II 110th CONGRESS 1st Session S. 519 IN THE SENATE OF THE UNITED STATES February 7, 2007 Mr. McCain (for himself, Mr. Schumer, and Mr. Kyl) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To modernize and expand the reporting requirements relating to child pornography, to expand cooperation in combating child pornography, and for other purposes.

1.

Short title

This Act may be cited as the Securing Adolescents From Exploitation-Online Act of 2007 or the SAFE Act of 2007.

2.

Reporting requirements of electronic communication service providers and remote computing service providers

(a)

In general

Chapter 110 of title 18, United States Code, is amended by inserting after section 2258 the following:

2258A.

Reporting requirements of electronic communication service providers and remote computing service providers

(a)

Duty To report

(1)

In general

Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any facts or circumstances described in paragraph (2) shall, as soon as reasonably possible, make a report of such facts or circumstances to the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by such center. (2)

Facts or circumstances

The facts or circumstances described in this paragraph are any facts or circumstances that appear to indicate a violation of— (A)section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography or; (B)section 1466A. (b)

Contents of report

To the extent available to an electronic communication service provider or a remote computing service provider, each report under subsection (a)(1) shall include the following information: (1)

Information about the involved individual

Information relating to the Internet identity of any individual who appears to have violated a Federal law in the manner described in subsection (a)(2), including the electronic mail address, website address, uniform resource locator, or any other identifying information. (2)

Historical reference

Information relating to when any apparent child pornography was uploaded, transmitted, reported to, or discovered by the electronic communication service provider or remote computing service provider, as the case may be, including a date and time stamp and time zone. (3)

Geographic location information

Information relating to the geographic location of the involved individual, hosting website, or uniform resource locator, including the street address, telephone number, area code, zip code, or any Internet Protocol address. (4)

Images of apparent child pornography

Any image of any apparent child pornography relating to the incident such report is regarding. (5)

Company contact information

Accurate contact information for the electronic communication service provider or remote computing service provider making the report, including the address, telephone number, facsimile number, electronic mail address of, and individual point of contact for, such electronic communication service provider or remote computing service provider. (c)

Forwarding of report to law enforcement

(1)

In general

The National Center for Missing and Exploited Children shall forward each report made under subsection (a)(1) to any appropriate law enforcement agency designated by the Attorney General under subsection (d)(2). (2)

State and local law enforcement

The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to an appropriate official of a State or political subdivision of a State for the purpose of enforcing State criminal law. (3)

Foreign law enforcement

The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to any appropriate foreign law enforcement agency designated by the Attorney General under subsection (d)(3), subject to the conditions established by the Attorney General under subsection (d)(3). (d)

Attorney general responsibilities

(1)

In general

The Attorney General shall enforce this section. (2)

Designation of Federal agencies

The Attorney General shall designate promptly the Federal law enforcement agency or agencies to which a report shall be forwarded under subsection (c)(1). (3)

Designation of foreign agencies

The Attorney General shall promptly— (A)designate the foreign law enforcement agencies to which a report may be forwarded under subsection (c)(3); and (B)establish the conditions under which such a report may be forwarded to such agencies. (e)

Failure To report

An electronic communication service provider or remote computing service provider that knowingly and willfully fails to make a report required under subsection (a)(1) shall be fined— (1)in the case of an initial knowing and willful failure to make a report, not more than $150,000; and (2)in the case of any second or subsequent knowing and willful failure to make a report, not more than $300,000. (f)

Protection of privacy

Nothing in this section shall be construed to require an electronic communication service provider or a remote computing service provider to— (1)monitor any user, subscriber, or customer of that provider; (2)monitor the content of any communication of any person described in paragraph (1); or (3)affirmatively seek facts or circumstances described in subsection (a)(2). (g)

Conditions of disclosure of information contained within report

(1)

In general

Except as provided in paragraph (2), a law enforcement agency that receives a report under subsection (c) shall not disclose any information contained in that report. (2)

Permitted disclosures

A law enforcement agency may disclose information in a report received under subsection (c)— (A)to an attorney for the government for use in the performance of the official duties of that attorney; (B)to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions; (C)to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law; (D)if 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; or (E)to a defendant in a criminal case or the attorney for that defendant, to the extent the information relates to a criminal charge pending against that defendant. (h)

Evidence preservation

(1)

