[Senate Hearing 107-974]
[From the U.S. Government Publishing Office]
S. Hrg. 107-974
STOPPING CHILD PORNOGRAPHY: PROTECTING OUR CHILDREN AND THE
CONSTITUTION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
OCTOBER 2, 2002
__________
Serial No. J-107-108
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 23
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 3
prepared statement........................................... 120
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 142
WITNESSES
Armagh, Daniel S., Director, Legal Resource Division, National
Center for Missing and Exploited Children, Alexandria, Virginia 14
Carnahan, Hon. Jean, a U.S. Senator from the State of Missouri... 6
Collins, Daniel P., Associate Deputy Attorney General and Chief
Privacy Officer, Department of Justice, Washington, D.C........ 8
Coughlin, Anne M., Professor of Law, University of Virginia
School of Law, Charlottesville, Virginia....................... 12
Pomeroy, Hon. Earl, a Representative in Congress from the State
of North Dakota................................................ 3
Schauer, Frederick, Professor of Law, John F. Kennedy School of
Government, Harvard University, Cambridge, Massachusetts....... 10
QUESTIONS AND ANSWERS
Responses of Daniel P. Collins to questions submitted by Senator
Leahy.......................................................... 26
Responses of Daniel P. Collins to questions submitted by Senator
Kennedy........................................................ 41
Responses of Daniel S. Armagh to questions submitted by Senator
Leahy.......................................................... 54
SUBMISSIONS FOR THE RECORD
Allen, Ernest E., President and Chief Executive Officer and
Daniel S. Armagh, Director, Legal Resource Division, National
Center for Missing and Exploited Children, prepared statement
and attachment................................................. 58
Collins, Daniel P., Associate Deputy Attorney General and Chief
Privacy Officer, Department of Justice, Washington, D.C.,
prepared statement............................................. 94
Coughlin, Anne M., Professor of Law, University of Virginia
School of Law, Charlottesville, Virginia, prepared statement... 114
Hernandez, Andres E., Director, Sex Offender Treatment Program,
Federal Bureau of Prisons, FCI Butner, Butner, North Carolina,
statement...................................................... 124
Internet Commerce Coalition and U.S. Internet Service Providers
Association, joint statement................................... 131
Pomeroy, Hon. Earl, a Representative in Congress from the State
of North Dakota, prepared statement............................ 146
Schauer, Frederick, Professor of Law, John F. Kennedy School of
Government, Harvard University, Cambridge, Massachusetts,
prepared statement............................................. 149
STOPPING CHILD PORNOGRAPHY: PROTECTING OUR CHILDREN AND THE
CONSTITUTION
----------
WEDNESDAY, OCTOBER 2, 2002
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:09 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Hatch, and Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Senator Hatch is now here and we can start.
I do want to recognize the family of Elizabeth Smart, who
are here. I want the Smart family to know that both Senator
Hatch and I have you in our thoughts and prayers. I think I
could safely say that everybody in my State of Vermont feels
the same way. I have heard so much about your terrible tragedy
when I have been home. Like all of us here, if we could,
somebody press a button and find your daughter, it would be a
wonderful, wonderful thing. But the outpouring in my own State
thousands of miles away of grief and prayer and thought for you
was something I just wanted you to know about. I know Senator
Hatch has spoken to individual Senators very movingly about the
tragedy. He and I have discussed this on a number of occasions.
I did also with a former colleague I was elected with, Jake
Garn, who lives near you.
Beginning this hearing, it is clear that we are all against
child pornography. That vote is an easy one. The harder task is
finding those kinds of legislative solutions that are not
merely designed to be tough on child pornography in the short
term, but can withstand the test of time and the scrutiny of
the courts. We need a law with teeth, but not false teeth.
This hearing is going to allow experts from all
perspectives to come together as we work toward a solution that
protects our children and honors the First Amendment. Too
often, the issues can become temptations to demagoguery. The
reason Senator Hatch and I have joined together on this is that
we owe our children a lot more than a press conference. We owe
them action that will be effective in helping prosecutors build
solid cases and then obtain convictions that actually stick.
Earlier this year, the Supreme Court in Ashcroft v. Free
Speech Coalition struck down portions of the 1996 Child
Pornography Protection Act. The Ashcroft decision should not
have been too surprising, as this Committee had been warned in
1996 that parts of the law were unconstitutional. So we have to
work now to make sure we do not repeat those earlier mistakes.
We cannot just have quick fixes that do more harm than
good. Even with parts of the CPPA struck down in the Ashcroft
decision, there are many effective Federal laws dealing with
child pornography still on the books. A review of the
Department of Justice and FBI press releases show that Federal
enforcement of the child pornography laws continues, and it is
resulting in people being investigated, prosecuted, and sent to
jail. We have to see if there are other tools that we need.
That is again why Senator Hatch and I joined together in S.
2520, the PROTECT Act, shortly after the Supreme Court's
decision in the Ashcroft case. It is a response to the
decision, not a challenge to it.
In Ashcroft v. Free Speech, the Supreme Court voted seven-
to-two to strike down a provision banning virtual child
pornography, that is, child porn made with morphed computer
images, without real children. They faced a difficult task, the
Supreme Court did, in trying to balance the First Amendment
with the computer age. The Internet has a lot of areas that we
can all benefit from, but it also has a potential for harm in
some areas. The majority opinion found that the CPPA was overly
broad, that it covered such non-obscene movies as ``Traffic''--
I believe Senator Hatch was one of the stars of that movie--one
of the major stars of that movie--``Romeo and Juliet''--he was
not a star of that movie--and ``American Beauty.''
So we have worked together to try to get a bill within
these limits. We have narrowed the definition of virtual child
porn by requiring consideration of literary or educational
value so that films like ``Traffic'' are not covered and
banned. It fixes the specific concerns raised by the Supreme
Court decision. I look forward to hearing from the
constitutional scholars here today if there are further
refinements warranted. It is not going to do our children any
good if we write a law that is simply going to be thrown out
again. We want a law that works.
Our legislation, unlike the administration's proposal,
provides new tools to help police and investigators prosecute
child pornography cases. As a former prosecutor, I know these
tools are going to help. We have got the victim shield law, so
we have a first-time ever children's shield law to keep the
identity of child victims out of court, protect them from being
traumatized again in the court process. In my days as a
prosecutor, that is the thing I worried about the most, when
you had a child who had been a victim, they will become a
second victim in the court proceedings or in the news articles
or anything else.
We have sentencing enhancement for child sex offenders. The
current sentencing guidelines carry a lower sentence for
someone who actually travels across State lines to sexually
molest a minor than for somebody who possesses child
pornography that has crossed State lines, so we correct that.
We have a new felony for using pornography to induce a
minor to engage in illegal activity. We have notice
requirements to prevent surprise defenses. We create a right of
action for victims. This I like, because those who peddle child
porn, they are going to get hit where it hurts the most, in
their pocketbook.
It is far easier to come up with a quick fix without
attention to constitutional limits, so that is why we have
tried to improve the Justice Department's proposal because we
want it to stand up to a court challenge. The first one did
not, as the Ashcroft case shows. We want to make sure when the
next case goes up, it does stand up.
I hope we can do that. I hope we can protect our children
and do it within the constitutional restrictions.
[The prepared statement of the Chairman Leahy appears as a
submission for the record.]
Chairman Leahy. Senator Hatch, I appreciate so much working
with you on this, as I have on so many other issues we have
worked together on.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman. I appreciate
working with you, as well, and I appreciate you holding this
hearing on this critically important piece of legislation.
As you know, a number of us have worked for years to
protect our nation's greatest resource, and that is its
children. I am pleased to report that our efforts have always
enjoyed strong bipartisan support. The protection of our
children, of course, matters immensely to those of us on both
sides of the aisle.
