[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1161 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 1161

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

                             March 6, 2003

  Mr. Smith of Texas (for himself, Mr. Coble, Mr. Sensenbrenner, Mr. 
 Pomeroy, Mr. Lampson, Mr. Foley, Mr. Baker, Mr. Bartlett of Maryland, 
Mr. Cannon, Mr. Culberson, Mr. DeLay, Mr. Wamp, Mr. Ryun of Kansas, Mr. 
 Gilchrest, Mr. Wilson of South Carolina, Mr. Green of Wisconsin, Mr. 
    Hunter, Ms. Jackson-Lee of Texas, Mr. Jenkins, Mrs. Johnson of 
 Connecticut, Mr. Pickering, Mr. Simmons, Mr. Souder, Mr. Spratt, Mr. 
 Stenholm, Mr. Weldon of Florida, Mr. Pence, Mr. Oxley, Mr. Matheson, 
  Mr. LoBiondo, Mr. Kennedy of Minnesota, Mr. Rogers of Michigan, Mr. 
 Weller, Mr. Bachus, Ms. Hart, Mr. Goodlatte, Mr. Keller, Mrs. Capito, 
and Mr. Visclosky) 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 2003''.

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), 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. ``The 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) computer generate depictions of children that 
                are indistinguishable from depictions of real children;
                    (B) use parts of images of real children to create 
                a composite image that is unidentifiable as a 
                particular child and in a way that prevents even an 
                expert from concluding that parts of images of real 
                children were used; 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 computer 
        generate realistic images of children.
            (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 increased significantly after the 
        decision in Ashcroft v. Free Speech Coalition 535 U.S. 234 
        (2002).
            (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 assessment may depend on the quality of 
        the image scanned and the tools used to scan it.
            (9) The impact of the Free Speech Coalition decision 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) Since the Supreme Court's decision in Free Speech 
        Coalition, defendants in child pornography cases have almost 
        universally raised the contention that the images in question 
        could be virtual, thereby requiring the government, in nearly 
        every child pornography prosecution, to find proof that the 
        child is real. Some of these defense efforts have already been 
        successful. In addition, the number of prosecutions being 
        brought has been significantly and adversely affected as the 
        resources required to be dedicated to each child pornography 
        case now are significantly higher than ever before.
            (11) Leading experts agree that, to the extent that the 
        technology exists to computer generate realistic images of 
        child pornography, the cost in terms of time, money, and 
        expertise is--and for the foreseeable future will remain--
        prohibitively expensive. As a result, for the foreseeable 
        future, it will be more cost-effective to produce child 
        pornography using real children. It will not, however, be 
        difficult or expensive to use readily available technology to 
        disguise those depictions of real children to make them 
        unidentifiable or to make them appear computer-generated.
            (12) Child pornography results from the abuse of real 
        children by sex offenders; the production of child pornography 
        is a byproduct of, and not the primary reason for, the sexual 
        abuse of children. There is no evidence that the future 
        development of easy and inexpensive means of computer 
        generating realistic images of children would stop or even 
        reduce the sexual abuse of real children or the practice of 
        visually recording that abuse.
            (13) In the absence of congressional action, the 
        difficulties in enforcing the child pornography laws will 
        continue to grow increasingly worse. The mere prospect that the 
        technology exists to create composite 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. 
        Moreover, imposing an additional requirement that the 
        Government prove beyond a reasonable doubt that the defendant 
        knew that the image was in fact a real child--as some courts 
        have done--threatens to result in the de facto legalization of 
        the possession, receipt, and distribution of child pornography 
        for all except the original producers of the material.
            (14) 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.
            (15) 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 now to ensure that open and notorious 
        trafficking in such materials does not reappear, and even 
        increase, on the Internet.

