
The CPPA tackled the problem of technology and child
pornography by prohibiting the possession, production or
distribution of material that ``appears to be'' child
pornography. This is so whether the material was actually
produced entirely on a computer (``virtual porn''), by using
technology to alter an image of a real child to make the child
unidentifiable, or by using youthful-looking adults. Four
circuit court of appeals had sustained the constitutionality of
the CPPA, United States v. Fox, 248 F.3d 394 (5th Cir. 2001);
United States v. Mento, 231 F.3d 912 (4th Cir. 2000); United
States v. Acheson, 195 F.3d 645 (11th Cir. 1999); United States
v. Hilton, 167 F.3d 61 (1st Cir. 1999), prior to a ruling in
the Ninth Circuit that invalidated key provisions of the CPPA
under the First Amendment. The Supreme Court affirmed this
ruling in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389
(2002).
In Free Speech Coalition, the Court ruled that two sections
of the CPPA were unconstitutionally overbroad. The first banned
the distribution of an item in a way that ``conveys the
impression'' that it contains a depiction of ``a minor engaging
in sexually explicit conduct.'' 18 U.S.C. Sec. 2256(8)(D). The
Court observed that, as written, subsection (8)(D) prohibited
the downstream possession of materials that earlier had been
billed as child pornography. Id. 122 S. Ct. at 1406.
The Court next invalidated the CPPA's prohibition of any
visual depiction that ``appears to be'' of a minor engaging in
sexually explicit conduct. 18 U.S.C. Sec. 2256(8)(B). New York
v. Ferber, 458 U.S. 747 (1982), ruled the Court, categorically
denies First Amendment protection only to sexually
explicitdepictions of actual children. 122 S. Ct. at 1401. Stated
differently, sexually explicit depictions of virtual children and
youthful looking adults are beyond Ferber's categorical rule. Because
the ``appears to be'' language in subsection (8)(B) swept in such
images, and because the ``reasons the Government offer[red] in
support'' of this provision were insufficient under the First
Amendment, Id. at 1405, the Court ruled that it was unconstitutionally
overbroad.
C. Defining the Problem in the Wake of Ashcroft v. Free Speech
Coalition
i. Hampering prosecutions
The Supreme Court's decision in Free Speech Coalition has
greatly impaired the government's ability to bring successful
child pornography prosecutions. This is so because prosecutors
typically are unable to identify the children depicted in child
pornography. Not surprisingly, these children are abused and
victimized in anonymity, even when the child pornography is
produced within the United States. Prosecutions therefore rest
on the depictions themselves; juries are urged to infer the age
and existence of the minor from the sexually explicit depiction
itself. While these depictions may appear in a photograph or a
videotape, they increasingly are appearing in a computer or
digital image that is sold, traded, bartered, exchanged or
simply downloaded over the internet.
Since the ruling in Free Speech Coalition, defendants in
child pornography cases have consistently claimed that the
images in question could be virtual. By raising this ``virtual
porn defense,'' the government has been required to find proof
that the child is real in nearly every child pornography
prosecution. Some of these defense efforts have already been
successful. See, e.g., United States v. Sims, 220 F. Supp. 2d
1222 (D.N.M. 2002) (after the decision in Free Speech
Coalition, court entertained motion to reconsider previously
denied motion for judgment of acquittal; judgment of acquittal
was granted with respect to one set of images); United States
v. Bunnell, 2002 WL 927765 (D. Me. 2002) (after Free Speech
Coalition, motion to withdraw guilty plea granted); see also
United States v. Reilly, 01 Cr. 1114 (RPP), 2002 WL 31307170
(S.D.N.Y. Oct. 15, 2002) (after Free Speech Coalition, motion
to withdraw guilty plea granted; court held that the government
must prove beyond a reasonable doubt that the defendant knew
that the images depicted real children). Left unchecked, this
problem threatens to cripple a large number of child
pornography prosecutions. Indeed, proving the existence of an
actual minor beyond a reasonable doubt from a digital image is
extremely difficult when technological advancements have made
it possible to disguise depictions of real children to make
them unidentifiable and to make depictions of real children
appear computer-generated. The National Center for Missing and
Exploited Children (``NCMEC'') assembled a photographic array
containing both real and virtual pictures of children, and
presented it to members of the House Judiciary Committee
Subcommittee on Crime during hearings that were held on May 1,
2002. An ordinary person looking at these pictures would be
hard-pressed to distinguish between the real and virtual
depictions.
The Senate Judiciary Committee first noted the problematic
existence of the virtual porn defense in 1996. Since then, it
has become even worse, as witnesses before the Senate Judiciary
Committee have testified and as the NCMEC array makes clear.
Absent legislation, this problem threatens to become entirely
unmanageable in the near future. The unyielding growth of
technology will further frustrate law enforcement efforts to
combat child pornography. As Senator Leahy stated on
introducing S. 2520 on May 15, 2002:
The Free Speech decision has placed prosecutors in a
difficult position. With key portions of the CPPA gone,
the decision invites all child porn defendants, even
those who exploit real children, to assert a ``virtual
porn'' defense in which they claim that the material at
issue is not illegal because no real child was used in
its creation. The increasing technological ability to
create computer images closely resembling real children
may make it difficult for prosecutors to obtain prompt
guilty pleas in clear-cut child porn cases and even to
defeat such a defense at trial, even in cases where
real children were victimized in producing the sexually
explicit material. In short, unless we attempt to
rewrite portions of the CPPA, the future bodes poorly
for the ability of the federal government to combat a
wave of child pornography made ever more accessible
over the Internet.
In addition to arming defendants with a powerful defense,
the ruling also has caused prosecutors to shy away from
bringing some child pornography cases. After the Free Speech
Coalition decision, prosecutors from across the country
informed NCMEC that they would dismiss pending child
pornography prosecutions unless NCMEC could identify the
children contained in the charged images. Many prosecutions, in
fact, were dismissed. And even the prosecutions that remain
have been significantly and adversely affected by the decision
because prosecutors need to devote significantly more resources
to each child pornography case than ever before.
ii. Creating an illusory, but effective, virtual porn
defense
The steady advance of technology makes certain that life-
like images of children can be created on a computer, thereby
providing a potent basis to doubt that a particular depiction
is that of an actual minor. But the state of the record today
indicates that a totally virtual creation would be both time-
consuming and, for now, prohibitively costly to produce.
Accordingly, it remains true that the overwhelming majority of
child pornography depicts actual children. The Committee finds
that child pornography results from the abuse of real children
by sex offenders; the production of child pornography is a
byproduct of, and not the primary reason for, the sexual abuse
of children. Leading experts agree that, to the extent that the
technology exists to computer generate realistic images of
child pornography, the cost in terms of time, money, and
expertise is--and for the foreseeable future will remain--
prohibitively expensive. As a result, for the foreseeable
future, it will be more cost-effective to produce child
pornography using real children. Moreover, there is no evidence
that the future development of easy and inexpensive means of
computer generating realistic images of children would stop or
even reduce the sexual abuse of real children or the practice
of visually recording that abuse. Whether real or life-like
(but virtual), child pornography fuels the fantasies of
pedophiles, often leading to the actual abuse of real children.
Even though the use of real children is still the most
cost-effective and empirically demonstrated method of producing
child pornography, the mere existence of a virtual porn defense
nonetheless has two unfortunate consequences. First, it
provides a ready defense against prosecution under laws that
are limited to sexually explicit depictions of actual minors.
Second, it encourages producers and distributors of child
pornography to alter depictions of actual children in slight
ways to make them not only unidentifiable, but also appear as
if they were virtual creations. Unlike the weighty task of
creating an entire image out of whole cloth, it is not
difficult or expensive to use readily available technology to
disguise depictions of real children to make them
unidentifiable or to make them appear computer-generated.
D. Responding to the problem
S. 151 is designed to aid child pornography prosecutions in
a constitutionally responsible way. This bill is a response to
the problems faced by prosecutors in the wake of Free Speech
Coalition; it is not designed to challenge that decision in any
way. To the contrary, S. 151 has been carefully written to work
within the limitations established by that decision. S. 151
accomplishes this goal by permitting the government to
establish its case-in-chief when the children portrayed in
sexually explicit depictions appear virtually indistinguishable
from actual minors. If the government meets this burden, S. 151
nonetheless provides an absolute defense if the defendant can
show that the child pornography that forms the basis of his
prosecution was not produced using any actual minors.
i. The definitional vehicle
S. 151 addresses the problem of the virtual porn defense by
creating a new definition of ``child pornography'' in section
2256(8) and a new definition of ``identifiable minor'' in
section 2256(9). Under these new definitions, in conjunction
with existing section 2252A, it is unlawful to possess or
distribute any visual depiction of sexually explicit conduct
involving ``a computer image, computer generated image, or
digital image that is of, or is virtually indistinguishable
from that of, an actual minor.'' Stated differently, the
Government establishes a violation of section 2252A by proving
the existence of a computer image that is virtually
indistinguishable from an actual child. This is so even when
the government cannot prove the actual identity of the minors
depicted. This new definition S. 151 also draws support from
the factual record: The overwhelming majority of existing child
pornography was produced by using actual minors, and no change
in these production methods will occur in the foreseeable
future.
Having created a new definition of ``identifiable minor,''
S. 151 proceeds to narrow it in two important ways. First, S.
151 defines a ``virtually indistinguishable'' depiction to be
one that ``an ordinary person * * * would conclude * * * is of
an actual minor.'' By way of illustration, the bill makes clear
that ``drawings, cartoons, sculptures'' and the like do not
qualify as ``virtually indistinguishable.'' This definition
makes clear that ``virtually indistinguishable'' depictions are
ones that look just like actual children to an ordinary
observer (not an expert).
Second, S. 151 narrows the ``identifiable minor''
definition further by creating a new definition of ``sexually
explicit conduct,'' which will be codified in section
2256(2)(B). Subsection (2)(B) creates a less inclusive
definition of ``sexually explicit conduct'' than current law
provides. Compare 18 U.S.C. Sec. Sec. 2256(2)(A) with
2256(2)(B). S. 151 thus creates the following dichotomy. In
prosecutions where the Government must affirmatively prove the
existence of an actual minor, it may draw upon the broader
definition of sexually explicit conduct contained in current
law. But in prosecutions where the Government proves a computer
image that is virtually indistinguishable from an actual minor,
it is limited to the narrower definition of sexually explicit
conduct provided in S. 151.
ii. A complete affirmative defense
Not only does S. 151 craft these new definitions in a
narrowly tailored way, but the bill also creates an affirmative
defense provision that would absolve defendants from liability
upon a showing that the depictions in question were not made by
using actual children. Stated differently, if the government
establishes a prima facie case, the defendant still cannot be
convicted if he shows that the depictions were produced by
using only virtual creations or youthful-looking adults.
The affirmative defense created by S. 151 is considerably
broader than the existing provision that it replaces.\1\ Unlike
existing section 2252A(c), the new affirmative defense is not
limited to youthful-looking adults, and does not include a
requirement that the material was never represented to be child
pornography. The Committee intends the affirmative defense
provision created by S. 151 to be a complete defense whenever
the defendant can show that no actual children were used in
creating the depictions which form the basis of the
prosecution.\2\
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\1\ In their Additional Views, Senators Leahy, Biden and Feingold
maintain that this affirmative defense is somehow incomplete because it
does not apply to the new obscenity provision, to be codified at 18
U.S.C. Sec. 2252B. See Additional Views at C(2). This is a remarkable
claim. There has never been any affirmative defense to obscenity. These
Senators fail to explain why obscene materials should be legalized
because no actual children were used to prepare it. Nor do they provide
any basis to support their unsubstantiated claim that providing an
affirmative defense to obscenity would somehow make the other
provisions of S. 151 more immune from constitutional challenge.
\2\ Prosecutions brought under the definition of child pornography
contained in section 2256(8)(C) generally charge the accused with
having taken the innocent image of an actual child and ``morphing'' it
into a sexually explicit depiction. Under current law (which was not
challenged in Ashcroft v. Free Speech Coalition) only one affirmative
defense is available in a morphing prosecution: proof that only
pictures of adults were used. S. 151 keeps this affirmative defense
intact. However, S. 151 explicitly excludes morphing prosecutions from
the new affirmative defense that ``the alleged child pornography was
not produced using any actual minor or minors.'' The reason for this is
simple. The affirmative defense will be unavailable if the evidence
shows that the image was produced, directly or indirectly, from the
sexual abuse of a child. Thus, the affirmative defense is unavailable
both for a ``first generation'' image that directly records the sexual
abuse of a child and for a later generation image that uses such an
image. In either situation, it cannot be said that ``the alleged child
pornography was not produced using any actual minor or minors.'' By
contrast, the morphing provision is explicitly aimed at the creation of
a sexually explicit image using an innocent image of a child. Because
many morphed images thus do not use, either directly or indirectly, a
sexually explicit image of any child, it could be argued (incorrectly)
by some that it does not involve any ``use'' of a child and fits within
the affirmative defense. If such an argument were successful, it could
defeat the entire point of the morphing provision. To eliminate any
possible doubt on this issue, the morphing provision has been expressly
excluded.
