[Senate Hearing 108-920]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 108-920
 
                      PORNOGRAPHY ON THE INTERNET

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               ----------                              

                    SEPTEMBER 9 AND OCTOBER 15, 2003

                               ----------                              

                          Serial No. J-108-38

                               ----------                              

         Printed for the use of the Committee on the Judiciary

                      PORNOGRAPHY ON THE INTERNET

                                                        S. Hrg. 108-920

                      PORNOGRAPHY ON THE INTERNET

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                    SEPTEMBER 9 AND OCTOBER 15, 2003

                               __________

                          Serial No. J-108-38

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERB KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                       TUESDAY, SEPTEMBER 9, 2003
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     5
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   121
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     2
    prepared statement...........................................   156
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, prepared statement and attachment........................   193

                               WITNESSES

Barr, William, Executive Vice President and General Counsel, 
  Verizon Communications, Washington, D.C........................    33
Callaway, Robbie, Chairman, National Center for Missing and 
  Exploited Children, Alexandria, Virginia.......................    11
Hess, Stephen, Associate Academic Vice President for Information 
  Technology, Office of Information Technology, University of 
  Utah, Salt Lake City, Utah.....................................    14
Jacobson, Douglas W., President and Chief Technology Officer, 
  Palisade Systems, Incorporated, Ames, Iowa.....................    16
Koontz, Linda, Director, Information and Management Issues, 
  General Accounting Office, Washington, D.C.....................     6
Malcolm, John, Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C...............     7
Morris, Alan, Executive Vice President, Sharman Networks Limited, 
  Washington, D.C................................................    13
Peters, Marybeth, Register of Copyrights, U.S. Copyright Office, 
  Washington, D.C................................................    36
Sherman, Cary, President and General Counsel, Recording Industry 
  Association of America, Washington, D.C........................    30
Spota, Thomas J., Suffolk County District Attorney, Hauppauge, 
  New York.......................................................     9

                         QUESTIONS AND ANSWERS

Responses of William Barr to questions submitted by Senators 
  Chambliss, Cornyn and Leahy....................................    43
Responses of Robbie Callaway to questions submitted by Senators 
  Cornyn and Leahy...............................................    49
Responses of Stephen Hess to questions submitted by Senator 
  Cornyn.........................................................    51
Responses of Douglas W. Jacobson to questions submitted by 
  Senators Graham and Leahy......................................    54
Responses of Linda Koontz to questions submitted by Senators 
  Cornyn and Leahy...............................................    57
Responses of John Malcolm to questions submitted by Senators 
  Graham, Cornyn, Leahy and Hatch................................    63
Responses of Marybeth Peters to questions submitted by Senators 
  Cornyn and Leahy...............................................    74
Responses of Thomas J. Spota to questions submitted by Senators 
  Graham, Hatch and Leahy........................................    80
Questions submitted to Alan Morris by Senators Hatch, Leahy, 
  Graham, and Cornyn (Note: At the time of printing, after 
  several attempts to obtain responses to the written questions, 
  the Committee had not received any communication from the 
  witness.)......................................................    83
Questions submitted to Cary Sherman by Senators Leahy, Chambliss 
  and Cornyn (Note: At the time of printing, after several 
  attempts to obtain responses to the written questions, the 
  Committee had not received any communication from the witness.)    98

                       SUBMISSIONS FOR THE RECORD

Barr, William, Executive Vice President and General Counsel, 
  Verizon Communications, Washington, D.C., statement............   101
Callaway, Robbie, Chairman, National Center for Missing and 
  Exploited Children, Alexandria, Virginia, statement............   113
Department of Justice, William E. Moschella, Assistant Attorney 
  General, Office of Legislative Affairs, letter.................   119
Hess, Stephen, Associate Academic Vice President for Information 
  Technology, Office of Information Technology, University of 
  Utah, Salt Lake City, Utah, statement..........................   124
Jacobson, Douglas W., President and Chief Technology Officer, 
  Palisade Systems, Incorporated, Ames, Iowa, statement..........   130
Koontz, Linda, Director, Information and Management Issues, 
  General Accounting Office, Washington, D.C., statement.........   135
Malcolm, John, Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C., statement...   159
Morris, Alan, Executive Vice President, Sharman Networks Limited, 
  Washington, D.C., statement....................................   170
Peters, Marybeth, Register of Copyrights, U.S. Copyright Office, 
  Washington, D.C., statement....................................   178
Pitts, Hon. Joe, a Representative in Congress from the State of 
  Pennsylvania, statements.......................................   191
Sherman, Carry, President and General Counsel, Recording Industry 
  Association of America, Washington, D.C., statement............   196
Spota, Thomas J., Suffolk County District Attorney, Hauppauge, 
  New York, statement............................................   213

                      WEDNESDAY, OCTOBER 15, 2003
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.   221
    prepared statement...........................................   289
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   215
    prepared statement...........................................   292
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   307

                               WITNESSES

Buchanan, Mary Beth, U.S. Attorney, Western District of 
  Pennsylvania, Pittsburgh, Pennsylvania.........................   225
Cline, Victor, Emeritus Professor, University of Utah, Sale Lake 
  City, Utah.....................................................   235
Flores, J. Robert, Administrator, Office of Juvenile Justice and 
  Delinquency Prevention, Department of Justice, Washington, D.C.   219
Malcolm, John G., Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C...............   217
Maxwell, Lawrence E., Inspector in Charge, Fraud and Dangerous 
  Mail Investigations, U.S. Postal Inspection Service, 
  Washington, D.C................................................   223
Takeshita, Steven, Officer in Charge, Pornography Unit, Organized 
  Crime and Vice Division, Los Angeles Police Department, Los 
  Angeles, California............................................   237
Taylor, Bruce A., President and Chief Counsel, National Law 
  Center for Children and Families, Fairfax, Virginia............   232

                         QUESTIONS AND ANSWERS

Responses of Mary Beth Buchanan to questions submitted by Senator 
  Leahy..........................................................   243
Responses of J. Robert Flores to questions submitted by Senator 
  Leahy..........................................................   247
Responses of John Malcolm to questions submitted by Senator Leahy   253
A question submitted by Senator Leahy to Bruce A. Taylor (Note: 
  The response was not available at the time of printing.).......   260

                       SUBMISSIONS FOR THE RECORD

Buchanan, Mary Beth, U.S. Attorney, Western District of 
  Pennsylvania, Pittsburgh, Pennsylvania, statements.............   261
Cline, Victor, Emeritus Professor, University of Utah, Sale Lake 
  City, Utah, statement..........................................   270
Flores, J. Robert, Administrator, Office of Juvenile Justice and 
  Delinquency Prevention, Department of Justice, Washington, 
  D.C., statement................................................   273
Hughes, Donna Rice, President, Enough Is Enough, Great Falls, 
  Virginia, statement............................................   294
Malcolm, John G., Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C., statement...   309
Maxwell, Lawrence E., Inspector in Charge, Fraud and Dangerous 
  Mail Investigations, U.S. Postal Inspection Service, 
  Washington, D.C., statement....................................   321
Takeshita, Steven, Officer in Charge, Pornography Unit, Organized 
  Crime and Vice Division, Los Angeles Police Department, Los 
  Angeles, California, statement.................................   329
Taylor, Bruce A., President and Chief Counsel, National Law 
  Center for Children and Families, Fairfax, Virginia, statement.   333


 PORNOGRAPHY, TECHNOLOGY, AND PROCESS: PROBLEMS AND SOLUTIONS ON PEER-
                            TO-PEER NETWORKS

                              ----------                              


                       TUESDAY, SEPTEMBER 9, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:10 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Leahy, Feinstein, Schumer, and 
Durbin.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Good afternoon. Did they get everybody from 
outside in? We can put more in who can stand. I think we ought 
to get as many people in as we can.
    In this hearing, we will continue to examine the 
explosively popular and promising technology which counts among 
its users millions and millions of teens and pre-teens 
worldwide, and that is peer-to-peer sharing networks.
    At our last hearing on peer-to-peer networks, we examined 
some of the personal and institutional security risks 
associated with P2P usage. Today's hearing focuses on a 
different set of issues and the questions they raise that are 
equally pressing.
    The first panel will address an issue that is very deeply 
disturbing to me, and I know to other lawmakers as well, the 
presence on peer-to-peer networks of enormous quantities of 
pornographic materials, including child pornography, and the 
great risk of inadvertent exposure to these materials by young 
P2P users. This is an issue of critical importance to parents, 
who must be educated about these risks and equipped to control 
or eliminate them.
    The second panel will address the information subpoena 
provisions of the Digital Millennium Copyright Act, and I will 
have more to say about that issue after we hear from our first 
panel.
    I know that we here in Congress, along with all upstanding 
Americans, agree on this: Child pornography is inherently 
repulsive, inherently victimizing, and intolerable in any form. 
It is both an effect and cause of sickness. Perverts and 
pedophiles not only use child pornography to whet their sick 
desires, but also to lure our defenseless children into 
unspeakable acts of sexual exploitation.
    My commitment, Senator Leahy's commitment, and this 
Congress's commitment to eradicating child pornography was 
evident in the passing of the PROTECT Act, which Senator Leahy 
and I cosponsored and helped put through. As we are about to 
hear, peer-to-peer networks provide a new and growing means for 
distribution of these disgraceful materials.
    They also pose unique challenges for law enforcement, which 
is trying to combat child pornography, and, of course, unique 
and unacceptable dangers to our children. The following video 
presentation conveys the depth and urgency of these dangers. So 
I would like to complete my opening remarks, before I turn to 
Senator Leahy, with a showing of this video which was produced 
by the RIAA, the Recording Industry Association of America, in 
collaboration with the Suffolk County, New York, District 
Attorney's Office, which is represented today, the Los Angeles 
Council on Child Abuse and Neglect, and Media Defender, a 
security company that has testified repeatedly before Congress 
and before this Committee.
    I should warn you that some of the language in this video 
is graphic and the content is disturbing. But this is just an 
example of what our children are witnessing on peer-to-peer 
networks, and we need to know about it. An edited transcript 
will be prepared for the record.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    So if we could have the video presentation, then I will 
yield to Senator Leahy for his remarks.
    [Videotape shown. Being retained in Committee files.]
    Chairman Hatch. Senator Leahy, we will turn to you.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    At the first Committee hearing on peer-to-peer networks 
back in June, we considered the significant dangers that file-
sharing can pose to users' privacy and the security of their 
computers, the fact that they can take up everything from your 
health records out of your computer, to your children's school 
reports, and so forth.
    Today, we are going to explore possible solutions to some 
of the problems raised by peer-to-peer networks and online 
file-sharing. I really feel that unless we find some of these 
solutions, peer-to-peer is never going to realize its enormous 
potential to build online communities, to enhance network 
learning, to make unprecedented amounts of material, 
educational and entertaining, available worldwide. These are 
all the good things that can be done in peer-to-peer sharing, 
certainly not what is seen by any of us in this room in those 
things we have just seen in the video.
    I believe that peer-to-peer has the potential to 
revolutionize the way we share our information. But like any 
technology, it can be and is being abused. Peer-to-peer 
networks can delve into people's private records, as I said 
earlier. You share music or whatever else and you may end up 
also picking up everybody's tax returns or their Social 
Security numbers, their credit card numbers or anything else. 
Of course, we know that it is used often to illegally share 
copyrighted material.
    But I think even beyond that, the most disturbing thing is 
what we have just seen in the Chairman's video. Peer-to-peer 
networks can be used to distribute child pornography and to 
make all sorts of pornography available to unsuspecting 
children, something, Mr. Spota, your office has looked into a 
great deal.
    If peer-to-peer networks are going to be part of our 
culture, they have to respond to these problems. We certainly 
can't allow those who purposefully exploit network file-sharing 
to harm children--we can't allow them to go unpunished; we 
really can't. I think that is something everybody on this 
Committee of either party will agree to.
    As a father, and now blessed to be a grandfather, I find 
child pornography despicable. There is no Senator up here who 
disagrees with this. On this Committee, the Chairman and I 
working together--at times when I was Chairman and times when 
he has been Chairman, we have worked together to take strong 
steps to protect our children from pornography, and we will do 
everything possible to combat child pornography.
    As a former prosecutor, I want to see that law enforcement 
has effective tools for the identification and prosecution of 
individuals who make, use, and traffic in this material.
    Pornography, especially child pornography, is prevalent on 
peer-to-peer networks. As much as 42 percent of peer-to-peer 
requests are for pornography. A recent GAO study on that, I 
believe, is a wake-up call for our country. They found that 
simple keyword searches on a peer-to-peer network turned up 
hundreds of pornographic images of children. In fact, when GAO 
did that search, they found that 40 percent of these searches 
turned up child pornography.
    The National Center for Missing and Exploited Children, 
which I might say continues to do outstanding and inspirational 
work to protect all of our children, reports that there has 
been a four-fold increase in pornography on peer-to-peer 
networks in just 1 year.
    I think I am right on that, am I not, Mr. Callaway?
    Mr. Callaway. Yes.
    Senator Leahy. Moreover, peer-to-peer networks don't simply 
allow the distribution of child pornography. Through the use of 
instant messaging, what I worry about very much is that it can 
be used to lure children into meetings with sexual predators.
    So far, the peer-to-peer networks are not only turning a 
blind eye to this problem, but in many cases they are 
specifically designed so that parents are unable to keep their 
children off the network with a traditional firewall. Every 
parent ought to be able to have a traditional firewall so they 
can keep their children off this. Every parent would want to.
    In addition, what few protections are available are 
designed so they can be easily circumvented by a child 
regardless of their parent's intentions. After all, a teenage 
child is probably far more knowledgeable of how to use that 
computer than the parent is.
    More disturbingly, the networks are actively hindering law 
enforcement efforts to crack down on child pornography. Even 
though it has risen, as I said, four-fold between 2000 and 
2002, arrests for child pornography have dropped dramatically 
in recent years. We have heard that one, and perhaps the only 
reason for this is that peer-to-peer networks have changed 
their systems to allow their users to remain anonymous.
    In their zeal to allow illegal file-sharing, the networks 
have made it far too difficult for law enforcement to track 
down child pornography, and that has to stop. Believe me, if it 
is possible for legislation to do it, we will.
    So I look forward to hearing from the outstanding group of 
experts who are here today on the steps that can be taken to 
stop child pornography. It is best solved by the people who 
understand it and deal with it on a daily basis. We can write 
all kinds of legislation here, but in a fast-changing world 
with the science, electronics and everything else changing so 
quickly, it is the people who deal with it everyday that, if 
they want to, can stop this because they are the ones that have 
the tools. I would like to see a private sector solution to 
this very serious problem. Make no mistake, it has to stop, and 
if it can't stop by the private sector doing it, then we will 
have to take steps to make it stop.
    One of the panels will look at one of the solutions to 
online file-sharing that we enacted 5 years ago as a part of 
the Digital Millennium Copyright Act. Senator Hatch and I 
worked for months, actually for years, I think, on that one--
    Chairman Hatch. Five years.
    Senator Leahy. --to get tools in the fight against online 
copyright infringement. At the time we were drafting the DMCA, 
the recording industry, the Internet service providers, and 
others said they were having trouble identifying individuals 
who might be illegally sharing copyrighted materials online.
    The parties came together and they determined that the best 
solution was to allow copyright-holders to subpoena the 
information, and Section 512(h) codified that. Now, I 
understand that this section is being used to subpoena 
information about individual users who may be sharing 
copyrighted materials, but who are not using the ISP system or 
network to store it.
    In short, it is being used to combat the anonymous use of 
peer-to-peer networks. There can be little doubt that use of 
the 512(h) subpoena raises legitimate concerns for some, such 
as notice to the end user, and so on. Again, the people working 
on this are the ones best able to solve it.
    I would say there is somebody here from the Department of 
Justice. I have recently sent a letter to the Attorney General. 
We are still waiting for the regulations on the internet 
service providers' duty to report child pornography to the 
National Center for Missing and Exploited Children, and I would 
urge the Attorney General and the Justice Department to get us 
those regulations. It could be a powerful tool.
    Mr. Chairman, I have taken longer than usual, but you and I 
have worked on this for so many years and it is aggravating in 
trying to find a solution.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. It is an important subject and I appreciate 
your statement, Senator Leahy.
    Our first panel of witnesses is comprised of seven 
witnesses and they are Linda Koontz, the Director of 
Information Management Issues, United States General Accounting 
Office; John Malcolm, Deputy Assistant Attorney General of the 
Criminal Division, U.S. Department of Justice; Thomas Spota, 
the District Attorney for Suffolk County, New York; Robbie 
Callaway, Chairman of the National Center for Missing and 
Exploited Children; Alan Morris, Executive Vice President of 
Sharman Networks, distributor of Kazaa Media Desktop; Stephen 
Hess, Associate Academic Vice President for Information 
Technology at our own University of Utah; and Douglas Jacobson, 
President and Chief Technology Officer of Palisade Systems.
    I am grateful to have all of you here. I would like to 
thank Mr. Malcolm for kindly agreeing to appear on this panel 
along with our private sector witnesses rather than on his own 
panel. That will expedite this hearing quite a bit. I would 
like to thank all of you for taking the time to be with us here 
today to discuss these important issues.
    Before we begin, Senator Feinstein, do you have any 
comments you would care to make?

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. I have just been reading the GAO report 
on this subject, Mr. Chairman. Thank you. I must say I am 
really astounded at the film we just saw, the use of Pokemon to 
be able to pull up child pornography, the use of the words 
``Harry Potter'' to be able to pull up child pornography.
    It seemed to me that one of the people in this really had 
the solution, and that is that the operators have a 
responsibility to see that this doesn't happen. I think what I 
have heard so much of is that, oh, nobody can control the 
Internet. It is like telephones; there can be no restrictions, 
no regulations. But it is really not like telephones.
    I think this piece of film that you showed, Mr. Chairman, 
was really worthy of oversight. It seems to me that we ought to 
find a way to prohibit, perhaps on the basis of copyright, use 
of words like ``Pokemon.'' I am sure the copyright owners would 
not want Pokemon used that way, nor would Harry Potter's 
copyright want Harry Potter used that way.
    I don't know about the prohibition of downloading of these 
things, but I think we ought to look into it, and I think we 
ought to perhaps try to prohibit free access of copyrighted 
material. But I think one thing is clear that this is like a 
growing cancer, and increasingly when you have people arrested 
on charges of child molestation, police are finding in their 
rooms electronic pornography, as well as other pornography. So 
there is a nexus increasingly, I believe, between the two.
    I think the argument has been made throughout the years 
that what this does is reinforce a person of low maturity with 
the ability to commit this kind of act in real life. So I think 
it is a very real and considerable danger to our young people 
and that we have an obligation. I would just like to offer my 
help to both you and Senator Leahy in this regard.
    Chairman Hatch. Well, thank you so much, Senator.
    Now, on your microphone there is a button right in front. 
When you push it, it turns a little bit red, so that will mean 
you are on. So remember to push it before you start speaking.
    We will turn to you, Ms. Koontz, first.

STATEMENT OF LINDA KOONTZ, DIRECTOR, INFORMATION AND MANAGEMENT 
      ISSUES, GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C.

