[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4623 Introduced in House (IH)]
107th CONGRESS
2d Session
H. R. 4623
To prevent trafficking in child pornography and obscenity, to proscribe
pandering and solicitation relating to visual depictions of minors
engaging in sexually explicit conduct, to prevent the use of child
pornography and obscenity to facilitate crimes against children, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 30, 2002
Mr. Smith of Texas (for himself, Mr. Pomeroy, Mr. Foley, Ms. Hart, Mr.
DeLay, Mr. Bryant, Mr. Goodlatte, Mr. Jenkins, Mr. Cannon, Mr. Green of
Wisconsin, Mr. Keller, Mrs. Johnson of Connecticut, Mr. Stearns, Mr.
Nussle, Mrs. Capito, Mr. Gilchrest, Mr. Culberson, Mr. Weller, and Mr.
Upton) introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To prevent trafficking in child pornography and obscenity, to proscribe
pandering and solicitation relating to visual depictions of minors
engaging in sexually explicit conduct, to prevent the use of child
pornography and obscenity to facilitate crimes against children, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Obscenity and Pornography
Prevention Act of 2002''.
SEC. 2. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.
(a) Section 2256(8)(B) of title 18, United States Code, is amended
to read as follows:
``(B) such visual depiction is a computer image or
computer-generated image that is, or appears virtually
indistinguishable from, that of a minor engaging in
sexually explicit conduct; or''.
(b) Section 2256(2) of title 18, United States Code, is amended to
read as follows:
``(2)(A) Except as provided in subparagraph (B), `sexually
explicit conduct' means actual or simulated--
``(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex;
``(ii) bestiality;
``(iii) masturbation;
``(iv) sadistic or masochistic abuse; or
``(v) lascivious exhibition of the genitals or
pubic area of any person;
``(B) For purposes of subsection 8(B) of this section,
`sexually explicit conduct' means--
``(i) actual sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex, or
lascivious simulated sexual intercourse where the
genitals, breast, or pubic area of any person is
exhibited;
``(ii) actual or lascivious simulated;
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic abuse; or
``(iii) actual or simulated lascivious exhibition
of the genitals or pubic area of any person;''.
(c) Section 2252A(c) of title 18, United States Code, is amended to
read as follows:
``(c)(1) Except as provided in paragraph (2), it shall be an
affirmative defense to a charge of violating this section that the
alleged offense did not involve child pornography produced using a
minor engaging in sexually explicit conduct or an attempt or conspiracy
to commit an offense involving such child pornography.
``(2) A violation of, or an attempt or conspiracy to
violate, this section which involves child pornography as
defined in section 2256(8)(A) or (C) shall be punishable
without regard to the affirmative defense set forth in
paragraph (1).''.
SEC. 3. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code, is amended--
(1) by inserting ``or'' at the end of subparagraph (B);
(2) in subparagraph (C), by striking ``or'' at the end and
inserting ``and''; and
(3) by striking subparagraph (D).
(b) Chapter 110 of title 18, United States Code, is amended--
(1) by inserting after section 2252A the following:
``Sec. 2252B. Pandering and solicitation
``(a) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to provide or sell a visual
depiction to another, and who in connection therewith knowingly
advertises, promotes, presents, or describes the visual depiction with
the intent to cause any person to believe that the material is, or
contains, a visual depiction of a minor engaging in sexually explicit
conduct shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases involving a
prior conviction.
``(b) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to receive or purchase from
another a visual depiction that he believes to be, or to contain, a
visual depiction of a minor engaging in sexually explicit conduct shall
be subject to the penalties set forth in section 2252A(b)(1), including
the penalties provided for cases involving a prior conviction.
``(c) It is not a required element of any offense under this
section that any person actually provide, sell, receive, purchase,
possess, or produce any visual depiction.
``(d) The circumstance referred to in subsection (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.'';
(2) in the analysis for the chapter, by inserting after the
item relating to section 2252A the following:
``2252B. Pandering and solicitation.''.