I appreciate having members of the Smart family with us
here today. None of us can express adequately how deeply we
feel about the ordeal that you folks have been through, and
others who have also suffered because of some of the terrible
things that go on in not just our country, but around the
world, and a lot of it comes from smut on television and movies
and from people who are mentally ill and sick and some who are
just plain criminals. But our hearts and prayers are with you.
We just want you to know that, and with all folks who are
suffering from these type of reprehensible activities and
crimes.
We recently introduced, along with----
Chairman Leahy. I understand Congressman Pomeroy has to go
to vote----
Senator Hatch. Why don't we have him give his statement----
Chairman Leahy. Do you have time to speak before you vote?
Mr. Pomeroy. I will give you the short version.
Senator Hatch. I will interrupt mine for you.
STATEMENT OF HON. EARL POMEROY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH DAKOTA
Mr. Pomeroy. Mr. Chairman, Senator Hatch, thank you for
allowing me just to briefly say that the matter you have called
for hearing today is, in my opinion, urgent, that at the very
time Internet technology allows for the dissemination of child
pornographic materials more than ever before, we have a serious
problem in the wake of the Supreme Court ruling striking down
prohibitions against virtual child pornography.
In visits with prosecutors in North Dakota, they have told
me their abilities to move cases have been very seriously
disrupted by what they now carry as an offensive burden in
prosecution of conclusively showing that the children in the
materials were real children, and something that is all but
impossible in light of the global distribution of these
materials under the Internet.
I believe that the legislation Senator Carnahan has
advanced, identical to what we have advanced in the House and
passed 413 to eight, is carefully crafted and thoroughly
considered. The Chairman has it precisely right when he says we
need a law that will withstand court muster, and I believe in
working with the Justice Department, the bill that passed the
House was created for that express purpose.
I do not have time to go into the particulars in terms of
how it passes muster, but I believe it was crafted not as a
press release to show we did something, but to actually put
back on the books the prohibitions that we need to protect our
children.
If the Senate could move on this at this time, I believe it
would be extremely important. I believe that cases literally
are awaiting prosecution or determinations are being made by
prosecutors not to prosecute in light of the state of the law
of the land as it is today. I think that prompt action on the
House-passed bill, drafted in bipartisan cooperation with the
Justice Department, would allow us to get something to the
President and have it actually enacted before we go home and
not have this unfortunate state of the law of the land linger
any longer than it should be.
I commend Senator Carnahan for bringing this important
legislation up on the Senate side and urge your favorable
consideration.
Thank you again for letting me speak today. Thank you.
Senator Hatch. Thank you.
Chairman Leahy. Thank you very much, Congressman. I
appreciate you waiting for that. You have worked extremely hard
on this and I wanted you to have a chance to testify. I
especially want to thank my good friend from Utah for yielding
to you.
Senator Hatch. I hope you make your vote.
Mr. Pomeroy. Since Senator Conrad and Senator Dorgan never
defer to me, I was very pleased that you did, Senator.
[Laughter.]
Senator Hatch. You will find me always doing that.
[The prepared statement of Mr. Pomeroy appears as a
submission for the record.]
Senator Hatch. I recently introduced, along with Senator
Feinstein, the comprehensive Child Protection Act of 2002, and
I hope we can get support for that bill, as well, and I want to
thank you especially, Mr. Chairman, for cosponsoring our
efforts to protect our children in the troubling area of child
pornography, the PROTECT Act of 2002. I also appreciate you,
Senator Carnahan, and am glad to have you here before the
Committee and we welcome you.
I do not think it overstates the matter to state that child
pornography represents one of the greatest dangers to the young
and most vulnerable members of our society. Society has
benefitted greatly from the technological advances of the last
decade, but an unfortunate byproduct of the growth of
technology and the rise of the Internet in our country has been
the proliferation of smut involving children. Child pornography
itself is repulsive, but even more damaging and more concerning
are the purposes for which it routinely is used. Perverts and
pedophiles not only use this smut to whet their sick desires,
but also to lure defenseless children into unspeakable acts of
sexual exploitation.
In sum, child pornography is a root from which more evils
grow. It creates a measurable harm in our society. On this
record, I am absolutely convinced that Congress must act and
act decisively.
Mr. Chairman, I am a staunch defender, as you know, of the
First Amendment. Everyone not only has a right to his or her
opinion, but also a right to talk about it. We justifiably
should be proud that the United States leads the world in
fostering tolerance for the free exchange of ideas,
particularly where political views are discussed. But there is
no place for child pornography even in our free society. I
believe that the overwhelming majority of Americans stands
shoulder to shoulder with us on this issue.
Earlier this year, a majority of the Supreme Court struck
down some provisions of the CPPA under the First Amendment. Let
me make clear that I respect the Supreme Court's role in
interpreting the Constitution. But that decision left gaping
holes in our nation's ability to effectively prosecute child
pornography. The PROTECT Act is designed to patch these holes
in a way that permits effective prosecutions in a manner that
does not offend the Constitution.
We can all agree that the government has a compelling
interest in protecting children, policing pedophiles, and
enforcing our child pornography laws. The PROTECT Act does many
things to aid these efforts. Let me just briefly summarize some
of its most important provisions.
First, the Act plugs the loophole that exists today after
the Supreme Court's ruling in Ashcroft v. Free Speech
Coalition. In the wake of that decision, child pornographers
can effectively escape prosecution by claiming that their
sexually explicit material did not actually involve real
children. Technology has advanced so far that even experts
often cannot say with absolute certainty that an image is real
or ``virtual'' computer creation.
For this reason, the PROTECT Act permits a prosecution to
proceed when the child pornography includes persons that appear
virtually indistinguishable from actual minors, and when this
occurs, the accused is afforded a complete affirmative defense
by showing that the child pornography did not involve a minor.
The Act also prohibits any depictions of minors or apparent
minors in actual acts of bestiality, sadistic or masochistic
abuse, or sexual intercourse where such depictions lack
literary, artistic, political, or scientific value. This type
of hard core sexually explicit material merits our highest form
of disdain and disgust and is something that our society ought
to be doing its best to eradicate.
Finally, the PROTECT Act directs the Attorney General to
appoint 25 more trial attorneys who are dedicated to the
enforcement of Federal child pornography laws. I think Congress
needs to send a clear, unequivocal message to those child smut
peddlers who continually evade our laws and flout our shared
notions of decency. These folks are in our cross-hairs, and I
will just say those who are in our cross-hairs, your depravity
will no longer go unchecked.
Mr. Chairman, I look forward to hearing from the
distinguished witnesses who appear before the Committee today,
but before we begin, I want to note the hearings that were held
on this issue in June 1996 when I was Chairman. The information
that we gathered during those hearings happens to be still
relevant today. We certainly have not forgotten all that we
learned back then about the problems of child pornography, and
for that reason, I view this hearing as a very important
supplemental one.
Mr. Chairman, I would ask that the complete record of those
hearings be placed into the record so that all who look at what
we do with the PROTECT Act today fully understand and
appreciate how closely and carefully we have been studying this
issue for years now. It is an issue that I feel very strongly
about and on which I would like to speak for quite some time.
But so that we can turn more quickly to our distinguished
panel and, of course, Senator Carnahan, as well, Mr. Chairman,
I would ask that my complete statement be placed in the record
at this time.
Chairman Leahy. It will be.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Chairman Leahy. Let us, if we might on the prior hearing,
because that is on file, whether that might, just logistically
and also for the expense of it, whether that may be referenced
with a copy.
Senator Hatch. Sure.
Chairman Leahy. But we will work out whatever works best
for you.
Senator Hatch. That would be fine.
Chairman Leahy. Senator Carnahan, I am delighted to have
you here and appreciate your coming by. I appreciate your
courtesy in letting us move things around so that Congressman
Pomeroy could get back to the other side of the Hill to vote.
Please go ahead.
STATEMENT OF HON. JEAN CARNAHAN, A U.S. SENATOR FROM THE STATE
OF MISSOURI
Senator Carnahan. Thank you, Mr. Chairman. I, as well, am
going to have to go to the Commerce Committee following this
and so I appreciate you recognizing me at this time. Thank both
you and Senator Hatch for convening this hearing and for your
leadership on this very important issue.
