[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 151 Reported in Senate (RS)]






                                                         Calendar No. 7
108th CONGRESS
  1st Session
                                 S. 151

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 13, 2003

    Mr. Hatch (for himself, Mr. Leahy, Mr. Bennett, Mr. DeWine, Mr. 
Grassley, Mr. Edwards, and Mr. Schumer) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

                            January 30, 2003

                 Reported by Mr. Hatch, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
   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 2003'' 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: <DELETED>(A) create depictions of 
        virtual children that are indistinguishable from depictions of 
        real children;</DELETED> (A) computer generate depictions of 
        children that are indistinguishable from depictions of real 
        children; <DELETED>(B) create depictions of virtual children 
        using compositions of real children to create an unidentifiable 
        child; or</DELETED> (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, <DELETED>to 
        make depictions of virtual children look real</DELETED> 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, <DELETED>and/or</DELETED> 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 <DELETED>will likely increase</DELETED> 
        increased significantly 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 <DELETED>delineation</DELETED> assessment 
        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) 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.
            <DELETED>(10)</DELETED> (11) 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. 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.
            <DELETED>(11)</DELETED> (12) 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.
            <DELETED>(12)</DELETED> (13) The Supreme Court's 1982 
        Ferber <DELETED>v. New York</DELETED> 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. 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 
                <DELETED>conveys the impression</DELETED> reflects the 
                belief, or that is intended to cause another to 
                believe, that the material or purported material is, or 
                <DELETED>contains, an obscene visual depiction of a 
                minor engaging in sexually explicit conduct;'';</DELETED> 
                contains--
                            ``(i) an obscene visual depiction of a 
                        minor engaging in sexually explicit conduct; or
                            ``(ii) a visual depiction of an actual 
                        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, 
        <DELETED>of sexually explicit conduct</DELETED> 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 ``paragraphs (1), 
        (2), (3), or (4)'' and inserting ``paragraph (1), (2), (3), 
        (4), or (6)''; and
            (3) by striking subsection (c) and inserting the following:
    ``(c) Affirmative Defense.--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 under subsection (c)(2) shall be available in 
any prosecution that involves <DELETED>obscene child pornography or</DELETED> 
child pornography as described in section <DELETED>2256(8)(D)</DELETED> 
2256(8)(C). 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'';
            <DELETED>(2) in paragraph (8)--
                </DELETED>    (A) in subparagraph (B), by inserting 
                ``is obscene and'' before ``is'';
                </DELETED>    (B) in subparagraph (C), by striking 
                ``or'' at the end; and
                </DELETED>    (C) by striking subparagraph (D) and 
                inserting the following:
                </DELETED>    ``(D) such visual depiction--
                        </DELETED>    ``(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
                        </DELETED>    ``(ii) lacks serious literary, 
                        artistic, political, or scientific value; or
                </DELETED>    ``(E) the production of such visual 
                depiction involves the use of an identifiable minor 
                engaging in sexually explicit conduct;''; and
        </DELETED>    (2) in paragraph (2)--
                    (A) by striking ``means actual'' and inserting the 
                following: ``means--
                    ``(A) actual'';
                    (B) in subparagraphs (A), (B), (C), (D), and (E), 
                by indenting the left margin 2 ems to the right and 
                redesignating subparagraphs (A), (B), (C), (D), and (E) 
                as clauses (i), (ii), (iii), (iv), and (v), 
                respectively;
                    (C) in subparagraph (A)(v), as redesignated, by 
                inserting ``or'' after the semicolon; and
                    (D) by adding at the end the following:
                    ``(B)(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 lascivious or simulated lascivious 
                exhibition of the genitals or pubic area of any 
                person;'';
            (3) in paragraph (8)--
                    (A) by striking subparagraph (B) and inserting the 
                following:
                    ``(B) the production of such visual depiction 
                involves the use of an identifiable minor engaging in 
                sexually explicit conduct; or'';
                    (B) in subparagraph (C)--
                            (i) by inserting after ``is engaging in 
                        sexually explicit conduct'' the following: ``, 
                        except that the term `identifiable minor' as 
                        used in this subparagraph shall not be 
                        construed to include the portion of the 
                        definition contained in paragraph (9)(B)''; and
                            (ii) by striking ``or'' at the end; and
                    (C) by striking subparagraph (D); and
            <DELETED>(3)</DELETED> (4) 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
                    <DELETED>``(B) means a computer or computer 
                generated image that is virtually indistinguishable 
                from an actual minor; and
        </DELETED>    ``(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.''.
                </DELETED>    ``(B) means a computer image, computer 
                generated image, or digital image--
                            ``(i) that is of, or is virtually 
                        indistinguishable from that of, an actual 
                        minor; and
                            ``(ii) that depicts sexually explicit 
                        conduct as defined in paragraph (2)(B); and
            ``(10) `virtually indistinguishable'--
                    ``(A) means that the depiction is such that an 
                ordinary person viewing the depiction would conclude 
                that the depiction is of an actual minor; and
                    ``(B) does not apply to depictions that are 
                drawings, cartoons, sculptures, diagrams, anatomical 
                models, or paintings depicting minors or adults or 
                reproductions of such depictions.''.