SEC. 4. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.
(a) Chapter 71 of title 18, United States Code, is amended--
(1) by inserting after section 1466 the following:
``Sec. 1466A. Obscene visual depictions of young children
``(a) Whoever, in a circumstance described in subsection (d),
knowingly produces, distributes, receives, or possesses with intent to
distribute a visual depiction that is, or is virtually
indistinguishable from, that of a pre-pubescent child engaging in
sexually explicit conduct, or attempts or conspires to do so, shall be
subject to the penalties set forth in section 2252A(b)(1), including
the penalties provided for cases involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection (d),
knowingly possesses a visual depiction that is, or is virtually
indistinguishable from, that of a pre-pubescent child engaging in
sexually explicit conduct, or attempts or conspires to do so, shall be
subject to the penalties set forth in section 2252A(b)(2), including
the penalties provided for cases involving a prior conviction.
``(c) For purposes of this section--
``(1) `visual depiction' includes undeveloped film and
videotape, and data stored on computer disk or by electronic
means which is capable of conversion into a visual image, and
also includes any photograph, film, video, picture, or computer
or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means;
``(2) `pre-pubescent child' means that the child, as
depicted, does not exhibit significant pubescent physical or
sexual maturation. Factors that may be considered in
determining significant pubescent physical maturation include
body habitus and musculature, height and weight proportion,
degree of hair distribution over the body, extremity proportion
with respect to the torso, and dentition. Factors that may be
considered in determining significant pubescent sexual
maturation include breast development, presence of axillary
hair, pubic hair distribution, and visible growth of the sexual
organs; and
``(3) `sexually explicit conduct' has the meaning set forth
in section 2256(2).
``(d) The circumstance referred to in subsections (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(e) In a case under subsection (b), it is an affirmative defense
that the defendant--
``(1) possessed less than three such images; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof--
``(A) took reasonable steps to destroy each such
image; or
``(B) reported the matter to a law enforcement
agency and afforded that agency access to each such
image.''; and
(2) in the analysis for the chapter, by inserting after the
item relating to section 1466 the following:
``1466A. Obscene visual depictions of young children.''.
(b)(1) Except as provided in paragraph (2), the applicable category
of offense to be used in determining the sentencing range referred to
in section 3553(a)(4) of title 18, United States Code, with respect to
any person convicted under section 1466A of such title, shall be the
category of offenses described in section 2G2.2 of the Sentencing
Guidelines.
(2) The Sentencing Commission may promulgate guidelines
specifically governing offenses under section 1466A of title 18, United
States Code, provided that such guidelines shall not result in
sentencing ranges that are lower than those that would have applied
under paragraph (1).
SEC. 5. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES AGAINST
MINORS.
Chapter 71 of title 18, United States Code, is amended--
(1) by inserting at the end the following:
``Sec. 1471. Use of obscene material or child pornography to facilitate
offenses against minors
``(a) Whoever, in any circumstance described in subsection (c),
knowingly--
``(1) provides or shows to a person below the age of 16
years any obscene matter or child pornography, or any visual
depiction that is, or is virtually indistinguishable from, that
of a pre-pubescent child engaging in sexually explicit conduct;
or
``(2) provides any obscene matter or child pornography, or
any visual depiction that is, or is virtually indistinguishable
from, that of a pre-pubescent child engaging in sexually
explicit conduct, or any other material assistance to any
person in connection with any conduct, or any attempt,
incitement, solicitation, or conspiracy to engage in any
conduct, that involves a minor and that violates chapter 109A,
110, or 117, or that would violate chapter 109A if the conduct
occurred in the special maritime and territorial jurisdiction
of the United States,
shall be subject to the penalties set forth in section 2252A(b)(1),
including the penalties provided for cases involving a prior
conviction.
