109 HR 3726 IH: Child Pornography Prevention Act of 2005 U.S. House of Representatives 2005-09-12 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 109th CONGRESS 1st Session H. R. 3726 IN THE HOUSE OF REPRESENTATIVES September 12, 2005 Mr. Pence introduced the following bill; which was referred to the Committee on the Judiciary A BILL To enhance prosecution of child pornography and obscenity by strengthening section 2257 of title 18, United States Code, to ensure that children are not exploited in the production of pornography, prohibiting distribution of child pornography used as evidence in prosecutions, authorizing assets forfeiture in child pornography and obscenity cases, expanding administrative subpoena power to cover obscenity cases, and prohibiting the production of obscenity, as well as its transportation, distribution, and sale, and for other purposes.

1.

Short title

(a)

Short title

This Act may be cited as the Child Pornography Prevention Act of 2005. (b)

Table of contents

The table of contents for this Act is as follows: Sec. 1. Short title Sec. 2. Findings Sec. 3. Strengthening section 2257 to ensure that children are not exploited in the production of pornography Sec. 4. Prevention of distribution of child pornography used as evidence in prosecutions Sec. 5. Authorizing civil and criminal asset forfeiture in child exploitation and obscenity cases Sec. 6. Enhancing administrative subpoena power to cover obscenity Sec. 7. Prohibiting the production of obscenity as well as transportation, distribution, and sale

2.

Findings

Congress makes the following findings: (1)The effect of the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography on interstate market in child pornography. (A)The illegal production, transportation, distribution, receipt, advertising and possession of child pornography, as defined in section 2256(8) of title 18, United States Code, as well as the transfer of custody of children for the production of child pornography, is harmful to the physiological, emotional, and mental health of the children depicted in child pornography and has a substantial and detrimental effect on society as a whole. (B)A substantial interstate market in child pornography exists, including not only a multimillion dollar industry, but also a nationwide network of individuals openly advertising their desire to exploit children and to traffic in child pornography. Many of these individuals distribute child pornography with the expectation of receiving other child pornography in return. (C)The interstate market in child pornography is carried on to a substantial extent through the mails and other instrumentalities of interstate and foreign commerce, such as the Internet. The advent of the Internet has greatly increased the ease of transporting, distributing, receiving, and advertising child pornography in interstate commerce. The advent of digital cameras and digital video cameras, as well as videotape cameras, has greatly increased the ease of producing child pornography. The advent of inexpensive computer equipment with the capacity to store large numbers of digital images of child pornography has greatly increased the ease of possessing child pornography. Taken together, these technological advances have had the unfortunate result of greatly increasing the interstate market in child pornography. (D)Intrastate incidents of production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the transfer of custody of children for the production of child pornography, have a substantial and direct effect upon interstate commerce because: (i)Some persons engaged in the production, transportation, distribution, receipt, advertising, and possession of child pornography conduct such activities entirely within the boundaries of one State. These persons are unlikely to be content with the amount of child pornography they produce, transport, distribute, receive, advertise, or possess. These persons are therefore likely to enter the interstate market in child pornography in search of additional child pornography, thereby stimulating demand in the interstate market in child pornography. (ii)When the persons described in subparagraph (D)(i) enter the interstate market in search of additional child pornography, they are likely to distribute the child pornography they already produce, transport, distribute, receive, advertise, or possess to persons who will distribute additional child pornography to them, thereby stimulating supply in the interstate market in child pornography. (iii)Much of the child pornography that supplies the interstate market in child pornography is produced entirely within the boundaries of one State, is not traceable, and enters the interstate market surreptitiously. This child pornography supports demand in the interstate market in child pornography and is essential to its existence. (E)Prohibiting the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the intrastate transfer of custody of children for the production of child pornography, will cause some persons engaged in such intrastate activities to cease all such activities, thereby reducing both supply and demand in the interstate market for child pornography. (F)Federal control of the intrastate incidents of the production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the intrastate transfer of children for the production of child pornography, is essential to the effective control of the interstate market in child pornography. (2)The importance of protecting children from repeat exploitation in child pornography: (A)The vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and related media. (B)Child pornography is not entitled to protection under the First Amendment and thus may be prohibited. (C)The Government has a compelling State interest in protecting children from those who sexually exploit them, and this interest extends to stamping out the vice of child pornography at all levels in the distribution chain. (D)Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse. (E)Child pornography constitutes prima facie contraband, and as such should not be distributed to, or copied by, child pornography defendants or their attorneys. (F)It is imperative to prohibit the reproduction of child pornography in criminal cases so as to avoid repeated violation and abuse of victims, so long as the Government makes reasonable accommodations for the inspection, viewing, and examination of such material for the purposes of mounting a criminal defense.

3.