SEC. 6. OBSCENE VISUAL REPRESENTATIONS OF THE SEXUAL ABUSE OF CHILDREN.

    (a) In General.--Chapter 110 of title 18, United States Code, is 
amended by inserting after section 2252A the following:
``Sec. 2252B. Obscene visual representations of the sexual abuse of 
              children
    ``(a) In General.--Any person who, in a circumstance described in 
subsection (d), 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)(A) depicts a minor engaging in sexually explicit 
        conduct; and
            ``(B) is obscene; or
            ``(2)(A) depicts an image that is, or appears to be, of a 
        minor engaging in graphic 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
            ``(B) lacks serious literary, artistic, political, or 
        scientific value;
or attempts or conspires to do so, shall be subject to the penalties 
provided in section 2252A(b)(1), including the penalties provided for 
cases involving a prior conviction.
    ``(b) Additional Offenses.--Any person who, in a circumstance 
described in subsection (d), knowingly possesses a visual depiction of 
any kind, including a drawing, cartoon, sculpture, or painting, that--
            ``(1)(A) depicts a minor engaging in sexually explicit 
        conduct; and
            ``(B) is obscene; or
            ``(2)(A) depicts an image that is, or appears to be, of a 
        minor engaging in graphic 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
            ``(B) lacks serious literary, artistic, political, or 
        scientific value;
or attempts or conspires to do so, shall be subject to the penalties 
provided in section 2252A(b)(2), including the penalties provided for 
cases involving a prior conviction.
    ``(c) Nonrequired Element of Offense.--It is not a required element 
of any offense under this section that the minor depicted actually 
exist.
    ``(d) Circumstances.--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) Affirmative Defense.--It shall be an affirmative defense to a 
charge of violating subsection (b) that the defendant--
            ``(1) possessed less than 3 such visual depictions; and
            ``(2) promptly and in good faith, and without retaining or 
        allowing any person, other than a law enforcement agency, to 
        access any such visual depiction--
                    ``(A) took reasonable steps to destroy each such 
                visual depiction; or
                    ``(B) reported the matter to a law enforcement 
                agency and afforded that agency access to each such 
                visual depiction.
    ``(f) Definitions.--For purposes of this section--
            ``(1) the term `visual depiction' includes undeveloped film 
        and videotape, and data stored on a computer disk or by 
        electronic means which is capable of conversion into a visual 
        image, and also includes any photograph, film, video, picture, 
digital image or picture, computer image or picture, or computer 
generated image or picture, whether made or produced by electronic, 
mechanical, or other means;
            ``(2) the term `sexually explicit conduct' has the meaning 
        given the term in section 2256(2); and
            ``(3) the term `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.''.
    (b) Technical and Conforming Amendment.--The section analysis for 
chapter 110 of title 18, United States Code, is amended by inserting 
after the item relating to section 2252A the following:

``2252B. Obscene visual representations of the sexual abuse of 
                            children.''.
    (c) Sentencing Guidelines.--
            (1) Category.--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 2252B of such title, shall be the category of offenses 
        described in section 2G2.2 of the Sentencing Guidelines.
            (2) Ranges.--The Sentencing Commission may promulgate 
        guidelines specifically governing offenses under section 2252B 
        of title 18, United States Code, if such guidelines do not 
        result in sentencing ranges that are lower than those that 
        would have applied under paragraph (1).

SEC. <DELETED>6. </DELETED>7. 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, digital 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. <DELETED>7. </DELETED>8. 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 (b)(1), by inserting ``or a violation of 
        section 2252B of that title'' after ``of that title)'';
            <DELETED>(1)</DELETED>(2) in subsection (c), by inserting 
        ``or pursuant to'' after ``to comply with'';
            <DELETED>(2)</DELETED>(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.'';
            <DELETED>(3)</DELETED>(4) by redesignating paragraph (3) of 
        subsection (b) as paragraph (4); and
            <DELETED>(4)</DELETED>(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.''.

SEC. <DELETED>8. </DELETED>9. 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. <DELETED>9. </DELETED>10. 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. <DELETED>10. </DELETED>11. 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. <DELETED>11. </DELETED>12. 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. <DELETED>12. </DELETED>13. 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. <DELETED>13. </DELETED>14. 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. 15. 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--
            (1) by inserting ``section 1591 (sex trafficking of 
        children by force, fraud, or coercion),'' after ``section 1511 
        (obstruction of State or local law enforcement),''; and
            (2) by inserting ``section 2251A (selling or buying of 
        children), section 2252A (relating to material constituting or 
        containing child pornography), section 2252B (relating to child 
        obscenity), section 2260 (production of sexually explicit 
        depictions of a minor for importation into the United States), 
        sections 2421, 2422, 2423, and 2425 (relating to transportation 
        for illegal sexual activity and related crimes),'' after 
        ``sections 2251 and 2252 (sexual exploitation of children),''.

SEC. 16. 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. <DELETED>14. </DELETED>17. 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.




                                                         Calendar No. 7

108th CONGRESS

  1st Session

                                 S. 151

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                            January 30, 2003

                        Reported with amendments