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It is well-settled that Congress can define the elements of
an offense. Much like other affirmative defenses that exist in
law, such as self-defense, insanity or provocation, this
provision places the burden of proof on the party that is in
the best position to determine the pertinent facts. The person
who creates or receives child pornography certainly is in a
better position to ascertain whether or not the children
depicted are real (and to keep only those items that do not
involve actual children) than a prosecutor who discovers these
items at the end of the day and, due to advances in technology,
has no idea where they originally came from or any reasonably
effective means for tracking their source. It is beyond
peradventure that the government has the right and the
obligation to bring successful prosecutions for child
pornography offenses. Coupled with the new definitions for
``identifiable minor,'' ``virtually indistinguishable,'' and
``sexually explicit conduct,'' this affirmative defense strikes
an appropriate balance between the Government's right to police
child pornography and the individual's right to deal in this
material.
iii. Clarifying Scienter
In establishing a violation of 18 U.S.C. Sec. 2252A that
relies upon the new definition of ``identifiable minor''
contained in Sec. 2256(9)(B), the Government is not required to
prove in its case-in-chief that the computer generated visual
depiction is that of a real minor. Rather, the Government need
only prove: (1) that an ordinary person viewing the depiction
would conclude that the depiction is of an actual minor; and
(2) that the image depicts ``sexually explicit conduct'' as
defined in Sec. 2256(2)(B).\3\ Under S. 151, it is an
affirmative defense that the subject depicted was not, in fact,
a real minor.
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\3\ Of course, Government must also establish certain non-content
elements, such as the specified link to commerce, and the fact that the
image is a computer image, a computer-generated image, or a digital
image--i.e., an image that was found on a computer, related media, or
in digital format or that was produced, altered, distributed or
received using a computer, related media or digital technology.
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The scienter required to establish the offense extends to
the nature of the contents of the image. Cf. United States v.
X-Citement Video, Inc., 513 U.S. 64, 77-78 (1994). It is not
necessary to show that the defendant knew or subjectively
believed that the visual depiction was that of a real minor.
Instead, the scienter required is only that: (1) the defendant
knowingly transported, shipped, received, distributed or
reproduced a visual depiction; and (2) the defendant was aware
of the contents of the image. To meet this latter requirement,
it is sufficient to show that the defendant was generally aware
of the sexually explicit nature of the visual depiction and the
life-like quality of the image, that is, those features that
would cause a reasonable person viewing the visual depiction to
conclude it depicted a real minor. In no event is the
Government required to disprove the possibility that the
defendant, although generally aware of the life-like nature of
the image, subjectively believed that the image was virtual. To
the extent that there is any validity to the ruling in United
States v. Reilly, 01 Cr. 1114 (RPP), 2002 WL 31307170 (S.D.N.Y.
Oct. 15, 2002) (after Free Speech Coalition, motion to withdraw
guilty plea granted; court held that the government must prove
beyond a reasonable doubt that the defendant knew that the
images depicted real children), which does not square with the
language and purpose of the child pornography laws, S. 151 is
intended to reject that interpretation. Indeed, such an
interpretation creates an almost insuperable bar to
prosecution. Because a false claim that the defendant thought
the image was virtual is so easy to make, yet so difficult to
disprove, such an exacting scienter requirement would
effectively legalize child pornography for everyone but the
original producers.
The new affirmative defense provision permits a defendant
to escape criminal liability by showing that the material did
not in fact involve the use of children. A defendant will also
avoid conviction if the Government fails to prove that the
objective nature of the image is such that a reasonable person
would believe that it was a real child. A defendant will also
escape conviction if the Government fails to prove that he was
familiar with the contents of the image. But a defendant cannot
escape criminal liability merely by contending that he did not
know with certainty that it was a minor, that he had a
subjective belief that the image was not in fact a minor or
that he did not think that a reasonable person would believe it
was a minor.
iv. Record keeping requirements
Under section 2257, producers are required to verify the
name and age of every performer depicted in sexually explicit
materials and to affix a label to the material that indicates
where these records are located. See American Library
Association v. Reno, 33 F.3d 78 (D.C. Cir. 1994) (affirming
constitutionality of this provision). S. 151 extends these
record keeping requirements to computer generated and digital
images. By expanding this provision to cover the most common
medium in which child pornography is produced for distribution,
S. 151 is intended to protect children by deterring the
production of child pornography. This provision also is
intended to protect the legitimate possession or distribution
of sexually explicit materials. Indeed, section 2257's labeling
requirement provides a significant benefit to those who only
wish to possess or distribute pornography that depicts only
youthful-looking adults or virtual children. By inspecting the
label affixed to a sexually explicit depiction of apparent
children, individuals know precisely what records will show
that no actual minors are being shown.\4\ Conversely,
individuals desiring to possess or distribute legitimate
pornography will know to be especially cautious when no label
is affixed to a sexually explicit depiction of children.\5\
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\4\ Such a small label could be easily placed, of course, on a
discrete portion of the computer image.
\5\ A label also would assist in the preparation of the affirmative
defense provided by S. 151. But the mere existence of such a label
would not be a valid defense to prosecution. As explained above, a
subjective belief that the image is not a minor, whether based on a
label or otherwise, does not defeat scienter. A contrary result would
engender rampant false labeling and thus effectively could lead to the
de facto legalization of child pornography for all except the original
producers.
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v. Pandering, solicitation, obscenity and the illicit use
of sexually explicit materials
S. 151 creates three new offenses designed to help assure
the vigorous prosecution of pornography that involves children.
One prohibits the pandering or solicitation of child
pornography; another creates a separate offense for obscene
sexually explicit depictions of children; and the third bars
the use of sexually explicit materials of real or apparent
minors for the purpose of persuading a minor to perform an
illegal act.
The internet has provided a ready forum for those who wish
to traffic in child pornography. To help check this rapidly
growing market, S. 151 creates a new offense, to be codified at
18 U.S.C. Sec. 2252A(3)(B), that criminalizes offers to buy,
sell or trade anything that is purported to depict actual or
obscene child pornography. The Government further must prove
that the defendant specifically believed (as a buyer), or
intended to cause another to believe (as a seller), that the
proffered material depicted either: (1) actual children engaged
in sexually explicit conduct; or (2) sexually explicit conduct
involving minors that was obscene. This provision has been
written narrowly in order to capture only those individuals who
are seeking to obtain illicit child pornography, or those
individuals who are attempting to profit from the real or
purported sale of illicit child pornography. This section
should have no effect on any category of protected speech.\6\
Indeed, the first category of prohibited transactions involves
a class of speech (``an obscene visual depiction of a minor
engaged in sexually explicit conduct'') that may be proscribed
under Miller v. California, 413 U.S. 15 (1973), and the second
category defines another class (``a visual depiction of an
actual minor engaged in sexually explicit conduct'') that may
be proscribed under New York v. Ferber, 458 U.S. 747 (1982).
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\6\ Senators Leahy, Biden and Feingold are mistaken to suppose that
this provision would outlaw films like Traffic, Romeo and Juliet and
American Beauty. See Additional Views at C(3). The producers of war
films such as Saving Private Ryan and Black Hawk Down certainly do not
intend for viewers to believe that their movies depict real people who
are actually being killed (nor could any reasonable viewer believe so).
Likewise, the producers of movies like American Beauty and Traffic do
not intend for viewers to believe that real children are actually
engaging in sexual activity. In no way could such movie producers
satisfy the specific intent required by this provision.
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S. 151 also creates a new obscenity section, to be codified
at 18 U.S.C. Sec. 2252B, that applies to sexually explicit
depictions of minors.\7\ It contains two prongs. The first
criminalizes any obscene depiction of a minor engaged in a
broad variety of sexually explicit conduct. The second is a
focused and careful attempt to define a subcategory of
``hardcore'' child pornography that is per se obscene. Not only
is this subcategory limited to the most graphic acts of
sexually explicit conduct involving real or apparent minors,
but there also is a requirement that the depiction lack
``serious literary, artistic, political, or scientific value.''
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\7\ The Committee finds that prosecutions under this new obscenity
provision will not meet the government's compelling interest in
combating child pornography and preventing harm to children. Indeed,
the inadequacy of obscenity laws in preventing the actual abuse of
children was highlighted in 1982 when the Supreme Court decided Ferber.
That case involved lewd films of young boys masturbating. 458 U.S. at
752. A jury nonetheless acquitted the defendant of all obscenity
charges. Id.
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Finally, S. 151 criminalizes the use of child pornography
to persuade a minor to participate in an illegal act. This
provision is to be codified at 18 U.S.C. Sec. 2252A(a)(6). This
new offense will help to address a problem that has long
existed: the use of sexually explicit materials by pedophiles
to persuade minors to participate in sexual activities. While
this provision is directed primarily to capture sexual
activity, its scope is intentionally broader. By its express
terms, the provision prohibits the use of child pornography for
inducing a minor to participate ``in any'' illegal activity.
E. Other child protection measures
S. 151 makes a number of additional changes to existing law
that do not warrant extended discussion here, including
provisions to shield the identity of children depicted in child
pornography, to assign more prosecutors to focus on child
pornography offenses, and to provide a civil cause of action
for those aggrieved by child pornography. Each of these is
detailed below in the section-by-section analysis, infra at
Sec. V.
F. Additional views of Senators Leahy, Biden and Feingold
Every member of the Judiciary Committee was invited to
submit comments to this Report. Senators Leahy, Biden and
Feingold have submitted their additional views, which are
attached hereto. These views reflect their understanding of S.
151, as well as their concern that some of its provisions may
be unconstitutional. All of these issues were debated by
members thoroughly during the drafting of S. 2520 and S. 151--a
process that spanned some ten months and produced more than a
dozen substantive drafts. Their understanding of certain
provisions in S. 151, as well as their constitutional concerns,
did not command the support of the Committee. \8\
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\8\ These Senators, for example, make several references to ``the
Administration'' in their Additional Views, and at times assigns to it
a dominant role in these proceedings. See, e.g., Additional Views at
Sec. C(4)(b) (``the Administration rejected that proposal''). These are
curious charges. Chairman Hatch and the other members of the Judiciary
Committee made every substantive and procedural decision regarding S.
151. In doing so, the Committee solicited and gave due regard to the
views of all interested groups, including the Administration. These
Senators also question--for the first time ever--the basis for certain
findings. Id. at Sec. C(4)(a). As set forth above, each finding is
amply supported by the Record as developed through reliable information
obtained by the Senate Judiciary Committee, including hearings held by
the Senate Judiciary Committee in 1996 and 2002, and before the House
Judiciary Committee in 2002. Finally, it is worth noting that Senators
Biden and Feingold never raised any objection to any portion of either
S. 2520 or S. 151 during its consideration by the Committee.
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IV. Vote of the Committee
The Senate Committee on the Judiciary, with a quorum
present, met in executive session on Thursday, January 30,
2003, to consider the ``PROTECT Act of 2003.'' The Committee
considered S. 151 and approved the bill, as amended, by voice
vote, with no objection noted,\9\ and ordered the bill to be
reported favorably to the Senate, with a recommendation that
the bill do pass.
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\9\ As noted elsewhere in this Report, Senator Leahy noted his
objection to certain amendments, but approved S. 151 as amended. No
other Senator noted any objection to any provision of S. 151.
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V. Section-by-Section Analysis
Section 1: Short Title. This section establishes the name
of the bill as the ``Prosecutorial Remedies and Tools Against
the Exploitation of Children Today Act of 2003,'' or the
``PROTECT Act.''
Section 2: Findings. This section details some of the
salient findings made by Congress as relevant to the PROTECT
Act.
Section 3: Certain Activities Relating to Material
Constituting or Containing Child Pornography. This section, to
be codified at 18 U.S.C. Sec. 2252A(a)(3)(B), prohibits the
``advertis[ing], promot[ing], present[ing], distribut[ing], or
solicit[ing]'' real or purported materials that the actor
believes, or intends to cause another to believe, contain
depictions of actual or obscene child pornography.\10\ The crux
of what this provision bans is the offer to transact in this
unprotected material, coupled with proof of the offender's
specific intent. Thus, for example, this provision prohibits an
individual from offering to distribute anything that he
specifically intends to cause a recipient to believe would be
actual or obscene child pornography. It likewise prohibits an
individual from soliciting what he believes to be actual or
obscene child pornography. The provision makes clear that no
actual materials need exist; the government establishes a
violation with proof of the communication and requisite
specific intent. Indeed, even fraudulent offers to buy or sell
unprotected child pornography help to sustain the illegal
market for this material.
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\10\ Senator Leahy has objected to two portions of this provision:
(1) the inclusion of ``or purported material''; and (2) the inclusion
of ``a visual depiction of an actual minor engaging in sexually
explicit conduct.'' Senator Hatch offered the first phrase in an
amendment to S. 2520 during an executive session of the Judiciary
Committee on November 14, 2002. The Committee approved this amendment,
as well as S. 2520 as amended, and this language was incorporated in
the version of S. 151 that was introduced in the 108th Congress.
Senator Hatch offered the second phrase in an amendment to S. 151
during an executive session of the Judiciary Committee on January 30,
2003. The Committee approved that amendment, too, as well as S. 151 as
amended.