In general

An electronic communication service provider or a remote computing service provider shall store any image and other information relating to the facts or circumstances of any incident reported under subsection (a)(1) for not less than 180 days after the date that the report is transmitted to the National Center for Missing and Exploited Children through the CyberTipline, or for such longer period of time as may be requested by a law enforcement agency. (2)

Destruction of evidence

An electronic communication service provider or a remote computing service provider shall not destroy any data that, to the knowledge of that electronic communication service provider or remote computing service provider, relates to an incident reported under subsection (a)(1) during the 180-day period beginning on the date that report is transmitted to the National Center for Missing and Exploited Children through the CyberTipline, or for such longer period of time as may be requested by a law enforcement agency.

2258B.

Limited liability for electronic communication service providers and remote computing service providers

(a)

In general

Except as provided in subsections (b) and (c), a civil claim or criminal charge against an electronic communication service provider or a remote computing service provider, including any director, officer, employee, or agent of such electronic communication service provider or remote computing service provider, arising from the performance of the reporting responsibilities of such electronic communication service provider or remote computing service provider under this section, section 2258A, or section 2258C may not be brought in any Federal or State court. (b)

Intentional, reckless, or other misconduct

Subsection (a) shall not apply to a claim if the electronic communication service provider or remote computing service provider, or a director, officer, employee, or agent of that electronic communication service provider or remote computing service provider— (1)engaged in intentional misconduct; or (2)acted, or failed to act— (A)with actual malice; (B)with reckless disregard to a substantial risk of causing injury without legal justification; or (C)for a purpose unrelated to the performance of any responsibility or function under this section, section 2258A, or section 2258C. (c)

Ordinary business activities

Subsection (a) shall not apply to an act or omission relating to an ordinary business activity of an electronic communication service provider or a remote computing service provider, including general administration or operations, the use of motor vehicles, or personnel management. (d)

Minimizing access

An electronic communication service provider and a remote computing service provider shall— (1)minimize the number of employees that are provided access to any image provided under section 2258A or 2258C; and (2)ensure that any such image is permanently destroyed, upon notification from a law enforcement agency.

2258C.

Use of images from the CyberTipline to combat child pornography

(a)

In general

The National Center for Missing and Exploited Children is authorized to provide elements relating to any image reported to its CyberTipline to an electronic communication service provider or a remote computing service provider for the sole and exclusive purpose of permitting that electronic communication service provider or remote computing service provider to stop the further transmission of images. Such elements may include unique identifiers associated with a specific image, Internet location of images, and other technological elements that can be used to identify and stop the transmission of child pornography. (b)

Use by electronic communication service providers and remote computing service providers

Any electronic communication service provider or remote computing service provider that receives elements relating to an image from the National Center for Missing and Exploited Children under this section may use such information only for the purposes described in this section, provided that such use shall not relieve that electronic communication service provider or remote computing service provider from its reporting obligations under section 2258A.

2258D.

Limited liability for the National Center for Missing and Exploited Children

(a)

In general

Except as provided in subsections (b) and (c), a civil claim or criminal charge against the National Center for Missing and Exploited Children, including any director, officer, employee, or agent of such center, arising from the performance of the CyberTipline responsibilities or functions of such center, as described in this section, section 2258A or 2258C of this title, or section 404 of the Missing Children's Assistance Act (42 U.S.C. 5773), or from the effort of such center to identify child victims may not be brought in any Federal or State court. (b)

Intentional, reckless, or other misconduct

Subsection (a) shall not apply to a claim or charge if the National Center for Missing and Exploited Children, or a director, officer, employee, or agent of such center— (1)engaged in intentional misconduct; or (2)acted, or failed to act— (A)with actual malice; (B)with reckless disregard to a substantial risk of causing injury without legal justification; or (C)for a purpose unrelated to the performance of any responsibility or function under this section, section 2258A or 2258C of this title, or section 404 of the Missing Children's Assistance Act (42 U.S.C. 5773). (c)

Ordinary business activities

Subsection (a) shall not apply to an act or omission relating to an ordinary business activity, including general administration or operations, the use of motor vehicles, or personnel management. (d)

Minimizing access

The National Center for Missing and Exploited Children shall— (1)minimize the number of employees that are provided access to any image provided under section 2258A; and (2)ensure that any such image is permanently destroyed upon notification from a law enforcement agency.

