[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2137 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2137

To facilitate the protection of minors using the Internet from material 
           that is harmful to minors, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 16, 2002

 Ms. Landrieu introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To facilitate the protection of minors using the Internet from material 
           that is harmful to minors, 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 ``Family Privacy and Security Act of 
2002''.

        TITLE I--INTERNET DOMAIN FOR MATERIAL HARMFUL TO MINORS

SEC. 101. ESTABLISHMENT OF TOP-LEVEL INTERNET DOMAIN NAME.

    (a) NTIA Action.--Not later than 30 days after the date of the 
enactment of this Act, the Secretary of Commerce, acting through the 
National Telecommunications and Information Administration, shall--
            (1) pursuant to the authority under section II.B. of the 
        Memorandum of Understanding Between the U.S. Department of 
        Commerce and the Internet Corporation for Assigned Names and 
        Numbers, entered into on November 25, 1998, regarding oversight 
        of the policy for determining the circumstances under which new 
        top-level Internet domains are added to the root system, 
        jointly with ICANN, develop a plan in accordance with section 
        102 for ICANN to establish a new domain meeting the 
        requirements in subsection (b) of this section;
            (2) upon completion of the plan, make the plan publicly 
        available; and
            (3) enter into any memorandums of understanding, 
        agreements, and contracts with ICANN, and any amendments to 
        existing such memorandums, agreements, and contracts, as may be 
        necessary to provide for ICANN to carry out the plan.
    (b) Requirements for New Domain.--The new domain shall be subject 
to the following requirements:
            (1) Top-level, international domain.--The new domain shall 
        be established as a top-level, International domain having a 
        domain name appropriate for its purpose.
            (2) Operator of domain.--The entity selected pursuant to 
        section 102 to establish, operate, and maintain the new domain 
        shall--
                    (A) establish, operate, and maintain the new domain 
                in accordance with this subsection; and
                    (B) provide for the creation of an independent 
                board, with diverse membership, which shall be 
                responsible for--
                            (i) establishing written criteria for 
                        accepting registrants for the new domain and 
                        for any limitations applicable to the new 
                        domain; and
                            (ii) ensuring that subscription rates or 
                        fees for obtaining a name for the new domain 
                        are as minimal as possible.
            (3) Other requirements.--The plan developed under section 
        102 may include such other requirements with respect to the new 
        domain as the National Telecommunications and Information 
        Administration and ICANN jointly consider appropriate.

SEC. 102. SELECTION OF OPERATOR OF NEW DOMAIN.

