[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2511 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2511

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 SENATE OF THE UNITED STATES

                 May 14 (legislative day, May 9), 2002

Mrs. Carnahan (for herself and Mrs. Hutchison) introduced the following 
    bill; which was read twice and 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; or
            ``(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.
                                 <all>