[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2520 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
107th CONGRESS
  2d Session
                                S. 2520

_______________________________________________________________________

                                 AN ACT


 
   To amend title 18, United States Code, with respect to the sexual 
                       exploitation of children.

    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 ``Prosecutorial Remedies and Tools 
Against the Exploitation of Children Today Act of 2002'' or ``PROTECT 
Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Obscenity and child pornography are not entitled to 
        protection under the First Amendment under Miller v. 
        California, 413 U.S. 15 (1973) (obscenity), or New York v. 
        Ferber, 458 U.S. 747 (1982) (child pornography) and thus may be 
        prohibited.
            (2) The Government has a compelling state interest in 
        protecting children from those who sexually exploit them, 
        including both child molesters and child pornographers. ``The 
        prevention of sexual exploitation and abuse of children 
        constitutes a government objective of surpassing importance,'' 
        New York v. Ferber, 458 U.S. 747, 757 (1982) (emphasis added), 
        and this interest extends to stamping out the vice of child 
        pornography at all levels in the distribution chain. Osborne v. 
        Ohio, 495 U.S. 103, 110 (1990).
            (3) The Government thus has a compelling interest in 
        ensuring that the criminal prohibitions against child 
        pornography remain enforceable and effective. ``[T]he most 
        expeditious if not the only practical method of law enforcement 
        may be to dry up the market for this material by imposing 
        severe criminal penalties on persons selling, advertising, or 
        otherwise promoting the product.'' Ferber, 458 U.S. at 760.
            (4) In 1982, when the Supreme Court decided Ferber, the 
        technology did not exist to: (A) create depictions of virtual 
        children that are indistinguishable from depictions of real 
        children; (B) create depictions of virtual children using 
        compositions of real children to create an unidentifiable 
        child; or (C) disguise pictures of real children being abused 
        by making the image look computer generated.
            (5) Evidence submitted to the Congress, including from the 
        National Center for Missing and Exploited Children, 
        demonstrates that technology already exists to disguise 
        depictions of real children to make them unidentifiable and to 
        make depictions of real children appear computer generated. The 
        technology will soon exist, if it does not already, to make 
        depictions of virtual children look real.
            (6) The vast majority of child pornography prosecutions 
        today involve images contained on computer hard drives, 
        computer disks, and/or related media.
            (7) There is no substantial evidence that any of the child 
        pornography images being trafficked today were made other than 
        by the abuse of real children. Nevertheless, technological 
        advances since Ferber have led many criminal defendants to 
        suggest that the images of child pornography they possess are 
        not those of real children, insisting that the government prove 
        beyond a reasonable doubt that the images are not computer-
        generated. Such challenges will likely increase after the 
        Ashcroft v. Free Speech Coalition decision.
            (8) Child pornography circulating on the Internet has, by 
        definition, been digitally uploaded or scanned into computers 
        and has been transferred over the Internet, often in different 
        file formats, from trafficker to trafficker. An image seized 
        from a collector of child pornography is rarely a first-
        generation product, and the retransmission of images can alter 
        the image so as to make it difficult for even an expert 
        conclusively to opine that a particular image depicts a real 
        child. If the original image has been scanned from a paper 
        version into a digital format, this task can be even harder 
        since proper forensic delineation may depend on the quality of 
        the image scanned and the tools used to scan it.
            (9) The impact on the government's ability to prosecute 
        child pornography offenders is already evident. The Ninth 
        Circuit has seen a significant adverse effect on prosecutions 
        since the 1999 Ninth Circuit Court of Appeals decision in Free 
        Speech Coalition. After that decision, prosecutions generally 
        have been brought in the Ninth Circuit only in the most clear-
        cut cases in which the government can specifically identify the 
        child in the depiction or otherwise identify the origin of the 
        image. This is a fraction of meritorious child pornography 
        cases. The National Center for Missing and Exploited Children 
        testified that, in light of the Supreme Court's affirmation of 
        the Ninth Circuit decision, prosecutors in various parts of the 
        country have expressed concern about the continued viability of 
        previously indicted cases as well as declined potentially 
        meritorious prosecutions.
            (10) In the absence of congressional action, this problem 
        will continue to grow increasingly worse. The mere prospect 
        that the technology exists to create computer or computer-
        generated depictions that are indistinguishable from depictions 
        of real children will allow defendants who possess images of 
        real children to escape prosecution, for it threatens to create 
        a reasonable doubt in every case of computer images even when a 
        real child was abused. This threatens to render child 
        pornography laws that protect real children unenforceable.
            (11) To avoid this grave threat to the Government's 
        unquestioned compelling interest in effective enforcement of 
        the child pornography laws that protect real children, a 
        statute must be adopted that prohibits a narrowly-defined 
        subcategory of images.
            (12) The Supreme Court's 1982 Ferber v. New York decision 
        holding that child pornography was not protected drove child 
        pornography off the shelves of adult bookstores. Congressional 
        action is necessary to ensure that open and notorious 
        trafficking in such materials does not reappear.