    (a) Application Process.--The plan under this section shall 
establish a process for soliciting applications for the establishment 
of the new domain, which process shall--
            (1) commence and complete not later than 60 days after the 
        expiration of the 30-day period referred to in section 101(a);
            (2) provide adequate notice to prospective applicants of--
                    (A) the opportunity to submit an application; and
                    (B) the criteria for selection under subsection 
                (b)(1);
            (3) include a fee for filing an application that does not 
        exceed the minimum amount reasonably estimated by ICANN to be 
        necessary to recover its expenses under section 101 and this 
        section; and
            (4) provide for reimbursement to applicants of any amounts 
        collected in filing fees that exceed the actual amount of 
        expenses of ICANN under section 101 and this section.
    (b) Selection Process.--The plan under this section shall establish 
a process for selection, from applications submitted pursuant to 
subsection (a), of an application for the establishment of the new 
domain meeting the requirements under section 101(b). Such selection 
process shall comply with the following requirements:
            (1) Criteria.--The selection shall be made pursuant to 
        written, objective criteria designed to ensure that--
                    (A) the new domain is established, operated, and 
                maintained in accordance with the requirements under 
                section 101(b); and
                    (B) the entity selected to establish, operate, and 
                maintain the new domain is the applicant most capable 
                and qualified to do so.
            (2) Initial review.--Not later than 60 days after the 
        completion of the application period under subsection (a)(1), 
        ICANN shall--
                    (A) review and apply the selection criteria 
                established under paragraph (1) to each application 
                submitted; and
                    (B) based upon such criteria, select an application 
                and award to the applicant a contract for the 
                establishment, operation, and maintenance of the new 
                domain, unless ICANN determines that no applicant could 
                minimally provide for the establishment, operation, and 
                maintenance of the new domain in accordance with the 
                requirements under section 101(b).
            (3) Second application period.--If no applicant is selected 
        pursuant to paragraph (2), not later than 30 days after the 
        expiration of the 60-day period under paragraph (2), ICANN 
        shall commence another application and selection process that 
        complies with the requirements under subsection (a) and this 
        subsection.
            (4) Report.--If the second application and selection 
        process under paragraph (3) does not result in the award of a 
        contract for the establishment, operation, and maintenance of 
        the new domain, not later than 30 days after the conclusion of 
        the 60-day period under paragraph (3), ICANN shall--
                    (A) notify the Secretary of Commerce in writing of 
                the failure to award a contract under paragraph (3); 
                and
                    (B) submit to the Secretary a report describing the 
                application and selection process and setting forth the 
                reasons for the failure to award the contract.
    (c) Full Operation.--The plan under this section shall provide for 
ICANN to take all actions necessary to facilitate the full operation of 
the new domain within six months after the award of the contract for 
the establishment, operation, and maintenance of the new domain.
    (d) Annual Oversight.--The plan under this section shall provide 
that ICANN shall, on an annual basis, review the actions of the entity 
selected to establish, operate, and maintain the new domain to ensure 
that such entity is complying with the requirements under section 
101(b).

SEC. 103. USE OF NEW DOMAIN.

    Commencing not later than 12 months after the establishment of the 
new domain under section 102, any operator of a commercial Internet web 
site or online service that has as its principal or primary business 
the making available of material that is harmful to minors shall 
register such web site or online service with the new domain and 
operate such web site or online service under the new domain.

SEC. 104. LIABILITY PROTECTIONS.

    (a) Treatment of Publisher or Speaker.--No person or entity that 
operates or maintains the new domain shall be treated as the publisher 
or speaker of any information or material provided by another 
registrant under the domain.
    (b) Civil Liability.--No person or entity that operates or 
maintains the new domain shall be held liable because of--
            (1) any action voluntarily taken in good faith to restrict 
        to minors access through the new domain to, or availability 
        through the new domain of, material that is harmful to minors; 
        or
            (2) any action taken to enable or make available to 
        registrants to the new domain or others the technical means to 
        restrict access by minors to material described in paragraph 
        (1).

SEC. 105. ENFORCEMENT.

    (a) Violation.--Any person who violates section 103, or any 
requirement, registration criteria, or limitation applicable to a 
registrant to the new domain under section 101(b), shall be subject to 
such civil penalties as the Secretary of Commerce shall prescribe for 
purposes of this title.
    (b) Enforcement.--The Secretary shall have the power to enforce the 
provisions of this title, including any requirements or limitations 
applicable to a registrant to the new domain under section 101(b) and 
the imposition and collection of civil penalties under subsection (a).
    (c) Periodic Audits.--The Secretary shall conduct periodic audits 
to ensure compliance with requirements, registration criteria, and 
limitations applicable to the new domain under this title.

SEC. 106. OUTREACH.

    (a) In General.--The Secretary of Commerce, acting through the 
National Telecommunications and Information Administration, shall carry 
out a program to publicize the availability of the new domain under 
this title.
    (b) Commencement.--The program under subsection (a) shall commence 
not later than 30 days after the date that the new domain first becomes 
operational and accessible by the public.

SEC. 107. DEFINITIONS.