Strengthening section 2257 to ensure that children are not exploited in the production of pornography

Section 2257 of title 18 of the United States Code is amended— (1)in subsection (a)(l), by striking actual; (2)in subsection (b), by striking actual; (3)in subsection (f)(4)(A), by striking actual; (4)by amending paragraph (1) of subsection (h) to read as follows: (1)the term sexually explicit conduct has the meaning set forth in subparagraphs (A)(i) through (v) of paragraph (2) of section 2256 of this title;; (5)in subsection (h)(4), by striking actual.; (6)in subsection (f)— (A)at the end of paragraph (3), by striking and; (B)at the end of paragraph (4)(B), by striking the period and inserting ; and; and (C)by inserting after paragraph (4)(B) the following new paragraph: (5)for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her delegee to conduct an inspection under subsection (c).. (7)in subsection (h)(3), by striking to produce, manufacture, or publish any book, magazine, periodical, film, video tape, computer generated image, digital image, or picture, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for managing or otherwise arranging for the participation of the performers depicted and inserting actually filming, videotaping, photographing; creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; or digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or, inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct; (8)in subsection (a), by inserting after videotape, the following: digital image, digitally- or computer-manipulated image of an actual human being, or picture,; and (9)in subsection (f)(4), by inserting after video the following: digital image, digitally- or computer-manipulated image of an actual human being, or picture,.

4.

Prevention of distribution of child pornography used as evidence in prosecutions

Section 3509 of title 18, United States Code, is amended by adding at the end the following: (m)

Prohibition on reproduction of child pornography

(1)In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) must remain in the care, custody, and control of either the Government or the court. (2) (A)Notwithstanding rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant. (B)For the purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, aid any individual the defendant may seek to qualify to furnish expert testimony at trial..

5.

Authorizing civil and criminal asset forfeiture in child exploitation and obscenity cases

(a)

Conforming forfeiture procedures for obscenity offenses

Section 1467 of title 18, United States Code, is amended— (1)in subsection (a)(3), by inserting a period after of such offense and striking all that follows; and (2)by striking subsections (b) through (n) and inserting the following: (b)The provisions of section 413 of the Controlled Substance Act (21 U.S.C. 853) with the exception of subsection (d), shall apply to the criminal forfeiture of property pursuant to subsection (a). (c)Any property subject to forfeiture pursuant to subjection (a) may be forfeited to the United States in a civil case in accordance with the procedures set forth in chapter 46 of this title.. (b)

Amendments to child exploitation forfeiture provisions

(1)

Criminal Forfeiture

Section 2253(a) of title 18, United States Code, is amended— (A)in the matter preceding paragraph (1) by— (i)inserting or who is convicted of an offense under sections 2252B or 2257 of this chapter, after 2260 of this chapter; (ii)inserting , or 2425 after 2423 and striking or before 2423; and (iii)inserting or an offense under chapter 109A after of chapter 117; and (B)in paragraph (I), by inserting , 2252A, 2252B or 2257 after 2252. (2)

Civil forfeiture

Section 2254(a) of title 18, United States Code, is amended— (A)in paragraph (1), by inserting , 2252A, 2252B, or 2257 after 2252; (B)in paragraph (2)— (i)by striking or and inserting of before chapter 117; (ii)by inserting , or an offense under section 2252B or 2257 of this chapter, after Chapter 117, and (iii)by inserting , or an offense under chapter 109A before the period; and (C)in paragraph (3) by— (i)inserting , or 2425 after 2423 and striking or before 2423; and (ii)inserting , a violation of section 2252B or 2257 of this chapter, or a violation of chapter 109A before the period. (c)

Amendments to RICO

Section 1961(1)(B) of title 18, United States Code, is amended by inserting 2252A, 2252B, after 2252.

6.

Enhancing administrative subpoena power to cover obscenity

Section 3486(a)(l) of title 18, United States Code, is amended— (1)in subparagraph (A)(i), by striking children, and inserting children; or (III) a Federal offense involving the distribution of obscenity,; and (2)by inserting after subparagraph (D) the following: (E)As used in this paragraph, the term Federal offense involving the distribution of obscenity means an offense under section 1460, 1461, 1462, 1465, 1466, 1468, or 1470..

7.

Prohibiting the production of obscenity as well as transportation, distribution, and sale

(a)

Section 1465

Section 1465 of title 18 of the United States Code is amended— (1)by inserting Production and before Transportation in the heading of the section; (2)by inserting produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or whoever knowingly after whoever knowingly and before transports or travels in; and (3)by inserting a comma after in or affecting such commerce. (b)

Section 1466

Section 1466 of title 18 of the United States Code is amended— (1)in subsection (a), by inserting producing with intent to distribute or sell, or before selling or transferring obscene matter,; (2)in subsection (b), by inserting, produces before sells or transfers or offers to sell or transfer obscene matter; and (3)in subsection (b) by inserting production, before selling or transferring or offering to sell or transfer such material..