[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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                            WASHINGTON : 2003
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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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