II 109th CONGRESS 1st Session S. 2140 IN THE SENATE OF THE UNITED STATES December 16, 2005 Mr. Hatch (for himself and Mr. Brownback) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To enhance protection of children from sexual exploitation by strengthening section 2257 of title 18, United States Code, requiring producers of sexually explicit material to keep and permit inspection of records regarding the age of performers, and for other purposes.

1.

Short title

This Act may be cited as the Protecting Children from Sexual Exploitation Act of 2005.

2.

Record keeping of digital images

Section 2257 of title 18, United States Code, is amended— (1)in subsection (a), by inserting after videotape, the following: digital image, digitally- or computer-manipulated image of an actual human being, picture,; and (2)in subsection (f)(4), by inserting after video the following: digital image, digitally- or computer-manipulated image of an actual human being, picture,.

3.

Other record keeping requirements

Section 2257 of title 18, United States Code, is amended— (1)in subsection (f), by— (A)in paragraph (3), by striking and after the semicolon; (B)in paragraph (4), by striking the period and inserting ; and; and (C)by adding at the end the following: (5)for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c). ; and (2)by striking subsection (h) and inserting the following: (h)In this section— (1)the term actual sexually explicit conduct means actual but not simulated conduct as defined in clauses (i) through (v) of section 2256(2)(A) of this title; (2)the term produces— (A)means— (i)actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; (ii)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 (iii)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; and (B)does not include activities that are limited to— (i)photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication; (ii)distribution; (iii)any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers; (iv)the provision of web-hosting services when the provider does not, and reasonably cannot, manage the sexually explicit content of the computer site or service; or (v)the provision of an electronic communication service or remote computing service when the provider does not, and reasonably cannot, manage the sexually explicit content of the computer site or service; and (3)the term performer includes any person portrayed in a visual depiction engaging in, or assisting another person to engage in, actual sexually explicit conduct. .

4.

Record keeping requirements for simulated sexual conduct

(a)

In general

Chapter 110 of title 18, United States Code, is amended by inserting after section 2257 the following:

2257A.

Record keeping requirements for simulated sexual conduct

(a)Whoever produces any book, magazine, periodical, film, videotape, or other matter that— (1)contains one or more visual depictions of simulated sexually explicit conduct; and (2)is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.(b)Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of simulated sexually explicit conduct— (1)ascertain, by examination of an identification document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; (2)ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and (3)record in the records required by subsection (a) the information required by paragraphs (1) and (2) and such other identifying information as may be prescribed by regulation. (c)Any person to whom subsection (a) applies shall maintain the records required by this section at their business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times. (d)(1)No information or evidence obtained from records required to be created or maintained by this section shall, except as provided in this section, directly or indirectly, be used as evidence against any person with respect to any violation of law. (2)Paragraph (1) shall not preclude the use of such information or evidence in a prosecution or other action for a violation of this chapter or chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information. (e)(1)Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described in subsection (a)(1) in such manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located. (2)If the person to whom subsection (a) applies is an organization the statement required by this subsection shall include the name, title, and business address of the individual employed by such organization responsible for maintaining the records required by this section. (f)It shall be unlawful— (1)for any person to whom subsection (a) applies to fail to create or maintain the records as required by subsections (a) and (c) or by any regulation promulgated under this section; (2)for any person to whom subsection (a) applies knowingly to make any false entry in or knowingly to fail to make an appropriate entry in, any record required by subsection (b) or any regulation promulgated under this section; (3)for any person to whom subsection (a) applies knowingly to fail to comply with the provisions of subsection (e) or any regulation promulgated pursuant to that subsection; or (4)for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce, that— (A)contains one or more visual depictions made after the date of enactment of this subsection of simulated sexually explicit conduct; and (B)is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; which does not have affixed thereto, in a manner prescribed as set forth in subsection (e)(1), a statement describing where the records required by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept; and(5)for any person to whom subsection (a) applies to refuse to permit the Attorney General or his or her designee to conduct an inspection under subsection (c). (g)As used in this section, the terms simulated sexually explicit conduct, produces, and performer have the same meaning as in section 2257(h) of this title. (h)(1)Whoever violates this section shall be imprisoned for not more than 1 year, and fined in accordance with the provisions of this title, or both. (2)Whoever violates this section in an effort to conceal a substantive offense involving the causing, transporting, permitting or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of this title, or to conceal a substantive offense that involved trafficking in material involving the sexual exploitation of a minor, including receiving, transporting, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic, in violation of this title, shall be imprisoned for not more than 5 years and fined in accordance with the provisions of this title, or both. (3)Whoever violates paragraph (2) after having been previously convicted of a violation punishable under that paragraph shall be imprisoned for any period of years not more than 10 years but not less than 2 years, and fined in accordance with the provisions of this title, or both.

. (b)

Chapter analysis

The chapter analysis for chapter 110 of title 18, United States Code, is amended by inserting after the item for section 2257 the following: 2257A. Record keeping requirements for simulated sexual conduct. .