We are all here today with a common purpose of addressing a
problem that threatens children across our country, child
pornography. Child pornography is one of the most heinous forms
of child abuse. Each year, an estimated 88,000 children fall
victim to sexual abuse. Often, child pornography plays a key
role in these crimes.
Law enforcement officers have worked hard to reduce the
incidence of child abuse. But in the battle against child
pornography, their hands are often tied because we failed to
provide law enforcement agencies with the tools they need to
protect our children. Computer-generated child pornography
inflicts harm on our society even though actual children are
not involved in its production. We know pedophiles show these
materials to children. They use these images to convince
children that these practices are acceptable. They also use the
images to convince themselves that their acts are not wrong.
The magnitude of our virtual child pornography problem is
astonishing. The Internet has made it far too easy to engage in
the widespread anonymous distribution of child pornography. In
1999, a single child pornography website recorded 256,000 hits
and the download of 4.2 million images, not in one year, Mr.
Chairman, not in a half-year, but in three months alone.
According to an Internet management firm, in a six-month period
last year, the number of child pornography sites tripled.
So a law that does not deal with the problem of virtual
child pornography really is not providing children the
protection they need. Unfortunately, the Supreme Court decision
in the Free Speech Coalition case has made it far more
difficult to take action against this evil.
The Court concluded that the government cannot put a
pornographer in jail unless it can be proven that real children
were used in the production of the pornography at issue. With
modern technology, however, pornographers can digitally alter
the features of real children so they cannot be identified, or
they can digitally create images of children. So in some cases,
the government will not be able to prove that real children
have been used to produce the pornography and the pornographer
will get off scot-free.
The bill I have introduced, the Child Obscenity and
Pornography Protection Act, responds to the difficulties
created by the Free Speech Coalition case. It provides that a
person who distributes virtual child pornography has committed
a crime unless he can prove that real children were not used to
create the pornography. The affirmative defense relieves the
government of the burden of proving the impossible and puts the
teeth back into our criminal laws.
The bill also provides that virtual images of young
children engaging in sexual conduct is obscene and, therefore,
not entitled to consitutional protections.
This bill was developed by the Department of Justice and
passed by the House of Representatives, as Representative
Pomeroy recently mentioned, with just minor changes, by a vote
of 413-8. I understand that the members of this Committee have
endorsed a similar but separate bill. But the goals of both
pieces of legislation are the same: To protect children from
the direct and indirect dangers of virtual child pornography.
I hope that in the next few days we have remaining in this
session, we can come together with the Justice Department and
our colleagues in the House, combine the best elements of both
bills, and send it to the President. The seriousness of this
problem merits that we take prompt action, and I hope we can
send a bill to the House before the recess.
I do not think we should leave our prosecutors without the
tools they need in this fight against child pornography any
longer. I thank you, Mr. Chairman, and I look forward to
working with this Committee in the coming days.
Chairman Leahy. Thank you very much, Senator. I know you do
have a Commerce Committee meeting right now, so I appreciate
you being here, unless, Senator Hatch, if you have any
questions.
Senator Hatch. No, thanks. We are just happy to have you.
Chairman Leahy. Thank you very much.
On the first panel, we will have Dan Collins, Associate
Deputy Attorney General and Chief Privacy Officer at the
Department of Justice, formerly Assistant U.S. Attorney in the
Central District of California.
Frederick Schauer, Professor of Law at the JFK School of
Government, teaches also at Harvard Law School and is a leading
expert in First Amendment issues including obscenity laws. He
served as Commissioner on the Meese Commission on Pornography,
was a primary author of its findings, and also keeps an eye on
a very nice part of Vermont during the summer, Woodstock. Am I
correct on that, Professor?
Mr. Schauer. South Woodstock.
Chairman Leahy. South Woodstock.
Mr. Schauer. I wish I could spend more of the year there,
but----
Chairman Leahy. And you have to understand, if you live in
Woodstock, there is Woodstock, there is South Woodstock. It is
like Westminster and Westminster West. You have to make sure
you get it all right.
Professor Coughlin is a professor at the University of
Virginia Law School, an expert in constitutional law and
criminal law and procedure. I wanted her to be here because
these are crimes we are talking about. She clerked for Judge
John Newman of the U.S. Court of Appeals for the Second
Circuit, U.S. Supreme Court Justice Lewis Powell, and I do not
want you to think we are stacking the deck here, Senator Hatch,
but she grew up in Rutland, Vermont, is a graduate of Mount St.
Joseph's Academy. I have spoken there and know it well.
Ernie Allen is not going to be here. Daniel Armagh is the
Director of Legal Education at the Center for Missing and
Exploited Children, a center we have worked with in this
Committee that has helped recover 65,000 children. He
previously served as Director of the American Prosecutors'
Research Institute's National Center for Prosecution of Child
Abuse. He is Assistant D.A. for Lawrence County, Pennsylvania.
Again, as I recall, you were involved in prosecuting crimes
against children, am I correct on that, Mr. Armagh?
Mr. Armagh. That is correct, Mr. Chairman.
Chairman Leahy. Thank you. So, Mr. Collins, let us begin
with you, sir.
STATEMENT OF DANIEL P. COLLINS, ASSOCIATE DEPUTY ATTORNEY
GENERAL, AND CHIEF PRIVACY OFFICER, DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Mr. Collins. Thank you, Chairman Leahy and Senator Hatch. I
appreciate the opportunity to testify here today on behalf of
the Department of Justice concerning this important subject.
The sexual abuse of children is an evil that no decent and
civilized society can or should tolerate in any form. The harm
inherent in abusive sexual conduct is bad enough. The fact that
such abuse may be photographed or videotaped only multiplies
the scope of the harm inflicted on the young victims.
As the Supreme Court has recognized, because child
pornography permanently records the victims' abuse, the very
existence of such materials causes the child victims continuing
harm by haunting the children in years to come. With the advent
of the Internet, this harm has been magnified exponentially.
Pedophiles can, with the click of a few keys, instantly make
such materials available to literally thousands of persons.
Moreover, as the Supreme Court has also stated, evidence
suggests that pedophiles use child pornography to seduce other
children into sexual activity. Accordingly, the Court has
properly held that the First Amendment provides no protection
to such materials and that the government has compelling
interests that justify attempting to stamp out this vice at all
levels.
Over the years, the Congress, by large bipartisan
majorities, has enacted a number of statutes designed to
address the serious problems presented by the manufacture,
possession, and trafficking of child pornography. One such law,
the Child Pornography Prevention Act of 1996, was favorably
reported by this Committee, as Senator Hatch noted, and was
reported by a vote of 16 to two. The Department of Justice in
both the current and prior administrations vigorously defended
the validity of this important law in the courts.
Unfortunately, in April of this year, a divided Supreme
Court held that this legislation was, in part, facially
unconstitutional. The Department was obviously disappointed by
the Court's decision. But, nonetheless, we believe that the
Court's decision and the Constitution leave the Congress with
ample authority to enact a new, more narrowly tailored statute
that will allow the government to accomplish its legitimate and
compelling interests without interfering with First Amendment
freedoms.
The Department is deeply grateful to the leadership shown
by the Congress in moving promptly to work with us to address
this important issue. A bipartisan group of Representatives and
Senators joined the Attorney General on May 1 to announce a
legislative proposal aimed at strengthening the child
pornography laws in the wake of the Supreme Court's decision.
As that bill, which was introduced in the House as H.R. 4623,
moved through the House Judiciary Committee, we were pleased to
work with members on both sides of the aisle in further
revising the bill so as to ensure that it would provide maximum
protection to our nation's children while complying with the
Supreme Court's decision and the Constitution.
Likewise, I have been pleased to meet with members of the
staff of this Committee on both the majority and minority side
in connection with the drafting of S. 2520, and in particular,
the Department is deeply grateful to the leadership shown by
Senator Hatch in introducing that legislation and in promptly
moving to address this important issue.