SEC. 3. 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 digital image, 
                computer image, or computer-generated image that is, or 
                is indistinguishable (as defined in section 1466A) 
                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) graphic 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) graphic or lascivious simulated;
                            ``(I) bestiality;
                            ``(II) masturbation; or
                            ``(III) sadistic or masochistic abuse; or
                    ``(iii) graphic or simulated lascivious exhibition 
                of the genitals or pubic area of any person;''.
    (c) Section 2256 is amended--
            (1) in paragraph 8(D), by striking ``and'' at the end;
            (2) in paragraph (9), by striking the period at the end and 
        inserting ``; and''; and
            (3) by inserting at the end the following new paragraph:
            ``(10) `graphic', when used with respect to a depiction of 
        sexually explicit conduct, means that a viewer can observe any 
        part of the genitals or pubic area of any depicted person or 
        animal during any part of the time that the sexually explicit 
        conduct is being depicted.''.
    (d) 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 
production of the alleged child pornography did not involve the use of 
a minor or an attempt or conspiracy to commit an offense under this 
section involving such use.
    ``(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. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.

    (a) Section 2256(8) of title 18, United States Code, is amended--
            (1) in subparagraph (C), by striking ``or'' at the end and 
        inserting ``and''; and
            (2) 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 an actual 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 an actual 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 who 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.''; and
            (2) in the table of sections at the beginning of the 
        chapter, by inserting after the item relating to section 2252A 
        the following:

``2252B. Pandering and solicitation.''.

SEC. 5. 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 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 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) the term `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) the term `pre-pubescent child' means that (A) the 
        child, as depicted, is one whose physical development indicates 
        the child is 12 years of age or younger; or (B) 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;
            ``(3) the term `sexually explicit conduct' has the meaning 
        set forth in section 2256(2); and
            ``(4) the term `indistinguishable' used with respect to a 
        depiction, means virtually indistinguishable, in that the 
        depiction is such that an ordinary person viewing the depiction 
        would conclude that the depiction is of an actual minor engaged 
        in sexually explicit conduct. This definition does not apply to 
        depictions that are drawings, cartoons, sculptures, or 
        paintings depicting minors or adults.
    ``(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.
``Sec. 1466B. Obscene visual representations of sexual abuse of minors
    ``(a) Whoever, in a circumstance described in subsection (e), 
knowingly produces, distributes, receives, or possesses with intent to 
distribute a visual depiction of any kind, including a drawing, 
cartoon, sculpture, or painting, that--
            ``(1) depicts a minor engaging in sexually explicit 
        conduct; and
            ``(2) is obscene;
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 (e), 
knowingly possesses a visual depiction of any kind, including a 
drawing, cartoon, sculpture, or painting, that--
            ``(1) depicts a minor child engaging in sexually explicit 
        conduct, and
            ``(2) is obscene,
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) It is not a required element of any offense under this 
section that the minor child depicted actually exist.
    ``(d) For purposes of this section, the terms `visual depiction' 
has the meaning given that term in section 1466A, and the terms 
`sexually explicit conduct' and `minor' have the meanings given those 
terms in section 2256(2)(B).
    ``(e) 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.
    ``(f) 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 table of sections at the beginning of the chapter, 
        by inserting after the item relating to section 1466 the 
        following new items:

``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual 
                            abuse.''.
    (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 or 1466B 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 sections 1466A and 1466B 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. 6. 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 visual depiction that is, or is indistinguishable 
        from, that of a pre-pubescent child engaging in sexually 
        explicit conduct, any obscene matter, or any child pornography; 
        or
            ``(2) provides or shows any obscene matter or child 
        pornography, or any visual depiction that is, or is 
        indistinguishable from, that of a pre-pubescent child engaging 
        in sexually explicit conduct, or provides 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) the term `child pornography' has the meaning set 
        forth in section 2256(8);
            ``(2) the terms `visual depiction', `pre-pubescent child', 
        and `indistinguishable' have the meanings respectively set 
        forth for those terms in section 1466A(c); and
            ``(3) the term `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.''; and
            (2) in the table of sections at the beginning of the 
        chapter, by inserting at the end the following:

``1471. Use of obscene material or child pornography to facilitate 
                            offenses against minors.''.