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Section three further criminalizes the act of using any
type of real or apparent child pornography to induce a child to
commit a crime. This provision, to be codified at 18 U.S.C.
Sec. 2252A(a)(6), targets harmful conduct, and not mere
possession of such materials, some of which may be protected
under the First Amendment. Finally, section three creates a new
and comprehensive affirmative defense for anyone charged with
distributing or possessing child pornography. With this new
affirmative defense, to be codified at 18 U.S.C. Sec. 2252A(c),
an accused can completely escape liability by showing that the
sexually explicit depictions in question were produced without
using, directly or indirectly, any actual minors. The provision
also makes clear that the defendant must provide timely and
specific notice of his intent to raise either the youthful-
looking adult or virtual porn defense.
Section 4: Admissibility of Evidence. This section, to be
codified at 18 U.S.C. Sec. 2252A(e), protects the privacy of
minors depicted in child pornography by permitting the
government to seek an order that shields non-physical
identifying information from public scrutiny. Of course, such
information may be a critical component of the government's
proof at trial; there may be evidence, for example, that the
defendant stored the sexually explicit depiction in a folder
labeled ``Jennifer--Age 12.'' For this reason, this provision
does not require the government to seek the exclusion of such
information in every instance. When the government moves to do
so, however, this provision creates a strong presumption that
the privacy of the minor shall be protected. In that event, the
government also is entitled to obtain a jury instruction that
the absence of this information shall not be used to infer that
the depictions are not, in fact, actual minors.
Section 5: Definitions. This section, in conjunction with
the affirmative defense provision created in section 3,
attempts to cure some of the problems of the post-Free Speech
Coalition virtual porn defense in a narrowly tailored way. It
does so principally in three ways. First, it adds a new
definition of an ``identifiable minor'' that includes computer
or digital images that are ``virtually indistinguishable''
fromimages of an actual minor.\11\ Second, it narrowly defines
``virtually indistinguishable'' to include only life-like images.
Finally, it adds a new, narrower definition of ``sexually explicit
conduct'' that applies only to prosecutions brought under the new
definition of ``identifiable minor.''
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\11\ Senator Hatch offered this definition as an amendment to S.
2520 during an executive session of the Judiciary Committee on November
14, 2002. The Committee approved this amendment, as well as S. 2520 as
amended; Senator Leahy noted his objection to this definition of
``identifiable minor.'' This language was incorporated in the version
of S. 151 that was introduced in the 108th Congress, and subsequently
approved by the Judiciary Committee.
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Section 6: Obscene Visual Representations of the Sexual
Abuse of Children. This section creates a new offense, to be
codified at 18 U.S.C. Sec. 2252B, that criminalizes obscene
sexually explicit depictions of minors. It prohibits any
obscene depictions of minors engaged in any form of sexually
explicit conduct. It further prohibits a narrow category of
``hardcore'' pornography involving real or apparent minors,
where such depictions lack literary, artistic, political or
scientific value. This new offense is subject to the penalties
applicable to child pornography, not the lower penalties that
apply to obscenity, and S. 151 therefore contains a directive
to the U.S. Sentencing Commission requiring it to ensure that
the U.S. Sentencing Guidelines are consistent with this
fact.\12\
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\12\ Senator Hatch offered this directive to the U.S. Sentencing
Commission as an amendment to S. 151 during an executive session of the
Judiciary Committee on January 30, 2003. Senator Leahy noted his
objection to this provision. The Committee approved this amendment, as
well as S. 151 as amended.
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Section 7: Recordkeeping Requirements. This section expands
the scope of materials subject to the recordkeeping
requirements of section 2257. Specifically, ``computer
generated image[s], digital image[s], or picture[s]'' are added
to the existing categories of sexually explicit materials for
which records must be created and maintained. In making these
changes, section 2257 is designed to include the most common
medium for distributing, exchanging or obtaining child
pornography over the internet. This section further increases
the existing penalties for violations of section 2257.
Section 8: Service Provider Reporting of Child Pornography
and Related Information. This section makes several changes to
the existing ``Cyber Tip Line'' system maintained by the
National Center for Missing and Exploited Children that
receives reports of child pornography from electronic
communication and remote computing service providers. First, it
adds the new obscene child pornography section created by S.
151, which is to be codified at 18 U.S.C. Sec. 2252B, to the
list of offenses that must be reported. Second, it adds the
phrase ``or pursuant to'' to the existing civil liability
provision to make abundantly clear that any good faith effort
to file a report under 42 U.S.C. Sec. 13032 provide an absolute
immunity from civil liability. Finally, the provision
authorizes NCMEC to forward Cyber Tip Line reports to state and
local authorities for the purpose of enforcing state criminal
law.
Section 9: Contents Disclosure of Stored Communications.
This section permits electronic communication and remote
computing service providers to disclose reports of child
pornography to the National Center for Missing and Exploited
Children, in connection with a report that is submitted
pursuant to 42 U.S.C. Sec. 13032. Specifically, this provision
allows such providers to disclose not only the substance of the
communication that pertains to the report of child pornography,
but also any related customer information.
Section 10: Extraterritorial Production of Child
Pornography for Distribution in the United States. This section
amends current law by providing the Government with the
authority to prosecute foreign producers of child pornography
if that material is transported, or intended to be transported,
to the United States.Persons and entities who target, exploit,
profit from or help to perpetuate the market for child pornography in
the United States are fairly subject to our system of laws and
penalties.
Section 11: Civil Remedies. This section creates a new
civil cause of action against producers, distributors and
possessors of child pornography. Persons aggrieved by such
conduct may bring suit seeking appropriate relief, including
punitive damages and reasonable attorneys' fees. Of course, not
every person will be entitled to bring such a lawsuit, but the
provision is intended to authorize a broad variety of
plaintiffs to file these lawsuits subject only to
constitutional standing limitations.
Section 12: Enhanced Penalties for Recidivists. This
section makes persons who have been convicted of any obscenity
offense contained within Chapter 71 of Title 18, United States
Code, eligible for the enhanced penalties provided for child
pornography offenders.
Section 13: Sentencing Enhancements for Interstate Travel
to Engage in Sexual Act with a Juvenile. This section directs
the United States Sentencing Commission to review the existing
penalties for persons who travel across state lines to engage
in sexual activity with a minor. The Committee considers the
current penalty structure for this offense in the United States
Sentencing Guidelines to be too lenient. This should be clear
from the fact that such offenders are punished less harshly
than offenders who simply possess child pornography.
Section 14: Miscellaneous Provisions. This section directs
the Department of Justice to appoint twenty-five more attorneys
who are dedicated to the enforcement of child pornography laws,
and authorizes the appropriations of funds necessary to fulfil
this mission. It also directs the Department of Justice to
prepare periodic reports to Congress on the enforcement of the
federal child pornography laws, as well as the technology being
employed by the producers and distributors of child
pornography. Finally, the section requires the U.S. Sentencing
Commission to carefully review and consider the penalties
needed to deter and punish the new offenses created by S. 151
in 18 U.S.C. Sec. 2252A.
Section 15: Authorization of Interception of Communications
in the Investigation of Sexual Crimes Against Children. This
section adds additional crimes against children into 18 U.S.C.
Sec. 2516(1)(c). By doing so, this provision amends current law
by allowing the government to seek wiretaps in investigations
for, inter alia, the sexual trafficking of children, the
selling or buying of children, child pornography, child
obscenity, the production of sexually explicit depictions of
minors for importation into the United States and the sexual
exploitation of children.\13\
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\13\ Senator Hatch offered this section as an amendment to S. 151
during an executive session of the Judiciary Committee on January 30,
2003. Senator Leahy noted his objection to this section. The Committee
approved this amendment, as well as S. 151 as amended.
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Section 16: Investigative Authority Relating to Child
Pornography. This section amends 18 U.S.C.
Sec. 3486(a)(1)(C)(i) by inserting a reference to section
2703(c)(2). The effect of this provision is to update the type
of information the government can obtain from electronic
service providers with an administrative subpoena in
investigations involving, inter alia, the sexual exploitation
of children. Specifically, this provision permits the
government to obtain two more types of information then current
law permits: (1) the means and source of payment for the
service; and (2) the telephone or instrument number or other
subscriber number or identity, including any temporarily
assigned network address. This provision, moreover, assures
that there is no arbitrary distinction between the type of
information that the government may obtain from electronic
service providers under sections 2703 and 3486.\14\
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\14\ Senator Hatch offered this section as an amendment to S. 151
during an executive session of the Judiciary Committee on January 30,
2003. Senator Leahy noted his objection to this section. The Committee
approved this amendment, as well as S. 151 as amended.
---------------------------------------------------------------------------
Section 17: Severability. This section makes explicit that
if any provision of the bill is held to be unconstitutional,
the remainder of the bill shall not be affected.
VI. Cost Estimate
The cost estimate from the Congressional Budget Office
requested on S. 151 has not yet been received. Due to time
constraints, the CBO letter will be printed in the
Congressional Record.
VII. Regulatory Impact Statement
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that S. 151 will not have significant
regulatory impact.
VIII. ADDITIONAL VIEWS OF SENATORS LEAHY, BIDEN AND FEINGOLD
The Hatch-Leahy PROTECT Act of 2003 will provide important
new tools to protect our nation's children from exploitation by
child pornographers. Although this bill is not perfect, it is a
good faith effort to deal with the scourge of child pornography
within constitutional limits. Congress failed to do that in the
1996 Child Pornography Protection Act (``CPPA''), much of which
the Supreme Court struck down last year. See Ashcroft v. Free
Speech Coalition, 122 S. Ct. 1389 (2002). We must not make the
same mistake again. The last thing we want to do is to create
years of legal limbo for our nation's children, after which the
courts strike down yet another law as unconstitutional.
Everyone in the Senate agrees that we should do all we can
to protect our children from being victimized by child
pornography. That would be an easy debate and vote. The more
difficult thing is to write a law that will both do that and
will produce convictions that stick. In 1996, when we passed
the CPPA, many warned us that certain provisions of that Act
violated the First Amendment. The Supreme Court's decision in
Free Speech Coalition has proven them correct.
It is important that we respond to the Supreme Court's
decision. It is just as important, however, that we avoid
repeating our past mistakes. We must do all we can to end the
victimization of children by child pornographers, but we must
also ensure that any new law will withstand First Amendment
scrutiny. Our children deserve more than a press conference on
this issue. They deserve a law that will last rather than be
stricken from the law books.
Senator Leahy previously expressed the hope that we could
report and pass a bill that was identical to the measure that
passed the Judiciary Committee and the Senate unanimously in
the 107th Congress. Instead, having been forced to repeat the
legislative process again this year, we are considering a
modified bill which, while improved in some respects, is more
problematic in others.
A. KEY PROVISIONS OF THE PROTECT ACT
1. Pandering and the illicit use of sexually explicit materials
Section 3 of the PROTECT Act creates two new crimes aimed
at people who distribute child pornography and those who use
such material to entice children to do illegal acts. Each of
these new crimes carries a 15-year maximum prison sentence for
a first offense and double that term for repeat offenders.
First, the bill criminalizes the pandering of child
pornography, creating a new crime to respond to the Supreme
Court's recent ruling striking down the CPPA's definition of
pandering. This provision is narrower than the old
``pandering'' definition in at least one way that responds to a
specific Court criticism. The new crime applies only to the
people who actually pander the child pornography or solicit it,
not to all those who possess the material ``downstream,'' and
it requires the government to demonstrate that the defendant
acted with the specific intent that the material is believed to
be child pornography. The bill also contains a directive to the
Sentencing Commission that asks it to distinguish between those
who pander or distribute such material and those who only
``solicit'' the material. As with narcotics cases, distributors
and producers are more culpable than users and should be
punished more harshly for maximum deterrent effect.
We would have liked for the pandering provision to be
crafted more narrowly so that ``purported'' material was not
included and so that all pandering prosecutions would be linked
to the ``obscenity'' doctrine. That is the way that Senator
Hatch and Senator Leahy originally wrote and introduced this
provision in the last Congress. Unfortunately, the amendment
process has resulted in some expansions to this once non-
controversial provision that may subject it to a constitutional
challenge. Thus, while it responds to some specific concerns
raised by the Supreme Court, there are serious constitutional
issues that the courts will have to consider with respect to
this provision. Those issues will be discussed later.
Second, the bill creates a new crime that Senator Leahy
proposed to take direct aim at one of the chief evils of child
pornography: namely, its use by sexual predators to entice
minors either to engage in sexual activity or the production of
more child pornography. This was one of the compelling
arguments made by the government before the Supreme Court in
support of the CPPA, but the Court rejected that argument as an
insufficient basis to ban the production, distribution or
possession of ``virtual'' child pornography. This bill
addresses that same harm in a more targeted and narrowly
tailored manner. It creates a new felony, which applies to both
actual and virtual child pornography, for people who use such
material to entice minors to participate in illegal activity.
This will provide prosecutors a potent new tool to put away
those who prey upon children using such pornography--whether
the child pornography is virtual or not.