I have in my written statement detailed a number of largely
technical suggestions with respect to the legislation that is
before the Court--that is before the Congress, rather. There
are points of difference. We can make improvements in both the
House bill and in the Senate version. But the basic approach of
the two bills at a conceptual level is essentially very
similar.
We strongly believe that a prompt and effective legislative
response is necessary. In the Free Speech Coalition decision,
the Court held that the 1996 Act's definitions of virtual child
pornography and pandering were facially unconstitutional. But
by invalidating these important features of the 1996 Act, the
Court's decision leaves the government in an unsatisfactory
position. Already, defendants often contend that there is
reasonable doubt as to whether a given computer image--and it
should be noted that most prosecutions involve materials stored
and exchanged on computers--whether it was produced with an
actual child or by some other process. There are experts who
are willing to testify to the same effect on defendants'
behalf. Moreover, as computer technology continues its rapid
evolution, this problem will only grow increasingly worse.
Trials will increasingly devolve into jury-confusing battles of
experts.
We believe that the Congress has a strong basis for action
and for taking additional measures in response to the Court's
decision. We look forward to working with the Committee to
resolve the remaining issues and to get a bipartisan piece of
legislation that can be presented promptly to the President.
Chairman Leahy. Thank you very much.
[The prepared statement of Mr. Collins appears as a
submission for the record.]
Chairman Leahy. Professor Schauer?
STATEMENT OF FREDERICK SCHAUER, PROFESSOR OF LAW, JOHN F.
KENNEDY SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY, CAMBRIDGE,
MASSACHUSETTS
Mr. Schauer. Mr. Chairman, thank you very much for inviting
me to be here. I appreciate the honor. Let me take this
opportunity also to thank Senator Hatch for his support of the
work of the Attorney General's Commission on Pornography 16
years ago and my participation on that commission, in
particular.
As my statement indicates, I have been involved with issues
of obscenity and pornography law for close to 30 years now, and
in addition to other issues on which I write, I have been
writing about the largely technical side as well as the larger
policy side of obscenity and pornography law for decades now.
Most of my comments, therefore, will be addressed to the
somewhat more technical side of this question.
But let me preface those comments by observing that there
are demonstrable disadvantages to enacting legislation that has
a low to no probability of being upheld by the Supreme Court,
not only for reasons that relate to the rule of law, not only
for reasons that relate to expense and delay, but because one
of the things that we are increasingly seeing from the Supreme
Court, and admirably so, is a degree of deference to
Congressional interpretations of the Constitution in areas in
which the Congressional interpretations of the Constitution are
within a plausible range of preexisting Supreme Court opinions.
I would strongly urge the Committee and the Congress to
encourage this degree of deference by the Supreme Court to what
you do by staying within a range that will indicate a desire to
cooperate with the Court and, therefore, encourage this
deference.
Let me address three particular issues in S. 2520. One of
the dimensions of S. 2520 is its discussion and criminalization
of the pandering of child pornography. In criminalizing the
pandering of child pornography and doing so in a way that I
believe survives the objections of Ashcroft v. Free Speech
Coalition, S. 2520 keys the crime of pandering to the fact that
the material being pandered is itself unlawful, whether
unlawful obscenity or unlawful child pornography.
The most significant difference in this regard between S.
2520 and H.R. 4623 is the extent to which the Senate bill,
desirably, in my view, and consistent with Supreme Court views
about commercial speech and commercial advertising, makes it
clear that the pandering or advertising of illegal materials is
not constitutionally protected, not protected by the First
Amendment. Once we loose the moorings in otherwise illegal
material by virtue of either its obscenity or child pornography
dimensions, the pandering crime becomes somewhat to much more
debatable, and in that reason, it is a much safer course to
proceed as S. 2520 does.
Second, in defining child pornography, S. 2520 admirably
comes reasonably close to but not identical with the
definitions of obscenity that we see in a number of previous
Supreme Court obscenity decisions. That is, in 2256(8)(d), the
provisions by requiring the prosecution to show, as Senator
Hatch mentioned in his opening statement, the lack of serious
literary, artistic, political, or scientific value comes close
enough to the Supreme Court's definition of obscenity that I
believe that the differences, which may be desirably
differences on the dimension of both patent defensiveness and
appeal to the prurient interest, are ones that are likely to
encourage the Supreme Court to defer to the Congressional
definition of obscenity and to defer to the Senate's view that
at least in this context, the materials encompassed by
2256(8)(d) represent a Senatorial or Congressional
specification of what obscenity means in the child pornography
context.
Finally, on the question of the affirmative defense,
although Justice Kennedy in the Supreme Court opinion expressed
some skepticism about whether an affirmative defense is an
appropriate vehicle for carrying First Amendment values, as my
written statement indicates, I believe he was mistaken in this
regard and the tentativeness of those statements in the opinion
lead me to believe that there is still some room for an
affirmative defense in this area precisely to deal with exactly
the problem of proof that Mr. Collins and others have
mentioned.
By dealing with the two specific issues raised by Justice
Kennedy and by a number of other modifications that one finds
in S. 2520, I believe that the idea of an affirmative defense
is carrying the First Amendment burden rather than requiring
the prosecution to negate the idea of the First Amendment is an
important and desirable vehicle in accommodating to the Supreme
Court opinion while not withdrawing what is perhaps the most
important dimension of the prosecutor's tool box in this area.
I thank you.
Chairman Leahy. Thank you very much.
[The prepared statement of Mr. Schauer appears as a
submission for the record.]
Chairman Leahy. Professor Coughlin?
STATEMENT OF ANNE M. COUGHLIN, PROFESSOR OF LAW, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA
Ms. Coughlin. Thank you, Mr. Chairman. I want to start, as
well, by thanking you very much for the invitation to appear
and testify today. It is a special honor for me to be here
because, as you say, I do hail from the great State of Vermont,
and I want to just snatch one second from my time to mention
how thrilled my dad will be to hear that I was able to greet
you in person and to thank you for your public service on
behalf of the State and the whole nation.
Chairman Leahy. Be sure you take that back to him. Thank
you very much.
[Laughter.]
Ms. Coughlin. Like the other witnesses here today, I have
submitted to the Committee written testimony, which I am going
to just briefly outline and amplify slightly and on which I am
happy, of course, to take questions.
As you mentioned, Mr. Chairman, my areas of expertise are
criminal law, criminal procedure, and I also teach and research
in the area of sex discrimination law. Like Professor Schauer,
I have done my best to evaluate the constitutionality of these
bills, the extent to which they measure up to the First
Amendment guarantees. I do want to emphasize that Professor
Schauer's best may be better than mine because he is a First
Amendment expert and I am not. I can, however, offer some
advice on the First Amendment questions and I also want to
focus particularly on criminal law matters and the way in which
the criminal law approaches some of the problems you are
considering here today.
One thing that I want to highlight now is the way in which
we are talking about thinking about the core or primary harms
that the child porn laws aim to eliminate. We talk, of course,
about the use of actual children in the production of child
pornography, and what I want to say very clearly on the record
is when that occurs, when actual children are used in the
production of child pornography, that core or primary harm is
one that the criminal law calls rape. We have been using
language here like abuse, exploitation, seduction. The criminal
law calls sex with a minor rape. So the people who are using
actual children to make child pornography are, in the eyes of
the criminal law, at least, arranging to have these children
raped so that the pornographers can record the rapes and then
sell those recordings to others. These are among the most
serious harms that the criminal law knows, aims to punish and
deter.
Under the Supreme Court precedents, as our testimony has
outlined, namely the Ferber case, of course, the government is
free to prohibit and punish the production of porn made with
actual children. I suppose it should go without saying that
this type of pornography falls well outside the protections of
the First Amendment.