``(b) For purposes of this section--
``(1) `child pornography' has the meaning set forth in
section 2256(8);
``(2) `visual depiction' has the meaning set forth in
section 1466A(c)(1);
``(3) `pre-pubescent child' has the meaning set forth in
section 1466A(c)(2); and
``(4) `sexually explicit conduct' has the meaning set forth
in section 2256(2).
``(c) The circumstance referred to in subsection (a) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction or obscene matter by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction or obscene matter involved in
the offense has been mailed, or has been shipped or transported
in interstate or foreign commerce by any means, including by
computer, or was produced using materials that have been
mailed, or that have been shipped or transported in interstate
or foreign commerce by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.'';
(2) in the analysis for the chapter, by inserting at the
end the following:
``1471. Use of obscene material or child pornography to facilitate
offenses against minors.''.
SEC. 6. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
Section 2251 is amended--
(1) by striking ``subsection (d)'' each place it appears in
subsections (a), (b), and (c) and inserting ``subsection (e)'';
(2) by redesignating subsections (c) and (d), respectively,
as subsections (d) and (e); and
(3) by inserting after subsection (b) a new subsection (c)
as follows:
``(c)(1) Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces any minor
to engage in, or who has a minor assist any other person to engage in,
any sexually explicit conduct outside of the United States, its
possessions and Territories, for the purpose of producing any visual
depiction of such conduct, shall be punished as provided under
subsection (e).
``(2) The circumstance referred to in paragraph (1) is that--
``(A) the person intends such visual depiction to be
transported to the United States, its possessions, or
territories, by any means including by computer or mail;
``(B) the person transports such visual depiction to, or
otherwise makes it available within, the United States, its
possessions, or territories, by any means including by computer
or mail.''.
SEC. 7. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.
Sections 2251(d), 2252(b), and 2252A(b) of title 18, United States
Code, are each amended by inserting ``chapter 71,'' immediately before
each occurrence of ``chapter 109A,''.
SEC. 8. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED
INFORMATION.
(a) Section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032) is amended--
(1) in subsection (b)(1)--
(A) by inserting ``2252B,'' after ``2252A,''; and
(B) by inserting ``or a violation of section 1466A
of that title,'' after ``of that title),'';
(2) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
(3) in subsection (d)--
(A) by striking the heading and inserting the
following new heading: ``Voluntary provision of
information by service providers'';
(B) by designating the current text of subsection
(d) as paragraph (1); and
(C) by adding at the end of subsection (d) the
following new paragraph:
``(2) A provider of electronic communication services or
remote computing services described in subsection (b)(1), which
reasonably believes that it has obtained knowledge of facts and
circumstances indicating that a violation of section 2251,
2251A, 2252, 2252A, 2252B, or 2260 of title 18, involving child
pornography (as defined in section 2256 of that title), or a
violation of section 1466A of that title, may have occurred or
will occur, may 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 the law
enforcement agency or agencies previously designated by the
Attorney General under subsection (b)(2). Except as provided in
subsection (b)(1), the Federal Government may not require the
making of any such report.''; and
(4) by amending subsection (f)(1)(D) to read as follows:
``(D) where the report discloses a violation of
State criminal law, to an appropriate official of a
State or subdivision of a State for the purpose of
enforcing such State law.''.
(b) Section 2702 of title 18, United States Code is amended--
(1) in subsection (b)--
(A) in paragraph (6)--
(i) by inserting ``or'' at the end of
subparagraph (A)(ii);
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraph (C) as
subparagraph (B);
(B) by redesignating paragraph (6) as paragraph
(7);
(C) by striking ``or'' at the end of paragraph (5);
and
(D) by inserting after paragraph (5) the following
new paragraph:
``(6) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''; and
(2) in subsection (c)--
(A) by striking ``or'' at the end of paragraph (4);
(B) by redesignating paragraph (5) as paragraph
(6); and
(C) by adding after paragraph (4) the following new
paragraph:
``(5) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''.