2. Improved affirmative defense
Next, this bill attempts to revamp the existing affirmative
defense in child pornography cases both in response to
criticisms of the Supreme Court and so that the defense does
not erect unfair hurdles to the prosecution of cases involving
real children. Responding directly to criticisms of the Court,
the new affirmative defense applies equally to those who are
charged with possessing child pornography and to those who
actually produce it, a change from current law. It also allows,
again responding to specific Supreme Court criticisms, for a
defense that no actual children were used in the production of
the child pornography--i.e. that it was made using computers.
At the same time, this provision protects prosecutors from
unfair surprise in the use of this affirmative defense by
requiring defendants to give advance notice of their intent to
assert it, just as defendants are currently required to give
notice if they plan to assert an alibi or insanity defense. As
a former prosecutor, Senator Leahy suggested this provision
because it affects the real way that these important trials are
conducted and our collective experience in this area confirms
this notion. With this provision, the government will have
sufficient notice to marshal the expert testimony that may be
needed to rebut this ``virtual porn'' defense in cases where
real children were victimized.
The improved affirmative defense measure also provides
important support for the constitutionality of much of this
bill after the Free Speech Coalition decision. Both the
majority opinion and Justice Thomas's concurrence suggest that
a more complete affirmative defense could save a statute from
First Amendment challenge. This is one reason for making the
defense applicable to all non-obscene child pornography, as
defined in 18 U.S.C. Sec. 2256. In the bill's current form,
however, the affirmative defense is not available in one of the
new proposed classes of virtual child pornography, to be
codified at 18 U.S.C. Sec. 2252B(a)(2) and (b)(2). This
omission may render these new sections unconstitutional under
the First Amendment. We hope that, as the legislative process
continues, we can work to address this and other potential
constitutional infirmities in the bill. We do not want to be
here again in five years, after yet another Supreme Court
decision striking this law down.
3. Recordkeeping requirements
The bill also provides needed assistance to prosecutors in
rebutting the virtual porn defense by removing a restriction on
the use of records of performers portrayed in certain sexually
explicit conduct that are required to be maintained under 18
U.S.C. Sec. 2257, and expanding such records to cover computer
images. These records, which will be helpful in proving that
the material in question is not ``virtual'' child pornography,
may be used in federal child pornography and obscenity
prosecutions under this legislation. The purpose of this
provision is to protect real children from exploitation. It is
important that prosecutors have access to this information in
both child pornography and obscenity prosecutions, since the
Supreme Court's recent decision has had the effect of narrowing
the child pornography laws, making it more likely that the
general obscenity statutes will be important tools in
protecting children from exploitation. In addition, the bill
raises the penalties for not keeping accurate records, further
deterring the exploitation of minors and enhancing the
reliability of the records.
4. Definitional provisions
Next, the Hatch-Leahy bill contains several provisions
altering the definition of ``child pornography'' in response to
the Free Speech Coalition case. One approach would have been
simply to add an ``obscenity'' requirement to the child
pornography definitions. Outlawing all obscene child
pornography--real and virtual; minor and ``youthful-adult'';
simulated and real--would clearly pass constitutional muster
because obscene speech enjoys no protection at all. Under the
Miller obscenity test, such material (1) ``appeals to the
prurient interest,'' (2) is utterly ``offensive'' in any
``community,'' and (3) has absolutely no serious ``literary,
artistic or scientific value.'' See Miller v. California, 413
U.S. 15 (1973).
Some new provisions of this bill do take this ``obscenity''
approach, like the new section 2252B(b)(1) and, to a lesser
extent, the new section 2252B(b)(2), which Senator Leahy
crafted working with Senator Hatch. These provisions will serve
as important and potent tools in the fight against child
pornography and we commend Chairman Hatch for working in a
bipartisan fashion to develop them. Other provisions, however,
take a different approach. For example, the CPPA's definition
of ``identifiable minor'' has been modified in the bill to
include a prong for persons who are ``virtually
indistinguishable from an actual minor.'' This adopts language
from Justice O'Connor's opinion in the Free Speech Coalition
case and is defensible, but we predict that it will be the
center of much constitutional debate. As we will explain in
more detail later--and as discussed in Attachments A and B to
these additional views--while there may be good faith arguments
in support of those provisions, these new definitional
provisions risk crossing the constitutional line.
5. Increased penalties
This bill also contains a variety of other measures
designed to increase jail sentences in cases where children are
victimized by sexual predators. First, it enhances penalties
for repeat offenders of child sex offenses by expanding the
predicate crimes that trigger tough, mandatory minimum
sentences. Second, the bill requires the U.S. Sentencing
Commission to address a disturbing disparity in the current
Sentencing Guidelines: the current sentences for persons who
actually travel across state lines to have sex with a child are
not as high as the sentences for those who simply possess child
pornography. The Commission needs to correct this oversight
immediately, so that prosecutors can take these dangerous
sexual predators off the street. These are all strong measures
designed to protect children and increase prison sentences for
child molesters and those who otherwise exploit children.
6. Child victim shield provision
The Hatch-Leahy PROTECT Act also has several provisions
designed to protect the children who are victims in these
horrible cases. Privacy of the children must be paramount. It
is important that they not be victimized yet again in the
criminal process. This bill provides for the first time ever an
explicit shield law that prohibits the name or other non-
physical identifying information of the child victim (other
than the age or approximate age) from being admitted at any
child pornography trial. It is also intended that judges can
and will take appropriate steps to ensure that such information
as the child's name, address or other identifying information
not be publicly disclosed during the pretrial phase of the case
or at sentencing. The bill also contains a provision requiring
the judge to instruct the jury, upon request of the government,
that no inference should be drawn against the United States
because of information inadmissible under the new shield law.
7. Reporting provisions
The Hatch-Leahy PROTECT Act also amends certain reporting
provisions governing child pornography. Specifically, it allows
federal authorities to report information they receive from the
National Center for Missing and Exploited Children (NCMEC) to
state and local police without a court order. In addition, the
bill removes the restrictions under the
ElectronicCommunications Privacy Act (ECPA), 18 U.S.C. Sec. 2701 et
seq., for reporting the contents of, and information pertaining to, a
subscriber of stored electronic communications to the NCMEC when a
mandatory child porn report is filed with the NCMEC pursuant to 42
U.S.C. Sec. 13032.
While this change may invite rogue federal, state or local
agents to try to circumvent all subpoena and court order
requirements under ECPA and allow them to obtain subscriber
emails and information by triggering the initial report to the
NCMEC themselves, it should be well understood that this is not
the intention behind this provision. These important safeguards
are not being altered in any way, and a deliberate use of the
tip line by a government agent to circumvent the well
established statutory requirements of these provisions would be
a serious violation of the law. Nevertheless, we should still
consider further clarification to guard against the possibility
that government officials will go on fishing expeditions for
stored electronic communications under the rubric of
investigating child pornography, thus subverting the safeguards
in ECPA.
As Senator Leahy made clear when this bill was introduced,
we are all disappointed in the Department of Justice
information sharing regulations related to the NCMEC tip line.
According to a recent Government Accounting Office (GAO)
report, due to outdated turf mentalities, the Attorney
General's regulations exclude both the U.S. Secret Service and
the U.S. Postal Inspection Service from direct access to
important tip line information. That is totally unacceptable,
especially in the post 9-11 world where the importance of
information sharing is greater than ever. How can the
Administration justify support of this Hatch-Leahy bill, which
allows state and local law enforcement officers such access,
when they are simultaneously refusing to allow other federal
law enforcement agencies access to the same information?
Senator Leahy made this request in his statement when this bill
was introduced, but once more we urge the Attorney General to
end this unseemly turf battle and to issue regulations allowing
both the Secret Service and the Postal Inspection Service, who
both perform valuable work in investigating these cases, to
have access to this important information so that they can
better protect our nation's children.
8. Extraterritorial jurisdiction
The Hatch-Leahy bill also provides for extraterritorial
jurisdiction where a defendant induces a child to engage in
sexually explicit conduct outside the United States for the
purposes of producing child pornography that they intend to
transport to the United States. The provision is crafted to
require the intent of actual transport of the material into the
United States, unlike the House bill from the last Congress,
which criminalized even the intent to make such material
``accessible.'' Under that overly broad wording, any material
posted on a web site internationally could be covered, whether
or not it was ever intended that the material be downloaded in
the United States. Under the bill we consider today, however,
proof of a specific intent to send such material to the United
States is required.
9. Private right of action
Finally, the bill provides a new private right of action
for the victims of child pornography. This provision has teeth,
including injunctive relief and punitive damages that will help
to put those who produce child pornography out of business for
good. We commend Senator Hatch for his leadership on this
provision and his recognition that such punitive damages
provisions are important means of deterring misconduct. These
provisions are important, practical tools to put child
pornographers out of business for good and in jail where they
belong.
B. JOINT HATCH-LEAHY IMPROVEMENTS IN THE JUDICIARY COMMITTEE
As we mentioned previously, the PROTECT Act is a good faith
effort to tackle the child pornography problem, and Senator
Leahy has supported its passage from the outset. We are also
glad that because of our bipartisan cooperation, Senators Hatch
and Leahy were able to offer a joint amendment in Committee
that was supported by Members on both sides of the aisle and
strengthened the bill further against constitutional attack.
Here are some of the improvements that were jointly made to the
bill as introduced:
The Hatch-Leahy amendment created a new specific
intent requirement in the pandering crime. The provision is now
better focused on the true wrongdoers and requires that the
government prove beyond a reasonable doubt that the defendant
actually intended others to believe that the material in
question is obscene child pornography. This is a positive step.
The Hatch-Leahy amendment narrowed the definition
of ``sexually explicit conduct'' for prosecutions of computer
created child pornography. Although we continue to have serious
reservations about the constitutionality of prosecuting cases
involving such ``virtual'' child pornography after the Supreme
Court's decision in Free Speech Coalition, narrowing the
definition of the conduct covered provides another argument
that the provision is not as overbroad as the one in the CPPA.
Senator Leahy had also proposed a change that contained an even
better definition, in order to focus the provision on true
``hard core'' child pornography, and we hope such a change will
be considered as the process continues.
The Hatch-Leahy amendment saved the existing
``anti-morphing'' provision from a fresh constitutional
challenge by excluding 100 percent virtual child pornography
from its scope. That morphing provision was one of the few
measures from the CPPA that the Supreme Court did not strike
down last year. We are pleased that this bill avoids placing
this measure in constitutional peril.
The Hatch-Leahy amendment refined the definition
of virtual child pornography in the provision that Senators
Hatch and Leahy worked together to craft last year, which will
be new 18 U.S.C. Sec. 2252B. This provision relies to a large
extent on obscenity doctrine, and thus is more rooted in the
Constitution than other parts of the bill. We were pleased
thatthe Hatch-Leahy amendment included in new sections 2252B(a)(2) and
(b)(2) a definition that the image be ``graphic''--that is, one where
the genitalia are actually shown during the sex act--for two reasons.
First, because the old law would have required proof of ``actual''
minors in cases with ``virtual'' pictures, we believe that this
clarification will remove a potential contradiction from the new law
which pornographers could have used to mount a defense. Second, it will
provide another argument supporting the law's constitutionality because
the new provision is narrowly tailored to cover only the most ``hard
core'' child pornography. We are disappointed that we could not include
a similar definition in the bill's other virtual child pornography
provision, which was included at the request of the Administration. We
hope that measure will be considered as the bill moves forward.
The Hatch-Leahy amendment also clarified that
digital pictures are covered by the PROTECT Act, an important
addition in today's world of digital cameras and camcorders.
These were important changes, and we were glad to work with
Senator Hatch to craft and approve them.
C. REMAINING ISSUES
This law is not perfect, however, and we would have liked
to see some additional improvements to the bill.
1. Potential for law enforcement to ``tickle to tip line''
Regarding the tip line, we would have liked to further
clarify that law enforcement agents may not and should not
``tickle the tip line'' to avoid the key protections of ECPA.
This might have included clarifying 42 U.S.C. Sec. 13032, such
that the initial tip triggering the report may not be generated
by the government's investigative agents themselves. A tip line
to the NCMEC is just that--a way for outsiders to report
wrongdoing to the NCMEC and the government, not for the
government to generate a report to itself without following
otherwise required lawful process. It was not the intent of any
part of this bill to alter that purpose.
2. Lack of affirmative defense for certain categories of child
pornography
Regarding the affirmative defense, we would have liked to
ensure that there is an affirmative defense for each new
category of child pornography and for all cases where a
defendant can prove in court that a specific, non-obscene image
was made without using any child, but only with actual,
identifiable adults. The Committee Report repeatedly asserts
that the new affirmative defense created by the PROTECT Act is
an ``absolute'' or ``complete'' affirmative defense, but in
fact the defense is not sufficiently complete. For the new
offenses created by new sections 2252B(a)(2) and (b)(2), the
bill does not allow for the assertion of such an affirmative
defense. Indeed, the defense is unavailable not only for cases
involving so-called virtual child pornography, but also for
cases in which a defendant can establish that a real
identifiable adult is involved (i.e. youthful adult porn).
While the advisability of resting so much of the constitutional
justification for this statute upon an affirmative defense
about which at least six members of the Supreme Court expressed
grave reservations is dubious to begin with, making such a
provision anything less than completely applicable needlessly
places these otherwise sound provisions in constitutional
peril.