    Ms. Koontz. Mr. Chairman, Senator Feinstein, thank you for 
inviting us to discuss our work on the availability of 
pornography on peer-to-peer networks. We provided the results 
of this work in a report to the House Committee on Government 
Reform in February of 2003. This report contains additional 
details on our methodology and our results, and I would ask to 
submit it for the record.
    Chairman Hatch. Without objection.
    Ms. Koontz. To summarize, I will provide some background on 
peer-to-peer networks and discuss the ease of access to child 
pornography on peer-to-peer networks and the risk of 
inadvertent exposure of juvenile users of peer-to-peer networks 
to pornography, including child pornography.
    Just to briefly review some of how peer-to-peer networks 
are configured, our first chart shows the two main models of 
peer-to-peer networks. On the left is the centralized model. A 
centralized server or broker maintains a directory of shared 
files stored on the computers of users and directs traffic 
between the users.
    The centralized model was employed by Napster, the original 
peer-to-peer network. Because much of the material traded was 
copyrighted, Napster, as the broker of these exchanges, was 
vulnerable to legal challenges which led to its demise last 
year.
    The right side of the chart shows the decentralized model, 
which is currently used by the most popular peer-to-peer 
networks. In this model, individuals locate each other and 
interact directly.
    In work we conducted earlier this year, we found that child 
pornography, as well as other types of pornography, is widely 
available and accessible through peer-to-peer networks. We used 
Kazaa, a popular peer-to-peer file-sharing program, to search 
for image files using 12 keywords known to be associated with 
child pornography on the Internet. As shown on our chart, of 
over 1,200 items identified in our search, about 42 percent of 
the file names were associated with child pornography images, 
and about 35 percent were associated with adult pornography.
    In another Kazaa search, we worked with the Customs 
CyberSmuggling Center to use three keywords to search for and 
download child pornography image files. As you can see on our 
next chart, this search identified 341 image files, of which 
about 44 percent were classified as child pornography and 29 
percent as adult pornography.
    More disturbingly, we found that there is a significant 
risk that juvenile users can be inadvertently exposed to 
pornography, including child pornography. In searches on three 
innocuous words likely to be used by juveniles, we obtained 
images that included a high proportion of pornography. As you 
can see on the chart, almost half of the 177 retrieved images 
were classified as pornography, including a small amount of 
child pornography.
    Mr. Chairman, Internet file-sharing programs are rapidly 
gaining users, and while there are no hard statistics, it is 
thought that a large proportion of these users are juveniles. 
These programs provide easy access to pornography, including 
child pornography. Further, our work shows that such networks 
put even the youngest users at risk of being inadvertently 
exposed to pornography.
    In light of these factors, it will be important for law 
enforcement to continue to devote effort to peer-to-peer 
networks and for policymakers to continue to highlight this 
issue to parents and to the public, and to lead the debate on 
possible strategies for dealing with it.
    That concludes my statement. I would be happy to answer 
questions at the appropriate time.
    [The prepared statement of Ms. Koontz appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Ms. Koontz.
    Mr. Malcolm, we will turn to you.

 STATEMENT OF JOHN MALCOLM, DEPUTY ASSISTANT ATTORNEY GENERAL, 
   CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Malcolm. Mr. Chairman, Senator Leahy, Senator 
Feinstein, thank you for inviting me to testify before you 
today on this critical topic.
    The sexual abuse of a child is a horrific act which is 
often exacerbated by pedophiles who memorialize their repugnant 
crimes in photographs and videos. Sadly, with increasing 
frequency, such offenders are disseminating these grotesque 
memorials to millions of people over the Internet.
    Law enforcement must respond to technological advances, 
eradicating child pornographers from every forum in which they 
lurk, whether in cyberspace or elsewhere. Thus, I commend you 
for holding this hearing on the proliferation of child and 
adult pornography on peer-to-peer networks.
    In contrast to traditional networks, peer-to-peer networks 
are less centralized. In fact, they are fluid by design. While 
a traditional network operates like a bicycle wheel in which a 
central server computer is the hub that sends out files through 
the spokes to smaller computers arrayed along the tire, peer-
to-peer networks act more like a fisherman's net. Each peer 
computer is connected to the rest of the peer computers either 
directly or through one or more intermediary computers.
    In a P2P network, files are kept not on a central server, 
but rather on each of the peer computers hooked into the 
network at any given point in time. Any computer can be 
utilized to download peer-to-peer software from the Internet 
and thereby gain access to shared files located on other 
computers connected to the network. Once the software is 
installed, peer-to-peer networks can be accessed to transfer 
virtually anything that can be put into digital form, including 
pictures, music, or videos.
    Once the user selects the files he wishes to download, the 
source and destination peer computers exchange the files 
directly. Similarly, a user can also elect to share certain 
files on his own computer with other users on the peer-to-peer 
network. Given this format, it is very easy and not surprising 
that this medium has become a hotbed of criminal activity, 
including the dissemination of child pornography.
    Congress is well aware that adult pornography is readily 
available to children on the World Wide Web and is often 
inadvertently accessed by children using innocuous search terms 
such as the names of cartoon characters or children's 
television shows.
    Indeed, to combat this growing problem, Congress through 
the PROTECT Act recently enacted a law criminalizing the use of 
domain names that mislead minors into viewing harmful material. 
Despite the potency of this new legislation, it does not extend 
to file names that individuals create for files on their own 
computers that they choose to share over peer-to-peer networks.
    Thus, any child who downloads peer-to-peer software and 
enters an innocuous search term--a pop star, a cartoon 
character--may be confronted with files containing adult 
pornography that have been given misleading names. Similarly, 
by entering fairly blatant terms that are well-known to 
pedophiles, such as ``child porn,'' ``pre-teen,'' or 
``lolita,'' a user, perhaps an unsuspecting child, will receive 
child pornography that is easy to access and download.
    Because peer-to-peer networks operate as a diffuse 
community of computers, the investigation of child pornography 
offenses in the peer-to-peer context requires a proactive and 
focused approach by law enforcement. The lack of a central 
server means that there is no clearinghouse for files and 
information that can serve as a bottleneck or choke point where 
law enforcement can gather logged evidence and illegal activity 
can be cut off.
    Moreover, the decentralized nature of peer-to-peer networks 
means that there is no central community in which people chat 
about their illegal activity. In addition, many peer-to-peer 
networks do not require individual users to set up accounts 
with a central authority. Peer-to-peer users can change their 
names at will and the names that they choose rarely contain 
true information that would identify them.
    Nevertheless, just as an individual cannot receive or place 
a telephone call without a telephone number, every instance of 
Internet access is associated with an Internet protocol or IP 
address. Thus, using peer-to-peer software, a law enforcement 
agent can identify a file containing child pornography and, 
while downloading that file, identify the IP address of the 
user who sent it. The agent can then serve the Internet service 
provider with process and thus ultimately obtain the identity 
of the person who uploaded that file.
    Moreover, the seizure of a user's computer will often 
contain fruitful evidence to use for further investigation. 
Thus, while it is true that people can do a lot to hide their 
identities, nobody is truly anonymous who uses a peer-to-peer 
system.
    Notably, however, new generations of peer-to-peer file-
sharing protocols are promoting for their users even greater 
anonymity, including the ability to hide behind proxy servers 
and the like. When this technology comes to fruition, it is 
going to present significant challenges to law enforcement.
    While there is no question that there is a lot of 
pornographic and obscene material on peer-to-peer networks, it 
is difficult to quantify the percentage of child pornography on 
peer-to-peer networks. As you have just heard, with search 
terms, sometimes you get a lot of child pornography if the term 
is one that a pedophile would use. If you use an innocuous 
term, you will get less.
    For reasons that are discussed in greater detail in my 
written testimony, in fact, while there is a lot of child porn 
on peer-to-peer networks, purveyors of this material tend to 
use other mediums such as news groups and Internet relay chat 
rooms. Nonetheless, the Department of Justice is vigorously 
committed to prosecuting any child pornographer, no matter what 
forum they use. The Child Exploitation and Obscenity Section 
and its high-tech unit and U.S. Attorneys' offices across the 
country are vigorously involved in that pursuit.
    Mr. Chairman, I again thank you and this Committee for 
inviting me to testify here today and I look forward to 
answering your questions.
    [The prepared statement of Mr. Malcolm appears as a 
submission for the record.]
    Chairman Hatch. Thank you so much.
    Mr. Spota.
    Senator Leahy. If I might, Mr. Chairman, urge Mr. Malcolm 
to get us those regulations from his Department. It would be 
very, very helpful in this fight.
    Mr. Malcolm. Yes, sir.
    Chairman Hatch. Mr. Spota.

STATEMENT OF THOMAS J. SPOTA, SUFFOLK COUNTY DISTRICT ATTORNEY, 
                      HAUPPAUGE, NEW YORK

    Mr. Spota. Thank you, Mr. Chairman and members of the 
Committee. I appreciate the opportunity to appear this 
afternoon to discuss the issue of child pornography on peer-to-
peer file-sharing networks and the efforts of those of us in 
Suffolk County to combat what we view as a growing concern for 
law enforcement nationwide.
    Earlier this year, I was so disturbed by information 
brought to my attention about the nature and accessibility of 
child pornography on peer-to-peer networks that I authorized 
the commencement of an investigation by members of my staff, 
the D.A.'s office, as well as the Suffolk County Police 
Department, into Kazaa, a popular file-sharing program.
    I was amazed that the file-sharing programs used by so many 
of our children and adolescents to download music were also the 
repository of some of the most graphic child pornography 
available today.
    There is no special code or unique search term required to 
unlock the key to child pornography in these networks. If you 
search for songs by artists as popular as Brittany Spears, the 
Beatles, or Pokemon, if you are looking for any song or any 
movie with the word ``young'' as part of its title, your search 
results will most certainly include child pornography. The 
names of the files are disturbing enough, but a simple click of 
the mouse is all that is necessary for anyone, including any of 
our children, to be exposed to the dark, disturbing, and 
violent world of child sexual abuse.
    Working in conjunction with the Suffolk County Police 
Department Computer Crimes Section, the investigation conducted 
by my office relied upon sophisticated computer technology and, 
quite frankly, good old-fashioned police work. Numerous grand 
jury subpoenas were issued to Internet service providers, and 
based on the information received search warrants were executed 
upon residents of Suffolk County and computers, CDs, and other 
storage media were seized.
    Police officers, who are also forensic computer analysts, 
evaluated the seized evidence and recovered hundreds of images 
of child pornography. I then presented evidence to a grand jury 
that resulted in the indictment of 12 Suffolk County residents 
for over 180 counts of the possession and promoting of child 
pornography.
    The images of child pornography available on peer-to-peer 
networks are some of the worst seen by law enforcement to date. 
Included in the images seized by police in our case and the 
cases being prosecuted by my office are still photographs of 
very young children engaged in sexual acts with other children 
and adults, and video clips lasting several minutes of children 
being subjected to unspeakable acts of sexual violence.
    Some of those video clips have sound, and in one case, as 
we saw in the video, there is a child being heard saying ``No, 
Daddy, stop, no, Daddy,'' in a futile attempt to prevent being 
raped. In another instance, we saw very clearly the diapers of 
a child being removed before the child's father or whoever it 
was sexually manipulated that infant.
    To say that this is disturbing is an understatement. Not 
only does every image represent the sexual assault of a 
helpless child, but the use of a medium such a peer-to-peer 
network allows the assault to be broadcast worldwide and 
revictimizes the child each and every time the image is viewed.
    Today, it is not uncommon for a child to report to us, to 
law enforcement, that their abuse had been video-recorded, and 
later for those very same images to turn up in the forensic 
examination of a computer in a totally unrelated case. Thus, 
the child's abuse will be available forever on the Internet or 
on a peer-to-peer network. And how devastating this must be for 
a child to know or come to understand that his or her 
victimization is available to the world in perpetuity.
    Congress should act to make peer-to-peer file networks and 
their operators responsible for the child pornography available 
to their users. Law enforcement activities can serve to punish 
offenders and educate the community, but they will never be 
enough to ultimately stem the tide. We must do more to educate 
and inform American parents.
    Seasoned child abuse prosecutors in my office and elsewhere 
were unaware of the capability of Kazaa to file-share child 
pornography until we began our investigation. I wonder how many 
other parents are unknowingly putting their children at risk by 
allowing them access to a program they believe is harmless.
    Americans employ a rating system for movies and TV shows to 
protect children. Compact discs contain parental advisories. 
Kazaa and other programs like it have no such warnings and seem 
to have total immunity, and I say this is wrong.
    As far as I am aware, I am the only district attorney on a 
State level to investigate and prosecute users of a peer-to-
peer file-sharing network for the possession and promotion of 
child pornography. The case has generated considerable interest 
from other State law enforcement agencies and I hope they will 
initiate similar prosecutions.
    Our investigation is continuing in the hopes of identifying 
some of the perpetrators of these horrific acts, and the 
children so that they can be protected from further abuse. As a 
standard protocol, the images will be forwarded to the National 
Center for Missing and Exploited Children to aid us in this 
endeavor.
    I thank you again for inviting me to speak to you on this 
important issue.
    [The prepared statement of Mr. Spota appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you, Mr. Spota. We appreciate 
the efforts you are making in this regard.
    Mr. Callaway, we are always happy to welcome you before the 
Committee, so we will turn to you at this time.

  STATEMENT OF ROBBIE CALLAWAY, CHAIRMAN, NATIONAL CENTER FOR 
      MISSING AND EXPLOITED CHILDREN, ALEXANDRIA, VIRGINIA

    Mr. Callaway. Thank you. It is good to see you, Mr. 
Chairman, Senator Leahy, Senator Feinstein. It is good to be 
back in front of you on this tough issue. If I could, if it 
wouldn't break protocol, I would ask for a round of applause 
for this district attorney, for that testimony and what he has 
been doing on this issue. We need more like him.
    [Applause.]
    Mr. Callaway. The National Center, as you know, has been in 
the forefront of this issue on child pornography for nearly two 
decades. You have my formal testimony. I am going to sum it up 
very quickly.
    Since 1987, the National Center has operated the National 
Child Pornography Tipline in partnership with the U.S. Customs 
Service and U.S. Postal Inspection Service. Since 1998, we have 
operated the CyberTipline, a 24-hour online mechanism for 
reporting child pornography and other sexual exploitation 
crimes, handling 150,000 leads, including just over 1,500 
reports regarding child pornography being traded by P2P users.
    Senator Feinstein and all of you know that I work for Boys 
& Girls Clubs of America. My volunteer work is the National 
Center. This is not even what I was going to talk about, but as 
they talked about the search names, we had a demonstration 
where they go and look for search names. You talk about Pokemon 
or you talk about Brittany Spears.
    If a young boy at the Boys & Girls Club in Salt Lake City 
were to be going to visit a cousin, let's say, at the Boys & 
Girls Club in Burlington, Vermont, he might get on the Internet 
and he might look it up. He might look in one of these file-
sharing systems and look up Boys & Girls Clubs to find out if 
there is a Boys & Girls Club in Vermont. You would be shocked 
at what comes before you when you look up a Boys & Girls Club. 
So we are quite concerned about that from our Boys & Girls Club 
hat as well.
    The National Center's primary concern regarding file-
sharing is that it has become virtually impossible to track 
down the people who are doing it. From the National Center data 
and interaction with leading law enforcement investigators, we 
have concluded that the use of file-sharing programs to trade, 
distribute, and disseminate child pornography is significant 
and growing dramatically.
    Yet, in file-sharing programs, law enforcement lacks the 
necessary tools to identify and track down many perpetrators. 
This lack of necessary tools is allowing for major growth among 
those who distribute illegal child pornography.
    The National Center is particularly concerned about the 
inadvertent exposure of children to such content, just as I 
said, if they were to go to look for Boys & Girls Clubs or if 
they go to look for Pokemon or whatever. The Center urges 
parents to get involved and stay involved in what their 
children are doing on the Internet and on the computers.
    We can all agree that children who are involved in child 
pornography are by their very nature of the industry victims of 
child exploitation and sexual abuse. Ann Burgess, of the Boston 
College Nursing School, states, and I quote, because I was 
asked about the effects on children--Ann Burgess says, ``The 
destructive effects of child sexual abuse can create a number 
of long-term problems for the child victim, including 
headaches, stomach aches, and sleeping and eating disorders, 
psychological reactions of fear and anxiety, depression, mood 
changes, guilt, shame, social problems with school truancy, 
declining grades, fighting, sexual problems, preoccupation with 
sex and nudity, and running away from home.'' All of these are 
issues that I have testified about to this Committee regarding 
juvenile justice legislation. ``Substance abuse, gender 
identity confusion, sexual dysfunction, and social deviant 
behaviors have also been identified as possible consequences of 
untreated childhood sexual abuse,'' end of quote.
    To summarize, the National Center believes the use of peer-
to-peer networks for the distribution of pornography is a 
growing problem and we are asking for your help. Based on our 
own review of CyberTipline leads and information in our work 
with leading law enforcement investigators across the country, 
we are convinced that P2P has become a major growth area for 
those desiring to trade or distribute illegal child pornography 
with little risk of identification and prosecution.
    Peer-to-peer program developers could make great strides in 
protecting children if they permitted software programmers to 
allow users to log the origination of all files. We need to 
make sure that law enforcement has the necessary tools to 
identify these perpetrators, and use them to identify, arrest, 
and prosecute, and in so doing protect our children.
    Mr. Chairman, let's be very clear about my position because 
some people say, well, why are you doing it, why are you here? 
Our position is this--and you have heard me say it before--when 
you make child pornography, you commit a crime. You commit a 
crime against not only the child involved in the child 
pornography, but against all God's children.
    When you view child pornography, you are committing a 
crime. There is no socially-redeeming value for child 
pornography anywhere, any time, anywhere in the world. And when 
you share a file of child pornography, you have committed a 
crime. We need to be able to prevent child pornography from 
being made, and we need to be able to prosecute anybody who 
shares a file of any type of child pornography.
    Thank you very much.
    [The prepared statement of Mr. Callaway appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Callaway.
    We will turn to you, Mr. Morris.

  STATEMENT OF ALAN MORRIS, EXECUTIVE VICE PRESIDENT, SHARMAN 
              NETWORKS, LIMITED, WASHINGTON, D.C.

    Mr. Morris. Thank you very much, indeed. Like all other 
parents in this room, I utterly abhor child pornography and 
applaud what you just said. I totally agree with that. I would 
do anything to protect my children from child pornography.
    Senator Hatch and members of the Committee, when you 
invited me at the end of last week to come over here, I had no 
hesitation in jumping on a plane and coming straight over. The 
issue is important.
    As you know, I am the Executive Vice President of Sharman. 
I am responsible particularly for the distribution of licensed 
content. We are the world's largest distributor of licensed 
content. Sometimes, our best is not good enough, and as far as 
child pornography is concerned, we will do whatever it takes to 
ensure that child pornography reduces from the level it is on 
peer-to-peer.
    Let me tell you very briefly what we have done so far. 
Firstly, when we acquired the Kazaa Media Desktop in January 
2002, we ensured there was a family filter, enabled by default, 
when the program is downloaded. Now, that family filter blocks 
abusive and offensive terms. The terms are culled from the 
Internet, because we know from your own data this is where most 
child pornography originates. There is the option for the 
parent to put additional terms in and this may be further 
password-protected.
    Secondly, we cooperate with law enforcement agencies. I am 
responsible for dealing with law enforcement agencies, and to 
date only 4 in the last 18 months have contacted us. We have 
spoken at a senior level, however, with the FBI because we are 
not satisfied with the fact that the amounts may be relatively 
low and diminishing.
    I understand very well, as people have pointed out, that on 
peer-to-peer we cannot know what files are transacted. However, 
what we have done is to work with and to identify third-party 
applications which they can use very much in the manner you 
just suggested to track IP addresses.
    It has been very important to us that while we protect the 
privacy of users from harassment, et cetera, that we don't 
block or hinder in any way legitimate law enforcement agencies 
finding IP addresses. So as a matter of record, we do not have 
anonymizers, we do not use proxy servers. We think that is not 
necessary. In the community of sharers around the world we are 
trying to build, there is nowhere for pedophiles to hide.
    I am a little bit confused because in the New York Times on 
Sunday, we saw some data that came from the National Center for 
Missing and Exploited Children which seems to indicate that the 
level of pedophile material on file-sharing networks is 
relatively small, less than 3 percent, and declining. Be that 
as it may, any material is too much.
    We are not prepared just to rest. As I said, we want to 
reduce it to zero. We have in development technical measures 
that will make it even harder for this material to circulate. 
When they become available, Mr. Chairman, in the confidence of 
yourself and your Committee, we will discuss them with you, but 
obviously we wouldn't discuss them publicly.
    The other thing which is very important--and again people 
have alluded to it--is education. We all know that filters are 
not perfect. We also know that people are not very good about 
computer security. We know they don't use anti-virus 
protection, we know they don't use their passwords properly. So 
a program of education is something we think is very important. 
Together with the Distributed Computer Industry Association, we 
are working on a program of education, and if there is anybody 
here today that wants to work with us, we are very happy to do 
so.
    This, as people have suggested already, is an Internet 
problem. If you enter the most commonly used search word on 
Google, an eminently respectable search engine, you will get 40 
million search results. And I needn't tell you that term is an 
adult and very explicit term. So this is an industry-wide 
issue.
    I was very surprised to see that Hollywood has a view on 
this. It has been suggested, and indeed it was in the New York 
Times and the L.A. Times that this is a cynical plot by 
Hollywood to further their own commercial ends. Be that as it 
may, we have a zero-tolerance policy--it is that simple--for 
pedophilic material, and we will not be happy until it is 
eradicated completely.
    I now offer our services to any of the members of this 
panel to work with them, indeed work with you, Mr. Chairman, to 
do two things; one, to reduce the amount of pedophile material 
down from the 2 or 3 percent it shows here to zero; and, 
secondly, a program of education so that parents can exercise 
their responsibility to use the password-protected filter, and 
to also enjoin the rest of the Internet to do the same.
    Mr. Chairman, thank you very much.
    [The prepared statement of Mr. Morris appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Morris.
    Mr. Hess, we are delighted to have you with us today.