    In this title:
            (1) ICANN.--The term ``ICANN'' means the Internet 
        Corporation for Assigned Names and Numbers.
            (2) Material that is harmful to minors.--The term 
        ``material that is harmful to minors'' means any communication, 
        picture, image, graphic image file, article, recording, 
        writing, or other matter of any kind that is obscene, or that a 
        reasonable person would find--
                    (A) taking the material as a whole and with respect 
                to minors, is designed to appeal to, or is designed to 
                pander to, the prurient interest;
                    (B) depicts, describes, or represents, in a manner 
                patently offensive with respect to minors, an actual or 
                simulated sexual act or sexual contact, an actual or 
                simulated normal or perverted sexual act, or a lewd 
                exhibition of the genitals or post-pubescent female 
                breast; and
                    (C) taking the material as a whole, lacks serious 
                literary, artistic, political, or scientific value for 
                minors.
            (3) Minor.--The term ``minor'' means any person under 17 
        years of age.
            (4) New domain.--The term ``new domain'' means the Internet 
        domain established pursuant to this title.

                        TITLE II--OTHER MATTERS

SEC. 201. PROHIBITION ON E-MAIL OF SEXUALLY ORIENTED ADVERTISEMENTS TO 
              MINORS WITHOUT PRESCRIBED MARKS OR NOTICE.

    (a) In General.--Chapter 71 of title 18, United States Code, is 
amended by adding at the end the following new section:
``Sec. 1471. E-mail of sexually oriented advertisements to minors
    ``(a) Prescription of Marks or Notices.--
            ``(1) In general.--Not later than 120 days after the date 
        of the enactment of this section, the National Institute of 
        Standards and Technology shall prescribe marks or notices to be 
included in or affixed to the subject line of any e-mail that contains 
a sexually oriented advertisement sent to minors.
            ``(2) Specific requirement.--Marks or notices prescribed 
        under paragraph (1) shall, to the extent possible, be made so 
        that they may not be removed or altered.
    ``(b) Sending E-Mail Without Mark or Notice.--Whoever in the 
business of selling sexually oriented products or materials knowingly 
sends, through an instrumentality in or affecting interstate or foreign 
commerce, an e-mail that includes a sexually oriented advertisement but 
does not include a mark or notice prescribed under subsection (a) shall 
be fined under this title, imprisoned not more than one year, or both.
    ``(c) Production of Mail Matter Intended for E-Mail to Minors 
Without Mark or Notice.--Whoever produces, reproduces, or manufactures 
any sexually related mail matter, intending or knowing that such mail 
matter will be sent to a minor in an e-mail in violation of subsection 
(b)--
            ``(1), shall be fined under this title, imprisoned not more 
        than 5 years, or both, in the case of an offense which does not 
        occur after another offense under this subsection; and
            ``(2) shall be fined under this title, imprisoned not more 
        than 10 years, or both, in the case of an offense which occurs 
        after another offense under this subsection.
    ``(d) Definitions.--In this section:
            ``(1) Minor.--The term `minor' means any individual who has 
        not yet attained the age of 18 years.
            ``(2) Sexually oriented advertisement.--The term `sexually 
        oriented advertisement' means any advertisement that depicts, 
        in actual or simulated form, or explicitly describes, in a 
        predominantly sexual context, human genitalia, any act of 
        natural or unnatural sexual intercourse, any act of sadism or 
        masochism, or any other erotic subject directly related to the 
        foregoing, except that material otherwise within the definition 
        of this paragraph shall be deemed not to constitute a sexually 
        oriented advertisement if such material constitutes only a 
        small and insignificant part of the whole, the remainder of 
        which is not primarily devoted to sexual matters.
            ``(3) Sexually related mail matter.--The term `sexually 
        related mail matter' means any mail matter containing a 
        sexually oriented advertisement.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 71 of title 18, United States Code, is amended by adding at the 
end the following new item:

``1471. E-mail of sexually oriented advertisements to minors.''.

SEC. 202. PROHIBITION ON VIDEO VOYEURISM.