But here is the problem, of course, and it is one that has
been alluded to in the record. The problem is that if the
definition of regulable child pornography is limited to that
definition, the one set forth in Ferber, the government's
efforts to deter and punish child pornographers look likely to
be seriously eroded. The particular problems the Committee has
had in mind are those that are created by the phenomenon of
virtual child pornography. With the proliferation of virtual
pornography, child pornographers seem to be able to escape
prosecution and convictions, convictions that we think, or
certainly that I believe, firmly are just convictions.
As I see it, there are two different arguments that the
criminal law would allow of child pornographers to make in
these cases. One has been alluded to here. The first argument
is that the defendant may claim that the government cannot
prove that the porn used actual child pornography as opposed to
virtual ones. We are hearing that the computer technology is so
sophisticated that it is literally impossible, at least very,
very difficult for the government to separate the virtual image
from the real one, and in such a case, I take it we might have
a reasonable doubt as to guilt.
The other argument that I wanted to mention, one that I
expect will be raised in these cases, is a different one. This
is a mental state argument. The defendant might argue that the
prosecution cannot prove that he possessed guilty knowledge.
That is, the prosecution cannot prove that he knew that the
images were made with actual children rather than with virtual
ones. If it is true that it is so difficult for the government
to distinguish the virtual from the real in this context, well,
then the defendant plausibly can claim that he did not think
any real kids were involved. Who can tell? Virtual kids, real
kids, you cannot tell the difference. Therefore, he lacks
guilty knowledge.
In my judgment, both of these types of arguments should be
shut down and the Senate bill, S. 2520, makes a responsible
and, I think, very good faith effort to doing just that. The
key question before the Committee is whether, and if so,
precisely how to craft a provision that forecloses these
defense claims. As you know, the CPPA was designed to shut
these claims down, but the Supreme Court found that the CPPA
cut too broadly.
What the Senate bill does, and Professor Schauer has
outlined how this provision works, is that it provides a new
definition of illegal child pornography that is somewhat
broader than Ferber, broad enough to outlaw the kinds of
illegitimate arguments, defense arguments, I just mentioned,
but yet that definition is narrower than the CPPA provisions
that the Supreme Court rejected in Free Speech Coalition and it
also appears to respond exactly to the kinds of concerns that
the Free Speech Coalition case raised.
I fear that the House bill, that is H.R. 4623, is not as
carefully calibrated and is not likely to withstand a
constitutional challenge.
I also want to mention--I realize my time is up--that the
Senate bill contains a number of very important and, by now in
the criminal law, traditional protections for victims in this
area. It enacts victim shield protections. It enacts, or would
enact, new prohibitions to punish and deter the distribution of
child pornography to children, and also contains important
directives to the Sentencing Commission to correct some of
these strange anomalies in the level of punishment that we
allow in these cases. Thank you.
Chairman Leahy. Thank you very much, Professor.
[The prepared statement of Ms. Coughlin appears as a
submission for the record.]
Chairman Leahy. Mr. Armagh?
STATEMENT OF DANIEL S. ARMAGH, DIRECTOR, LEGAL RESOURCE
DIVISION, NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN,
ALEXANDRIA, VIRGINIA
Mr. Armagh. Thank you, Mr. Chairman. Mr. Allen asked me to
convey his regrets about his inability to attend.
Chairman Leahy. Thank you.
Mr. Armagh. Mr. Chairman and distinguished members of the
Committee, I am here today to talk about the pragmatic
implications for law enforcement and prosecutors. At the
National Center for Missing and Exploited Children, pursuant to
Congressional mandate and the support of the members of this
Committee, historically--Senator Hatch has been active since
the 1996 legislation initiative, and I think Senator Hatch's
point that this is a supplemental hearing to the legislative
record is critical. I think that is something that we have to
understand. The long-term fix for this is a constitutional
statute. That has been reiterated time and time again.
There was a time in this country, from a prosecutor's
perspective, where the child pornography problem was contained.
It was certainly much more controlled than it is today, and
that is in large part, of course, to the Internet and the World
Wide Web and people having computers in their homes.
The issue of whether or not the existing child pornography
statutes were created to protect only those children who are
depicted in child pornography was addressed by the Court, and I
think we have to craft the statute, and I think the present
statute, S. 2520, goes a long way in doing this, in terms of
protecting children. There has to be a history and findings
that supplement the findings in the 1996 bill that makes the
nexus a strong and direct connection, that people who possess
child pornography or child pornography that is virtually
indistinguishable from child pornography that is using actual
children, use those visual depictions to groom, coerce, seduce
actual children into sexually exploitive relationships or, as
one colleague has just said, they rape the children by using
this kind of material.
This decision in Ashcroft has had a chilling effect on law
enforcement. The National Center for Missing and Exploited
Children is the 911 of the Internet, and we get complaints from
the public as well as reports from Internet service providers
on a daily basis. We have just received our 90,000th report of
child pornography being on the Internet. Law enforcement post-
Free Speech does not know what to do in terms of if they are
investigating a site and it is a webstream or web cam and it is
showing a child being abused. They tell me that they do not
know whether they should get a search warrant, exigent
circumstances, or is this protected speech. and what happens if
we go out and break down the door and seize what we thought was
a child being sexually exploited, only to discover that this
was, in fact, virtual child pornography? So that has a chilling
effect on law enforcement's efforts to effect and implement the
child pornography statutes.
One other concern that a prosecutor recently raised was a
threat from a defense lawyer who said, if you do not drop these
charges against my client, we are going to take civil action
against you under the Privacy Protection Act because these
visual depictions were something that we intended to publish.
They are documentary materials. We intend to publish them. Your
seizure of these materials violated my client's rights under
the Privacy Protection Act. That is a concern. And obviously,
the concern of identifying children for prosecutors in these
cases has already been addressed.
We live in a society now, Mr. Chairman, where the pedophile
community, the situational preferential offenders can now go to
the Internet and get support, advice, they get encouragement
for a lifestyle that praises preying on children, adult-child
relationships. This was not so before the Internet. They were
somewhat ostracized by the society.
So when the prosecutors call me and say, what can I do,
because I am looking at motions to dismiss or motions to
suppress, there is some good news. But let me reiterate that a
long-term fix would be a constitutional statute with teeth.
Some of the things that we are facing as prosecutors are
jury instructions by the court that instructs the jury to say,
if you do not find beyond a reasonable doubt that the visual
depictions in the government's case are of actual children,
then you must find for the defendant.
Another problem that was related to earlier was we have a
case down in Florida where the defendant is saying, I did not
know this was actual children. In fact, the guy that I
purchased these DVDs from that contains visual depictions of
child pornography, he told me they were virtual child
pornography, that no real children were being used. And the
evidence that the prosecutor used was, well, in order to make
these visual depictions, you have to have a lot of money. You
have to have a lot of money to make visual depictions that
really are virtually indistinguishable from actual children,
and so that defense failed because the defendant said, well, I
did not make these. I just bought them for $100 from the guy
who said they were virtual children.
So that defense is there, and we are dealing with an adult
child pornography industry that made over $1 billion last year,
and the experts in that industry anticipate in the next five
years, they will have $5 to $7 billion in profit, Mr. Chairman,
and I submit to this Committee that that is ample resources to
make virtually indistinguishable visual depictions of child
pornography.
I see my time is up, and I want the chair and the members
of the Committee to know that the National Center stands as a
resource for you on this issue.
Chairman Leahy. I thank you, Mr. Armagh. As you know from
your own experience in prosection, I think it is safe to say,
and I do not think there is any prosecutor who would disagree
with me, one of the most troubling and disturbing and
disheartening things is to have a case that involved a child
that had been molested for whatever the motivation. I think I
still have nightmares of some of the cases I saw, and I know
you must, too. I appreciate you being here.
Mr. Armagh. Thank you, Mr. Chairman.
[The prepared statement of Mr. Armagh appears as a
submission for the record.]
Chairman Leahy. Mr. Collins, the Carnahan bill, S. 2511, is
very similar to the administration's original legislative
proposal and to the House bill about which we just heard Mr.