 STATEMENT OF STEPHEN HESS, ASSOCIATE ACADEMIC VICE PRESIDENT 
 FOR INFORMATION TECHNOLOGY, OFFICE OF INFORMATION TECHNOLOGY, 
            UNIVERSITY OF UTAH, SALT LAKE CITY, UTAH

    Mr. Hess. Senator Hatch, Senator Leahy, and other 
distinguished members of the Committee, I work for the 
University of Utah. We are located in Salt Lake City, Utah. We 
have an enrollment of about 28,000 students, and part of the 
role of the University of Utah is to also provide Internet 
access to all public schools within the State of Utah. So you 
might say we are a large ISP serving the State.
    You have a written copy of my testimony which details most 
of the information and experience that we have had with peer-
to-peer, but I was told in this testimony to give you some of 
the experiences that we have as a network operator in dealing 
with peer-to-peer relationships, and more specifically in the 
area of pornography.
    I would like to make a few points. Number one, because 
universities are research and information enterprises, IT has 
become a very essential part of what we do. It is, in effect, 
our central nervous system. It holds potential for great 
efficiency during a time of rising costs and greater 
accessibility to education and research, free from the 
constraints of time and place.
    Number two, peer-to-peer has great potential in sharing 
information and helping in that education enterprise. We hope 
in the resolution of copyright and the issues discussed here 
today that peer-to-peer technology can be preserved, along with 
emerging technologies, in support of learning and scholarship.
    Number three, but we understand that there are two sides to 
this issue and are dismayed by the inappropriate uses of this 
technology. Unfortunately, it has been used for the sharing of 
copyrighted material, pornography, and now viruses and worms. 
The abuse of this technology has also taken a great amount of 
our computing capacity and IT personnel time, which are all 
designated for educational purposes. In our attempts to 
technically block or restrain this activity, some developers of 
peer-to-peer technologies have initiated clever upgrades to 
stop us from blocking this inappropriate traffic.
    Number four, the university is placed in a difficult 
position, of trying to find a balance between the enabling of a 
promising new technology while discouraging inappropriate, 
illegal, or threatening behavior. We welcome any thoughtful 
discussion on these policies and practices that can minimize 
our already overburdened IT staff.
    Number five, we recognize our role to establish and uphold 
community standards which are reflected in our university 
policy. We go to great lengths to educate end users on legal, 
ethical, and appropriate use of computing resources. We promote 
fair use of online digital content, and thank this Committee 
and Congress for the wonderful TEACH Act which was passed a few 
months back. The university considers illegal sharing of 
copyrighted materials and the downloading of pornography as a 
violation of our IT acceptable use policy.
    Number six, to comply with the law and our acceptable use 
policies, and to protect our networks and computing resources, 
we have to balance privacy with compliance. We do this in the 
follow way.
    First, we monitor traffic flows, but not for content. 
Traffic flow is a measure of the amount of data transmitted 
over a network. Content is information contained within the 
data flow. When an excessive data flow is detected or is seen 
over the network, it can bring down the network. This, in turn, 
brings down the hundreds of thousands of applications that run 
on our networks vital to the day-to-day, hour-by-hour operation 
of the Internet.
    When excessive traffic is detected, we contact the end user 
to see if the use of the network is legitimate. Some of these 
excessive flows come from peer-to-peer sharing of copyrighted 
materials and the downloading of pornography. If these people 
are downloading pornography or downloading copyrighted 
material, in violation of law, they are cut off our networks 
until they come in compliance with the policy.
    Second, we may also receive notification from copyright-
holders about violations of end users. We may be notified by a 
department Chair, dean, or vice president about violations as 
well. In these cases, if the violation of copyright is involved 
or the downloading of pornography, people, by policy, are cut 
off from the network and must go through an education process 
to be reinstated. We have yet to have repeat offenders.
    Number seven, pornography is not acceptable use of 
university IT networks and resources unless it is used for 
academic or research purposes. If faculty, staff, or students 
are found to possess illegal pornography, they are deemed to be 
in violation of Federal and State laws and are reported to law 
enforcement agencies.
    While technologies like peer-to-peer can be disruptive, 
they continue to provide the opportunity to advance civilized 
life in a democratic and open way. We support a flexible and 
balanced approach to keeping technology open and better able to 
serve the public, but deal with the people who abuse these 
systems.
    Thank you.
    [The prepared statement of Mr. Hess appears as a submission 
for the record.]
    Chairman Hatch. I was very interested in what you are doing 
up there. It is amazing.
    Mr. Jacobson.