SEC. 3. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR 
              CONTAINING CHILD PORNOGRAPHY.

    Section 2252A of title 18, United States Code, is amended--
            (1) in subsection (a)--
                    (A) by striking paragraph (3) and inserting the 
                following:
            ``(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 
                conveys the impression that the material or purported 
                material is, or contains, an obscene visual depiction 
                of a minor engaging in sexually explicit conduct;'';
                    (B) in paragraph (4), by striking ``or'' at the 
                end;
                    (C) in paragraph (5), by striking the period at the 
                end and inserting ``; or''; and
                    (D) by adding at the end the following:
            ``(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, of 
        sexually explicit conduct 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.'';
            (2) in subsection (b)(1), by striking ``(1), (2), (3), or 
        (4)'' and inserting ``(1), (2), (3), (4), or (6)''; and
            (3) by striking subsection (c) and inserting the following:
    ``(c) 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 shall be available in any prosecution that 
involves obscene child pornography or child pornography as described in 
section 2256(8)(D). 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 the defendant 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.''.

SEC. 4. ADMISSIBILITY OF EVIDENCE.

    Section 2252A of title 18, United States Code, is amended by adding 
at the end the following:
    ``(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 .''.

SEC. 5. DEFINITIONS.

    Section 2256 of title 18, United States Code, is amended--
            (1) in paragraph (1), by inserting before the semicolon the 
        following: ``and shall not be construed to require proof of the 
        actual identity of the person'';
            (2) in paragraph (8)--
                    (A) in subparagraph (B), by inserting ``is obscene 
                and'' before ``is'';
                    (B) in subparagraph (C), by striking ``or'' at the 
                end; and
                    (C) by striking subparagraph (D) and inserting the 
                following:
                    ``(D) such visual depiction--
                            ``(i) is, or appears to be, of a minor 
                        actually engaging in 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
                            ``(ii) lacks serious literary, artistic, 
                        political, or scientific value; or
                    ``(E) the production of such visual depiction 
                involves the use of an identifiable minor engaging in 
                sexually explicit conduct;''; and
            (3) by striking paragraph (9), and inserting the following:
            ``(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 or computer generated image 
                that is virtually indistinguishable from an actual 
                minor; and
            ``(10) `virtually indistinguishable' means that the 
        depiction is such that an ordinary person viewing the depiction 
        would conclude that the depiction is of an actual minor.''.

SEC. 6. RECORDKEEPING REQUIREMENTS.

    Section 2257 of title 18, United States Code, is amended--
            (1) in subsection (d)(2), by striking ``of this section'' 
        and inserting ``of this chapter or chapter 71,'';
            (2) in subsection (h)(3), by inserting ``, computer 
        generated image or picture,'' after ``video tape''; and
            (3) in subsection (i)--
                    (A) by striking ``not more than 2 years'' and 
                inserting ``not more than 5 years''; and
                    (B) by striking ``5 years'' and inserting ``10 
                years''.

SEC. 7. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED 
              INFORMATION.

    Section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 
13032) is amended--
            (1) in subsection (c), by inserting ``or pursuant to'' 
        after ``to comply with'';
            (2) 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.'';
            (3) by redesignating paragraph (3) of subsection (b) as 
        paragraph (4); and
            (4) by inserting after paragraph (2) of subsection (b) the 
        following new paragraph:
            ``(3) In addition to forwarding such reports to those 
        agencies designated in subsection (b)(2), the National Center 
        for Missing and Exploited Children is authorized to forward any 
        such report to an appropriate official of a state or 
        subdivision of a state for the purpose of enforcing state 
        criminal law.''.

SEC. 8. CONTENTS DISCLOSURE OF STORED COMMUNICATIONS.