As a general matter, it is worth repeating that we could be
avoiding these problems were we to take the simple approach of
outlawing ``obscene'' child pornography of all types, which we
do in one new provision that Senator Leahy suggested. That
approach would produce a law beyond any possible challenge even
without any affirmative defense. This approach is also
supported by the NCMEC, which we all respect as the true expert
in this field.
Following is an excerpt from the NCMEC's answer to written
questions submitted after our hearing:
Our view is that the vast majority (99-100%) of all
child pornography would be found to be obscene by most
judges and juries, even under a standard of beyond a
reasonable doubt in criminal cases. Even within the
reasonable person under community standards model, it
is highly unlikely that any community would not find
child pornography obscene. * * *
In the post Free Speech decision legal climate, the
prosecution of child pornography under an obscenity
approach is a reasonable strategy and sound policy.
Thus, according to the NCMEC, the approach that is least
likely to raise constitutional questions--using established
obscenity law--is also an effective one. In short, the
obscenity approach is the most narrowly tailored to prevent
child pornography. New section 2252B adopts an obscenity
approach, but because that is not the approach that other parts
of the PROTECT Act uses, we recognize that the bill contains
provisions about which some may have legitimate constitutional
questions.
Specifically, in addition to the provisions that we have
already discussed, there were two amendments adopted in the
Judiciary Committee in the last Congress and one in this
Congress to which Senator Leahy objected that are included in
the bill as reported this year. These amendments relate to the
bill's pandering and ``identifiable minor'' provisions. We felt
and still feel that these alterations from the original way
that Senators Hatch and Leahy introduced the bill needlessly
risk a serious constitutional challenge to the bill, and that
the bill would be even stronger than it is now were they
changed.
3. Expansion of pandering provision
Although Senator Leahy worked with Senator Hatch to write
the new pandering provision in the PROTECT Act, Senator Leahy
did not support two of Senator Hatch's amendments extending the
provision to cover (1) ``purported'' material, and (2) material
not linked to obscenity.
First, during last year's Committee markup, Senator Leahy
objected to an amendment from Senator Hatch to include in the
pandering provision ``purported'' material, which criminalizes
speech even when there is no underlying material at all--
whether obscene or non-obscene, virtual or real, child or
adult. The pandering provision is an important tool for
prosecutors to punish true child pornographers who for some
technical reason are beyond the reach of the normal child porn
distribution or production statutes. It is not meant to
federally criminalize talking dirty over the Internet or the
telephone when the person never possesses any material at all.
That is speech, and that goes too far.
The original pandering provision in S. 2520 as introduced
in last Congress was quite broad, and some argued that it
presented constitutional problems as written, but we thought
that prosecutors needed a strong tool, so we supported Senator
Hatch on that provision.
We were heartened that Professor Schauer of Harvard Law
School, a noted First Amendment expert, testified at our
hearing last year that he thought that the original provision
was constitutional, although just barely. Unfortunately,
Professor Schauer has since written to me stating that the new
amendment to include ``purported'' material ``push[es] well
over the constitutional edge a provision that is now up against
the edge, but probably barely on the constitutional side of
it.'' Senator Leahy placed his letter in the Record upon
introduction of the bill in this Congress on January 13, 2003.
The second amendment to the pandering provision to which
Senator Leahy objected expanded it to cover cases not linked in
any way to obscenity. It would allow prosecution of anyone who
``presented'' a movie that was intended to cause another person
to believe that it included a minor engaging in sexually
explicit conduct, whether or not it was obscene and whether or
not any real child was involved. Any person or movie theater
that presented films like Traffic, Romeo and Juliet, and
American Beauty would be guilty of a felony. The very point of
these dramatic works is to cause a person to believe that
something is true when in fact it is not. These were precisely
the overbreadth concerns that led seven Supreme Court justices
to strike down parts of the 1996 Act. We do not want to put
child porn convictions on hold while we wait another six years
to see if the law will survive constitutional scrutiny.
Because these two changes endanger the entire pandering
provision, because they are unwise, and because that section is
already strong enough to prosecute those who peddle child
pornography, we oppose those expansions of the provision and
still hope that we can reconsider them.
While the addition of a heightened scienter requirement in
the new pandering provision is wise, it does not cure the basic
problem with delinking pandering from the obscenity doctrine.
The whole aim of dramatic presentation is to convince the
viewer that what is, in fact, fiction is fact. For instance,
adult actors are intentionally and purposefully disguised to
look as if they are minors to sustain precisely that
misperception. Thus, the decision to obviate the need to
demonstrate any relation to obscenity places the
constitutionality of the provision as a whole at risk.
4. Inclusion of 100 percent virtual child pornography in ``identifiable
minor'' provision
a. Amendment of the ``identifiable minor'' provision to
include virtual child pornography
Even when Senator Leahy joined Senator Hatch in introducing
this bill last year, he expressed concern over certain
provisions. One such provision was the new definition of
``identifiable minor.'' In his floor statement on introduction,
Senator Leahy noted that this provision might ``both confuse
the statute unnecessarily and endanger the already upheld
`morphing' section of the CPPA.'' Senator Leahy said he was
concerned that it ``could present both overbreadth and
vagueness problems in a later constitutional challenge.''
Unfortunately, this provision remains problematic and
susceptible to constitutional challenge.
As the bill developed, a change to the definition of
``identifiable minor'' expanded it to cover virtual child
pornography--that is, 100 percent computer-generated pictures
not involving any real children. For that reason, it presented
additional constitutional problems similar to the
Administration-supported House bill. Senator Leahy objected to
this amendment when it was added to the bill in the last
Congress in Committee, and we have serious concerns with it
now.
The ``identifiable minor'' definition in the PROTECT Act
has no link to obscenity doctrine. Therefore, what potentially
saved the original version we introduced in the 107th Congress
was that it applied to child porn made with real ``persons.''
The provision was designed to strengthen the existing provision
covering all sorts of images of real minors that are morphed or
altered, but not something entirely made by computer, with no
child involved.
The change adopted in the Judiciary Committee last year and
supported by the Administration, however, dislodged that sole
constitutional anchor by redefining ``identifiable minor'' to
include a new category of pornography for any ``computer
generated image that is virtually indistinguishable from an
actual minor.'' The new provision could be read to include
images that never involved real children at all but were 100
percent computer generated.
That was not the original goal of this provision. There are
other provisions in this bill that deal with virtual child
pornography that we support, such as those in the new section
2252B, which are linked to obscenity doctrine. This provision,
however, was intended to ease theprosecutor's burden in cases
where images of real children were cleverly altered to avoid
prosecution. By changing the identifiable minor provision into a
virtual porn provision, the Administration has needlessly endangered
its constitutionality.
In making the argument that a regulation against such
``virtual porn'' is constitutionally permissible even after the
Free Speech decision, the Committee Report is internally
inconsistent and strains the legislative record. The Committee
Report is internally inconsistent on the root causes of child
pornography, and thus on what response is most `narrowly
tailored' to prevent it. At one point, the Report (at part V,
section 3) echoes the more traditional ``market'' argument,
that child pornography is created largely to satisfy an
existing market need fed by those who have little or nothing to
do with its production. (``Indeed, even fraudulent offers to
buy or sell unprotected child pornography help to sustain the
illegal market for this material.'') Such rationales are
offered as support for outlawing simple possession of child
pornography as well as for the more sweeping aspects of the
bill's new pandering offense.
At the same time, however, in an effort to justify the
bill's broad ban on virtual child pornography by linking that
effect to real children, the Report (at part III, section
C(ii)) asserts that ``child pornography results from the abuse
of real children by sex offenders; the production of child
pornography is a byproduct of, and not the primary reason for
the sexual abuse of children.'' \1\ In other words, it is not
the possessors but the sexual offenders who produce child
pornography that are largely responsible for its production.
That theory, however, is inconsistent with the market theory.
Unfortunately, neither assertion finds adequate support in the
legislative record.\2\ This absence places the bill's further-
reaching provisions involving virtual child pornography and
pandering of both non-existent and non-obscene materials on
unsteady footing.
---------------------------------------------------------------------------
\1\ Another flaw in the Committee Report is the unsupported
assertion that child pornographers will use real children regardless of
the legislative scheme that we impose here due to economic incentives.
In arguing that the use of real children is ``cost effective,'' one
factor that the Committee Report fails to take into account is the
effect of the very statutory scheme that we seek to promulgate. In
other words, it is arguable that creating a statutory scheme with
differential ``costs'' (e.g. prosecution and substantial jail time) of
using real children as opposed to computer generated images would
itself reduce the use of real children in producing such pornography.
See Committee Report at part III section C(ii).
\2\ The Committee Report also asserts that a virtual and actual
photo comparison presented to the House Judiciary Committee in May 2002
would leave an ``ordinary person * * * hard pressed to distinguish
between real and virtual depictions.'' See Committee Report at part III
section C(i). Since that photo array was not presented to this
Committee and was not in the record before this Committee, however, we
cannot comment upon the accuracy of this statement.
---------------------------------------------------------------------------
b. Remaining problems with ``identifiable minor'' provision
Even though we felt the idea was potentially flawed from
the outset, we were glad to work alongside Senator Hatch to
narrow the virtual porn provision before the Judiciary
Committee. Unfortunately, despite our best efforts, we fear we
have not done everything possible to strengthen it against
constitutional challenge.
Although the Hatch-Leahy amendment adopted in Committee
included a slightly narrower definition of sexually explicit
conduct, and excluded cartoons, sculptures, paintings,
anatomical models and the like, the virtual porn provision
still sweeps quite broadly and is potentially vague. The
Administration has insisted maintaining a broad sweep in these
provisions that places them in peril. New section
2252A(2)(B)(i) lumps in such truly ``hard core'' sexual
activities as intercourse, bestiality, and S&M, with simple
lascivious exhibition of the genitals and simulated intercourse
where any part of a breast is shown. Equating such disparate
types of conduct, however, does not mesh with community
standards and is precisely the type of ``one size fits all''
approach that the Supreme Court rejected in the area of virtual
pornography in the Free Speech Coalition case. The contrast
between this broad definition and the tighter definition in new
sections 2252B(a)(2) and (b)(2), crafted by Senators Hatch and
Leahy, is striking. In fact, we suggested that we include the
same definition of ``graphic'' conduct found in new section
2252B in the new section 2252A virtual child porn provision to
better focus it on hard core conduct. Unfortunately, the
Administration rejected that proposal, leaving a formulation
that may be open to overbreadth attacks.
We also believe that there is a vagueness concern in the
new section 2252A because, while it is clearly aimed at
``virtual'' child pornography (where no real children are
involved), it still requires ``actual'' conduct. In the realm
of computer generated images, however, the distinction between
actual and simulated conduct makes no sense. Indeed, this new
provision is so vague and confusing that it may be open to the
interpretation that it still requires proof of ``actual''
sexual acts involving real children. We hope that the language
is further clarified in order to address these concerns.
The Supreme Court made it clear that we can only outlaw
child pornography in two situations: one, where it is obscene,
or two, where it involves real kids. That is the law as stated
by the Supreme Court, whether or not we agree with it.
We agree with Senator Hatch that legislation in this area
is important. But regardless of our personal views, any law
must be within constitutional limits or it does no good at all.
In our view, the amended ``identifiable minor'' provision,
which would include most ``virtual'' child pornography in the
definition of child pornography, crosses the constitutional
line and needlessly risks protracted litigation that could
assist child pornographers in escaping punishment.
5. Mandatory directive to the Sentencing Commission
Another new provision in the bill includes a mandatory
directive to the U.S. Sentencing Commission to establish
penalties for these new crimes at certain levels. In our
experience, however, the non-partisan Sentencing Commission
operates best when it is allowed to study an issue carefully
and come up with a particular sentencing guideline based upon
its expertise in these matters. In fact, in child pornography
cases the Sentencing Commission has established appropriately
high penalties in the past, and there is no reason to believe
that it would not do so again with respect to these new laws.
D. CONCLUSION
Some of the provisions in the PROTECT Act raise legitimate
concerns, but in the interest of making progress, we support
consideration and passage of the measure in its current form.
We hope that we can work to improve this bill further so that
it has the best possible chance of withstanding a
constitutional challenge.
As we have explained, we believe that this issue is so
important that we have been willing to compromise and to
support a measure even though we do not agree with each and
every provision that it contains. That is how legislation is
normally passed. We hope that the Administration and the House
do not seek further changes that could bog the bill down. We
urge swift consideration and passage of this important bill as
it is currently written.
Patrick Leahy.
Joseph R. Biden, Jr.
Russell D. Feingold.
(ATTACHMENT A)
October 17, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senator Leahy: Thank you for the opportunity to
express the views of the National Center for Missing and
Exploited Children on these critically important issues for our
nation's children. Your stewardship of the Committee's tireless
efforts to craft a statute that will withstand conditional
scrutiny is wise and in the longterm best interest of the
nation. The National Center for Missing and Exploited Children
is grateful for your leadership on this issue.
Please find below my response to your written questions
submitted on October 9, 2002 regarding the ``Stopping Child
Pornography: Protecting our Children and the constitution.''