     STATEMENT OF DOUGLAS W. JACOBSON, PRESIDENT AND CHIEF 
 TECHNOLOGY OFFICER, PALISADE SYSTEMS, INCORPORATED, AMES, IOWA

    Mr. Jacobson. Mr. Chairman and members of the Committee, I 
would like to thank you for the opportunity to appear here 
today and discuss the issues surrounding peer-to-peer networks. 
A more detailed discussion of these issues can be found in my 
written testimony.
    By way of introduction, I am Associate Professor of 
Electrical and Computer Engineering at Iowa State University 
and Director of Iowa State's Information Assurance Center. At 
the same time, I also serve as President and Chief Technology 
Officer of Palisade Systems, a company which has developed 
products to help deal with peer-to-peer file-sharing.
    You don't have to look for pornography on peer-to-peer 
networks. As many of our panelists have talked about, you just 
type in a search string and it finds you. You can even type in 
a name of a file that you know doesn't exist on the network and 
you will come up with peer-to-peer pornography that will match 
that file. I did this in a class I taught, and it turns out 
there are actual programs on the Internet, on these peer-to-
peer networks that will generate matches to your files and 
return links to pornography. So you don't even have to have a 
file out there.
    Palisade Systems conducted a study of searches on the 
Gnutella network, which is a peer-distributed network, and our 
studies are in line with other studies showing 42 percent of 
the requests were for pornography; 6 percent of those requests 
were for child pornography. Many other studies have been 
published, all coming to the same conclusion. An argument can 
be made that legitimate peer-to-peer applications would not 
need to hide from detection or evade monitoring, as was pointed 
out by Mr. Morris.
    I want to talk briefly about the ways that these protocols 
have evolved over time to circumvent the methods that 
administrators have used to block them. First there was port-
blocking. The early peer-to-peer protocols ran on certain ports 
and administrators blocked those ports. The peer-to-peer 
protocols quickly evolved to do port-hopping, so the port 
numbers would change in order to avoid detection.
    When administrators locked their networks down even further 
so that they only allowed a few critical services, these peer-
to-peer applications began using a technique called tunneling, 
where they pretended to be legitimate applications. They would 
start to look like Web traffic or other types of legitimate 
traffic. So these protocol, are evolving, trying to avoid being 
detected.
    I will talk briefly about some additional filtering 
techniques. Another filtering technique beyond port-blocking is 
something called signature-based, where you actually look at 
the way these protocols communicate. Palisade Systems, for 
example, has a product that works this way, and so it is sort 
of like virus detection.
    There is content-based filtering, where you try to look at 
the content of the data and actually determine whether the data 
is copyrighted material or potentially a material that is of an 
illegal nature. This turns out to be very difficult to do, 
especially if the material can't be cataloged, like pictures of 
pornography. There is no catalog of all the images. Again, the 
peer-to-peer networks are now moving to encryption in order to 
hide all the data that they transfer.
    A final method is something called white-listing, where you 
allow only those things that you know are good, only those 
protocols you know are good, and block all other types of 
traffic.
    As I have said, these protocols are evolving and the newest 
steps in the evolution are that of encryption and anonymous 
access. The best example of this evolution is the newest 
application called Earthstation 5. This protocol uses both 
encryption, anonymous access, and tunneling. The website for 
Earthstation 5 makes it clear they are working at efforts to 
stop filtering of the protocol.
    A couple of observations can be made from the review of 
these filtering technologies. While each technology has certain 
limitations, using multiple technologies in a layered approach 
seems like the best defense in a corporate environment. 
However, this method often requires knowledgeable staff and 
constant monitoring of the networks.
    Second, most technologies are focused on a corporate market 
and are not designed for home users. If a home user allows 
these applications to be installed, little can be done to 
prevent downloading of pornography or other material. This 
leaves the home user with no choice but to either allow peer-
to-peer activity and all its associated risks or try to set up 
a way to not allow any of it.
    It should be possible for Internet service providers to 
offer a service that blocks all peer-to-peer traffic similar to 
the way they offer a service for web filtering. The bottom line 
is the home user needs to be educated about the potential 
dangers of peer-to-peer networking.
    In summary, I have outlined how peer-to-peer networking has 
evolved to avoid detection and filtering. I see no signs of 
this evolution slowing down. In fact, with the advent of the 
newest protocols like Earthstation 5, we will be facing 
increasing challenges over the years ahead.
    Also, given the inherent distributed nature of the peer-to-
peer protocols and the difficulty in identifying these 
networks, I predict that peer-to-peer networks will become a 
method of choice to distribute illegal materials across the 
Internet. Companies like Palisade Systems, in conjunction with 
research universities like Iowa State University, will continue 
to develop new technologies to combat the evolution of these 
peer-to-peer networks.
    I would like to thank you for the opportunity to testify 
and I am pleased to answer any questions.
    [The prepared statement of Mr. Jacobson appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you so much.
    Let me just begin with Mr. Spota and Mr. Malcolm. What can 
law enforcement do or what can we do here in the Congress to 
help you to eradicate pornography from these networks? What 
would be your suggestion?
    Mr. Spota. If I may, Senator, the way I see it, I can do 
nothing other than to prosecute those within my jurisdiction, 
which would be on a country level within the State of New York, 
Suffolk County, State of New York. I have a staff of 161 
prosecutors. I probably could ask every single one of them to 
devote each and every hour and we would never be able to 
eradicate this. We would be doing nothing other than trying to 
put some dent in the County of Suffolk itself, where either 
possessing or promoting this--people can be brought to the bar 
of justice by my office. It just seems to me that it has to be 
done on a Federal level.
    As I indicated before, where you have distributors and 
these networks which are reaping enormous profits, something 
should be done. They must bear some responsibility, and it 
seems to me that anything that has to be done should be done by 
Congress to give our Federal law enforcement counterparts all 
the tools necessary to have the jurisdiction to reach these 
people. That is the way it seems to me it can be done. The 
specifics I can't give you, but perhaps Mr. Malcolm can. But it 
has to be done on a Federal level
    Chairman Hatch. Mr. Malcolm, what would you suggest we do?
    Mr. Malcolm. Well, as Senator Leahy pointed out in his 
opening statement, this is clearly a bipartisan issue and the 
number of investigations and prosecutions of child pornography 
and child exploitation cases has gone up each year for the past 
seven or 8 years, probably beyond that. In part, I am afraid it 
just shows the proliferation of this material as the Internet 
has literally exploded upon the scene.
    Senator Congress has already done quite a bit to help us. 
The penalties for child molestation and child pornography 
offenses have dramatically increased with the PROTECT Act. We 
will have 25 new prosecutors devoted to this effort.
    That having been said, this is a worldwide problem and a 
target-rich environment. A number of the perpetrators of these 
offenses are located overseas. Some countries cooperate with us 
more than others. I am not sure we will ever be able to really 
ever completely eradicate this problem.
    Chairman Hatch. Would you suggest that we put out of 
business the networks that allow this to occur?
    Mr. Malcolm. I am sorry
    Chairman Hatch. Do you suggest we put out of business the 
networks that allow this to occur?
    Mr. Malcolm. Well, of course, in order to do a criminal 
prosecution, you have to prove knowing involvement. As Mr. 
Morris, I believe, said, there are a lot of networks that may 
facilitate this activity by having a peer-to-peer system or 
allowing commercial websites. However, they don't always 
control the content that is out there and they don't 
necessarily patrol their systems. Certainly, one of the things 
that Congress can consider, which this Committee is 
considering, is regulating the means by which this material is 
propagated.
    Chairman Hatch. Professor Jacobson, let me turn to you. I 
would like to discuss for a moment the circumvention practices 
in which the P2P networks engage which you talk about in your 
testimony.
    It seems to me that when the computer owners choose to 
filter or block certain programs, that decision ought to be 
respected. The practices you identify, such as port-hopping, 
seem to significantly complicate the efforts of computer owners 
and system administrators to control what comes into their 
systems.
    If we were to require that these networks and perhaps 
others on the Internet publicly register their ports and 
operate only through those registered ports, would that better 
enable computer owners to secure their computers against these 
unwanted materials?
    Mr. Jacobson. Yes. You would be able to filter out those 
protocols that you didn't want that matched those assigned port 
numbers. So that would allow an administrator as a first line 
of defense to better filter those things out.
    Chairman Hatch. Mr. Morris, you insist in your testimony 
that the availability of child pornography on P2P networks 
pales in comparison to the quantity available on commercial 
websites on the Internet.
    Even if true, do you not see a material difference between 
pornographic content, including child pornography, that is 
thrust upon juvenile P2P users whether they want it or not and 
websites to which access is granted only upon presentation of a 
credit card number usually available only to adult members of 
the household?
    Mr. Morris. You make a differentiation, as indeed I did, 
between websites and peer-to-peer. I guess it is useful to go 
through what happens on peer-to-peer. When somebody does a 
search--and let's assume that they choose to take off the 
filter, willingly take the filter off--then they will search 
and they will get a list of search terms. Those search also 
contain matter tags that describe what is in the file. So for 
somebody to download, they are going to have to click the file, 
watch it download, and then open it. So there are various 
processes. So the idea of files suddenly appearing doesn't 
really happen.
    If, however, you look at the Internet, then you take those 
40 million results. A lot of those sites you go to will be very 
sticky; they will stay on your computer. You can't close them. 
They will often download dialer applications that will send you 
on premium lines to Bermuda.
    Senator Leahy. Send you a what?
    Mr. Morris. What they will do is they will download 
something called a dialer which will dial out of your 
computer--you guys know very much about this, yes--dial out of 
your computer to pornographic sites around the world, because 
their business is money. They sell pornographic images.
    The other thing they will do is very often pop up. They use 
pop-ups, so they have teasers which are very explicit which 
will encourage the person to click on. The idea is then to lead 
them into either gratuitously pornographic sites, as the 
pedophiles do, or into then sites where they register a credit 
card. So the chance of somebody actually being exposed suddenly 
to a pornographic image is infinitely greater. Now, none of 
that says that because it is relatively small, it can be 
tolerated. But there is a significant difference between 
website and peer-to-peer.
    Chairman Hatch. Mr. Hess, I realize the concerns that P2P 
networks raise in the university environment are not limited 
to, or even primarily stem from, the availability of 
pornography. We appreciate you coming here and enlightening us 
on the multiple challenges you face with respect to these 
networks.
    You stated in your testimony that at times as much as 30 
percent of the University of Utah's bandwidth is taken up with 
peer-to-peer file-sharing. Can you give us an estimate of what 
that costs the university?
    Mr. Hess. If high levels of peer-to-peer were sustained 
throughout the year--it ebbs and flows depending on how many 
students are on campus--it could approach $1 million
    Chairman Hatch. In your testimony, you mention the 
recording industry's recent pursuit of computer users making 
large numbers of copyrighted songs available on P2P systems. Do 
you feel that these types of actions are helpful or even 
necessary to get students to take copyright laws seriously?
    Mr. Hess. Yes, at least that has been our experience on 
campus. Now the word is out that studets are being sued, it 
does make a difference, the amount of traffic has declined.
    Chairman Hatch. In the last hearing, I suggested that with 
new technology they actually could blow up the computer after 
giving appropriate warnings.
    [Laughter.]
    Senator Leahy. There was not uniform support on the 
Committee for that idea, I want you to know.
    [Laughter.]
    Senator Leahy. We have joined on many of these things, but 
that is one where we kind of broke ranks.
    Chairman Hatch. Only because of the lack of innovation on 
the part of those who didn't support it.
    [Laughter.]
    Chairman Hatch. But I think that more or less has awakened 
everybody to the fact that these are important issues, and it 
was one of the reasons why I did that. And I think it was very, 
very important to get out there that it is illegal what they 
are doing, that it is wrong, that if we don't have copyright, 
we are not going to have the creativity that this country is so 
noted for throughout the world.
    This has been very, very interesting. I have a lot of other 
questions, but I am going to turn to the Democratic leader on 
the Committee and see what he wants to get into.
    Senator Leahy. Thank you, Mr. Chairman. I have found this a 
fascinating hearing. Unfortunately, because, as always happens 
on the Hill, you are supposed to be in three places at once, 
after these questions I will have to leave. I am going to have 
some that I will submit for the record.
    I know, Mr. Spota, with a dozen of these fairly complex 
prosecutions you have brought recently, I am going to want to 
know more about that. That may well be a model for the rest of 
us. Of course, Mr. Callaway and I talk all the time on a number 
of these issues.
    Mr. Morris, as you may know, the Internet service providers 
are required by Federal law to report all cases of child 
pornography to the National Center for Missing and Exploited 
Children. In fact, the statute states that the requirement is 
on anyone, quote, ``engaged in providing electronic 
communications service or a remote computing service to the 
public through a facility or means of interstate or foreign 
commerce.''
    Now, under that definition, aren't you and other peer-to-
peer networks covered by that statute?
    Mr. Morris. I am not a lawyer and I wouldn't presume--
    Senator Leahy. What do your lawyers tell you?
    Mr. Morris. That question as far as I know has never been 
asked. My interpretation as a layman would be very simple that 
in a technical sense it is not a network. What it is is a 
series of individual applications. Basically, as somebody said, 
it is like a net, a fisherman's net. So individuals sit there, 
there, and there, and they choose to share amongst each other. 
So I am very happy to ask our attorneys, but prime facie, I 
would suggest that, no, we are not covered.
    Senator Leahy. Well, let's talk about Kazaa. Would that 
mean that under this law they couldn't report pornography 
because they don't look at content?
    Mr. Morris. Sorry. When you say ``they,'' you mean we?
    Senator Leahy. Yes. Does that mean that you can't--
    Mr. Morris. We technically--sorry to interrupt, Senator.
    Senator Leahy. Does that mean that you can't report 
pornography because you don't look at the content?
    Mr. Morris. Precisely. There is no technical way at all. It 
is like asking Microsoft to look at the content of people's e-
mails.
    Senator Leahy. You know, I would find that more believable, 
except that you find ways to find so-called spoofed files. Yes, 
you do.
    Mr. Morris. Sorry.
    Senator Leahy. I will explain. If some of the companies and 
some of the artists who feel that their works are being stolen 
on your system and if they decide to put in a so-called spoofed 
file--that is, they have the name of an artist and the name of 
the record, but then they make sure that there is just white 
noise or something like that on it. Somebody would have to go 
through the whole downloading and do it. Somehow, you are able 
to check the content of that and those are taken off your 
network. You have ways of using filters to make it easy for 
children to circumvent those filters.
    I mean, let's get real. On the things you don't want, the 
things that are going to cost you money--that is, having 
hundreds of white noise albums put in there--you can get rid of 
those. Why couldn't you get rid of the pornography, too?
    Mr. Morris. I do not know any way that we can get rid of 
the spoofed files, or indeed the promotional files.
    Senator Leahy. But you do.
    Mr. Morris. Sorry. Can you explain how, because I don't 
know?
    Senator Leahy. I have no idea. You are the ones who are 
running it. But, boy, they don't last on there very long. I 
think the next panel is going to point out that they have had 
artists that they represent try to put them on and then they 
don't last very long.
    Mr. Morris. I understand what you are saying; the spoofed 
files, or indeed the promotional files that the record industry 
distributes very widely on KMD, and by their own admission.
    We have something called an integrity rating. That is for 
users to self-clean. Now, users will indicate when a file is 
badly recorded. I mean, you must have come across a lot of 
files which are just poorly recorded. Similarly, users will 
tend to indicate that a certain file has a low integrity.
    Now, we would certainly encourage users of KMD to use that 
mechanism to indicate when a file is pornographic. There is no 
specific category for pornographic; it is just low integrity. 
But if every user put pornographic files as low integrity--i.e. 
self-cleaning--then that would clean the network up very 
quickly.
    So what you are talking about is the user community 
itself--that is not us at all--cleaning the network of files 
that they don't see as being of high integrity. I now 
understand what you are talking about. We have absolutely no 
control over that. Technically, we cannot.
    Senator Leahy. Well, you install on your users' computers 
software that tracks their activities online and puts 
advertisements on their hard drives based on what it shows. Are 
you also installing information on those computers about 
whether they are going to pornographic sites?
    Mr. Morris. Sir, when you talk about installing 
applications--
    Senator Leahy. When your programs run, they also pick up 
information about the users so that you can run pop-up ads and 
do things like that. You don't do that?
    Mr. Morris. No. Let me clarify for you.
    Senator Leahy. You have no way of tracking their activities 
online?
    Mr. Morris. Absolutely none.
    Senator Leahy. None whatsoever?
    Mr. Morris. There are some urban myths around that there is 
spyware or--
    Senator Leahy. How do you make money?
    Mr. Morris. We make money through advertising. Let me 
clarify.
    Senator Leahy. Mr. Morris, I will let you finish. My time 
is running out here.
    Mr. Morris. Sure.
    Senator Leahy. You make money by advertising, but you don't 
send the same advertising to everybody.
    Mr. Morris. Precisely.
    Senator Leahy. If you have got somebody who consistently 
wants country and western, you are not going to be sending 
advertising for Beethoven's Third there. I mean, you and your 
advertisers just don't go out to everybody; they go selectively 
by how often the person is on. No?
    Mr. Morris. No.
    Senator Leahy. So if somebody uses your system just once or 
if they use it 500 times, they get exactly the same ads?
    Mr. Morris. Yes.
    Senator Leahy. They don't change?
    Mr. Morris. Let me clarify. The side door application, 
which is similar to double click, which is the same sort of 
application that most of the major websites in the world use, 
serves the same ad. So a maximum of five pop-ups will be 
delivered in a 24-hour period. Those little banners you see--
those are delivered to everybody.
    Now, you may be talking about contextual advertising. 
Currently, we have no contextual advertising bundled with KMD; 
we have in the past. They have high levels of privacy and what 
they do--they are a separate applications and those 
applications are related to websites people visit. They are not 
applications we control and they certainly can't be used to 
track visits to illegal sites. I think that must be what you 
are talking about.
    Senator Leahy. Mr. Chairman, I will have some follow-up 
questions. I realize I have gone over my time, and I appreciate 
that I know there are other Senators who want to ask questions.
    Chairman Hatch. Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. I want to thank 
you for holding this hearing, and I thank you and Senator Leahy 
for spotlighting this issue. It is an issue important to 
parents like me, whose children's knowledge of computers and 
the Internet far outweigh my own. I am a big fan of the 
Internet and the amazing way it has improved our lives, from e-
mail, to the World Wide Web, to the way it makes holiday 
shopping a breeze. We just drove my daughter to college in 
Boston and we got one of the fanciest hotels for $109 because 
we used the Web. I am not going to say what company right here, 
not at this table, Mr. Chairman.
    But lately I have been concerned that this hallmark of the 
information age is getting bogged down. When you have such a 
new, major invention--I am sure this happened every time--there 
are all sorts of problems that emerge--spam, criminal activity 
in terms of fraud schemes.
    And now comes news that the dark side of the Internet just 
got a little darker because of your excellent GAO report, Ms. 
Koontz, which talks about how much child pornography has 
infiltrated the Web.
    I am going to ask that my whole statement be read into the 
record.
    Chairman Hatch. Without objection.
    [The prepared statement of Senator Schumer appears as a 
submission for the record.]
    Senator Schumer. But I do want to make one point, Mr. 
Chairman, and that is earlier today I was with D.A. Spota--and 
I want to commend you. Tom Spota is the D.A. of Suffolk County, 
one of the largest and most important counties in New York, and 
has done a great job as D.A. in general and on this issue, in 
particular.
    Earlier today, he and I and Terry Schroeder, who is the 
President of ISAF, an organization that is dedicated to 
protecting children online, called on the Justice Department--
or I called on the Justice Department to create a special task 
force to crack down on the traffic of child pornography by 
file-sharers. The task force would bring together the resources 
and expertise of the FBI and other Federal law enforcement 
agencies to find the best ways to track down and stop these 
criminals from peddling child pornography, and it would set up 
strong channels for information-sharing between the Federal 
task force and local officials like D.A. Spota to ensure that 
all levels of law enforcement are up to speed in this highly 
technical area.
    In addition, Mr. Chairman, to strong law enforcement, I 
believe those in the technology industry need to step up to the 
plate. Those who profit from file-sharing technology have to do 
everything in their power to prevent the networks from being 
used for criminal activity, and that is where my questions will 
lead.
    But first I wanted to ask D.A. Spota--as you know, I am 
asking for the creation of a national task force to focus on 
the challenges associated with the use of peer-to-peer networks 
to proliferate child pornography. The task force would bring 
together the several Federal agencies that deal with this 
problem and deal with the experiences of local law enforcement, 
like yourself, to ensure that all law enforcement is up to 
speed on the danger of peer-to-peer networks.
    Do you think the task force is a good idea? Would it be 
helpful to local law enforcement, and are there lessons offices 
like yours could share that would be useful to Federal law 
enforcement?
    Mr. Spota. Well, thank you, Senator. Certainly, it is a 
terrific idea. There is no question about that. I mentioned 
before in response to a question, I believe, by Senator Leahy 
or Senator Hatch that it seems to me that, as you say, a 
Federal task force is what is in order.
    I am limited in our State jurisdiction. The Department of 
Justice and the U.S. Attorneys' offices obviously--their 
jurisdiction will extend throughout the United States, and I am 
sure even further, and I think that that is what is necessary.
    Mr. Morris indicated to me before we were speaking--I may 
be wrong, but I think you might be located in Australia.
    Mr. Morris. Mr. Chairman, if I may, we would be very happy 
to assist and advise that task force in any way we can. We are 
based in Australia. I am based in London. I have quite used to 
flying over. So we would be very happy to give you technical--
    Senator Schumer. We don't want any of these meetings to 
occur in Hawaii.
    Mr. Morris. There are some very nice islands in the South 
Pacific. But we would be happy, my chief technical officer or 
myself, to provide on a one-way basis, a one-way street, any 
information or help we could.
    Senator Schumer. Great, thank you.
    Well, thank you, D.A. Spota, and I appreciate your 
endorsement of this idea.
    My next question is for Mr. Morris. As I mentioned in my 
statement, I think it is important that peer-to-peer networks 
do everything within their power to stop criminal activity 
involved in the sharing of child pornography through your 
software.
    Your own terms of service agreement, which outlines the 
ways in which users are allowed to use the network and the 
license, suggests you will take measures to ensure that illegal 
or offensive content is not shared via your software, which is 
good. Your license agreement explicitly states in part that 
users, quote, ``agree not to use the software to transmit or 
communicate any data that is unlawful, harmful, obscene, or 
otherwise objectionable,'' unquote.
    Users who share child pornography files, including those 
charged in Suffolk County, violate this agreement and I want to 
know what you and your company are doing about it. What actions 
has Kazaa taken against these individuals in Suffolk County? 
Have you revoked their license agreement or sent them notices 
that they have violated the agreement?
    Mr. Morris. Firstly, we do not know who the offenders are, 
but I am very happy to speak with you later.
    A general point about the end user license agreement to 
which you refer. Yes, indeed, it does very strongly state that 
we can revoke the license. These, if you like, honor licenses 
are common throughout the Internet for downloading software. 
They are very much the questions you get asked in an airport, 
which say, you know, are you spy, do you have a bomb? The 
purpose of asking it is it does allow one, after the event, to 
do that.
    Senator Schumer. This case got quite a bit of notoriety not 
just in New York, but around the country.
    Mr. Morris. This is the first case that we have become 
aware of. If you care to tell me which users were actually 
using Kazaa as opposed to the hacks and the various other 
applications which you guys know sit on the fast-track 
network--perhaps if your colleagues could contact us--
    Mr. Spota. They were all using Kazaa.
    Mr. Morris. They were using Kazaa or Kazaa-lite?
    Mr. Spota. I am sorry?
    Mr. Morris. Were they using Kazaa-lite?
    Mr. Spota. Oh, I don't know.
    Mr. Morris. Yes. There are various clones and scamsters.
    Mr. Spota. No, no. I hate to interrupt. For sure, they were 
using Kazaa, your company.
    Mr. Morris. Okay. We would be very happy--in fact, as I 
said earlier, we applaud what has happened in Suffolk County 
because that sends a strong message to people that they are not 
anonymous and that they will be found out. So, yes, we would be 
happy, if we had the address details, to serve such a notice.
    Senator Schumer. Why hadn't you done it before this 
fortuitous meeting between you and Mr. Spota occurred?
    Mr. Morris. Because technically it hadn't crossed my mind. 
I wasn't aware--
    Senator Schumer. Would you in the future, on your own, if 
there are other cases like this or you hear that cases are 
being brought?
    Mr. Morris. Surely. As I said earlier, I have only had 
contacts from four law enforcement agencies. As I said, in the 
early days of peer-to-peer, it was used on a pilot basis by 
pedophiles and they have tended not to use it in a systematic 
way since then because it is open and anonymous.
    I would be very happy to work with the task force, and if 
any law enforcement agency does have details of specific users 
of KMD who have been prosecuted, yes, we would certainly send 
them such a notice.
    Senator Schumer. A second question.
    Chairman Hatch. Senator, your time is up.
    Senator Schumer. Okay. I am going to try to ask some more 
questions on the next round.
    Chairman Hatch. Well, we are going to submit written 
questions because I have got another panel and I have got to 
get through here.
    Senator Schumer. Could I just ask one more, Mr. Chairman?
    Chairman Hatch. Sure, go right ahead.
    Senator Schumer. Thank you.
    The next question is what kind of disclosure do you make to 
parents? In other words, would you consider letting them know 
that somehow or other, if their child uses Kazaa, they might be 
deluged, or at least be shown pornographic materials?
    Mr. Morris. We are currently working with the industry 
association which has just been formed to find ways of doing 
that very thing. It is a two-stage process. Firstly, we support 
all measures to have parents actually understand what is on 
their kids' computers. That is the first stage.
    Secondly, having done that, then make parents aware of the 
pitfalls of using the Internet, in general, and file-sharing 
programs in particular and where that might lead. So, yes, we 
are very happy to get behind those sorts of programs.
    Chairman Hatch. I would like to see that happen because 
what we are dealing with here is pretty pathetic stuff, and 
your network basically is the network that is being used, 
Kazaa.
    Senator Durbin.
    Senator Schumer. Well, just--
    Chairman Hatch. I hate to cut anybody off, but I do have to 
get through this hearing.
    Senator Durbin. I know you are trying, Mr. Chairman. Thank 
you.
    Chairman Hatch. Yes, and we will keep the record open for 
questions because these are good questions my colleagues are 
asking, and I hope you will take the time to answer them.
    Senator Schumer. I won't ask a question. I will just make a 
suggestion, and that is that Kazaa also try to give some 
funding to ISAFE, which does the job pretty well. I would ask 
in writing that you respond to whether you would be willing to 
do that and to what extent. No answer is necessary.
    Mr. Morris. We would be very happy to respond and I am 
virtually certain it will be in the positive.
    Chairman Hatch. Senator Durbin.
    Senator Durbin. I would like to follow up on one question.
    Mr. Morris, there was something you stated a little earlier 
that led me to believe this was the first time you had heard 
about this problem.
    Mr. Morris. No, not about the--we have known that there is 
pornography and some instances of child pornography. When you 
say ``this problem,'' you mean the general issue of--
    Senator Durbin. Your conversation with Mr. Spota, for 
example.
    Mr. Spota. I think, sir, perhaps I misspoke. He was talking 
about the names of the people. That was our conversation.
    Senator Durbin. Well, Mr. Morris, if this has been a 
recurring problem or a chronic problem with your company, my 
question is this: Do the advertisers on your network ever ask 
you whether or not you have taken steps so that the network 
does not become a venue for this kind of child pornography?
    Mr. Morris. I think the evidence from these data here show 
that it is not a chronic problem. Any single instance is a 
problem. As to whether advertisers have raised an issue, I 
don't believe they have, but I can check that out.
    Senator Durbin. That has frankly been a fairly effective 
way of changing policy in our country when those who are 
inadvertently or indirectly supporting this kind of activity 
come to know that their customers are not going to use their 
products. I would think that would be a concern to you from a 
revenue viewpoint, would it not?
    Mr. Morris. It is a concern universally across the 
Internet.
    Senator Durbin. Mr. Spota, thank you for your leadership on 
this, but could you be more specific in terms of what you have 
found relative to his company and how it has provided access to 
this child pornography?
    Mr. Spota. Well, what we found is basically contained in my 
testimony, but essentially children, in my view, are curious by 
nature. We all are, but especially children. I believe the 
people who are making this pornography and setting up these 
files are purposefully using terms that will be attractive to 
children--Brittany Spears, Pokemon, and anything with the word 
``young'' in it.
    I do disagree with Mr. Morris where he says, well, it is 
just by virtue of the fact that the file will obviously contain 
some pornographic literature. They will incorporate some term 
that will attract the attention of that child. So if a kid 
wants to look for something with ``Brittany Spears,'' there 
will be a file name that will contain the name ``Brittany,'' 
and oftentimes other names that have nothing to do with it. 
They will punch that on because of their natural curiosity. 
That is what is occurring.
    Senator Durbin. My other question to you is in terms of 
your prosecution, is it under State law that you are 
prosecuting?
    Mr. Spota. Yes, it is, Senator.
    Senator Durbin. Do you find any limitations because you are 
dealing with State law in how far you can go by way of 
discovery or prosecution?
    Mr. Spota. Absolutely, and that is why I am bound to 
prosecute only those who commit these crimes, possession or 
promoting child pornography, within the County of Suffolk. That 
is why I think it is so important that Congress act to give the 
Justice Department, the United States Attorney's Office, and 
the FBI the opportunity to prosecute these types of cases.
    Senator Durbin. Ms. Koontz, isn't that the GAO conclusion 
that there isn't clear delineation of Federal prosecuting 
standards? I think what I read in your GAO report is that we 
need more resources dedicated to this. Do you think the law is 
clear enough in terms of the prosecution?
    Ms. Koontz. Actually, our study focused on identifying the 
level of resources that are devoted to peer-to-peer networks 
among the various law enforcement agencies. We were unable to 
determine how many resources were devoted because law 
enforcement agencies don't keep statistics in that kind of way. 
Our work has been much more focused on defining the parameters 
of the problem and I couldn't speak to the adequacy of the 
prosecuting standards.
    Senator Durbin. Well, maybe Mr. Malcolm can, because one of 
the concerns that I think we have is that since 2 years ago, 
there has been more and more focus of resources on terrorism. 
The FBI and other agencies have been told, frankly, drop some 
of your traditional activities or reduce your activity in them 
dramatically and move toward terrorism. That is our number one 
priority.
    So what chance do we have here to have any kind of 
dedication of resources or aggressive effort involving the FBI 
when it comes to this problem of child pornography?
    Mr. Malcolm. Let me just say that in spite of this 
diversion of resources, the number of cases that we filed 
against child pornographers and child exploiters was up 22 
percent last year. We don't work just with the FBI. We, of 
course, also work with ICE, we work with Postal, we work with 
various State and Federal agencies. We, in fact, work with the 
Internet Crimes Against Children Task Forces.
    Let me stress that peer-to-peer is a serious problem. Don't 
get me wrong. Kazaa is only one peer-to-peer network, and in 
addition to that, there is a lot of this material out there on 
the Web. There is a lot of this material in chat rooms. There 
is a lot of this material in news groups. There are all kinds 
of emerging technologies that have presented ample 
opportunities for pedophiles to peddle their wares and to trade 
material and, through chat rooms, to contact kids.
    Unfortunately, as I said before, this is a target-rich 
environment. Congress has already done a lot in terms of 
increasing the penalties through the PROTECT Act. You have 
given us additional resources. Unfortunately, this is such a 
worldwide problem that you are not never going to be able to 
eradicate it all. We are doing the best we can with what we 
have.
    Senator Durbin. Mr. Chairman, the last thing I will say on 
it is this. A few weeks ago, we had a family reunion and one of 
my nieces said that her son, a teenager in high school, didn't 
want to come to the reunion because he just loves to stay on 
the Internet, she said. He is on there all the time. She went 
on to say, you know, I don't know a thing about it; I can't 
even tell you what he is doing there, but he just really loves 
it.
    And I am thinking to myself, gosh, I hope that is going 
well. But that mother is in the same position many of us are 
who are not as conversant with the Internet as our children and 
grandchildren. So to say we are going to give the tools to 
parents many times is suggesting that they are going to develop 
a level of knowledge and sophistication about the Internet 
which is unrealistic. We have to develop other mechanisms to 
deal with this, and threats to those who would abuse it.
    Thanks for this hearing, Mr. Chairman.
    Chairman Hatch. Well, I want to compliment my colleagues 
for their questions, and also these comments. They are right 
on. You folks are in the forefront of this battle.
    Mr. Morris, I know that you seem to be the person on target 
here, but there is good reason for it. I think unless you can 
help us to help you to get rid of this material, you are going 
to be under constant attack and ultimately we are going to have 
to do some things that would be very detrimental to your 
business. So I think you have really got to take this 
seriously.
    Mr. Morris. Chairman Hatch, I think we do. I would say that 
I am willing to come over any time you want me to to work with 
you, your staffers, and anybody else here to help eradicate 
this issue.
    Chairman Hatch. Well, we have had some good suggestions 
here today between you and Mr. Spota, and I think that could be 
true of other people as well. We appreciate your willingness to 
be able to do this, but it is serious stuff and we have got to 
do something.
    The circumvention of security measures through various 
means such as port-hopping and the difficulties it raises have 
been brought to our attention through a number of different 
channels. I believe it is worth exploring what can be done to 
bring all these matters under control.
    I know that Senator Leahy is going to work with me on this, 
as will other members of this Committee, and we will see what 
we can do to come up with some way of resolving some of these 
matters, or at least giving you the tools to be able to resolve 
them.
    With that, I want to thank each of you for being here and 
we appreciate the efforts you have made and the information you 
have given us. It has been a very important hearing up to this 
point. So thank you very much.
    Our second panel will address the ISP subpoena provisions 
of the Digital Millennium Copyright Act. This is a critical 
part of the compromise that this Committee helped negotiate 
between the content and the technology industries. This 
compromise was intended to permit both the development of 
Internet services and the enforcement of copyrights on the 
Internet.
    If we could have order, I would appreciate it. Let's have 
order.
    This compromise, which is now codified in Section 512 of 
the Copyright Act, creates so-called safe harbor provisions 
that protect Internet service providers from secondary 
liability for copyright infringement. These safe harbors 
protect ISPs regardless of whether their systems act as 
conduits, locators, or hosts for infringing materials posted by 
third parties.
    In exchange for these safe harbors, Section 512 requires 
ISPs to provide specific assistance to content creators 
alleging that someone is using ISP services or systems to host, 
locate, or transmit infringing content. For example, Section 
512 can require an ISP to remove allegedly infringing materials 
hosted by the ISP, or to identify an allegedly infringing 
customer in response to a subpoena under Section 512(h) of the 
Act.
    Recently, the subpoena provisions of Section 512(h) came 
under scrutiny when they were invoked by content creators 
trying to identify individuals allegedly trading infringing 
materials over peer-to-peer file-sharing networks.
    Our second panel consists of three panelists who will 
discuss the legal and policy implications of the subpoena 
provisions that underlie both the Section 512 compromise and 
our broader system for reconciling copyright and the Internet.
    Mr. Cary Sherman is the President of the Recording Industry 
Association of America. His organization has served Section 
512(h) subpoenas to obtain identifying information about 
individuals alleged to have been trading infringing music files 
over peer-to-peer file-sharing networks.
    Mr. William Barr is the former Attorney General of the 
United States and is the General Counsel of Verizon. His 
company provides ISP services and has received Section 512(h) 
subpoena.
    Our last panelist, Ms. Marybeth Peters, if the Register of 
Copyrights. She brings to this narrow but important dispute 
about Section 512(h) subpoenas her unquestioned expertise with 
the broader issues of law and policy that underlie both the 
DMCA and the Copyright Act. She has also been gracious enough 
to help us streamline this large hearing by agreeing to appear 
on the same panel as our private-party witnesses and agreeing 
to go last in order to provide some perspective on the views of 
the two preceding folks.
    I just want to express my gratitude for having all three of 
you here. All three of you are leaders in the respective areas 
in this field, and we are just very grateful to have you here.
    I think we will start with you, Mr. Sherman, and then we 
will go to General Barr and then we will come to Marybeth.