SEC. 9. ESTABLISHMENT OF SECURE DATABASE FOR IDENTIFYING CHILD
PORNOGRAPHY PRODUCED WITH ACTUAL CHILDREN.
(a) Establishment.--
(1) In general.--The Attorney General shall establish, and
supervise the development and operation of, a comprehensive
computerized database (hereafter referred to as the ``child
pornography identification database'') to facilitate the
identification of child pornography produced with actual
children and to facilitate the identification of perpetrators.
(2) Database information about child pornography.--The
child pornography identification database shall include at
least the following information with respect to visual images
produced using actual children: identity of victims depicted;
reference to the agent or officer with knowledge of the image,
together with the case name and file number, so that testimony
can be offered identifying the image; and other information
necessary to meet the objectives specified above.
(3) Submission of information for the database.--Federal
law enforcement agencies shall promptly provide to the Attorney
General information they obtain about identified victims of
child pornography, including images known or believed to have
been produced using real children, and a point-of-contact for
further information with respect to particular images. Any
State or local law enforcement agency or task force receiving
Federal grants under the Victims of Child Abuse Act of 1990
shall also provide such information to the Attorney General.
State and local agencies not receiving Federal funds are
encouraged to contribute such information on a voluntary basis.
(4) Availability of information in the database.--
Information contained in the child pornography identification
database may be made accessible only to the following persons
under such terms and conditions as the Attorney General may
establish consistent with paragraph (5):
(A) Federal, State, and local law enforcement
officers and investigators working on child pornography
cases or cases involving child abuse or suspected child
abuse; and
(B) other agencies, entities, and individuals as to
whom the Attorney General determines there is good
cause to permit access.
(5) Privacy protections.--The Attorney General shall, by
regulation or otherwise, establish terms and conditions for the
establishment and operation of, and access to, the database,
which shall at a minimum ensure that--
(A) access to the child pornography identification
database is limited to authorized law enforcement
personnel working on child pornography cases or cases
involving child abuse or suspected child abuse;
(B) the database is properly secured to prevent
unauthorized entry into, or access to, the information
contained in the database; and
(C) any information lawfully obtained from the
database will be protected from disclosure except as
may be necessary for the investigation or prosecution
of any offender or as may be authorized by the Attorney
General.
(6) Cooperation with international law enforcement.--
Nothing in this section shall prohibit the Attorney General
from contributing data to an international child pornography
identification database on a reciprocal basis, provided that
such international database has safeguards as described in
paragraph (5).
(7) Penalties for unauthorized access and disclosure.--
Section 1030(a)(1) of title 18, United States Code, is amended
by inserting after ``Atomic Energy Act of 1954 or any
restricted information that is included in the database
required by section 2 of the Visa Entry Reform Act of 2001''
the following: ``or any restricted information that is included
in the database required by section 9 of the Child Obscenity
and Pornography Prevention Act of 2002''.
(8) Authorization of appropriations.--There are authorized
to be appropriated to the Department of Justice such sums as
may be necessary to carry out this section.
(b) Section 3509 of title 18, United States Code, is amended by
inserting at the end of subsection (d)(4) the following sentence:
``This subsection does not prohibit contribution of information, or
authorized access, to the child pornography identification database
established by section 9 of the Child Obscenity and Pornography
Prevention Act of 2002 or the use, in conformity with such section, of
information lawfully obtained from such database.''.
(c) Rule 803 of the Federal Rules of Evidence is amended by adding
at the end the following new paragraph:
``(24) A statement identifying an image or other record
obtained from the child pornography identification database
established by section 9 of the Child Obscenity and Pornography
Prevention Act of 2002, as shown by the testimony of the
custodian or other qualified witness, or by certification that
complies with Rule 902(4).''.
SEC. 10. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held invalid, the remainder of this
Act, and the application of such provision to other persons not
similarly situated or to other circumstances, shall not be affected by
such invalidation.
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