Pomeroy testify and which you support. So am I correct that the
Department of Justice supports the bill that Senator Kay Bailey
Hutchison and Senator Carnahan introduced in the Senate? You
mentioned only the House bill, and they seem similar bills.
Mr. Collins. My understanding is that the Carnahan-
Hutchison bill is identical to the originally introduced form
of the administration bill, H.R. 4623. As I have noted in my
written statement, the House legislation went through quite a
bit of markup as it worked its way through subCommittee,
Committee, and then through the floor. We believe that a number
of those changes, actually on further consideration, strengthen
the bill, strengthen its defensibility from a constitutional
perspective and some of the more technical comments that we
have made in our written statement would have applied equally
to the original bill and reflect some of the----
Chairman Leahy. Did you support the bill?
Mr. Collins. We would support the bill with the
modifications made by the House.
Chairman Leahy. Would you support the House bill?
Mr. Collins. Yes. I think that all of these bills are very
close to one another conceptually. Even where the language is
different, the conceptual approach is very similar, and I think
it is very easy to look at the issues, identify them, and then
say we can take the best of both and come up with a compromise
bill that will accomplish what needs to be done.
Chairman Leahy. I was thinking about what Mr. Armagh was
saying about the amounts of money, and let me make sure I have
got this correct. You are talking about, today, a $1 billion
industry, and----
Mr. Armagh. That is correct, Mr. Chairman.
Chairman Leahy.--in a very short time, a $5 billion
industry.
Mr. Armagh. In five years, it will be $5 to $7 billion.
Chairman Leahy. The reason I mention that, I would think
one way to go after these people is to hit them very heavily in
the pocketbook. Senator Hatch and I included a private cause of
action allowing the victims of child pornography to sue
producers in S. 2520. It has got punitive damages on top of
just damages, punitive damages, the idea that you get
compensation to the victim, but you can also go deep into the
pocketbooks of those doing it.
Mr. Collins, the administration did not include such a
provision in its proposal. Do you support the provision of the
Hatch-Leahy bill?
Mr. Collins. Yes, we do. We do support the inclusion of
that. We do not have a monopoly on wisdom and we very much----
Chairman Leahy. No, I just noticed it was not in your bill,
so I just wanted to make sure. But you do support that?
Mr. Collins. We do, and my written statement makes clear
that we strongly endorse it, believe it should be part of the
final package.
Chairman Leahy. Mr. Armagh, what do you think?
Mr. Armagh. We absolutely support that clause, Mr.
Chairman.
Chairman Leahy. I kind of thought you would.
Professor Coughlin, you have looked at these crimes from
the perspective of the victims. I know you share my dismay of
what happens to these victims. What do you think of this kind
of proposal? Is this something workable?
Ms. Coughlin. The private cause of action?
Chairman Leahy. Going after the private cause of action,
the punitive damages, and all that.
Ms. Coughlin. The provision seems to me to be more than
appropriate. It seems to be the kind of context that cries out
for a private cause of action. As I mentioned in my written
testimony, what you see here is a perpetrator, in effect,
making a commodity out of a victim's suffering and pain and it
is the kind of case that seems perfectly designed for civil
remedies. We have similar civil remedies available to other
crime victims, and I see no reason why you would not want to
extend it to this case, as well.
Chairman Leahy. Thank you. Also in the Hatch-Leahy bill, we
have provisions protecting the identity of children. I had
mentioned earlier, and I am sure Mr. Armagh had the same
experience in his prosecution, prosecutor's experience, one of
the things you want to do is protect these children from being
victimized a second time. Sometimes it is very difficult
sometimes even to make the decision whether to prosecute
because you have got to put the child through the whole thing
all over again.
The shield law that we have in the Hatch-Leahy bill, Mr.
Collins, have you had a chance to look at that?
Mr. Collins. Yes, I have.
Chairman Leahy. Does the Department support that?
Mr. Collins. It raises a technical issue. There is a
privacy protection provision already in the existing criminal
code that would allow the names to be redacted. There is a
practical concern that now that there is a heightened
importance on proving that a child who is depicted is an actual
child, that there may be circumstances in which that may be--
there may be some necessity to some degree to go into
identifying information, but that the existing provisions might
be sufficient to allow any necessary redaction.
We think it is important to look at whether that needs to
be strengthened, but the per se approach of always shielding
that category of information may raise some practical concerns,
so----
Chairman Leahy. Could I ask you to do this. Could I ask you
to have your office look carefully at this and then submit for
Senator Hatch and myself your specific reference to the Hatch-
Leahy shield law, tell us what parts you agree with, what parts
you do not agree with, where you think improvements might be
made with some specificity? Could you do that, please?
Mr. Collins. Yes. We would be happy to work with you on
that.
Chairman Leahy. Thank you. Mr. Armagh, what about you? Have
you had a chance to look at the shield law?
Mr. Armagh. I have, Mr. Chairman, and I understand the
concerns voiced in the legislation. I share Mr. Collins's
concern in terms of it is kind of a circular problem in that in
order to prove the identity of victims at trial, we are going
to have to set up these victim databases, if you will, which
there is some question as under Title 18, 3509, if Federal
agencies can even house that kind of information. And so as
long as we can determine a way to fit that into that new
problem under the virtual child pornography challenges via
Ashcroft, I think it is an excellent idea.
Chairman Leahy. I think we all know what we want to do, but
we also want to do it in a way that does not hinder law
enforcement, helps law enforcement, protects the victim, keeps
constitutional. Again, I would ask each of you on the shield
law, if you have ideas, pass them on to us. I know that we
are--some of these areas, with the Ashcroft v. Free Speech
case, we are having to feel our way around, so help us out in
any way you can.
I know, Professor Schauer, you testified in 1996 that the
specific provisions of the CPPA would be struck down. You were
quite prescient. They were. You are absolutely right. You
stated in your testimony you have similar concerns with respect
to the House bill.
I looked at the administration's bill, and while I do not
pretend to have the expertise you do, I thought it may be
designed to address Justice O'Connor's concerns, but she was
not the deciding vote in this case. What areas of the
administration bill cause you concern about the constitutional
aspects and why?
Mr. Schauer. I think there are primarily two. One is
defining the crime of pandering in a way that is not keyed to
existing post-Free Speech Coalition definitions of child
pornography or not keyed to obscenity. By going beyond that, it
seems to butt directly against Justice Kennedy's discussion of
the pandering issue. Justice Kennedy made it clear that
pandering could not, in the normal circumstances, be considered
an independent crime but was only evidence of the crime of
obscenity or child pornography. Once you keep pandering to an
otherwise illegal act, you can support it under existing
commercial speech doctrine, as I explain in my statements, but
without doing that, it will suffer the same fate as the
pandering provision of the CPPA.
The other is that in 2256(8)(d), by not including the
element of serious literary, artistic, political, or scientific
value and by staying so far away from anything that looks like
obscenity, the House bill, H.R. 4623, looks remarkably similar
to what it was that the Supreme Court struck down. The
differences are real, but they are not the differences that
were important to Justice Kennedy and important to six of his
colleagues. Even if you exclude Justice O'Connor, they are not
the differences that were important to Justice Kennedy and five
other of his colleagues, leaving six Justices to once again
strike it down, once again delaying by as much as six years the
ability to use the most effective tool we have to go after
child pornographers.
We do not effectively deal with child pornography when
prosecutors are in appellate courts, when prosecutors are
writing briefs and when prosecutors are doing something other
than prosecuting cases under constitutionally impeccable or at
least constitutionally plausible laws rather than having their
attention, their time, and scarce prosecutorial resources
diverted by legislation that may at times be more symbolic than
real.
Chairman Leahy. It is the symbolic and real part that
bothers me. I mean, we are all against child pornographers. We
all want to protect children. But I am enough of a
constitutional realist to know if we are going to do it, let us
do it in a way that actually does protect them, not just
something so we can say, hey, look, we are against them. I
mean, I think we can accept the fact that all 535 members of
the House and Senate are against it, as is everybody in this
room. Now let us do it in a way that works.