   STATEMENT OF CARY SHERMAN, PRESIDENT AND GENERAL COUNSEL, 
  RECORDING INDUSTRY ASSOCIATION OF AMERICA, WASHINGTON, D.C.

    Mr. Sherman. Thank you, Chairman Hatch, for inviting me to 
testify today and for your ongoing commitment to protecting 
intellectual property. We are all very grateful.
    My name is Cary Sherman. I am the President of the 
Recording Industry Association of America, the trade 
association representing the U.S. recording industry. Our 
members create, manufacture, and/or distribute 90 percent of 
all legitimate sound recordings in the United States.
    I would like to take just a minute up front to give the 
Committee some information regarding some announcements we made 
yesterday. Following a multi-year campaign to educate the 
public about the illegality of unauthorized downloading and the 
launch of more than a dozen high-quality, low-cost, legitimate 
online music services, the RIAA filed lawsuits yesterday 
against more than 250 individuals who were sharing, on average, 
over 1,000 copyrighted music files on public P2P networks.
    We simultaneously announced a program to grant what amounts 
to amnesty for individuals who voluntarily identify themselves 
and pledge to stop illegally sharing music on the Internet. 
Should you have any questions about it, I would be pleased to 
respond to them later.
    We would have preferred to avoid litigation, but we could 
no longer simply stand by and watch while our products are 
stolen in mass quantities and the livelihood of thousands of 
artists, musicians, songwriters, recording companies, and 
retailers are destroyed. We hope that this ongoing effort will 
educate the public about the consequences of online piracy and 
help foster an environment in which a legitimate online music 
marketplace can thrive.
    Let me now turn my attention to the topic of today's 
hearing. Let me just begin with some startling statistics. Over 
the past 3 years, shipments of recorded music in the United 
States have fallen by an astounding 31 percent. Hit records 
have been impacted most dramatically.
    In 2000, the top 10 selling albums in the U.S. sold a total 
of 60 million units. In 2001, that number dropped to 40 
million, and last year it totaled just 34 million. The root 
cause for this drastic decline in record sales is the 
astronomical rate of music piracy on the Internet.
    Although there is no easy solution to the piracy problem, 
one thing is clear. Verizon's DSL subscribership is growing due 
to the explosion in the use of P2P, and it is very troubling to 
our industry that Verizon actually encourages its new 
subscribers to visit unauthorized P2P services instead of 
legitimate licensed sites as their preferred source for music 
online.
    If you sign up for Verizon DSL, you get a brochure, ``Your 
Guide to Broadband Living and Content,'' that tells users, and 
I quote, ``Subscription sites do offer up MP3s to download. 
However, they typically don't offer music that is selling 
exceedingly well in stores. By contrast, the free sites are 
likely to have pretty much everything, but you may get pelted 
with some unwanted ads.'' And people wonder why the copyright 
community is skeptical of Verizon's claim that the real issue 
is privacy and not piracy by their subscribers.
    After all, nowhere in the brochure does Verizon warn its 
customers about the serious privacy threats of using P2P. Think 
about it. Kazaa has been downloaded over 250 million times, and 
many of those who use it are unwittingly sharing sensitive 
personal information--e-mails, tax returns, financial and 
medical records--with millions of others on the Internet. You 
would think that a company as concerned about privacy as 
Verizon claims to be would warn its subscribers that they are 
committing privacy suicide when they put Kazaa on their 
computers.
    So what does all of this have to do with what we are 
talking about today? First, it helps explain why RIAA's 
members, with the support of a broad array of other 
organizations in the music industry representing artists, 
songwriters, music publishers, and others, took the action we 
announced yesterday, and why Judge Bates conclusively decided 
on two separate occasions that the DMCA information subpoena 
process does apply in the P2P context and that the real privacy 
threat is millions of users essentially opening their computers 
to the world.
    Second, and perhaps most important for this hearing, they 
illustrate that Congress, under the leadership of this 
Committee, saw the future in 1998 when it passed the DMCA. The 
rampant piracy of music on the Internet is a true-to-life 
example of exactly the kind of problem Congress envisioned 
copyright owners would face in the digital world.
    Although P2P technology did not exist in 1998, Congress 
understood that the Internet and advances in technology would 
lead to an explosion in online theft of intellectual property. 
So in exchange for exempting ISPs from any liability for the 
infringing activities occurring on or over their networks and 
connections, subject, of course, to certain prerequisites, 
Congress created a framework by which copyright owners, with 
the assistance of ISPs, could expeditiously identify 
individuals engaging in infringing activities online. That 
compromise--expeditious access for copyright owners to 
identifying information of infringers in exchange for broad 
liability limitations of ISPs--is as fair today as it was in 
1998.
    Five years after the passage of the DMCA, we hear nothing 
from Verizon about changing its liability limitation, but a lot 
about its concerns over privacy. I just want to mention one 
thing. No one has a privacy right to engage in copyright 
infringement on the Internet, and illegally sharing or 
downloading copyrighted music online is not a form of free 
speech or civil disobedience protected by the First Amendment.
    As I understand Verizon's privacy argument, disclosing its 
subscribers' identifying information pursuant to a valid DMCA 
information subpoena threatens to violate its subscribers' 
privacy because the information subpoena process, in their 
estimation, is susceptible to abuse and does not provide the 
same protections afforded by a more traditional John Doe 
lawsuit.
    But Congress considered and decided this question back in 
1998. Ironically, the very principle ISPs profess to defend, 
the privacy of their subscribers, is at greater risk in a John 
Doe action than through the information subpoena provisions of 
the DMCA. There are statutory limits on the type of information 
a copyright owner can obtain via an information subpoena and 
the purpose for which that information can be used.
    A copyright owner can only receive information that is 
necessary to identify and contact the alleged infringer. More 
importantly, the copyright owner is statutorily limited to 
using that information exclusively for purposes of enforcing 
their copyright.
    Compare that to the John Doe alternative where a copyright 
owner can request anything related to the ISP subscriber 
account, including user habits, website visits, payment 
records. And once that information is provided to a copyright 
owner, there are no statutory restrictions whatsoever on how it 
can be used or with whom it can be shared.
    RIAA and the copyright community as a whole are committed 
to protecting the privacy of individuals and support the 
balance that was struck by this Committee and the Congress in 
the DMCA to protect both privacy and ensure the enforcement of 
copyrights.
    Congress anticipated the needs of copyright owners and the 
rights of individuals in the DMCA, and enacted a provision that 
has been upheld and validated by the courts and constitutional 
scholars. As the content community continues to face the 
challenges of digital piracy, Congress must ensure that tools 
are available to limit costly damages in an expeditious manner. 
Our Nation's cultural assets, balance of trade, and world 
leadership in intellectual property depend on it.
    Thank you very much.
    [The prepared statement of Mr. Sherman appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you.
    General Barr, we will turn to you.

STATEMENT OF WILLIAM BARR, EXECUTIVE VICE PRESIDENT AND GENERAL 
       COUNSEL, VERIZON COMMUNICATIONS, WASHINGTON, D.C.

    Mr. Barr. Thank you, Mr. Chairman, Senator Durbin.
    We believe that the health and the vitality of the Internet 
as a medium of communications in our society depends on the 
availability of a rich array of content, which in turn requires 
vigorous protection of intellectual property rights. But at the 
same time, we think it also depends on the public's confidence 
in the privacy and security of the Internet as a communications 
medium and their assurance that there is some protection for 
private information.
    Our concern is that a very ill-conceived blunderbuss 
approach to addressing the first set of issues, intellectual 
property, is being applied in a way that is riding roughshod 
and ultimately sacrificing very real privacy and safety 
concerns.
    Now, from the opening statement of Mr. Sherman it would 
appear that Verizon stands alone in this, when, in fact, as the 
Committee is aware, there are 92 groups supporting our 
position, including library associations, civil liberties 
groups, child safety groups, and numerous other Internet 
service providers.
    Mr. Sherman sort of suggests that our interest in privacy 
is somehow this new-found interest and is not really altruism 
here; it is economic interest. Well, be that as it may, our 
point in our opening statement is that privacy is important to 
the well-being of the Internet, just as important as 
intellectual property rights, the ability of individuals to 
know that their private information is not going to be handed 
away willy-nilly to other people.
    Now, I think what is going on here is that the RIAA is 
taking the subpoena provisions of the DMCA and radically 
expanding them to apply to an area that they were not intended 
to apply to. That is our view. This sweeping subpoena that they 
claim, bereft of any of the safeguards that have been employed 
throughout our history to protect privacy concerns and place 
checks on the availability of private information, poses, we 
think, a threat to personal privacy and First Amendment rights.
    We further think that the tactic of using these massive 
subpoenas has really sidetracked the recording industry into 
this inter orem campaign against 12-year-old girls rather than 
pursue collaboratively with the network industry a long-term, 
effective technological solution, as Congress explicitly 
envisioned in the Act, working collaboratively to develop a 
long-term technological solution to this problem.
    Our view is that both the take-down provisions and the 
subpoena provisions in the Act were expressly directed at 
infringers who were storing material on service providers' 
facilities. So they were distributed copyrighted material from 
websites that were hosted on the internet service providers' 
facilities.
    We believe the subpoena provisions were meant to allow for 
the identification of the individuals who were storing that 
information on the facilities of the Internet service 
providers. Indeed, our view is that the subpoena provisions 
explicitly cross-reference the provisions dealing with the 
storage of information three times.
    Now, in that context, there are some safeguards for these 
privacy concerns because we have control and access to that 
information. It is right there on our system, and when we are 
served with a subpoena, we can immediately verify whether there 
is a legitimate basis for the property owner's concerns. 
Further, the privacy concerns are somewhat diminished because 
the party has voluntarily given this information to us to 
store. Indeed, other provisions of the Act, sections (f) and 
(g), provide protections to owners who have done that.
    Our view is that the subpoena provisions were never 
intended to allow private parties unfettered power to delve 
into what individuals have on their own desktop or laptop hard 
drives, or into the nature of direct communications from one 
computer to another.
    The RIAA is claiming a radical new process--it is 
heretofore unknown in the law; the district court acknowledged 
it was a novelty--to obtain personal and private information 
about electronic communications without the safeguards that 
have always been applied even to government investigations or 
in civil lawsuits, and without any accountability for how that 
information is used.
    The process goes like this. When people are using the 
Internet, they can generally rely on some protection of their 
identity. When they are browsing or in chat rooms or sending e-
mails, the computer does reveal a number, the IP address, which 
cannot be correlated to an individual.
    But under RIAA's interpretation of the Act, any individual 
can simply fill out a one-page form. They can assert that they 
have a copyright interest. It doesn't have to be a registered 
one that would serve as the basis of a lawsuit, and Federal 
copyright protections cover a broad array of any expressive 
activity--pictures, content of e-mails, and so forth.
    Then they can assert a good-faith belief that their 
copyright interest is being infringed, and that is the basis 
upon which they can compel the surrendering of any individual's 
name, address, telephone number. And now they claim they can 
get the e-mail address of any Internet user. Not only do they 
get that identification information, but they are able to 
correlate it to specific communicative activity on the 
Internet, to those individuals.
    This is not done in connection with a pending lawsuit or a 
grand jury investigation. There is no judicial supervision of 
this. Nobody looks at this at the courthouse. It is just served 
on us and we have to comply. No one reviews the bona fides of 
the requester. No one reviews whether there is, in fact, 
copyright information involved. No one determines whether, in 
fact, there is a reasonable basis for the allegation.
    Unlike the information that the government is supplied in 
an investigation, there are no express safeguards provided for 
this information and how it is used. There is no requirement to 
file a civil lawsuit. There are no express sanctions or 
penalties for the misuse of this information or for its 
disclosure into the public. There are countless illicit ways 
that this information can be used without the victim every 
knowing, without anyone ever knowing how it came to be that 
their identity was disclosed and exploited in some way.
    This goes far beyond the power that this Congress gives 
Federal investigative agencies who are investigating things 
like pornography, who are investigating things like terrorism. 
The Government doesn't have this power.
    This is very analogous, for example, to pen registers and 
to trap-and-trace. The Government just can't go and fill out a 
one-page form and claim a belief that it would be helpful. They 
have to have a judge review it and a judicial order based on a 
certification that it is relevant to an ongoing investigation, 
and that material is under seal. So when the Government acts in 
an investigative capacity, this Congress, consistent with 
constitutional liberties, has ensured that there are 
safeguards. But given the sweeping nature of this power, 
deputizing commercially-interested individuals to go out and do 
this kind of thing, abuses aren't just possible, but abuses are 
inevitable.
    This is not just a tool that is going to be used by 
legitimate groups like RIAA. This is a tool that can be and is 
now being used by pornographers themselves. It can be used by 
pedophiles and stalkers.
    Think about the pornographers. We have already had a case 
since the district court decision where a group that makes gay 
pornography has sought the names of 59 individuals who they 
claim were exchanging this pornographic material. And now they 
have announced, as RIAA has, their own amnesty program. Do you 
know what the deal is? If you buy our hard-core pornography, we 
won't come after you. Just think of all the abuses that 
pornographers can use. People visit a website, they get the IP 
address, and they can blackmail those individuals.
    Now, think of stalkers. There is nothing in here that 
requires a stalker to give his real name, or a pedophile. They 
meet someone in a chat room, go down to their local district 
courthouse, fill out the form, use a false name, and we have to 
surrender the information, the identity of these people. That 
is an outrage. That doesn't exist in any other context in the 
law and it has to be stopped.
    Even where there are legitimate interests, such as RIAA's 
interest, the blunderbuss power that they are applying here 
inevitably is going to result in mistakes and abuses, and it 
already has. There is now a sub-industry of bounty hunters that 
goes about hunting down people. Congress is many times worried 
about bounty hunters when they are involved in law enforcement 
activities, but now we have commercially-interested bounty 
hunters who can go and get these documents.
    We have robots like in ``Minority Report,'' you know, 
spiders crawling around the Internet with little lights on 
their foreheads looking for files. That is all very fine, 
except they find a book report, which they did, a kid's 1-
kilobit book report on Harry Potter, and they get slammed by 
the RIAA. Just recently, they tried to shut down the computers 
of, I think it was Penn State astronomy department because it 
found the name Usher in a file; obviously, in their mind, some 
kind of recording artist, but, in fact, the name of the 
department head.
    So this is the kind of force that has been loosed onto the 
Internet, and our position is if this is what Congress wanted, 
it is a disgrace and it should be stopped. If this is not what 
Congress, if this was not the intent of the legislation, then 
Congress should act now and deal with it, and not wait for 
years of litigation and this kind of activity to bring a terror 
campaign against individuals without any kind of due process.
    Congress did spell out how it thought, and rightly so, in 
my view, this was to be addressed in Title I of the 
legislation, which is technological protection for the content. 
The content can be wrapped. It can be protected through 
encryption, it can be protected through access code protection. 
Working collaboratively with the networks, that can be pretty 
much immune from attack and defeat. In fact, Congress has 
passed laws in Title I saying it would be a crime to try to 
circumvent those kinds of protections once we worked them out.
    But ever since they have embarked on this cat-and-mouse 
game with teenagers, they have had no interest in coming to the 
table and talking about this long-term technological problem, 
which means what? Which means you are going to have a 
technological arms race with efforts to evade this and hide IP 
addresses and all this cat-and-mouse stuff going on, instead of 
something that Congress has already laid the ground work for, 
which is a regime of protecting content, of having the networks 
and the content providers work to develop a scheme, and has 
already passed a law saying it is criminal to try to evade that 
scheme. So this is largely a wasteful, self-defeating effort.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Barr appears as a submission 
for the record.]
    Chairman Hatch. Well, thank you. We are going to need to 
have you give us your best ideas as to how to resolve some of 
these problems that you have raised.
    Ms. Peters, we will turn to you.

  STATEMENT OF MARYBETH PETERS, REGISTER OF COPYRIGHTS, U.S. 
               COPYRIGHT OFFICE, WASHINGTON, D.C.