1. Our view is that the vast majority (99-100%) of all
child pornography would be found to be obscene by most judges
and juries, even under the standard of beyond a reasonable
person under community standards model, it is highly unlikely
that any community would not find child pornography obscene.
There is a legitimate concern that the obscenity standard
does not fully recognize, and therefore punish the exceptional
harm to children inherent in child pornography. This issue can
be addressed by the enactment of tougher sentencing provisions
if the obscenity standard is implemented in the law regarding
child pornography. Moreover, mere possession of obscene
materials under current law in most jurisdictions is not a
criminal violation. If the obscenity standard were implemented
for child pornography the legislative intent should be clear
concerning punishment of possession of child obscene
pornography.
In the post-Free Speech decision legal climate the
prosecution of child pornography cases under an obscenity
approach is a reasonable strategy and sound policy.
2. Based on my experience all the images in actual criminal
cases meet the lawful definition of obscenity, irrespective of
what community you litigate the case. In my experience there
has never been a visual depiction of child pornography that did
not meet the constitutional requirements for obscenity.
3. The National Center for Missing and Exploited Children
fully supports the correction of this sentencing disparity and
welcomes the provision of additional tools for federal judges
to remove these predators from our communities. These types of
offenders belong to a demographic that is the highest
percentile in terms of recidivism than any other single
offender category.
4. The National Center for Missing and Exploited Children
fully supports language that allows only ``non-government
sources'' to provide tips to the CyberTipline. The role of the
CyberTipline at the National Center for Missing and Exploited
Children is to provide tips received from the public and
Electronic Communication Services communities and make them
available to appropriate law enforcement agencies. Due in part
to the overwhelming success of the system and in part to the
tragedies of September 11, 2001, federal law enforcement
resources cannot address all of the legitimate tips and leads
received by the CyberTipline. Allowing the National Center for
Missing and Exploited Children and appropriate federal agencies
to forward this valuable information to state and local law
enforcement while at the same time addressing legitimate
privacy concerns is fully supported.
5. The victim shield provision is an excellent and timely
policy initiative and one that a fully supported by the
National Center for Missing and Exploited Children. This
provision should allow the narrow exception to a general non-
disclosure clause that anticipates the need for law enforcement
and prosecutors to use the victim's photography and other
relevant information for the sole purpose of verification and
authentication of an actual child victim in future cases. This
exception would allow the successful prosecution of other cases
that may involve a particular victim and still provide the
protection against the revictimization by the criminal justice
system.
6. The National Center for Missing and Exploited Children
fully supports extending the terms of authorized supervised
release in federal cases involving the exploitation of minors.
The evidence for extended supervision in such cases is
overwhelming. Without adequate treatment and continued
supervision, there is a significantly higher risk for re-
offending by this type of offender. Moreover, there is a
significant link between those offenders who possess child
pornography and those who sexually assault children. Please see
the attached studies that the National Center for Missing and
Exploited Children has produced on these issues.
Thank you again for the opportunity to address these
important issues. Should you need further input or assistance
please contact us at your convenience.
Sincerely,
Daniel Armagh,
Director, Legal Resource Division,
National Center for Missing and Exploited Children.
------
(ATTACHMENT B)
American Civil Liberties Union,
Washington National Office,
Washington, DC, February 5, 2003.
Re S. 151, The Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003.
Hon. Patrick J. Leahy,
Russell Senate Office Building,
Washington, DC.
Dear Senator Leahy: The Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003,
(PROTECT Act), as amended in the Judiciary Committee markup, is
a dramatic improvement over a similar bill which passed the
House in the 107th Congress. It is a thoughtful bill, tailored
to largely comport with the Supreme Court's decision in
Ashcroft v. Free Speech Coalition.
However, this bill still contains some constitutionally
problematic provisions that may limit its effectiveness in
addressing child pornography.
S. 151 imposes criminal liability on people who
possess or produce material protected by the First Amendment.
S. 151 continues to define as child pornography ``virtual
child pornography'' (protected speech) instead of limiting its
application to pornography that uses actual children
(unprotected speech).
S. 151 defines an ``identifiable minor'' as, among other
things, one who is ``virtually indistinguishable from an actual
minor.'' It also prohibits visual depictions of a ``minor, or
an individual who appears to be a minor'' when that depiction
is of the enumerated sexual acts.\1\ The latest amendments
specifically exclude ``depictions that are drawings, cartoons,
sculptures, diagrams, anatomical models, or paintings.'' This
does help to address some of the Supreme Court's concerns, but
does not go far enough.
---------------------------------------------------------------------------
\1\ This is in relation to the definition of ``obscene'' child
pornography, which will be discussed below.
---------------------------------------------------------------------------
In Ashcroft v. Free Speech Coalition, the Court identified
the governmental interest in the CPPA as protecting actual
children from exploitation. For that reason, the provisions of
the CPPA prohibiting ``virtual'' child pornography were held to
be overbroad and not narrowly tailored. The Court noted ``the
CPPA prohibits speech that records no crime and creates no
victims by its production.'' Ashcroft at 1403.
Like the CPPA, S. 151 prohibits material that records no
crime and creates no victims by its production. The term
``virtually indistinguishable'' was apparently lifted from
Justice O'Connor's concurrence, and did not receive endorsement
by the majority. To the extent that the material does not
depict an actual minor, it is protected speech under the First
Amendment. Furthermore, prohibiting material in which an
individual appears to be a minor ignores both Ashcroft and New
York v. Ferber, 458 U.S. 747 (1982). In Ferber, the Court
relied on the distinction between actual and virtual child
pornography as a basis for its holding: ``[I]f it were
necessary for literary or artistic value, a person over the
statutory age who perhaps looked younger could be utilized.
Simulation outside of the prohibition of the statute could
provide another alternative.'' Id. at 763. Thus, the Court
explicitly endorsed using older individuals who appear to be
minors.
This bill punishes depiction of wholly fabricated images in
which no child was used to create the image. Because S. 151
subjects to liability those who possess and depict both actual
and ``virtual'' child pornography, it is overbroad and likely
to be found unconstitutional.
Additionally, the Supreme Court has made it clear that
speech cannot be prohibited or deemed ``obscene'' unless it
appeals to the prurient interest. The amendments to S. 151 now
prohibit obscene depictions of a minor engaging in sexually
explicit conduct. Because this provision of the bill uses the
actual term ``obscene,'' it is likely that a court would use
the current definition of obscenity found in Miller v.
California (discussed below), and thus find that provision
constitutional. However, S. 151 then goes further, imposing in
proposed 18 U.S.C. Sec. 2252B(a)(2) and (b)(2), criminal
liability on speech regardless of whether it appeals to the
prurient interest, and therefore prohibits speech the Supreme
Court will likely find protected under the First Amendment.
S. 151 creates a new section, 18 U.S.C. Sec. 2252B of the
United States Code, creating a subset of child pornography that
either involves the use of an actual minor or one who appears
to be a minor, and is also obscene (hereinafter ``obscene child
pornography'').\2\ The bill in Sec. 2252B(a)(2) and (b)(2)
defines obscene child pornography as an image that is, or
appears to be, a minor, engaging in graphic bestiality,
sadistic or masochistic abuse, or sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex and lacks
serious literary, artistic, political, or scientific value.
---------------------------------------------------------------------------
\2\ Child pornography involving the use of actual children may be
prohibited whether or not it is obscene. Because Ashcroft held that
``virtual'' child pornography is protected speech, it may only be
prohibited if it is otherwise obscene.
---------------------------------------------------------------------------
The United States Supreme Court in Miller v. California,
413 U.S. 15 (1973), defined obscene material with reference to
a 3-part test: (1) whether the average person, applying
contemporary community standards, would find that the work,
taken as a whole, appeals to the prurient interest; (2) whether
the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state
law; and (3) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. Id. at 25.
Only if all three elements are present may the work be deemed
obscene.
In the proposed Sec. 2252B(a)(2) and (b)(2), obscenity is
defined with reference to only two parts of the Supreme Court's
three-part test. It specifically defines the sexual conduct
that isobjectionable, and requires that the work lack literary,
artistic, political, or scientific value. It does not however, require
that the average person, applying contemporary community standards,
would find the work, taken as a whole, appeals to the prurient
interest. The bill therefore lacks one of the three essential elements
in defining obscenity. Given that the United States Supreme Court has
repeatedly, and as recently as April of last year, affirmed Miller \3\,
this omission creates serious doubts about the constitutionality of the
bill.
---------------------------------------------------------------------------
\3\ Miller was most recently reaffirmed by Ashcroft v. Free Speech
Coalition, 122 S.Ct. 1389 (2002), in which the Court struck certain
provisions of the Child Pornography Protection Act (CPPA), partly on
the basis that the act covered works regardless of whether they
appealed to the prurient interest, or whether the image was patently
offensive, or whether it had literary, artistic, political, or
scientific value.
---------------------------------------------------------------------------
Finally, the ``Nonrequired Element of Offense'' provision
contained in the proposed Sec. 2252B(c) is too broad, punishing
speech that is protected under the First Amendment. That
provision states that ``It is not a required element of any
offense under this section (obscene visual representation of
the sexual abuse of children) that the minor depicted actually
exist.'' In Ashcroft, the Supreme Court made it clear that only
obscene child pornography could be prohibited without regard to
whether or not the child depicted actually exists. Because the
provisions defining obscene child pornography in the proposed
Sec. 2252B(a)(2) and (b)(2) define obscenity without regard to
the prurient interest requirement, they apply to non-obscene
depictions and are, therefore, overbroad.
The ``pandering'' provision continues to sweep in
non-commercial speech, making it overbroad.
The pandering provision contained in S. 151 is much
narrower than the provision held unconstitutional in Ashcroft.
For example, it does not prohibit possession of material
promoted as containing obscene child pornography, although it
does prohibit the actual promotion of the material as
containing such scenes. In Ashcroft, the Supreme Court
extensively discussed ``pandering'' as an offense, and
advocated restricting such provisions to commercial
exploitation.\4\
---------------------------------------------------------------------------
\4\ Non-commercial speech currently receives greater protection
under the First Amendment. Commercial speech is still protected under
the First Amendment, however restrictions on such speech are reviewed
by the Court with a more lenient standard. See Central Hudson Gas &
Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557
(1980).
---------------------------------------------------------------------------
S. 151 prohibits knowingly ``advertis[ing], promot[ing],
present[ing], describ[ing], distribut[ing], or solicit[ing]
through the mails, or in interstate or foreign commerce by any
means, including by computer, any material or purported
material in a manner that conveys the impression that the
material or purported material is, or contains, an obscene
visual depiction of a minor engaging in sexually explicit
conduct.''
The Supreme Court considered a pandering provision in
Ashcroft. Relying on Ginzburg v. United States, 383 U.S. 463,
474 (1966), the Court noted that ``[I]n close cases evidence of
pandering may be probative with respect to the nature of the
material in question and thus satisfy the [obscenity] test.''
``Where a defendant engages in the `commercial exploitation of
erotica solely for the sake of their prurient appeal,' Id. at
466, the context he or she creates may itself be relevant to
the evaluation of the materials.'' Ashcroft at 1406. In noting
difficulties with theCPPA pandering provision, the Court noted
``the statute * * * does not require that the context be part of an
effort at `commercial exploitation.' '' Id. Thus, while pandering may
be relevant in determining whether material is obscene, it should be
limited to instances of commercial exploitation. Failure to so restrict
the pandering provision in S. 151 renders it constitutionally
questionable.
A further problem involves S. 151's punishing advertising,
promoting, presenting, describing, distributing or soliciting
``any material in a manner that reflects the belief, or that is
intended to cause another to believe'' the material is
prohibited. This provision allows punishing distribution of
material that may well be protected speech, merely because of
the way it was marketed. For example, if someone offered to
provide you with a copy of Disney's Snow White, but represented
to you that it contained scenes of obscene child pornography,
that person will have committed a crime, punishable by a fine
and up to fifteen years in prison, even though Snow White is
clearly material protected under the First Amendment.
Additionally, S. 151's pandering provision applies to
``purported material,'' whatever that may be. As you noted in
your introductory remarks about S. 151, this provision is
problematic, in that it ``criminalizes speech even when there
is no underlying material at all--whether obscene or non-
obscene, virtual or real, child or adult.'' Adding this
ambiguous term to a provision already called into question by
the Supreme Court's decision in Ashcroft makes this provision
even more problematic.
S. 151 chills protected speech because it places
the burden on the defendant to prove the material was produced
using an adult or was ``virtually'' created.
S. 151 provides an affirmative defense to various offenses,
including mailing or transporting child pornography and
possession. Unfortunately, few defendants will be able to avail
themselves of the defense, even if they are innocent of the
charges. Normally, only the producer of the material will be in
a position to meet the burden of proof. Subsequent possessors
or distributors are unlikely to have the records to meet that
burden.