Senator Hatch and I pointed out that there is a lower
penalty for sexual predators who travel across State lines to
have sex with a minor, the Traveler case, than for individuals
convicted on child pornography charges. I think that to change
that disparity, the bill encourages the Sentencing Commission
to correct this, get these predators off the streets.
Mr. Collins, would it be safe to assume that the Department
of Justice would support us in that regard?
Mr. Collins. Yes. We are actually studying that specific
issue, that there really is a seemingly irrational disparity,
that if you have one Federal jurisdictional predicate, there is
one structure of penalties. If you have another for essentially
the same conduct, there is a different structure. They should
be evened across. Also, Senator Hatch's child protection
legislation also addresses that same issue.
Chairman Leahy. Can you let us know whether you support the
provision we put in here to correct the disparity?
Mr. Collins. In here, yes. The directive to the Sentencing
Commission that is in Section 11, we did support that.
Chairman Leahy. That is what I wanted to make sure, and I
assume, Mr. Armagh, you do, too.
Mr. Armagh. Yes, Mr. Chairman.
Chairman Leahy. I have impinged on my friend from Utah's
time and I apologize, but I wanted to make sure we put down the
fact that these provisions that the two of us have in here are
supported.
Senator Hatch. You covered it well, and I am very
appreciative that the distinguished Senator from Vermont and I
are working hand-in-hand together on these matters because I
think we all want to do what is right here and we all want to
solve these problems.
Let me start with you, Professor Schauer. I have heard some
argue that the PROTECT Act may chill legitimate speech
protected by the First Amendment. A bit of history might help
us to better frame this issue. From 1996 until the Supreme
Court's decision earlier this year, the Child Pornography
Prevention Act, which swept far more broadly than the PROTECT
Act does, was the law of the land and no one has pointed to any
depletion in protected speech during that whole period of time.
Indeed, as my distinguished colleague has said, movies like
``Traffic'' and ``American Beauty'' were produced and
disseminated long after the CPPA was passed.
So I find it somewhat ironic that the Supreme Court in Free
Speech Coalition pointed to these movies as proof that the CPPA
might deter the protection of such works. The Court also warned
that the CPPA might criminalize performances of ``Romeo and
Juliet,'' which as far as I have been able to obtain, those
performances have continued unabated for the past six years.
Moreover, several States, including Arizona, Delaware,
Minnesota, and Missouri, have statutes that prohibit sexually
explicit depictions of real or apparent minors. We should also
remember that two major countries, Canada and England, likewise
have amended their child pornography laws to ban such
depictions of apparent minors. I have not seen any evidence to
suggest that these laws have stymied free expression of ideas
in those robust democratic societies. On the other hand, I find
it difficult to stomach the fact that we provide less
protection for kids in our country than received by the
children of both England and Canada.
Professor Schauer, what thoughts do you have on the issue
of the PROTECT Act's possible effect on chilling protected
speech?
Mr. Schauer. I think it would be extraordinarily unlikely.
All too often, people who talk about a chilling effect do not
spend enough time out in the cold with the thermometer, that
often the discussion of chilling, as you suggest, is
metaphorical or sloganeering without there being any actual
evidence of chilling.
Moreover, the existing definitions of obscenity and the
existing definitions of child pornography, from Miller, from
Ferber, from all of the other cases, already build in a very
large, what is known in the field as a buffer zone. That is,
they already take account of the chilling phenomenon and,
therefore, as long as the requirements of Ferber, of Ashcroft,
of Miller and all of these other cases are satisfied, that
already builds in protection against chilling. The likelihood
that there will be chilling from this Act seems to me somewhere
between infinitesimal and nonexistent.
Senator Hatch. I like that comment.
[Laughter.]
Senator Hatch. Let me ask you this, Mr. Collins. You have
spent some time pointing out some of the technical errors that
exist in the version of the PROTECT Act as introduced. Let me
assure you that we have been working on correcting all of those
typos and ambiguities. In fact, several months ago, my staff
shared with you and with other persons in the Department of
Justice a more polished version of the bill that addresses
virtually all of the concerns, I think, you have raised in your
testimony.
Our bill, Senator Leahy and I have worked hard. This bill
has evolved, as all bills do before final passage. The version
that we intend to offer, or at least as I understand it, at the
time the full Judiciary Committee considers S. 2520 will be
even more polished in light of the thoughtful comments that you
and others on this panel have provided for us.
Now to my question. I think that I understand the legal
impact that the Free Speech Coalition decision has on the
Department of Justice's ability to enforce the child
pornography laws, but can you explain to the Committee what the
practical effects of that decision have been? Absent any
legislative action, do you see these problems becoming better
or worse in the future?
Mr. Collins. Senator Hatch, first, I would indicate the
number of technical comments we made, most of them would apply
to our bill, as well, and we had the benefit of that bill going
through the process in the House and the markup and so,
basically, I was just sharing in the written comments some of
the technical things that we had learned in that process and
appreciate the efforts that you have made on this.
The practical impact of it is clearly considerable and it
is not necessarily the case that it is in reduction of absolute
numbers, because as the Chairman indicated, we are still quite
aggressively pursuing these cases. But it is having an impact
on certain classes of cases in particular and on the allocation
of resources.
First, any cases that involve computer images, digital
images, present difficulties that we do not encounter in cases
that involve older images on film or in which there is a sting
operation where we may have more control over the nature of the
material in question. In cases that call for expert testimony,
which is a large number, the pool of experts who are available
is not terribly large and the reports I have been given
indicate that they have been deluged with requests for
analysis, and they have to do a lengthy analysis even before
the case can even be charged up in order to assess whether or
not the case is viable. You have the prospect of the jury
confusion with respect to a battle of experts analyzing things
at a very technical level, threatening the basic ability to
enforce the child pornography laws.
And then you also have--I think Professor Coughlin's
comment was quite an insightful one. We have received reports
that this issue is cropping up as a problem with scienter. We
have had district judges who have expressed reluctance to
accept guilty pleas on the basis that they do not think there
is a sufficient showing of scienter that this person actually
knew that it really was a child. We can expect fully that that
kind of argument will also be exploited; in addition to the
expert testimony over the underlying image, they'll make the
scienter argument, as well.
So the current state of affairs is clearly one that is
going to lead to increasing enforcement problems here. It is
going to signal to pornographers that there are certain ways in
which to carry on this trade that are harder for us to get at,
and we can be sure that that is where that market is going to
move. So inaction is unacceptable. We really do need to
strengthen the tools that we have.
Senator Hatch. Thank you. Let me turn to you, Mr. Armagh.
We appreciate the testimony of all of you here today. It has
been very helpful to me and, I am sure, to Senator Leahy and
Senator Grassley, as well.
But the National Center for Missing and Exploited Children
recently published a newsletter indicating that it had received
dozens of calls from prosecutors and law enforcement officials
asking for the Center's help in identifying the actual identity
of children portrayed in confiscated pornography. Now, these
law enforcement officials have told your organization that if
you could not identify the children, they would drop their
cases.
I understand that it is extremely difficult, if not
impossible, to determine the real identity of the children
depicted in child pornography. Can you explain why that is and
can you elaborate on what problems this causes in the real
world of prosecutions?
Mr. Armagh. Senator Hatch, there is hardly a week goes by
that we do not get a call from prosecutors and law enforcement
officers asking us if we can help them identify the victims
that are visually depicted in their evidence, and part of that
process is that there are a number of series of children who
have been identified as victims and they are in databases at
the National Center. We have cropped images. The U.S. Customs
Service has these images. I believe the FBI does and perhaps
the Postal Service. They bring those images to us, or crop
those images and we try to make an identification and let them
know where that child has been identified and kind of act as a
pointer system so that they can go and get the necessary
information that would be probative as to the fact that this is
an actual child.