    Ms. Peters. Mr. Chairman, Senator Durbin, I am pleased to 
testify at this very timely hearing. Senator Hatch, you were 
among the leaders in drafting and enacting the Digital 
Millennium Copyright Act, and I know that these--
    Chairman Hatch. You would have to say that after General 
Barr's comments.
    [Laughter.]
    Ms. Peters. I am going to say it is a good thing.
    Mr. Barr. Properly interpreted, it is a good thing.
    Chairman Hatch. Excuse me to interrupt again. We need both 
of your ideas on how we solve these problems because much of 
what he says I agree with; in fact, most everything. Yet, I see 
where you are right, too. In other words, RIAA should not have 
to put up with the wholesale pilfering of your copyright 
materials. So we need to have some help here and maybe if you 
two could get together and give us some advice, it would be 
very helpful because this is important stuff.
    Then, Ms. Peters, of course, we are going to rely on you to 
help us, too. Go ahead. I am sorry to interrupt you.
    Ms. Peters. What I was going to say is that I know these 
issues are important to you, as they are to me.
    In 1999, Napster popularized peer-to-peer technology and 
tried to turn it into a profit-making business. In a remarkably 
short period of time, Napster was being used by millions to 
copy and distribute an unprecedented amount of copyrighted 
music.
    We agreed with the Ninth Circuit's holding that Napster 
users infringed at least two of the copyright-holder's 
exclusive rights--reproduction and distribution. Since 
Napster's departure, other businesses utilizing peer-to-peer 
technology, such as Aimster, Grokster, and Kazaa, have 
appeared.
    Mr. Chairman, make no mistake, the law is unambiguous. 
Using peer-to-peer networks to copy or distribute copyrighted 
works without permission is infringement, and copyright owners 
have every right to invoke the power of the courts to combat 
such activity. Every court that has addressed the issue agrees.
    Copyright law has long recognized that those who aid and 
abet copyright infringement are no less culpable than direct 
infringers themselves. Based on this principle, the Ninth 
Circuit Court correctly found that Napster was both vicariously 
liable and a contributory infringer. Unfortunately, the Napster 
decision was not the last word on the matter.
    Earlier this year, a Federal court in California surprised 
many when it held that Grokster and Streamcast are not liable 
as secondary copyright infringers. Mr. Chairman, these are 
people whose businesses are dependent upon massive copyright 
infringement. Any application of the law that allows them to 
escape liability for lack of knowledge of those same 
infringements is inherently flawed.
    The Grokster decision was wrongly decided, and if it is 
upheld, it will be a major impediment to the fight against 
massive online infringement that is so rampant today. Grokster 
is not the last word on the subject, either. The decision in 
Aimster is reassuring.
    Hanging over all of these cases, however, is the Supreme 
Court's decision in Sony. The correct application of the 
doctrines of secondary liability in the Sony case should 
produce findings of liability for the proprietors of Grokster. 
If that is not the result, Sony should be revisited by the 
Supreme Court or by Congress.
    Unless and until the Grokster decision is overruled, 
copyright owners have no choice but to pursue the individual 
peer-to-peer users who are actually engaging in infringement. 
While copyright owners have expressed regret that they are 
compelled to take this step, they need offer no apology. People 
who use peer-to-peer technology for unauthorized reproduction 
or distribution of copyrighted works are breaking the law.
    Litigation and even publicity about the subpoenas have made 
clear to everyone that the so-called file-sharing of 
copyrighted works is not an innocent activity without legal 
consequences. Knowledge that such conduct may lead to expensive 
and burdensome litigation and a potentially large judgment 
should have a deterrent effect.
    Copyright owners have every right to enforce their rights 
in court, whether they are taking action against providers of 
peer-to-peer services designed to profit from copyright 
infringement or against persons engaging in individual acts of 
infringement.
    To take action against users of peer-to-peer networks, 
copyright owners must know who those users are. Congress 
recognized this and included in the DMCA a process by which 
owners can learn basic identifying information about alleged 
infringers from their Internet service providers.
    As you recall, the DMCA began as an effort to implement the 
1996 WIPO Internet treaties. However, as this legislation moved 
forward, ISPs demanded that it include limitations on their 
liability for copyright infringements carried out over their 
networks. Congress heeded this call and provided the ISPs with 
a huge benefit: virtually no liability for qualifying ISPs.
    This was balanced by placing on ISPs certain obligations. 
One requires ISPs to respond expeditiously to subpoenas seeking 
identifying information about subscribers accused of copyright 
infringement. The ability of copyright owners to use Section 
512(h) is a critical part of that bargain, allowing copyright 
owners to pursue primary infringers.
    Recently, the scope and constitutionality of Section 512(h) 
has come under attack. In the RIAA-Verizon litigation, Verizon 
claims that the subpoena power of 512(h) is inapplicable to the 
mere conduit activity described in 512(a).
    As the district court held, the plain language of 512(h) 
demonstrates that this interpretation is not correct. I agree. 
The statutory text confirms the compromise that copyright 
owners and ISPs are to work together to remedy infringement in 
all categories of activities.
    The United States has intervened in the Verizon litigation 
to defend the constitutionality of Section 512(h). The 
Copyright Office has assisted the Justice Department in this 
effort and we firmly believe that 512(h) is appropriate and 
constitutional.
    One observation. The alleged constitutional infirmities 
apply to any subpoena applied pursuant to 512(h), not only to 
subpoenas to identify participants in peer-to-peer networks. 
And if 512(h) is declared unconstitutional, I believe the 
result would be that 512 as a whole, including the limitations 
on ISP liability, would be unconstitutional.
    In conclusion, the DMCA represents a carefully crafted and 
balanced bargain which utilizes both enlightened self-interest 
and the incentives created by doctrines such as secondary 
liability to encourage all stakeholders to work together. Some 
are now selectively challenging key components of that bargain, 
particularly in the context of peer-to-peer technology.
    Taken together, the positions of Grokster along with 
arguments now made by Verizon and others, if they prevail, will 
leave copyright owners with little or no remedy against the 
most widespread phenomenon of infringement in the history of 
this country.
    Thank you.
    [The prepared statement of Ms. Peters appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you. You answered one of my 
major questions there. Let me just say before I turn to Senator 
Durbin, who will be our last questioner, I want to thank the 
members of this panel for your testimony.
    I think that these issues have not ripened enough to permit 
this Committee to determine whether Section 512(h) works as 
intended or whether legislation could be brought to improve it. 
The first court challenges to 512(h) subpoenas are still 
ongoing and I don't think we can yet determine whether these 
subpoenas are being used responsibly to identify alleged 
infringers. More actual experience with these provisions could 
reveal potential improvements to them.
    Perhaps in the meantime, what I would like to do over the 
next 6 months is I would like to ask Verizon and the 92 
companies that are supporting your position, General Barr, and 
RIAA and any affected consumers to report back to me and my 
staff and Senator Leahy and his staff at least bi-monthly on 
how the subpoenas are operating and how further legislation 
might improve them.
    In these reports, I would ask both of you to keep two 
principles in mind. First, the Section 512(h) subpoena process 
exists because ISPs, as Ms. Peters made clear, argued 
successfully and over the objections of the content creators 
that they should be immune from secondary infringement 
liability because individuals misusing ISP services were the 
proper targets for Internet copyright infringement.
    This broad immunity ensured, as Ms. Peters said, that only 
viable targets for copyright enforcement would be individual 
Internet users who guessed wrong about whether Internet content 
respects the complex strictures of copyright.
    The interests of those burdened consumers, it seems to me, 
are critically important. But a claim that their interests 
cannot be reconciled with content creators' need for efficient 
identification mechanisms seems like a claim that the intent of 
Section 512 cannot be achieved without the reopening of all of 
Section 512. That is not a claim that should be made or 
accepted lightly.
    Secondly, the Committee needs statistically valid data to 
support any claims about consumer preferences. Copyright-
holders have long used means short of Federal lawsuits to 
resolve disputes with alleged infringers. Valid data would help 
this Committee determine whether individual Internet users 
actually prefer a mechanism that requires them to be identified 
not as the private recipients of cease and desist letters, but 
as named defendants in public Federal court complaints seeking 
damages, statutory damage fees, and injunctions.
    So what I am hoping, Mr. Sherman and General Barr, is that 
your organizations will help us here and provide this Committee 
with--I would like bi-monthly reports and proposals that I have 
requested. Now, that is a little work, but my goal here is not 
to find fault with either of you. I think both of you make good 
cases here. It is try and get this system so it really does 
work, work efficiently, work constitutionally in a sound 
manner, and work to the betterment of copyright protection.
    It is complex. I mean, it took us 5 years to get the DMCA 
passed, and I can remember all of the back and forth, absolute 
gut fights that we were in to get that done. I have no doubt 
that it is not perfect. On the other hand, I think we might be 
able to resolve some of these problems in a way that would be 
mutually beneficial and perhaps satisfactory.
    Naturally, content providers and copyright owners have a 
tremendous interest in their protection. Naturally, service 
providers have a different set of interests, as well as those 
interests, and we need some help here as to how best to solve 
these problems.
    I think these young kids or anyone else wouldn't think of 
walking into a record store and stealing CDs right off the 
shelf, and yet that is exactly what they are doing over the 
Internet. And that is just one aspect of it. There are movies, 
books, CDs, you name it, and we have got to find some way to 
have our society be honest about these very important copyright 
protections. So if I could get some help from both of you, I 
would appreciate it and I will count on it.
    Senator Durbin, you are going to be our last and then I 
have got to close up shop here.
    Senator Durbin. Thanks, Mr. Chairman. I am going to be 
brief here.
    Mr. Barr, I thought you made a pretty compelling argument, 
but I am really troubled by this brochure if it accurately 
depicts what you were advising your customers to do, which is 
to use the free sites, the P2P sites, for acquiring music. It 
strikes me that you don't come to this discussion with clean 
hands.
    Mr. Barr. Senator--
    Senator Durbin. If I can finish, it strikes me that you are 
encouraging them to use these sites which basically open up 
their privacy to the world, and I think Judge Bates made that 
observation when he said that this peer-to-peer file-sharing, 
as quoted by Mr. Sherman, ``It is hard to understand just what 
privacy expectation a user has after essentially opening his 
computer to the world.''
    It strikes me that it sounds like you are encouraging Lady 
Godiva to get on the horse and then complaining that the 
arresting sheriff is sneaking a peek and invading her privacy. 
I mean, I don't think you can have it both ways.
    Mr. Barr. Well, Senator, if you have the brochure in front 
of you, you will see that the very first paragraph of the 
brochure says that the courts have ruled that groups like 
Napster and that kind of sharing is a violation of law, and 
that it is quite possible to get your needs satisfied on the 
Internet with a completely clean conscience. That is the first 
paragraph.
    The paragraph that Mr. Sherman quoted from, after elision--
you will note that that paragraph starts off by listing a 
number of sites, like Rhapsody and MP3, and so forth, and then 
makes the distinction between subscription sites and free 
sites. Now, free sites can be authorized sites. Free sites is 
not a synonym for P2P.
    So that paragraph was intended to list the lawful, 
authorized sites, some of which are subscription, some of which 
are free, and then explain the difference between subscription 
and free sites.
    Senator Durbin. So, Mr. Sherman, are you misrepresenting 
this by saying that this quote and the one that you have 
highlighted here are an invitation to P2P and an invitation to 
squander your privacy?
    Mr. Sherman. No. I stand by my quotation. I will admit that 
the 2003 version is an improvement over the 2002, which 
specifically proposed people to go to the Morpheus site, which 
is one of the illegal sites that we have had the most problems 
with. So Verizon has improved it a little bit.
    Just when you look at ``the free sites have pretty much 
everything you want, but you may be pelted with some unwanted 
ads,'' how about the fact that you may also be engaging in 
illegal activity about which the recording industry announced 6 
months ago that we intend to bring lawsuits to enforce our 
rights? That would be a service to the DSL subscribers, not the 
sort of notice that is being given here.
    Senator Durbin. Let me ask you about what was announced 
yesterday by your industry. Are you headed to junior high 
schools to round up the usual suspects? How are you going to 
deal with this in a fashion that doesn't turn off your 
potential customers for a long time to come?
    Mr. Sherman. Well, the word ``customers'' is an interesting 
term because if somebody doesn't actually buy your product but 
simply steals it, what do you consider them? What is the 
shoplifter at Saks Fifth Avenue? Is that a customer?
    Senator Durbin. So you write them off?
    Mr. Sherman. Well, no, we don't write them off. We try to 
bring them back, and we try to bring them back by letting them 
know that this is really illegal activity, that they are not 
anonymous when they engage in it, and that there can be 
consequences.
    We have done a lot of market research and we have come to 
the unhappy conclusion that people don't shoplift not because 
it is immoral or because it is wrong, but because they fear 
they may get caught. And we are trying to let people know they 
may get caught, and therefore they should not engage in this 
behavior.
    Yes, there are going to be some kids caught in this, 
although you would be surprised how many adults are engaged in 
this activity. This is not just children. But we think that it 
is great for parents to know what their kids are up to. If a 
child brought home a shoplifted CD from Tower, I don't think 
the average parent would say, oh, look how cute, he loves 
music. They would make him take that CD back and lecture him 
about honesty and theft, and so on and so forth.
    Parents need to know what their kids are doing when they 
are downloading music from the Internet, too, as well as 
everything else we have talked about at this hearing today--the 
access to pornography whether they want it or not, the child 
pornography, the security threat, the privacy threat.
    Parents may not realize that their kids are opening up the 
parents' hard drive for the rest of the world to see. That 
would be a service if ISPs notified their customers that there 
is a privacy risk to engaging in illegal file-sharing activity 
on these peer-to-peer networks.
    Senator Durbin. I think that is a very constructive 
suggestion, and I don't mean to downplay the threat to your 
industry when I suggested that you are going after adolescents. 
I think it is a serious problem. It is theft and it should be 
viewed as such. I think you have a tough public relations 
campaign here to go after the offenders without appearing too 
heavy-handed in the process.
    I would say, Mr. Barr, that we have found, I think, in both 
political parties that privacy is one of the most important 
things that Americans want to protect, whether it is medical 
privacy or financial privacy. I think we are learning. Senator 
Hatch and I--and I respect his leadership on this--are learning 
and hoping that we can make the laws that we have passed better 
in the future.
    I thank you all for coming to this hearing. Thank you, Mr. 
Chairman.
    Chairman Hatch. Well, I appreciate your kind comments. I 
have to say that nobody respects privacy rights better than I 
do, and I understand all of the concomitant liabilities you 
would have if those privacy rights are not respected. There are 
all kinds of problems that would come forth.
    All three of you have been terrific. I think we have 
benefitted a great deal from this, and I agree with you that, 
yes, there are some children doing this, but there are a lot of 
adults doing it as well, who ought to know better and who 
deliberately do it knowing that it is wrong. It is just time 
for people to wake up.
    I would hate to get to that point where we have to give 
three warnings and then blow up the set. I am speaking tongue-
in-cheek to a large degree, but there is still a lot of truth 
to that, and I have to say that this hearing has been very 
beneficial.
    Ms. Peters, I have always respected you. I think you are 
one of the best servants in Government that we have, and we 
appreciate your viewpoint here today. It was well put and 
something I am extremely interested in, and we appreciate the 
efforts that you have put forward. Help us to be able to do a 
better job to be able to protect the respective interests and 
to resolve some of these difficulties.
    I have no ax to grind here. I just want to make sure that 
we resolve these difficulties that exist and that we live 
within the framework of laws. To that degree, I think you folks 
can be of tremendous help to us. So with that, I want to thank 
you again.
    Let me just make one more comment. The deadline for 
submitting written questions to witnesses will be 5:00 p.m. 
next Tuesday, September 16. So I hope all staff will pay 
attention to that.
    Thanks so much, and we will recess until further notice.
    [Whereupon, at 4:33 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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INDECENT EXPOSURE: OVERSIGHT OF DOJ'S EFFORTS TO PROTECT PORNOGRAPHY'S 
                                VICTIMS

                              ----------                              


                      WEDNESDAY, OCTOBER 15, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:11 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch and Grassley.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Good afternoon. Today, we will be 
conducting an oversight hearing on the Department of Justice's 
efforts to prosecute child pornography and obscenity.
    As many of you know, pornography is a growing problem in 
America. For example, in a recent ``ABC Primetime Thursday'' 
story, Diane Sawyer stated that the pornography industry is 
estimated at $10 billion, which is bigger than the NFL, NBA, 
and Major League Baseball all combined. And it is getting worse 
with the advent of the Internet. Pornographic web pages now 
number 250 million--250 million--and are growing at an 
unprecedented rate. It is estimated that porn on the Internet 
will grow to become a $7 billion--that is with a ``B''--billion 
dollar industry in the next 5 years unless we have aggressive 
law enforcement.
    The National Society for the Prevention of Cruelty to 
Children estimates that there are 140,000 images of child 
pornography online. The typical age of children depicted in 
these images is between six and 12, but the profile is getting 
even younger.
    In addition, adult pornography has become readily available 
to minors. There are currently 28 million children and 
teenagers with access to the Internet and an additional 50 
million globally are estimated by the year 2005. Nine out of 
ten children, ages eight to 16, have viewed pornography online, 
most of them unintentionally and when using the Internet to do 
their homework. And those children who seek it out of curiosity 
have absolutely no difficulty or trouble getting it. Ninety-
seven percent of adult websites do not require adult 
verification.
    The result of all this porn is that there are 11-, 12-, or 
13-year-old children being treated for pornography addiction. 
As Professor Victor Cline previously testified before the Child 
Online Protect Act, Commission, or COPA, the overwhelming 
majority of pedophiles use child pornography to simulate and 
whet their sexual appetites before abusing children. They also 
use child porn to desensitize children and lure them into 
participating in sexual activity. In addition, as the ``ABC 
Primetime Thursday'' piece made clear, the victims of 
pornography are not just addicts and rape victims, but young, 
innocent teenagers who go to Los Angeles with dreams of 
becoming a movie star and instead get caught up in this sordid 
industry.
    I have always believed very strongly in protecting children 
from this type of offensive material. I sponsored the PROTECT 
Act, which the President signed into law 6 months ago. This is 
one of the most significant pieces of child crime legislation 
that Congress has passed in decades. It gives law enforcement 
the tools it needs to effectively prosecute child 
pornographers. In addition to authorizing criminal prosecutions 
of child pornographers, the Act provided funding for more 
prosecutors and investigators and established a cyber tip line 
to report online child exploitation. It also created a national 
registry of child pornographers.
    I am currently considering legislative solutions to the 
many risks inherent in the use of peer-to-peer networks. Almost 
half of the people who use peer-to-peer networks are minors. 
Recent studies have shown that millions and millions of 
pornographic files are available for downloading on these 
networks at any given time. Even more disturbing is that 
searches on these networks use search terms that a child would 
be expected to use, such as Harry Potter or Pokemon, and they 
turn up an enormous percentage--over 50 percent in one study 
according to the GAO--of pornographic materials, including 
child pornography. Now, this is simply unacceptable.
    Many parents, possibly the majority of them, are unaware of 
this problem, and I think this requires our immediate 
attention.
    I look forward to hearing about DOJ's efforts to combat 
both child pornography and obscenity. This is a growing problem 
that we need to attack aggressively. We cannot sit quietly and 
hope that this whole set of problems is going to go away.
    The hearing today will consist of two panels. The first 
panel includes three representatives from the U.S. Department 
of Justice, John Malcolm, Deputy Assistant Attorney General of 
the Criminal Division; J. Robert Flores, Administrator of the 
Office of Juvenile Justice and Delinquency Prevention; and Mary 
Beth Buchanan, U.S. Attorney for the Western District of 
Pennsylvania. In addition, we have Lawrence Maxwell, Inspector 
in Charge from the Postal Inspection Service.
    The second panel consists of Bruce Taylor, President and 
Chief Counsel to the National Law Center for Children and 
Families; Detective Steve Takeshita, Officer in Charge of the 
Pornography Unit in the Los Angeles Police Department; and 
Emeritus Professor from the University of Utah, my own friend, 
Dr. Victor Cline, who, of course, is one of the great experts 
in this field and child psychiatry.
    Welcome to the hearing. I want to welcome all of you and I 
look forward to listening to your testimony.
    In addition, at this time, I would like to submit for the 
record the written testimony of Donna Rice Hughes, President of 
Enough is Enough, an advocate of protecting children from 
pornography on the Internet.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Chairman Hatch. We will start with you, Mr. Malcolm. We 
will take your statement first and then just go across the 
table.

    STATEMENT OF JOHN G. MALCOLM, DEPUTY ASSISTANT ATTORNEY 
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                              D.C.