    Section 2702 of title 18, United States Code, is amended--
            (1) in subsection (b)--
                    (A) in paragraph (5), by striking ``or'' at the 
                end;
                    (B) in paragraph (6)--
                            (i) in subparagraph (A)(ii), by inserting 
                        ``or'' at the end;
                            (ii) by striking subparagraph (B); and
                            (iii) by redesignating subparagraph (C) as 
                        subparagraph (B);
                    (C) by redesignating paragraph (6) as paragraph 
                (7); and
                    (D) by inserting after paragraph (5) the following:
            ``(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''; and
            (2) in subsection (c)--
                    (A) in paragraph (4), by striking ``or'' at the 
                end;
                    (B) by redesignating paragraph (5) as paragraph 
                (6); and
                    (C) by inserting after paragraph (4) the following:
            ``(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''.

SEC. 9. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR 
              DISTRIBUTION IN THE UNITED STATES.

    Section 2251 of title 18, United States Code, is amended--
            (1) by striking ``subsection (d)'' each place that term 
        appears and inserting ``subsection (e)'';
            (2) by redesignating subsections (c) and (d) as subsections 
        (d) and (e), respectively; and
            (3) by inserting after subsection (b) the following:
    ``(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 any means, 
        including by computer or mail.''.

SEC. 10. CIVIL REMEDIES.

    Section 2252A of title 18, United States Code, as amended by this 
Act, is amended by adding at the end the following:
    ``(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. 11. ENHANCED PENALTIES FOR RECIDIVISTS.

    Sections 2251(d), 2252(b), and 2252A(b) of title 18, United States 
Code, are amended by inserting ``chapter 71,'' before ``chapter 109A,'' 
each place it appears.

SEC. 12. SENTENCING ENHANCEMENTS FOR INTERSTATE TRAVEL TO ENGAGE IN 
              SEXUAL ACT WITH A JUVENILE.

    Pursuant to its authority under section 994(p) of title 18, United 
States Code, and in accordance with this section, the United States 
Sentencing Commission shall review and, as appropriate, amend the 
Federal Sentencing Guidelines and policy statements to ensure that 
guideline penalties are adequate in cases that involve interstate 
travel with the intent to engage in a sexual act with a juvenile in 
violation of section 2423 of title 18, United States Code, to deter and 
punish such conduct.

SEC. 13. MISCELLANEOUS PROVISIONS.

    (a) Appointment of Trial Attorneys.--
            (1) In general.--Not later than 6 months after the date of 
        enactment of this Act, the Attorney General shall appoint 25 
        additional trial attorneys to the Child Exploitation and 
        Obscenity Section of the Criminal Division of the Department of 
        Justice or to appropriate U.S. Attorney's Offices, and those 
        trial attorneys shall have as their primary focus, the 
        investigation and prosecution of Federal child pornography 
        laws.
            (2) Authorization of appropriations.--There are authorized 
        to be appropriated to the Department of Justice such sums as 
        may be necessary to carry out this subsection.
    (b) Report to Congressional Committees.--
            (1) In general.--Not later than 9 months after the date of 
        enactment of this Act, and every 2 years thereafter, the 
        Attorney General shall report to the Chairpersons and Ranking 
        Members of the Committees on the Judiciary of the Senate and 
        the House of Representatives on the Federal enforcement actions 
        under chapter 110 of title 18, United States Code.
            (2) Contents.--The report required under paragraph (1) 
        shall include--
                    (A) an evaluation of the prosecutions brought under 
                chapter 110 of title 18, United States Code;
                    (B) an outcome-based measurement of performance; 
                and
                    (C) an analysis of the technology being used by the 
                child pornography industry.
    (c) Sentencing Guidelines.--Pursuant to its authority under section 
994(p) of title 18, United States Code, and in accordance with this 
section, the United States Sentencing Commission shall review and, as 
appropriate, amend the Federal Sentencing Guidelines and policy 
statements to ensure that the guidelines are adequate to deter and 
punish conduct that involves a violation of paragraph (3)(B) or (6) of 
section 2252A(a) of title 18, United States Code, as created by this 
Act. With respect to the guidelines for section 2252A(a)(3)(B), the 
Commission shall consider the relative culpability of promoting, 
presenting, describing, or distributing material in violation of that 
section as compared with solicitation of such material.

SEC. 14. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of the provisions 
of such to any person or circumstance shall not be affected thereby.

            Passed the Senate ?? (legislative day, ??), 2002.

            Attest:

                                                             Secretary.
107th CONGRESS

  2d Session

                                S. 2520

_______________________________________________________________________

                                 AN ACT

   To amend title 18, United States Code, with respect to the sexual 
                       exploitation of children.