What we are also seeing is known images of identified
victims that have been manipulated or morphed. You have a
Hispanic-looking child being sexually exploited. All of a
sudden, his hair is blond and he has blue eyes and his features
are changed a little bit, but the giraffe and the ugly green
curtains are still in the background, and so we know that that
is an actual child. But what this indicates is that they are
getting more sophisticated. They are getting more thoughtful
about manipulating these images, to the point where even
identified children are going to be difficult to identify if
they manipulate and change the image to the point where we
cannot peel back the onion.
One of the other problems that we are having, even if we
get that kind of evidence to law enforcement, is under the Fyre
or Dahlberg standards that require the admission of expert
testimony, there has been some concern by judges, and they have
thrown several cases out already, that there is not sufficient
scientific knowledge in the scientific community in terms of
analyzing these images that would allow an expert to get up and
testify that, beyond a reasonable doubt, these are actual
children. So you find it very difficult, unless you can
actually identify these children through these victim
databases, to have the case go forward.
Senator Hatch. Thank you. Mr. Chairman, could I ask
Professor Coughlin just one question? Professor, by creating an
affirmative offense that allows anyone to escape prosecution by
showing that the child pornography did not, in fact, involve
real children, the PROTECT Act, we are attempting to strike a
balance between the right of government to police child
pornography and the right of the person to own pornography that
the Supreme Court has deemed to be protected.
Now, it is settled law that Congress can define the
elements of an offense, or the offense, in this case, and much
like other affirmative defenses that exist in law, such as
insanity and self-defense, it is my belief that this provision
places the burden of proof on the party that is in the best
position to gather the pertinent facts. In other words, I think
that the person who creates or receives child pornography is in
a better position to ascertain whether or not the child
depicted is real and to keep only those items that do not
involve actual children, than a prosecutor who discovers these
items at the end of the day and has no idea where they
originally came from.
Some might argue that this creates an unjustifiable
restraint on the person's right to possess child pornography,
but doesn't the government also have a right to bring
successful prosecutions and don't these competing rights need
to be balanced in some way?
Ms. Coughlin. Senator, my reading of the affirmative
defense contained in the Senate bill suggests that it really
does strike the right kind of a balance. I mean, clearly, we
want to continue to protect the rights of criminal defendants
to bring forward legitimate defenses, and I take it that the
affirmative defense that you have currently proposed would do
that in cases if no actual child was used and the material
possesses some kind of literary, artistic, or political value.
It would be exempt and it would be protected consistent with
the First Amendment as interpreted in the Free Speech case.
What you clearly do not want to do is to create a very
broad loophole, and as the law currently stands, the loophole
is there that allows defendants who are plainly in possession
of illegal child pornography, graphic sexually explicit
materials that are and should be illegal, to escape prosecution
by claiming no one can prove the character of the materials.
That seems to me to be a state of affairs that you can and
should regulate, and, in fact, I think that the PROTECT Act
does that and would do that in a way that both satisfies
constitutional concerns, First Amendment concerns, Sixth
Amendment concerns, and then also, as you say, puts the
ultimate burden on the people who know how this material was
produced. If there is any such information out there, you give
them a last chance to come forward and show that they are
innocent.
Senator Hatch. Thank you. This panel has been very
interesting and a good panel. I hope we get it right this time
so that we can protect our children.
I want to thank you, Mr. Chairman, once more for not only
holding this hearing, but playing such a positive and
affirmative role in helping us to get this done this year. I
think we actually can, and I am hopeful in every way that we
can and I am very appreciative of the administration for your
earnest efforts in this regard, as well.
Of course, the Center for Missing Children is one of my
most favorite organizations in the country. We really
appreciate what you have done and are doing every day.
Mr. Armagh. Thank you, Senator.
Senator Hatch. I wish we could solve these problems once
and for all, but what we have got to do is the best we can do
and we need to get this through this year.
Thank you, Mr. Chairman. I appreciate it.
Chairman Leahy. Thank you.
Senator Grassley?
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Mr. Chairman, I am going to use my time
to make a statement. I do not have any questions. I think you
two have covered it very well.
I want to start out by complimenting you as Senators and
those of us that are cosponsoring this legislation because I
think it is evidence that we see a responsibility and a very
unique responsibility we have to pass legislation that will
provide children with a safe and secure environment that is
free from exploitation.
Along this line, I think we ought to give the Bush
administration commendation for the high profile that they are
giving to child exploitation and their efforts to protect our
nation's greatest asset, because today, we are kicking off a
White House Conference on Missing, Exploited, and Run Away
Children. This conference, made up of experts and
practitioners, will contribute much to both the Federal and
State efforts to safeguard our children and they should be
praised for their work to shut down the international pedophile
rings that stalk and destroy our children. They are making the
job of keeping our children safe a very top priority.
I am glad to compliment Senators Hatch and Leahy for this
bill and glad that I had an opportunity to join them in
sponsorship because this is continuing a long history of this
Committee's efforts to eliminate the scourge of child
pornography. Unfortunately, child pornographers have
continually found ways to sidestep our legislation.
In the Supreme Court case of Osborne v.Ohio, when that was
first ruled, making or selling child pornography was not
protected by the First Amendment, so Congress and many States
then passed laws to prohibit these activities. As a result,
child pornographers responded by going underground, forming
clandestine networks to produce and trade in child pornography.
Consequently, Congress enacted legislation criminalizing
the simple possession of child pornography so that law
enforcement could reach into the seamy underworld of American
society and catch child pornographers and pedophiles. The
Supreme Court upheld this ban on the possession of child
pornography because they recognize the fluid nature of the
business, production, distribution all connected with it.
Additionally, commercial pornography distributors began
selling videotapes of scantily-clad young people. These
pornography merchants found what they believed was a loophole
in the Federal child pornography laws, and for a time, the
Clinton administration agreed, but many of my colleagues will
remember the Knox case. Fortunately, Congress did intervene and
the Clinton administration changed its position and the courts
closed that loophole.
Computer imaging technology gave child pornographers yet
another way to sidestep Federal law by creating synthetic child
pornography, which is virtually indistinguishable from
traditional child pornography. Pedophiles have used these
technological developments to transform images into child
pornography. This Committee held a hearing on the subject in
the mid-1990s and issued a report supporting the bill. We heard
experts in sexual pathologies testify that pedophiles crave
sexually explicit depictions of children. In other words, child
pornographers reinforce deviant sexual impulses and can
precipitate deviant illegal sexual behavior. Surely, synthetic
child pornography which the viewers believe to be real can
stimulate the same anti-social responses that traditional child
pornography might.
We also found that child pornography, whether real or
computer-generated, is an intrinsic part of the molestation
process. Pedophiles are using these morphed child pornography
in commission of their crimes by enticing children into sexual
activity and lowering natural inhibitions.
Because of these and other compelling reasons, we passed
the Child Pornography Prevention Act of 1996. Unfortunately,
the Supreme Court decided that was unconstitutional. I do not
agree with the Court's determination, but their decisions are
the law of the land, so we must move on.
So now we are presented with another opportunity to solve
the problem of synthetic child pornography and protect our
children while being mindful of Supreme Court concerns. Today's
hearing is a vital step in the passing of that legislation and
comporting with the First Amendment.
I want to thank our witnesses who have been here to help us
with this process because I think it is going to help improve
prosecutors' ability to go after pedophiles. I think our
witnesses have shed some light on the constitutionality of the
proposed legislation, and obviously, like Senator Hatch, I am
glad to hear from the National Center for Missing and Exploited
Children.
I want to work with the two main sponsors of this bill to
see if we can move this along yet this year. It is very
important. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I am told some Senators may have questions to be submitted
for the record and they will be. As I have said, some of my
earlier questions have asked for you to elaborate on them.
As we do in these hearings, when you look back over your
notes or look back over your answers, if you think of something
else you want to add to it, please feel free to do that. This
is to help guide the whole Senate and we are always happy to
have that.
With that, we will stand in recess.
[Whereupon, at 11:35 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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