    Mr. Malcolm. Thank you, Mr. Chairman. I thank the Committee 
for inviting me to testify about the Department of Justice's 
enforcement efforts against those who produce and disseminate 
adult obscenity and child pornography.
    In addition to pornographic material, which is 
constitutionally protected, adult obscene material and child 
pornography, which are not constitutionally protected and which 
are illegal, are unfortunately pervasive in our society. While 
there is no doubt that the Internet provides access to a highly 
diverse network of educational and cultural content, it is also 
responsible for the proliferation of adult and child 
pornography and obscene material.
    Indeed, offensive material that used to be largely 
unavailable to average citizens and children is now largely 
unavoidable. Offensive material is readily available to anyone 
with an Internet connection, accessed oftentimes by 
unsuspecting children and adults who had no intention to seek 
such material and no desire to view it.
    The proliferation of this material and the desire by 
pornographers to differentiate themselves in a highly 
competitive market prompted pornographers to produce ever more 
offensive material. In addition to child pornography, 
pornography depicting and glorifying bestiality, scatology, and 
rape are readily available and aggressively marketed.
    The harmful effects of obscene material and the victims of 
this sordid industry are very real. The images produced promote 
the idea of sex without consequences, such as unwanted 
pregnancies or sexually-transmitted diseases. The victims, 
usually women, are objectified and demeaned, presented and 
completely nondiscriminating with respect to the number of type 
of sexual partners they have and as being aroused and gratified 
by being beaten, tortured, or raped.
    Very few women grow up dreaming of being filmed having sex 
with an animal or being raped and beaten by multiple partners, 
and very few who see these powerful images and absorb the anti-
social values they portray can remain unaffected by them. The 
negative lasting impact that this has on the participants who 
are in these images and on the attitudes that are formed by the 
predominately male viewers who see them is incalculable.
    The negative impact and effects of child pornography, while 
more readily apparent and universally recognized, are too 
horrifying to think about. Images of young teenagers, 
prepubescent youngsters, and literally infants engaging in sex 
of all types with other children and adults are readily 
available and would make you sick to your stomach.
    As well, pedophiles frequently use child pornography and 
obscene material to lower the inhibitions of their victims and 
to persuade them that adult-child sexual interaction is 
perfectly acceptable. Too often, this pernicious ploy works.
    Attorney General Ashcroft publicly stated that the 
Department is unequivocally committed to the task of 
prosecuting obscenity. Since that time, attorneys with the 
Child Exploitation and Obscenity Section, CEOS, which I 
oversee, working with prosecutors and U.S. Attorneys' offices 
around the country, have created an obscenity enforcement 
strategy and have made tremendous progress in combatting the 
scourge of obscenity.
    In order to aggressively and effectively combat the online 
distribution of obscenity, the Department created the High Tech 
Investigative Unit. This unit is staffed with computer forensic 
experts who bring their special technological expertise to bear 
against Internet-based child pornography and obscenity 
offenders, many of whom feel impervious to law enforcement 
because of the perceived anonymity offered by the Internet. 
Working side by side with CEOS trial attorneys and Federal 
agents, these computer forensic specialists meet the challenges 
presented by the use of emerging Internet technology and are 
poised to meet new challenges that will surely develop as 
technology evolves.
    CEOS also conducted a symposium on obscenity in June 2002 
to discuss strategy. The Attorney General personally addressed 
the audience and, via live simulcast, U.S. Attorneys' offices 
throughout the country. In October 2002, CEOS presented an 
obscenity training seminar and a second annual obscenity 
training seminar began today and will last the rest of the 
week. Through such training, the Department hopes to develop a 
framework for sustained long-term enforcement of Federal 
obscenity laws to complement the anti-obscenity efforts of 
State and local prosecutors and investigators.
    I am pleased to state that the Department's efforts are 
starting to bear fruit. To date, during this administration, 
there have been 19 convictions involving Federal obscenity 
statutes. Two defendants, including a former police officer who 
allegedly distributed rape videos, are on trial right now in 
Federal court in Dallas, Texas. Two other cases of large-scale 
distributors of allegedly obscene material have been indicted, 
and approximately 50 Federal obscenity investigations are 
ongoing at CEOS and in districts throughout the country.
    While the Department is committed to a renewed enforcement 
agenda with respect to adult obscenity, and despite the obvious 
drain on resources by the war on terrorism, the Department 
continues to vigorously enforce child sexual exploitation laws. 
Indeed, according to the Executive Office of U.S. Attorneys, in 
fiscal year 2002, 1,199 cases were filed, a 22 percent increase 
over the previous year.
    Internet investigations often uncover large child 
pornography groups with hundreds and sometimes thousands of 
targets. The Internet affords the pedophiles the ability to 
communicate with a large number of people with minimal effort. 
CEOS is currently involved in nine national significant 
operations. We work very closely with the U.S. Attorneys' 
offices and with the Internet Crimes Against Children Task 
Forces, and I am proud to say that though these operations are 
ongoing, several active molesters have already been caught and 
convicted and several children have been identified and 
rescued.
    Mr. Chairman, we are under no illusions that this task is 
going to be easy or that we are not going to face challenges in 
the future. Nonetheless, the Department of Justice will do 
everything within its power to curb the proliferation of 
obscene material in our society and to protect children, both 
at home and abroad, from the predatory activities of 
pedophiles. Thank you.
    Chairman Hatch. Thank you.
    [The prepared statement of Mr. Malcolm appears as a 
submission for the record.]
    Chairman Hatch. Mr. Flores, we will turn to you.

    STATEMENT OF J. ROBERT FLORES, ADMINISTRATOR, OFFICE OF 
JUVENILE JUSTICE AND DELINQUENCY PREVENTION, OFFICE OF JUSTICE 
       PROGRAMS, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Flores. Mr. Chairman, I am Bob Flores, the 
Administrator of the Office of Juvenile Justice and Delinquency 
Prevention. On behalf of the Department, I am grateful to have 
an opportunity to testify today on the subject of protecting 
the victims of pornography.
    The office that I head continues to commit resources to 
protect children and families from the harms associated with 
sexual exploitation, sexual abuse, child pornography, and 
sexual predators. Historically, OJJDP has provided that 
assistance through its administration of funds, technical 
assistance and training, as well as information that we 
distribute and disseminate to the public at large. I want to 
assure you the commitment has never been stronger, and as I 
will detail for you, is being expanded to provide the help you 
seek for children and families, and that the President and the 
Attorney General are publicly committed to providing.
    OJJDP has been involved with tackling the child pornography 
and computer facilitated child sexual exploitation problems 
since 1998, when the first ten Internet Crimes Against Children 
task forces, or ICAC task forces, were identified and funded. 
Last year, the President sought and obtained from Congress 
additional funding to assure nationwide coverage and the task 
forces now number 40, but we expect by the end of this year to 
bring the number up to 45. They provide regional assistance. 
They are made up of Federal, State, and local technical and 
investigative experts and offer prevention and investigative 
services to children, parents, educators, law enforcement 
officers, and others working on these issues.
    We recognize that the increasing online presence of 
children, the proliferation of child pornography, and the lure 
of predators searching for unsupervised contact with children, 
represents a significant threat to the health and safety of our 
families and a formidable challenge for law enforcement today 
and into the foreseeable future. There is a tremendous amount 
of work, however, that has already been done. We have been 
working together with the Department's Criminal Division and 
with other departments. I have also brought this matter to the 
attention of the Coordinating Council on Juvenile Justice and 
Delinquency Prevention, which now has a Technology 
Subcommittee.
    The ICAC task forces alone have been responsible for over 
1,500 arrests in the past 5 years, with nearly 500 of those 
taking place in just the past 12 months. In addition to these 
arrests, the ICAC task forces have made nearly 2,600 case 
referrals to non-ICAC law enforcement agencies. Of the 14,000 
cases the ICAC task forces have been involved in over the past 
5 years, either through actual investigations, referrals, or 
technical support, nearly 11,000 of those have been directly 
related to the possession, distribution, or manufacturing of 
child pornography.
    What are the next steps, however? Children are still at 
significant risk of exploitation. Much of the government's 
efforts have been focused on investigation and prosecution 
after the act of exploitation has occurred. For that reason, 
the Department, at the direction of the President and the 
Attorney General, is expanding the traditional efforts to 
include a focus on prevention, and cleaning up the cyber 
environment in which our children and families learn, play, and 
work.
    OJJDP will contribute to this effort by targeting the 
distribution of obscene material to children. This alarming 
trend has a two-fold impact. First, as noted previously, while 
predators use child pornography to recruit, seduce, and control 
future victims, they also often use adult pornography and 
obscene material, as well as material harmful to minors, to 
break down a child's barriers and desensitize them as a means 
to lure and seduce them into abuse.
    Secondly, the distribution of obscene material to children 
is the commercial porn industry's vehicle, intentional or not, 
to create a new generation of pornography junkies. Some 
children are drawn to the commercial websites through the 
manipulation of common and well-known children's website names. 
Other children encounter this as a result of pornography's 
pervasive presence on the Net. We must address not only the 
predators and the exploiters, but we must also address those 
who help create the atmosphere in which children and families 
who use the Internet are deluged by illegal and unwanted 
pornography.
    Today, Senator the Internet is so polluted that it is 
difficult to pick out a single item of garbage. Moreover, as 
the pornography morass has grown, it is now much easier for a 
predator to find a place to hide amid the garbage. The decision 
to allow Internet pollution to grow, and with it the sense that 
anything goes, has cost our children a great deal. Thus, we 
must begin to look at the illegal activity on the Internet as a 
whole, and send a clear message that the law does apply to this 
critically important medium and that we will not abandon it to 
those who would abuse it.
    In response to this, I have directed the ICAC task forces 
to include, as part of their investigative effort, a new focus 
on adult obscenity cases when a child is the target of the 
material; or if such material has been used to seduce or 
facilitate the exploitation or abuse of a child.
    In addition to this, it is important to make sure that the 
community at large is educated, if we are to have hope that we 
can actually change the culture on the Internet. This pertains 
not only to the child pornography issue, but to responsible use 
of the Internet, including issues that are as important for 
industry as they are to any family--the theft of intellectual 
property and copyright materials.
    One of the efforts that we are going to launch is the 
erection of a comprehensive education and prevention strategy. 
We have already taken the first step in March of this year by 
having a meeting where we brought together government as well 
as private entities, agencies, and organizations. We will 
continue in November as we meet together and again and really 
focus on what is necessary to create a strategy that doesn't 
depend just on the Justice Department, but includes the Health 
and Human Services Department, the Department of Commerce, the 
Department of Labor, and the Department of Education. Each of 
the departments has a role to play. I look forward to an 
opportunity to report back to this Committee and to keep your 
staff informed as we continue.
    I have great confidence that we can succeed at this point 
in time because we stand in a different place now than we did a 
year ago. Corporate America has recognized, perhaps in a way it 
wished it did not, that an environment of lawlessness and an 
inability of Internet users to properly translate how law 
operates in the real world to the cyber world, jeopardizes 
their existence. Parents have come to understand this through 
tragedies.
    I am encouraged that we are here and that much progress has 
been made. I look forward again to having an extended 
conversation with your staff, and I am pleased to take any 
questions that you may have.
    Chairman Hatch. Thank you, Mr. Flores.
    [The prepared statement of Mr. Flores appears as a 
submission for the record.]
    Chairman Hatch. We are going to interrupt for a second 
here. The distinguished Chairman of the Finance Committee would 
like to make a statement, and we will turn to Senator Grassley 
at this time, and then I know that he has to leave a little 
early because of the Medicare prescription drug conference that 
both of us are supposed to be to. But he is going to carry the 
banner for me over there this afternoon.
    Senator Grassley?

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. I am very happy to have your cooperation 
so I can appear for a short period of time at this hearing, 
because I have been very much interested in this going back to 
the Farber Act a long time ago, in the mid-1980's, I believe it 
was. But most importantly, Mr. Chairman, thank you very much 
for your interest in this over a long, long period of time, as 
well, probably before my involvement in it, and your 
continuation through this hearing.
    Hardly a week goes by that I don't receive a letter from an 
Iowan concerned about pornography and its harmful effect on 
family. My constituents want to know what the government and 
the Congress are doing about all the smut that invades their 
homes by way of the Internet and cable television. So I want 
you all to know, and particularly you, Mr. Chairman, that I 
appreciate this hearing because it is a partial answer to my 
constituents' concerns.
    It seems that since the mid-1990's, Congress has made some 
valiant attempts to pass constitutional protections for 
children using the Internet. So far, we have a mixed record. 
The Supreme Court has overruled one of our bills, the 
Communications Decency Act, which tried to protect children 
from indecent material on the Internet. It upheld one, the 
Children's Internet Protection Act, which requires public 
libraries and schools to install Internet filters. And just 
yesterday, the Court agreed to take up another case, the Child 
Online Protection Act, which, if upheld, and I am optimistic 
that it will be, will shield children from material that is, 
according to the law, quite, ``harmful to minors'' while they 
surf the Internet. I supported each of these bills and I am 
very glad that we could get them passed.
    During the last 10 years, the obscenity and child 
pornography industry has grown at quantum leaps. It is no 
coincidence that during the same time, the Department of 
Justice did precious little in the area of obscenity 
prosecution. By all accounts, the Clinton Justice Department 
brought no more than a handful of obscenity prosecutions, and I 
am forced to believe that that sort of laxity towards this area 
of Federal criminal law has contributed to the ``Wild West'' 
environment that we have on the Internet.
    Unfortunately, some have been critical of the current 
administration for being slow out of the gate with regard to 
the enforcement of these obscenity laws. I don't know whether 
this is the case or not, but I am very happy that the 
Department of Justice can be here today to discuss their 
efforts. It is my understanding that the investigation and 
prosecution of these crimes is complex and time consuming and 
is further complicated when the Internet is used to distribute 
this obscene material.
    In reviewing the testimony, I was particularly glad to hear 
about the Office of Juvenile Justice and Delinquency 
Protection's Internet Crimes Against Children task forces that 
are very important, it seems to me, to leverage State and local 
resources in the effort to protect children from obscenity as 
well as child pornography.
    There is substantial evidence that obscenity is not a 
victimless crime. According to a report of the Child Online 
Protection Act Commission, obscenity is a tool used by 
molesters in child molestation and exploitation. I also agree 
with Administrator Flores in his assertion that the 
distribution of obscenity, especially on the Internet, target 
children with deceptive-sounding website names so that they may 
reach their next generation of users. The illegal child 
industry is big, big business and our children are paying the 
greatest cost of these criminal commercial successes.
    Because of the harm that obscenity poses for minors, it is 
critical that the ICACs be given technical assistance and 
training in how to investigate and prosecute Federal obscenity 
crimes as well as child pornography. By arming State and local 
investigators and prosecutors, we will be enlisting an army in 
an effort to protect women and children from this sort of 
exploitation.
    So once again, I thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Grassley. We appreciate 
having you here and appreciate the hard work you give us on 
this Committee and we appreciate your very, very strong 
interest in this area and finding solutions to these problems, 
so we appreciate having you here.
    Next, we will turn to you, and then we are going to wind up 
with our U.S. Attorney for the Western District of 
Pennsylvania.

 STATEMENT OF LAWRENCE E. MAXWELL, INSPECTOR IN CHARGE, FRAUD 
 AND DANGEROUS MAIL INVESTIGATIONS, POSTAL INSPECTION SERVICE, 
                        WASHINGTON, D.C.

    Mr. Maxwell. Thank you, Chairman Hatch. It is an honor for 
me to be here representing the Postal Inspection Service. I 
have prepared a written statement, which I would like 
permission to submit to the record.
    Chairman Hatch. We will put all written statements in the 
record as though fully delivered, and any additional comments 
you would care to make that you would care to augment the 
record with.
    Mr. Maxwell. Yes. I would like to just make a few comments, 
first of all to acknowledge my associates here at the table. 
Truly, this is a team that sings from the same page of music. 
We have for years. Mr. Malcolm provides the leadership and the 
direction for law enforcement to get along and to focus on the 
strategy. Mr. Flores, we have worked with for many years and 
his oversight with the juvenile programs and especially the 
ICAC task forces have been very instrumental. It is a very 
difficult task for him to pull all those different factions 
together and he has done it tremendously. The lady to my left, 
she is known to our agency as a tremendous advocator for law 
enforcement. She is a tremendous prosecutor and we have had a 
lot of experience with her, as well, and I will let her tell 
her story in a few minutes.
    The Inspection Service, and I know you know us well and I 
know your support goes far and deep. I have seen you at the May 
Congressional breakfasts. I know you take the time to come and 
honor the agents there. The Inspection Service itself, we go 
back, we trace our roots to our founder, Benjamin Franklin, and 
we are tied into that American institution, the Postal Service, 
which visits every home. So we have an overriding 
responsibility and passion to protect the Postal Service 
because in doing that, it protects the American public.
    Our mission has changed a lot over the years, but its 
primary focus hasn't changed. We have roughly 200 statutes 
which we now enforce, limited to Postal violations. However, we 
don't stop because the mailings stop. We help our brethren in 
law enforcement to continue those investigations.
    In the cases of pornography, obscenity, I am proud to say 
that Anthony Comstock, who was a Postal Inspector in 1873, and 
he was the first to draft language for legislation which became 
the forerunner--it was the Comstock Act and it became the 
forerunner of 1461, which we utilize today. We were proud to be 
the first to enforce that law.
    As we enter this century and we see the evolution change of 
mail to Internet, still a large part of our cases focus from 
Internet solicitations. In fact, what we have seen, in 1997, 33 
percent of our cases originated online, solicitation followed 
by some form of mailing. Today, we see 70 or more--considerably 
more at certain times--originating on the Internet. So we have 
a concern that things have changed dramatically and we need to 
keep our enforcement capabilities changing with them and we are 
striving to do that.
    Throughout the different legislative enactments, from the 
Sexual Exploitation of Children Act, the Child Protection Act, 
which gave additional teeth to trafficking not only for profit. 
When it became online, we had several cases that blossomed from 
those online solicitations and one in particular was called 
Operation Avalanche, which you may be familiar with. It was 
worked with the Dallas Police Force and the ICAC task force.
    The case itself had tremendous implications and it was the 
farthest reaching at the time of an Internet provider of child 
exploitation materials. It has reached to date globally with 
4,000 sites being searched. What I have seen, from my 
standpoint, it has raised the level of awareness 
internationally that this is a problem that is global. It is 
not just restricted to the United States. We now need to focus 
on our partnerships with those law enforcement agencies and 
those governments.
    Since 1997, 257 child victims have been identified and 
rescued. Since the enactment of the Child Protection Act in 
1984, Postal Inspectors have arrested and prosecuted more than 
4,000 child molesters and pornographers. We find many, if not 
most, of the pornographers are indeed molesters, as well.
    Finally, in focusing on adult obscenity, that would fall to 
a lesser extent of an effort because we are focusing so heavily 
on child exploitation with limited resources. The Inspection 
Service, unlike our counterparts, is not appropriated. We are 
funded by rate payers' money, so we are limited in terms of our 
growth potential, but we do a lot with less. We have roughly 50 
agents that focus on child obscenity--adult obscenity and child 
exploitation and those accomplish all of that.
    Having said that, our counterparts, our partnerships are 
very valuable to us as we proceed. Most recently, we have 
focused on Extreme Associates in Pittsburgh, which was 
prosecuted by Mary Beth Buchanan's district, which shows the 
length and breadth that this adult obscenity has expanded to on 
the Internet. And you will be happy to note that we were the 
very first to apply your PROTECT Act legislation in a case in 
New York, where we prosecuted the individual who sold, I think 
approximately three million in licenses for domains.
    Chairman Hatch. You are going to give us a lot of 
illustrations how we might even improve on the PROTECT Act?
    Mr. Maxwell. Correct.
    Chairman Hatch. Although I think we gave you an awful lot 
of law enforcement tools with that.
    Mr. Maxwell. You did. You did. It has been excellent.
    Chairman Hatch. That is one of the most important Federal 
anti-crime statutes that we have had the whole time I have been 
here.
    Mr. Maxwell. And it couldn't come at a better time, because 
right now, that is what we are seeing in terms of where they 
are using it.
    Chairman Hatch. Good. We would love your advice on it.
    Mr. Maxwell. Okay. Anyway, I thank you for your time. I am 
here to answer any questions.
    Chairman Hatch. Thank you so much.
    [The prepared statement of Mr. Maxwell appears as a 
submission for the record.]
    Chairman Hatch. We are delighted to have you, Ms. Buchanan. 
You have a great reputation and graduated from my alma mater, 
as well. I think that just makes it even better. So we are 
happy to have you here.