SEC. 7. 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. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.

    Sections 2251(e) (as redesignated by section 7(2)), 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. 9. 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 
                or 1466B of that title,'' after ``of that title),'';
            (2) in subsection (c), by inserting ``or pursuant to'' 
        after ``to comply with'';
            (3) 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.'';
            (4) by redesignating paragraph (3) of subsection (b) as 
        paragraph (4); and
            (5) 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.''.
    (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. 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.

SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.

    Section 3486(a)(1)(C)(i) of title 18, United States Code, is 
amended by striking ``the name, address'' and all that follows through 
``subscriber or customer utilized'' and inserting ``the information 
specified in section 2703(c)(2)''.

SEC. 12. DE NOVO REVIEW OF DEPARTURES.

    (a) In General.--Section 3742 of title 18, United States Code, is 
amended--
            (1) in subsection (e)(3), by striking ``unreasonable'' and 
        inserting ``unwarranted'';
            (2) at the end of subsection (e), by striking ``clearly 
        erroneous and shall give due deference to the district court's 
        application of the guidelines to the facts.'' and inserting 
        ``clearly erroneous. If the sentence is outside the applicable 
        guideline range, the court of appeals shall review de novo the 
        district court's determination under section 3553(b) that a 
        departure is warranted on the ground that there exists an 
        aggravating or mitigated circumstance of a kind, or to a 
        degree, not adequately taken into consideration by the 
        Sentencing Commission in formulating the guidelines, that 
        should result in a sentence outside the applicable guideline 
        range. In reviewing the district court's determination of the 
        applicable guideline range referred to in section 3553(a)(4), 
        the court of appeals shall give due deference to the district 
        court's application of the guidelines to the facts.''; and
            (3) in subsection (f)(2), by striking ``is unreasonable'' 
        and inserting ``is unwarranted''.
    (b) Report by the Attorney General.--
            (1) Not later than 15 days after a district court's grant 
        of a downward departure in any case, other than a case 
        involving a downward departure for substantial assistance to 
        authorities pursuant to section 5K1.1 of the Sentencing 
        Guidelines, the Attorney General shall report to the House and 
        Senate Committees on the Judiciary, setting forth the case, the 
        facts involved, the identity of the district court judge, the 
        district court's stated reasons, whether or not the court 
        provided the United States with advance notice of its intention 
        to depart, the position of the parties with respect to the 
        downward departure, whether or not the United States has filed, 
        or intends to file, a motion for reconsideration; whether or 
        not the defendant has filed a notice of appeal concerning any 
        aspect of the case, and whether or not the United States has 
        filed, or intends to file, a notice of appeal of the departure 
        pursuant to section 3742 of the title 18, United States Code.
            (2) In any such case, the Attorney General shall thereafter 
        report to the House and Senate Committees on the Judiciary not 
        later than 5 days after a decision by the Solicitor General 
        whether or not to authorize an appeal of the departure, 
        informing the committees of the decision and the basis for it.

SEC. 13. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE 
              INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.

    Section 2516(1)(c) of title 18, United States Code, is amended by 
inserting ``1466A, 1466B,'' before ``2251''.

SEC. 14. RECORDKEEPING TO DEMONSTRATE MINORS WERE NOT USED IN 
              PRODUCTION OF PORNOGRAPHY.

    Not later than 1 year after enactment of this Act, the Attorney 
General shall submit to Congress a report detailing the number of times 
since January 1993 that the Department of Justice has inspected the 
records of any producer of materials regulated pursuant to section 2257 
of title 18, United States Code, and section 75 of title 28 of the Code 
of Federal Regulations. The Attorney General shall indicate the number 
of violations prosecuted as a result of those inspections.
                                 <all>