In Ashcroft, the government attempted to argue that the
CPPA was not a measure suppressing speech but instead was a law
shifting the burden to the accused to prove the speech was
lawful. The government relied on the affirmative defense that
allowed a defendant to avoid conviction for nonpossession
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. The Court
noted in this regard:
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 eventhe 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. The statute, moreover applies to work created
before 1996, and the producers themselves may not have preserved
records necessary to meet the burden of proof. Failure to establish the
defense can lead to a felony conviction. Id. at 1404-1405. [Emphasis
added.]
The affirmative defense provided in S. 151 suffers from the
same infirmities. It covers possession offenses in which the
possessor may have no ability to avail himself of the
affirmative defense. For example, one may possess a work that
someone else produced completely by computer \5\, involving no
real children, yet have no ability to prove that in court. The
bill also imposes criminal liability on those who created
material before the effective date of the statute, which means
even the producers may not have preserved the records necessary
to meet the burden of proof.
---------------------------------------------------------------------------
\5\ The Supreme Court held in Ashcroft, that virtual child
pornography is protected under the First Amendment.
---------------------------------------------------------------------------
Because the affirmative defense may lead to conviction of
innocent possessors or distributors, the Supreme Court may find
it unconstitutional. While the Court did not rule in Ashcroft
that shifting the burden of proof to the accused was per se
unconstitutional, it did acknowledge the ``serious
constitutional difficulties'' in doing so.
S. 151 hamstrings the defense, violates a
defendant's right to due process of law, and violates the right
to confront one's accusers.
It has long been axiomatic that in our Constitutional form
of government, a defendant has the right to confront his
accusers, and a right to due process of law. S. 151 takes these
rights away by limiting admissible evidence.
S. 151 amends 18 U.S.C. Sec. 2252A to provide that ``[i]n
any prosecution under this chapter, the name, address, or other
identifying information, other than the age or approximate age,
of any minor who is depicted in any child pornography shall not
be admissible and the jury shall be instructed, upon request of
the United States, that it can draw no inference from the
absence of such evidence in deciding whether the child
pornography depicts an actual minor.''
This provision hamstrings the defense and could result in
the conviction of innocent people. The government will no
longer have to prove an actual minor was involved in the
production of the material; it only needs to provide the ``age
or approximate age'' of the alleged minor. If the defense
wishes to contest the government's assertion, it will be
prohibited from introducing the birth record or any other
information that would prove the identity and age of the minor.
The jury would be left to speculate whether any records
introduced actually applied to the alleged minor. Furthermore,
the defense will not be allowed to cross-examine the alleged
minor to determine whether that minor is the one depicted in
the material.
The same problems apply to the provision contained on page
15, lines 6 through 8, in which the definition of
``identifiable minor'' ``shall not be construed to require
proof of the actual identity ofthe identifiable minor.''
Essentially, the government is in the position of saying to the jury,
``trust us, we wouldn't lie to you. The picture is that of an
identifiable minor.'' The defense is then disallowed from inquiring
into specifics about the identity of the alleged minor. Provisions such
as these tilt the playing field impermissibly in favor of the
prosecution.
S. 151's extraterritorial jurisdiction provisions
may result in other countries imposing liability on U.S.
companies for their speech, even though that speech is
protected under the First Amendment.
S. 151 provides for extraterritorial jurisdiction where the
defendant intends that the material be transported to the
United States, or where the material is actually transported to
the United States. This, unfortunately, will provide support
for other countries that wish to exert jurisdiction over
entities in the United States who make material available on
the World Wide Web that violates the law of the other countries
yet is protected speech in the United States.
Internet Service Providers in the United States were
outraged when France exercised jurisdiction over Yahoo! US
based solely on its posting information on the World Wide Web
that was not targeted at France. France prohibits the sale of
Nazi memorabilia. Although Yahoo! had a French office which
abided by French law, Yahoo! US operated in the United States.
Yahoo! US had Nazi memorabilia for sale on its auction site.
Simply because French citizens could access Yahoo! US, France
brought an action against Yahoo! US for violating French law. A
U.S. court has held that France may not bring an action in the
U.S. to enforce the judgment, and that Yahoo! US was protected
under the First Amendment. The case is working its way through
the appeals process.
Once an item is posted on the World Wide Web, it is
available to anyone, anywhere in the world, regardless of the
poster's intentions.
S. 151 prohibits transporting a ``visual depiction to the
United States, its territories or possessions, by any means,
including by computer or mail.'' Thus, if someone in Zimbabwe
posts child pornography on the World Wide Web, it is accessible
in the United States. Although S. 151 requires an intent that
the depiction be transported to the United States, it does not
make clear that mere posting on the Internet or World Wide Web
does not constitute the requisite intent. If mere posting
constitutes the requisite intent, other countries could use
this provision to argue they can prohibit content based in the
United States and protected by the First Amendment solely
because the content was ``intended'' to be available in that
foreign country. For example, France could ban Nazi memorabilia
from U.S. web sites, China could ban U.S. criticism of its
leaders, and Saudi Arabia could ban images of bikini-clad women
pictured on U.S. travel sites. First Amendment protection for
U.S. entities would be stripped away solely because the speech
was available in foreign countries with limited respect for
freedom of speech.
S. 151 contains ineffective mandatory minimum
sentences for certain repeat offenders.
S. 151 extends existing mandatory minimum sentences to a
new category of repeat offenders. Chief Justice William
Rehnquist has called mandatory sentencing ``a good example of
the law of unintended consequences,'' and several Members of
the Senate Judiciary Committee have expressed reservations
about mandatory minimum sentences. The Judicial Conferences of
all 12 federal circuits have urged the repeal of mandatory
minimum sentences, after concluding that they are unfair and
ineffective. And numerous studies, including those by the
Department of Justice and the U.S. Sentencing Commission,
indicate that mandatory minimum sentencing is not an effective
instrument for deterring crime.
Mandatory minimum sentencing deprives judges of the ability
to fashion sentences that suit the particular offense and
offender. Despite their flaws, the Sentencing Guidelines are
better able to take into account the range of factors that are
relevant to the sentencing decision. The Sentencing Guidelines
also are better able to exclude factors that give rise to
unwarranted sentencing disparities. In transferring sentencing
discretion from judges to prosecutors, mandatory minimum
sentences transfer the sentencing decision from open courtroom
to closed prosecutor's office. Consequently, there are
inadequate guarantees that statutorily prohibited factors such
as race, age and gender do not influence the ultimate sentence.
Even when the charging--and, in effect, sentencing--decision is
free from taint, such closed-door decisions can undermine the
appearance of equal justice.
We greatly appreciate the efforts you and Senator Hatch
have made to craft a bill that will withstand constitutional
scrutiny. While S. 151 is certainly closer to meeting that goal
than the earlier House bill, it still falls short of fully
complying with Ashcroft v. Free Speech Coalition and raises
other constitutional problems as well.
Sincerely,
Laura W. Murphy,
Director.
Marvin J. Johnson,
Legislative Counsel.
IX. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rule of the Senate, changes in existing law made by S.
151, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
Part Section
I. CRIMES................................................. 1
* * * * * * *
PART I--CRIMES
Chapter Section
1. General provisions..................................... 1
* * * * * * *
110. Sexual exploitation and other abuse of children.............. 2251
* * * * * * *
CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
Sec.
2251. Sexual exploitation of children.
2251A. Selling or buying of children.
2252. Certain activities relating to material involving the sexual
exploitation of minors.
2252A. Certain activities relating to material constituting or
containing child pornography.
2252B. Obscene visual representatives of the sexual abuse of children.
* * * * * * *
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 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 persons knows or has reason to know that such visual
depiction will be transported in interstate or foreign commerce
or mailed, if the 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 territories or possessions,
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 territories or
possessions, by any means, including by computer or
mail; or
(B) the person transports such visual depiction to
the United States, its territories or possessions, by
an 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 \1\ both, but if such person has one prior
conviction under this chapter [18 U.S.C.A. Sec. 2251 et seq.],
chapter 71, chapter 109A [18 U.S.C.A. Sec. 2141 et seq. of
Title 18], or chapter 117 [18 U.S.C.A. Sec. 2421 et seq.], or
under the law 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.
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``or''.
* * * * * * *
---------------------------------------------------------------------------
Sec. 2252. Certain activities relating to material involving the sexual
exploitation of minors
(a) Any person who--
(1) knowingly transports or ships in interstate or
foreign commerce by any means including by computer or
mails, any visual depiction, if--
* * * * * * *
(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 [18 U.S.C.A. Sec. 2251 et seq.], chapter 71, chapter
109A [18 U.S.C.A. Sec. 2141 et seq.], or chapter 117 [18
U.S.C.A. Sec. 2421 et seq.] 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 [18 U.S.C.A.
Sec. 2251 et seq.], chapter 71, chapter 109A [18 U.S.C.A.
Sec. 2141 et seq.], or chapter 117 [18 U.S.C.A. Sec. 2421 et
seq.], 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) Any person who--
(1) knowingly mails, or transports or ships in
interstate or foreign commerce by any means, including
by computer, any child pornography;
* * * * * * *
[(3) knowingly reproduces any child pornography for
distribution through the mails, or in interstate or
foreign commerce by any means, including by computer;]
(3) knowingly--
(A) reproduces any child pornography for
distribution through the mails, or in
interstate or foreign commerce by any means,
including by computer; or
(B) advertises, promotes, presents,
distributes, or solicits through the mails, or
in interstate or foreign commerce by any means,
including by computer, any material or
purported material in a manner that reflects
the belief, or that is intended to cause
another to believe, that the material or
purported material is, or contains--
(i) an obscene visual depiction of a
minor engaging in sexually explicit
conduct; or
(ii) a visual depiction of an actual
minor engaging in sexually explicit
conduct;
(4) either--
(A) in the special maritime and territorial
jurisdiction of the United States, or on any
land or building owned by, leased to, or
otherwise used by or under the control of the
United States Government, or in the Indian
country (as defined in section 1151), knowingly
sells or possesses with the intent to sell any
child pornography; or
(B) knowingly sells or possesses with the
intent to sell any child pornography that has
been mailed, or shipped or transported in
interstate or foreign commerce by any means,
including by computer, or that was produced
using materials that have been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer;
[or]
(5) either--
(A) in the special maritime and territorial
jurisdiction of the United States, or any land
or building owned by, leased to, or otherwise
used by or under the control of the United
States Government, or in the Indian country (as
defined in section 1151), knowingly possesses
any book, magazine, periodical, film,
videotape, computer disk, or any other material
that contains an image of child pornography; or
(B) knowingly possesses any book, magazine,
periodical, film, videotape, computer disk, or
any other material that contains an image of
child pornography that has been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer,
or that was produced using materials that have
been mailed, or shipped or transported in
interstate or foreign commerce by any means,
including by computer,
shall be punished as provided in subsection (b)[.]; or
(6) knowingly distributes, offers, sends, or provides
to a minor any visual depiction, including any
photograph, film, video, picture, or computer generated
image or picture, whether made or produced by
electronic, mechanical, or other means, where such
visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct--
(A) that has been mailed, shipped, or
transported in interstate or foreign commerce
by any means, including by computer;
(B) that was produced using materials that
have been mailed, shipped, or transported in
interstate or foreign commerce by any means,
including by computer; or
(C) which distribution, offer, sending, or
provision is accomplished using the mails or by
transmitting or causing to be transmitted any
wire communication in interstate or foreign
commerce, including by computer,
for purposes of inducing or persuading a minor to
participate in any activity that is illegal.
(b)(1) Whoever violates or attempts or conspires to
violate. [paragraphs (1), (2), (3), or (4)] paragraph (1), (2),
(3), (4), or (6) 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 [18
U.S.C.A. Sec. 2251 et seq.], chapter 71, chapter 109A [18
U.S.C.A. Sec. 2141 et seq.], or chapter 117 [18 U.S.C.A.
Sec. 2421 et seq.], 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 compires 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 [18 U.S.C.A. Sec. 2251 et seq.],
chapter 71, chapter 109A [18 U.S.C.A. Sec. 2141 et seq.], or
chapter 117 [18 U.S.C.A. Sec. 2421 et seq.], 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) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating paragraph (1), (2), (3), (4),
or (5) of subsection (a) that--
(1)(A) the alleged child pornography was produced
using an actual person or persons engaging in sexually
explicit conduct; and
(B) each such person was an adult at the time the
material was produced; or
(2) the alleged child pornography was not produced
using any actual minor or minors.
No affirmative defense under subsection (c)(2) shall be
available in any prosecution that involves child pornography as
described in section 2256(8)(C). A defendant may not assert an
affirmative defense to a charge of violating paragraph (1),
(2), (3), (4), or (5) of subsection (a) unless, within the time
provided for filing pretrial motions or at such time prior to
trial as the judge may direct, but in no event later than 10
days before the commencement of the trial, the defendant
provides the court and the United States with notice of the
intent to assert such defense and the substance of any expert
or other specialized testimony or evidence upon which the
defendant intends to rely. If thedefendant fails to comply with
this subsection, the court shall, absent a finding of extraordinary
circumstances that prevented timely compliance, prohibit the defendant
from asserting such defense to a charge of violating paragraph (1),
(2), (3), (4), or (5) of subsection (a) or presenting any evidence for
which the defendant has failed to provide proper and timely notice.
(d) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating subsection (a)(5) that the
defendant--
(1) possessed less than three images of child
pornography; 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
image.