2258E.

Definitions

In sections 2258A through 2258D— (1)the terms attorney for the government and State have the meanings given those terms in rule 1 of the Federal Rules of Criminal Procedure; (2)the term electronic communication service has the meaning given that term in section 2510; (3)the term electronic mail address has the meaning given that term in section 3 of the CAN-SPAM Act of 2003 (15 U.S.C. 7702); (4)the term Internet has the meaning given that term in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 151 note); (5)the term remote computing service has the meaning given that term in section 2711; and (6)the term website means any collection of material placed in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.

. (b)

Conforming amendments

(1)

Repeal of superceded provision

Section 227 of the Crime Control Act of 1990 (42 U.S.C. 13032) is repealed. (2)

Table of sections

The table of sections for chapter 110 of title 18, United States Code, is amended by inserting after the item relating to section 2258 the following: 2258A. Reporting requirements of electronic communication service providers and remote computing service providers. 2258B. Limited liability for electronic communication service providers and remote computing service providers. 2258C. Use of images from the CyberTipline to combat child pornography. 2258D. Limited liability for the National Center for Missing and Exploited Children. 2258E. Definitions. .

3.

Encouraging foreign countries to combat child pornography and child exploitation

The United States Trade Representative, the Attorney General of the United States, and the head of any other relevant Federal agency shall take appropriate action to encourage foreign governments to— (1)stop the production and transmission of child pornography in the country of such government; and (2)cooperate with law enforcement agencies in the United States, including Federal agencies and Internet Crimes Against Children Task Forces, to combat the creation and transmission of child pornography.

4.

Authorization of funds to combat child pornography

There are authorized to be appropriated to the Attorney General $25,000,000 for grants to Internet Crimes Against Children Task Force.

5.

Online monitoring of convicted sex offenders

Section 3583(k) of title 18, United States Code, is amended— (1)by inserting Sex offenders.— before Notwithstanding; (2)by striking Notwithstanding and inserting the following: (1)

In general

Notwithstanding ; and (3)by adding at the end the following: (2)

Online monitoring of convicted sex offenders

(A)

In general

The court may order, as an explicit condition of supervised release for any person convicted of a sex offense— (i)the use of electronic monitoring technology to monitor the use of the Internet by that defendant; and (ii)that the defendant pay a fee, not to exceed $50 per month, for such monitoring. (B)

Definitions

In this paragraph— (i)the term Internet has the meaning given that term in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 151 note); and (ii)the term sex offense means any offense— (I)under chapter 109A, chapter 110 (excluding offenses relating to recordkeeping), or chapter 117 (excluding offenses relating to transmitting information about a minor or filing a factual statement about an alien individual); and (II)that involves a minor. .

6.

Use of the Internet as an aggravating factor

(a)

In general

Chapter 110 of title 18, United States Code, is amended by adding at the end the following:

2260B.

Use of the Internet as an aggravating factor

(a)

In general

It shall be unlawful for any person to— (1)commit a violation of section 1466A, 1470, 2251, 2251A, 2252, 2252A, 2252B, or 2260 that does not require, as an element of such violation, the use of the Internet; and (2)use the Internet to commit the violation described in paragraph (1). (b)

Penalty

Any person who violates subsection (a) shall be sentenced to a term of imprisonment of 10 years in addition to the imprisonment imposed for the underlying offense.

. (b)

Table of sections

The table of sections for chapter 110 of title 18, United States Code, is amended by adding at the end the following: 2260B. Use of the Internet as an aggravating factor. .

7.

Aiding law enforcement in ascertaining web site ownership

It is the sense of Congress that all domain registrars should investigate and correct inaccurate data regarding registered domain names, including any contact information.

8.

Report regarding prosecutions

(a)

In general

The Attorney General of the United States shall submit to Congress and make publicly available on the website of the Department of Justice an annual report regarding— (1)the number of— (A)investigations by local, State, or Federal law enforcement agencies of crimes of sexual exploitation against children; (B)prosecutions resulting from investigations by local, State, or Federal law enforcement agencies of crimes of sexual exploitation against children; (C)convictions resulting from prosecutions by local, State, or Federal authorities of crimes of sexual exploitation against children; (D)convictions of repeat offenders; and (2)descriptions of sentences given to persons convicted as a result of investigations described in paragraph (1)(A).