    (a) In General.--Chapter 71 of title 18, United States Code, as 
amended by section 201 of this Act, is further amended by adding at the 
end the following new section:
``Sec. 1472. Video voyeurism
    ``(a) In General.--Whoever--
            ``(1) uses a camera, videotape, photo-optical, photo-
        electric, or other image recording device that has been 
        transported, shipped, or received in interstate or foreign 
        commerce to observe, view, photograph, film, or videotape for a 
        lewd or lascivious purpose an image of another person involving 
        actual or simulated vaginal, anal, oral, or manual sexual 
        intercourse, masturbation, any unclothed portion of the female 
        breast below the top of the areola, or any unclothed portion of 
        the anus, vulva, or genitals, without the consent of such other 
        person to such observation, viewing, photographing, filming, or 
        videotaping; or
            ``(2) uses a camera, videotape, photo-optical, photo-
        electric, or other image recording device that has been 
        transported, shipped, or received in interstate or foreign 
        commerce to observe, view, photograph, film, or videotape for a 
        lewd or lascivious purpose an image of a person under the age 
        of 18 years involving actual or simulated vaginal, anal, oral, 
        or manual sexual intercourse, masturbation, any unclothed 
        portion of the female breast below the top of the areola, or 
        any unclothed portion of the anus, vulva, or genitals,
shall be punished as provided in subsection (d).
    ``(b) Exceptions.--Subsection (a) shall not in the case of--
            ``(1) observation, viewing, photographing, filming, or 
        videotaping for legitimate security purposes, if the material 
        is used only for such purposes;
            ``(2) observation, viewing, photographing, filming, or 
        videotaping in the course of a legitimate law enforcement or 
        private investigation, if the material is used only for 
        purposes of such investigation; or
            ``(3) the transfer of an image by--
                    ``(A) a telecommunications carrier engaged in the 
                provision of a telecommunications service;
                    ``(B) a person engaged in the business of providing 
                an Internet access service;
                    ``(C) a person engaged in the business of providing 
                access to an interactive computer service; or
                    ``(D) any other person engaged in the transmission, 
                storage, retrieval, hosting, formatting, or 
                transmission (or any combination thereof) of a 
                communication made by another person, without selection 
                or alteration of the content of the communication.
    ``(c) Defense.--It shall be a defense to prosecution under 
subsection (a)(1) that the observation, viewing, photographing, 
filming, or videotaping in question was done in a public place where 
there was no reasonable expectation of privacy.
    ``(d) Penalties.--The penalty for an offense under subsection (a) 
is--
            ``(1) a fine under this title, imprisonment for not more 
        three years, or both, in the case of an offense under paragraph 
        (1) of that subsection; and
            ``(2) a fine under this title, imprisonment for not more 
        than ten years, or both, in the case of an offense under 
        paragraph (2) of that subsection.
    ``(e) Seal or Destruction of Images.--The court may, upon its own 
motion or the motion of the Attorney General, order the following:
            ``(1) The seal of any images introduced as evidence in a 
        trial for an offense under this section.
            ``(2) The destruction of any images held by the United 
        States for purposes of a prosecution under this section in the 
        event of an acquittal, dismissal, plea agreement, or decision 
        not to prosecute.
            ``(3) The destruction of any images held by the United 
        States for purposes of a prosecution under this section if 
        prosecution is not commenced within the statute of limitations 
        for the offense.
            ``(4) The destruction of any images introduced as evidence 
        in a trial for an offense under this section that are held by 
        the United States after conviction upon the release of the 
        offender from incarceration for the offense.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 71 of title 18, United States Code, as amended by section 
201(b) of this Act, is further amended by adding at the end the 
following new item:

``1472. Video voyeurism.''.

SEC. 203. SEVERABILITY.

    If any provision of an amendment made by this title, or the 
application thereof to any person or circumstances, is held invalid, 
the remainder of the provisions of the amendments made by this title, 
and the applications of such provisions to other persons not similarly 
situated or to other circumstances, shall not be affected thereby.
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