(e) Admissibility of Evidence.--On motion of the
government, in any prosecution under this chapter, except for
good cause shown, the name, address, social security number, or
other nonphysical identifying information, other than the age
or approximate age, of any minor who is depicted in any child
pornography shall not be admissible and may be redacted from
any otherwise admissible evidence, and the jury shall be
instructed upon request of the United States, that it can draw
no inference from the absence of such evidence in deciding
whether the child pornography depicts an actual minor.
(f) Civil Remedies.--
(1) In general.--Any person aggrieved by reason of
the conduct prohibited under subsection (a) or (b) may
commence a civil action for the relief set forth in
paragraph (2).
(2) Relief.--In any action commenced in accordance
with paragraph (1), the court may award appropriate
relief, including--
(A) temporary, preliminary, or permanent
injunctive relief.
(B) compensatory and punitive damages; and
(C) the costs of the civil action and
reasonable fees for attorneys and expert
witnesses.
Sec. 2252B. Obscene visual representations of the sexual abuse of
children
(a) In General.--Any person who, in a circumstance
described in subsection (d), 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)(A) depicts a minor engaging in sexually explicit
conduct; and
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of
a minor engaging in graphic bestiality, sadistic or
masochistic abuse, or sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or opposite
sex; and
(B) lacks serious literary, artistic, political, or
scientific value;
or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(1), including the
penalties provided for cases involving a prior conviction.
(b) Additional Offenses.--Any person who, in a circumstance
described in subsection (d), knowingly possesses a visual
depiction of any kind, including a drawing, cartoon, sculpture,
or painting, that--
(1)(A) depicts a minor engaging in sexually explicit
conduct; and
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of
a minor engaging in graphic bestiality, sadistic or
masochistic abuse, or sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or opposite
sex; and
(B) lacks serious literary, artistic, political, or
scientific value;
or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(2), including the
penalties provided for cases involving a prior conviction.
(c) Nonrequired Element of Offense.--It is not a required
element of any offense under this section that the minor
depicted actually exist.
(d) Circumstances.--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) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating subsection (b) that the
defendant--
(1) possessed less than 3 such visual depictions; and
(2) promptly and in good faith, and without retaining
or allowing any person, other than a law enforcement
agency, to access any such visual depiction--
(A) took reasonable steps to destroy each
such visual depiction; or
(B) reported the matter to a law enforcement
agency and afforded that agency access to each
such visual depiction.
(f) Definitions.--For purposes of this section--
(1) the term ``visual depiction'' includes
undeveloped film and videotape, and data stored on a
computer disk or by electronic means which is capable
of conversion into a visual image, and also includes
anyphotograph, film, video, picture, digital image or
picture, computer image or picture, or computer generated image or
picture, whether made or produced by electronic, mechanical, or other
means;
(2) the term ``sexually explicit conduct'' has the
meaning given the term in section 2256(2); and
(3) the term ``graphic'', when used with respect to a
depiction of sexually explicit conduct, means that a
viewer can observe any part of the genitals or pubic
area of any depicted person or animal during any part
of the time that the sexually explicit conduct is being
depicted.
* * * * * * *
Sec. 2256. Definitions for chapter
For the purposes of this chapter, the term--
(1) ``minor'' means any person under the age of
eighteen years and shall not be construed to require
proof of the actual identity of the person;
(2) ``sexually explicit conduct'' [means actual]
means--
(A) actual or simulated--
[(A)] (i) sexual intercourse,
including genital-genital, oral-
genital, anal-genital, or oral-anal,
whether between persons of the same or
opposite sex;
[(B)] (ii) bestiality;
[(C)] (iii) masturbation;
[(D)] (iv) sadistic or masochistic
abuse; or
[(E)] (v) lascivious exhibition of
the genitals or pubic area of any
person; or
(B)(i) actual sexual intercourse, including
genital-genital, oral-genital, and 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 lascivious 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) the production of such visual depiction
involves the use of an identifiable 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, except that the term
``identifiable minor'' as used in this
subparagraph shall not be construed to include
the portion of the definition contained in
paragraph (9)(B); [or]
[(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
[(9) ``identifiable minor''--
[(A) means a person--
[(i)(I) who was a minor at the time
the visual depiction was created,
adapted, or modified; or
[(II) whose image as a minor was used
in creating, adapting, or modifying the
visual depiction; and
[(ii) who is recognizable as an
actual person by the person's face,
likeness, or other distinguishing
characteristic, such as a unique
birthmark or other recognizable
feature; and
[(B) shall not be construed to require proof
of the actual identity of the identifiable
minor.]
(9) ``identifiable minor''--
(A)(i) means a person--
(I)(aa) who was a minor at the time
the visual depiction was created,
adapted, or modified; or
(bb) whose image as a minor was used
in creating, adapting, or modifying the
visual depiction; and
(II) who is recognizable as an actual
person by the person's face, likeness,
or other distinguishing characteristic,
such as a unique birthmark or other
recognizable feature; and
(ii) shall not be construed to require proof
of the actual identity of the identifiable
minor; or
(B) means a computer image, computer
generated image, or digital image--
(i) that is of, or is virtually
indistinguishable from that of, an
actual minor; and
(ii) that depicts sexually explicit
conduct as defined in paragraph (2)(B);
and
(10) ``virtually indistinguishable''--
(A) means that the depiction is such that an
ordinary person viewing the depiction would
conclude that the depiction is of an actual
minor; and
(B) does not apply to depictions that are
drawings, cartoons, sculptures, diagrams,
anatomical models, or paintings depicting
minors or adults or reproductions of such
depictions.
Sec. 2257. Record keeping requirements
(a) Whoever produces any book, magazine, periodical, film,
video-tape, or other matter which--
* * * * * * *
(d)(1) No information or evidence obtained from records
required to be created or maintained by this section shall,
except as provided in this section, directly or indirectly, be
used as evidence against any person with respect to any
violation of law.
(2) Paragraph (1) of this subsection shall not preclude the
use of such information or evidence in a prosecution or other
action for a violation [of this section] of this chapter or
chapter 71, or for a violation of any applicable provision of
law with respect to the furnishing of false information.
(h) As used in this this section--
(1) the term ``actual sexually explicit conduct''
means actual but not simulated conduct as defined in
subparagraphs (A) through (D) of paragraph (2) of
section 2256 of this title;
* * * * * * *
(3) the term ``produces'' means to produce,
manufacture, or publish any book, magazine, periodical,
film, video tape, computer generated image, digital
image, or picture, or other similar matter and includes
the duplication, reproduction, or reissuing of any such
matter, but does not include mere distribution or any
other activity which does not involve hiring,
contracting for managing, or otherwise arranging for
the participation of the performers depicted; and
* * * * * * *
(i) Whoever violates this section shall be imprisoned for
[not more than 2 years] not more than 5 years, and fined in
accordance with the provisions of this title, or both. Whoever
violates this section after having been convicted of a
violation punishable under this section shall be imprisoned for
any period of years not more than [5 years] 10 years but not
less than 2 years, and fined in accordance with the provisions
of this title, or both.
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, * * *
(a) any offense punishable by death or by imprisonment for
more than one year under sections 2274 through 2277 of title 42
of the United States Code (relating to the enforcement of the
Atomic Energy Act of 1954), section 2284 of title 42 of the
United States Code (relating to sabotage of nuclear facilities
or fuel), or under the following chapters of this title:
chapter 37 (relating to espionage), chapter 90 (relating to
protection of trade secrets), chapter 105 (relating to
sabotage), chapter 115 (relating to treason), chapter 102
(relating to riots), chapter 65 (relating to malicious
mischief), chapter 111 (relating to destruction of vessels), or
chapter 81 (relating to piracy);
* * * * * * *
(c) any offense which is punishable under the following
sections of this title: section 201 (bribery of public
officials and witnesses), section 215 (relating to bribery of
bank officials), section 224 (bribery in sporting contests),
subsection (d), (e), (f), (g), (h), or (i) of section 844
(unlawful use of explosives), section 1032 (relating to
concealment of assets), section 1084 (transmission of wagering
information), section 751 (relating to escape), section 1014
(relating to loans and credit applications generally; renewals
and discounts), sections 1503, 1512, and 1513 (influencing or
injuring an officer, juror, or witness generally), section 1510
(obstruction of criminal investigations), section 1511
(obstruction of State or local law enforcement), section 1591
(sex trafficking of children by force, fraud, or coercion),
section 1751 (Presidential and Presidential staff
assassination, kidnapping, and assault), section 1951
(interference with commerce by threats or violence), section
1952 (interstate and foreign travel or transportation in aid of
racketeering enterprises), section 1958 (relating to use of
interstate commerce facilities in the commission of murder for
hire), section 1959 (relating to violent crimes in aid of
racketeering activity), section 1954 (offer, acceptance, or
solicitation to influence operations of employee benefit plan),
section 1955 (prohibition of business enterprises of gambling),
section 1956 (laundering of monetary instruments), section 1957
(relating to engaging in monetary transactions in property
derived from specified unlawful activity), section 659 (theft
from interstate shipment), section 664 (embezzlement from
pension and welfare funds), section 1343 (fraud by wire, radio,
or television), section 1344 (relating to bank fraud), sections
2251 and 2252 (sexual exploitation of children), section 2251A
(selling or buying of children), section 2252A (relating to
material constituting or containing child pornography), section
2252B (relating to child obscenity), section 2260 (production
of sexually explicit depictions of a minor for importation into
the United States), sections 2421, 2422, 2423, and 2425
(relating to transportation for illegal sexual activity and
related crimes), sections 2312, 2313, 2314, and 2315(interstate
transportation of stolen property), section 2321 (relating to
trafficking in certain motor vehicles or motor vehicle parts), section
1203 (relating to hostage taking), section 1029 (relating to fraud and
related activity in connection with access devices), section 3146
(relating to penalty for failure to appear), section 3521(b)(3)
(relating to witness relocation and assistance), section 32 (relating
to destruction of aircraft or aircraft facilities), section 38
(relating to aircraft parts fraud), section 1963 (violations with
respect to racketeer influenced and corrupt organizations), section 115
(relating to threatening or retaliating against a Federal official),
section 1341 (relating to mail fraud), a felony violation of section
1030 (relating to computer fraud and abuse), section 351 (violations
with respect to congressional, Cabinet, or Supreme Court
assassinations, kidnapping, and assault), section 831 (relating to
prohibited transactions involving nuclear materials), section 33
(relating to destruction of motor vehicles or motor vehicle
facilities), section 175 (relating to biological weapons), section 1992
(relating to wrecking trains), a felony violation of section 1028
(relating to production of false identification documentation), section
1425 (relating to the procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction of
naturalization or citizenship papers), section 1427 (relating to the
sale of naturalization or citizenship papers), section 1541 (relating
to passport issuance without authority), section 1542 (relating to
false statements in passport applications), section 1543 (relating to
forgery or false use of passports), section 1544 (relating to misuse of
passports), or section 1546 (relating to fraud and misuse of visas,
permits, and other documents);
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2702. Voluntary disclosure of customer communications or records
(a) Prohibitions.--Except as provided in subsection (b)--
* * * * * * *
(b) Exceptions for Disclosure of Communications.--A
provider described in subsection (a) may divulge the contents
of a communication--
(1) to an addressee or intended recipient of such
communication or an agent of such addressee or intended
recipient;
* * * * * * *
(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 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 [42 U.S.C.A. Sec. 13032];
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) as otherwise authorized in section 2703;
* * * * * * *
(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 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.
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 223--WITNESSES AND EVIDENCE
* * * * * * *
Sec. 3486. Administrative subpoenas
(a) Authorization.--(1)(A) In any investigation relating
of--
* * * * * * *
(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 of
identity, and length of service of a subscriber to or
customer or such service and the types of services the
subscriber or customer utilized,] the information
specified in section 2703(c)(2) which may be relevant
to an authorized law enforcement inquiry; or
* * * * * * *
TITLE 42--THE PUBLIC HEALTH AND WELFARE
* * * * * * *
CHAPTER 132--VICTIMS OF CHILD ABUSE
Subchapter I--Improving Investigation and Prosecution of Child Abuse
Cases
* * * * * * *
Subchapter IV--Reporting Requirements
* * * * * * *
Sec. 13032. Reporting of child pornography by electronic communication
service providers
(a) Definitions.--In this section--
(1) the term ``electronic communication service'' has
the meaning given the term in section 2510 of Title 18;
and
(2) the term ``remote computing service'' has the
meaning given the term in section 2711 of Title 18.
(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, or
2260 of Title 18, involving child pornography (as
defined in section 2256 of that title) or a violation
of section 2252B 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.
(2) Designation of agencies.--Not later than 180 days
after Oct. 30, 1998, the Attorney General shall
designate the law enforcement agency or agencies to
which a report shall be forwarded under paragraph (1).
(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) in the case of an initial failure to make
a report, not more than $50,000; and
(B) in the case of any second or subsequent
failure to make a report, not more than
$100,000.
(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) to an attorney for the government for use
in the performance of the official duties of
the attorney;
* * * * * * *
[(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.
* * * * * * *