   STATEMENT OF MARY BETH BUCHANAN, UNITED STATES ATTORNEY, 
   WESTERN DISTRICT OF PENNSYLVANIA, PITTSBURGH, PENNSYLVANIA

    Ms. Buchanan. I hope you are not feeling as badly as I do 
about Pitt's loss to Notre Dame.
    [Laughter.]
    Chairman Hatch. Well, I have always rooted for both 
schools, to be honest with you.
    Ms. Buchanan. Well, thank you, Mr. Chairman. It is an honor 
to appear before you today on behalf of my office and on behalf 
of all of the United States Attorneys around the country who 
are involved in prosecuting cases of child pornography and 
obscenity.
    Before my appointment as the United States Attorney, I 
served as an Assistant United States Attorney for 13 years and 
I specialized in the area of prosecuting child sexual 
exploitation cases. In that capacity, I prosecuted many 
predators who had a sexual interest in children. During the 
course of my work, I saw that the nature of the cases in this 
area changed dramatically.
    Initially, these cases involved individuals who tried to 
obtain child pornography through the mails, usually in a very 
unsophisticated manner. The activity of the predators has 
evolved during the 1990's to include cases targeting adults who 
use the Internet not only to trade child pornography, but to 
meet children and to engage in actual molestation of the 
children.
    With respect to obscenity cases, much has also changed in 
that area, as well. The adult bookstore has largely been 
replaced by thousands of websites advertising and selling 
pornography. Nearly everyone who has received unwanted and 
offensive spam and e-mails advertising graphic sexual materials 
understands what I mean. Pornographic websites also offer video 
tapes, streaming video, and live webcam activity, all of which 
can be accessed immediately by the computer user. Effectively, 
this means that the world's worst adult bookstore can now be 
accessed in anyone's home who has access to a personal 
computer, and it is not a leap of logic to assume that young 
people are accessing this material, as well.
    The work of the Department of Justice to provide a safe 
America for children now extends well beyond the physical world 
into the electronic universe of cyberspace. While the Internet 
has many great educational benefits, there are also dark 
corners of the Internet where children are being exposed to 
inappropriate sexual material. Protecting children is the most 
important reason to vigorously enforce both our child 
exploitation and obscenity laws.
    I would like to talk about some of the cases that we have 
prosecuted in Western Pennsylvania. Several years ago, I 
prosecuted an Arizona minister who had befriended a 13-year-old 
boy online. Initially, he began sending this boy child 
pornography. Eventually, he sent him a Polaroid camera and 
asked the boy to take a picture of himself and to send that 
picture to the minister in Arizona. Postal Inspectors organized 
a search of the minister's house and they found boxes and boxes 
of child pornography, videotapes, and magazines.
    In another case just this year, the FBI received 
information that a Pittsburgh man had been attempting to trade 
child pornography with an undercover detective in Chicago. A 
search warrant for child pornography was executed at a 
residence in Pittsburgh and located at the scene was a 10-year-
old girl who had been adopted by this man in Russia for the 
purpose in engaging in illegal sexual activity with her. This 
child had been adopted at the age of five and brought to the 
United States. Images of the child were taken and then placed 
online by this individual. He recently plead guilty and is 
facing a sentence of 15 to 20 years in prison.
    In another case, a defendant was convicted of possessing 
child pornography in Los Angeles. That defendant agreed to 
cooperate with law enforcement and he told law enforcement 
about a man in Pittsburgh who had been engaging in sexual 
activities with his own 5-year-old daughter and then showing 
those activities through a video camera to others on the 
Internet. This individual even sold his daughter's 
undergarments to individuals in exchange for child pornography. 
He was convicted and is serving 9 years in prison. Under the 
PROTECT Act, the activity of this person would have netted a 
25-year sentence, but unfortunately, the conduct occurred prior 
to the enactment of the PROTECT Act.
    All of these individuals possessed thousands of images of 
child pornography, revealing their strong interest in sex with 
children. Unfortunately, these perpetrators don't just stop at 
looking at pictures. They have actually acted upon their 
perverse sexual interests.
    As the extensive nature of the child pornography 
collections that we have seen reveals, perpetrators are 
collecting more and more material. They are creating a market 
and a demand for child pornography, and what this means is the 
more they collect, the more they want to collect and the more 
children are going to be victimized in order to make these 
depictions. And each time that this depiction is shown, the 
child is revictimized over and over again.
    Most recently, we prosecuted a man from Virginia who 
identified himself on the Internet as the ``Master of Teen 
Slave Girls.'' He engaged in chat conversations with a 13-year-
old girl from Pittsburgh, and on New Year's Day 2002, he 
traveled to Pittsburgh and transported her to his house in 
Virginia, where he chained her to a room and intended to make 
her his sex slave. He had an entire room of torture implements 
that he intended to use on this child. Fortunately, we were 
able to utilize the provisions of the PATRIOT Act. 
Specifically, we used the pen register and trap and trace 
application and national service provisions to locate the child 
and we were successful in finding her after only about a day 
and a half.
    Chairman Hatch. Something you didn't have before the 
PATRIOT Act.
    Ms. Buchanan. That is absolutely correct.
    Chairman Hatch. I get so sick of these people that have no 
conception of what is in the PATRIOT Act, mostly these 
journalists who write about it, and yet you have tools now that 
you should have had years ago but we were stopped by both the 
far left and far right from giving you but are really making a 
difference for our families today. I appreciate your bringing 
that up.
    Ms. Buchanan. Thank you. Had we not had those tools, we may 
not have been as successful in locating this child as quickly 
as possible and the results could have been very different than 
they were in this case. This particular defendant plead guilty 
and he will be serving more than 20 years in prison for his 
crimes.
    In these cases and in many others, we have found that there 
is a direct link between adult and child pornography and the 
offenders who actually molest children. Images now available on 
the Internet are more graphic, involve younger children being 
molested, and increase every day. There are few, if any, crimes 
that are more serious than the rape of a child. United States 
Attorneys around the country have placed a very high priority 
on catching and prosecuting these offenders, and we work very 
closely with the Child Exploitation Section and all forms of 
Federal and State law enforcement. The importance of 
cooperation among all levels of law enforcement is certainly 
recognized by all U.S. Attorneys.
    In Western Pennsylvania, we have formed a Crimes Against 
Children task force that brought together not only Federal, 
State, and local law enforcement, but medical professionals and 
victims' service agencies so that we could address the full 
needs of the child victims of these types of crimes, and we 
have found that that has been a very effective tool for us in 
maximizing the number of prosecutions that we are able to bring 
and in making sure that all of the needs of the child victims 
are met.
    And before I conclude, Senator, I would like to briefly 
discuss adult obscenity, because it is important to recognize 
that adults as well as children can become the victims of 
pornography. With a CEOS trial attorney, my office recently 
prosecuted an obscenity case involving Extreme Associates and 
its owners, Robert Zicari and Janet Romano. Extreme Associates 
is a California company that has produced some of the most 
vile, offensive, and degrading material that is available on 
the Internet.
    One of the videos that is being charged, called ``Forced 
Entry,'' is a series of rape scenes and killing of three women. 
The women are hit, slapped, and spit upon. Another movie 
involves sexual acts with multiple men, followed by the women 
being forced to drink almost every form of bodily excrement. 
Although the third video apparently involves actresses who are 
over the age of 18, these women are dressed as children younger 
than 18. In one of the scenes, the woman is wearing Pokemon 
pajamas and she is being forcibly raped by a magazine salesman.
    Obscenity by its very nature reduces human beings to sexual 
objects. Just last week, I received a letter from a woman whose 
daughter had participated in the production of pornographic 
films. The mother described how her daughter had become a drug-
addicted participant of these obscenity videos. Prior to that, 
she had been a graduate of a very well-known high school. She 
had a very promising future, but she got involved in the 
obscenity industry and this mother, with nowhere else to turn, 
asked me to do whatever I could to make sure that no other 
child is victimized the way her daughter was.
    I thank you for giving us the opportunity to speak to you 
today about the problems involved with child pornography and 
obscenity and I welcome your questions.
    Chairman Hatch. Well, thank you. I want to thank you for 
the work that you have done. A lot of people don't know what 
you are talking about when you talk about pen register, trap 
and trace that we now have given you the authority to use under 
the PATRIOT Act, and that is being able to get the phone 
numbers into a phone and out of the phone of terrorists or 
criminals like this terrorist was against this young girl. You 
would think that was a given. You would think, no way that law 
enforcement wouldn't have those tools, but we could never get 
them through. And I was the author of the 1996 anti-terrorism 
effective death penalty act when we were trying to get laws 
like that through at that time and were stopped. This time, we 
got them through and it is making a real difference and I am 
just really proud of you and the work that you are doing.
    [The prepared statement of Ms. Buchanan appears as a 
submission for the record.]
    Chairman Hatch. Now, let me just say I am proud of all of 
you and appreciate the work that each one of you is doing and 
the people that you work with, the staffs that you have and the 
organizations that you head. I am sure you are all aware that 
DOJ's Child Exploitation and Obscenity Section prosecuted only 
a handful of pure obscenity cases during the 8 years of the 
Clinton administration. During this same time period, there was 
a tremendous growth in the availability of pornography on the 
Internet. Will you please discuss how these challenges affected 
the Department's prosecution of obscenity cases right up until 
today. We will start with you, Mr. Malcolm.
    Mr. Malcolm. Certainly, Mr. Chairman. I think it is safe to 
say that there was a lack of Federal obscenity enforcement 
during the last administration, not on child porn issues, but 
on adult obscene material, and in part--
    Chairman Hatch. I am not trying to pick on anybody. I am 
just citing what really are facts.
    Mr. Malcolm. Facts are difficult to ignore in this area, 
and the facts speak for themselves. I think that, coupled with 
emerging technology, certainly lead to a proliferation of 
obscene material. I mean, people who are going to be able to 
get a free pass and engage in illegal activity that is highly 
profitable are going to do so and do so in spades, and they 
did.
    Unfortunately, also during that time period, we lost some 
very experienced prosecutors and investigators at the Federal 
level.
    Chairman Hatch. I know the Department has faced significant 
personnel changes and challenges in this area, including an 
almost complete turnover of prosecutors at CEOS. Now that the 
new prosecutors are getting settled in and trained, should we 
expect to see an increase in the number of investigations and 
prosecutions brought by the Department in this area?
    Mr. Malcolm. I absolutely do. We are coming up with an 
effective enforcement strategy, and it has taken us a while to 
get up and running, but now we are pretty much at a full clip 
and I fully expect--
    Chairman Hatch. We expect you are going to full force 
forward.
    Mr. Malcolm. Absolutely.
    Chairman Hatch. Okay. Mr. Flores, let me ask you this. As a 
member of the COPA Commission, you evaluated the accessibility, 
cost, and effectiveness of technologies to protect minors from 
sexually explicit material, harmful to minors material, which 
is different, on the Internet. Now, in your current position as 
Administrator of OJJDP, you hosted an Internet safety focus 
group that brought together experts in the government, private 
sector, and nonprofit organizations to discuss the increasing 
number of children and teenagers using the Internet, the 
proliferation of child pornography and the heightened activity 
by predators searching for unsupervised conduct with underaged 
victims.
    Based on this experience, as well as your prosecutorial 
experience, what non-prosecutorial safeguards do you recommend 
to ensure that pornographic distributors cannot target 
children?
    Mr. Flores. Mr. Chairman, I think that question calls for 
two answers that are related. The first is that there are 
technologies out there, that when used carefully together, 
provide assistance to parents, to schools, to those locations 
where children have access to computer technology and the 
Internet. I don't think it is fair to say any longer that that 
technology is so nascent, that it is just not very good, it 
doesn't work, or it is very blunt and coarse in how it 
addresses these issues. So I think that, clearly, technology 
represents one of those tools that have to be used. I am glad 
to see that libraries and schools are now using these filters, 
they are putting them on their systems in order to provide a 
measure of protection.
    But I would say that one of the things that came up at that 
focus group, and something that is extremely important to me, 
is the need and recognition that parents are still the missing 
cog in much of what we need to do to protect children. The 
Congress and the President have been very focused on the fact 
that industry has to take responsibility for what it does and 
what it makes available, whether it is the Internet service 
provider community or the direct purveyor and producer of the 
obscene material harmful to minors.
    We have worked with schools and we have created educational 
materials and tools to teach kids safety. The National Center 
for Missing and Exploited Children does that. But one of the 
missing ingredients has been parents, and it has been a 
challenge to get parents engaged.
    And so one of the things that the focus group has said is 
that if we want to succeed, we have got to find ways to 
encourage parents to really get involved. Because at the end of 
the day, the same thing is true that I told parents 15 years 
ago. If you want to protect your children from sexual abuse and 
predators, have a good relationship with them. Children who 
enjoy a solid and sound relationship with their parents have 
the least to fear and the smallest risk of being exploited, 
whether it is through this technology or anything else.
    Chairman Hatch. Let me just ask you, Ms. Buchanan, given 
your significant prosecutorial experience, will you explain to 
the Committee some of the unique challenges in prosecuting an 
obscenity case and how it compares with other, say, financial 
or violent crimes cases and how has the number and types of 
obscenity cases in your district been affected by Attorney 
General John Ashcroft's proclamation that obscenity 
prosecutions are a priority within the Department?
    Ms. Buchanan. Every United States Attorney understood at 
the beginning of our terms that obscenity was a priority of 
President Bush and of Attorney General Ashcroft. I think that 
we all had to adjust our priorities in order to deal with the 
effects of terrorism, because that certainly is everyone's 
number one priority, and we do have to balance the current 
priorities of the Department, which include the prevention of 
terrorism, fighting corporate fraud, drug trafficking, and 
violent crime, and child exploitation and obscenity.
    Some of the unique legal challenges I think that we will 
face in prosecuting these cases, first, members of the jury, I 
think are going to be very uncertain as to what the community 
standards are today because we haven't had prosecutions in this 
area really in the last decade. So much material has been made 
available to the public and I think that it has desensitized 
the public. People don't necessarily understand that the fact 
that certain things have not been prosecuted doesn't mean that 
they are not illegal.
    The case that we are now prosecuting is really the first of 
its type in a decade, and this jury is going to have to decide 
what the community standard is. However, this particular case, 
wherever that line may be, it is so far over the line, we don't 
feel that it should be a difficulty in this case. But I think 
that finding and defining the community standard probably 
represents the greatest challenge in prosecuting obscenity 
cases.
    Chairman Hatch. Thank you. Now, Mr. Maxwell, just a 
question or two for you before we finish with this panel. Your 
written testimony provides that over the last 6 years, the 
percentage of child exploitation cases investigated by the 
Postal Inspection Service that involve electronic 
communications increased from 33 to 70 percent. Now, how has 
this change in technology affected the way investigations are 
handled in the Postal Inspection Service?
    Mr. Maxwell. What we have found, there are a couple of 
challenges there that we have to face because of that. 
Sometimes the Internet solicitation and development of the 
case, which historically in years gone by would be through 
letter writing and mail, is much faster, number one.
    Number two, there are a lot of nuances, obviously, in the 
investigative communications, but then also in setting up the 
actual--for Postal Inspectors especially, we normally like to 
have a mailing so we have a violation that we have jurisdiction 
over. We don't stop short, as I said earlier, we are with a 
task force and we are working it and the last minute, somebody 
may have experience with Postal Inspectors and says, I don't 
want to mail this. Let us meet and we will deliver it. We will 
still work that case, but that is a challenge we do face.
    The other issues is that, you know, how widespread will it 
become. I agree with Mr. Flores as far as the prevention 
message to parents. There are countless things that they can 
do, and I think we need to do a better job maybe in getting 
that out. We did send out a--2 years ago, we had a prevention 
poster we put out which we had in each post office in the 
United States. It was designed by a young lady who was an 
artistic, graphic artist with computers and she wanted it to 
appeal not only to children, but to parents, and that was sort 
of the thought behind it. I think it was fairly well received.
    That was--it took us forever to come up with that concept. 
We were so busy focusing on investigations, but what Bob had 
said earlier, I mean, there are ways that parents are 
knowledgeable, even if their children don't have dialogues with 
them often about what they personally do online, they can go to 
the histories and they can check things. So those all do 
present challenges.
    Chairman Hatch. The Postal Inspection Service seems to have 
an advantage, or appears to have an advantage in investigating 
some obscenity and child pornography cases because the target 
usually will have purchased the material and have it shipped to 
their home, which thereby reveals the individual's name and 
address. Now, typically, how long does it take to conduct an 
investigation from its inception to arrest? How does it compare 
with other investigations conducted by other agencies?
    Mr. Maxwell. Not to give a lawyer answer and say it 
depends, but the true fact is it depends on the complexity of 
the investigation. Now, if it is a widespread type of 
operation, say in the case of Avalanche, where you walk into 
something that you realize is just tentacles to a lot of other 
things, it is going to take a lot longer. It depends on the 
complexity in tracing the assets. If there is going to be 
forfeiture or possibilities of capturing those assets, that 
could take a long time, so we could be talking months, and then 
possibly a year or two of litigation. If it is a quick hit with 
communications and a purchase, that is a lot easier.
    So in short, to answer your question would be if it is a 
major operation, something to a greater extent, it is going to 
take longer because you have a much more complicated case to 
put together. If it is just a small-time operator or 
individual, things go right, it could be just a matter of 
months and less and then it could be pretty well wrapped up.
    Chairman Hatch. Thank you. I appreciate all four of you and 
the work that you have done in the past, the work you are doing 
now, and the work that I believe you will be able to do even 
with more expedition in the future because of some of the tools 
that we have given to you and we intend to give more if you 
will help us to understand what would help you the most.
    So in addition to your testimony today, if you will write 
to us and give us the rest of your ideas or any other ideas 
that you might have or you come across that might help us to 
correct prior legislation or improve upon legislation or enact 
prospective legislation, we would like to have your advice on 
it.
    We appreciate each and every one of you. Thank you so much 
for being here.
    Mr. Malcolm. Thank you.
    Mr. Flores. Thank you, sir.
    Mr. Maxwell. Thank you.
    Ms. Buchanan. Thank you.
    Chairman Hatch. We will start with our panel two, which 
will consist of Mr. Bruce A. Taylor, President and Chief 
Counsel of the National Law Center for Children and Families in 
Fairfax, Virginia; Dr. Victor Cline, the Emeritus Professor at 
the University of Utah; and Mr. Steve Takeshita, the Officer in 
Charge of the Pornography Unit of the Organized Crime and Vice 
Division of the Los Angeles Police Department in Los Angeles, 
California.
    It is good to see you, Dr. Cline. It has been a while since 
I have even said hello to you. It is great to have you here.
    Mr. Taylor, we are going to start with you first, so we 
will take your statement, then we will take Dr. Cline's, and 
then we will take Mr. Takeshita's statement.

  STATEMENT OF BRUCE A. TAYLOR, PRESIDENT AND CHIEF COUNSEL, 
    NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES, FAIRFAX, 
                            VIRGINIA

    Mr. Taylor. Good afternoon, Mr. Chairman. As you know, I 
worked with you on bills going back to S. 1722 in 1977. I 
worked with your staff through the 1980's on the dial-up porn 
legislation, the child porn laws, and I think to this day that 
you were right in 1996 when you passed the Child Pornography 
Prevention Act to say computers are going to create images that 
look like real children, and if we can't find the kids, we may 
not be able to prove that it is real and we should deal with 
that kind of material as if it is child pornography.
    But the Supreme Court last year said that Congress went too 
far. You can't criminalize computer images that aren't real. So 
Congress came back with the PROTECT Act, and you did several 
things, as you have been mentioning. One of the things was you 
took another tactic. We said, we will tighten up the definition 
so the Court can't extrapolate that maybe these laws could 
apply to Hollywood R-rated movies that they were never intended 
by Congress to apply to.
    But you also gave law enforcement some new tools, like a 
new child porn obscenity law that says, if it is obscene and it 
portrays what appears to be children, we are going to increase 
the penalty. We are not going to let them get away with images 
just because we can't find the child. It is still child 
pornography to those pedophiles who think it is. It is still 
child pornography to those children who get seduced by it.
    Real people get hurt by pornography. That is a message that 
we now focus on with child pornography. We now focus on it with 
some of the bondage and torture and rape and incest material 
that is floating around the Internet. But these are relatively 
new problems that as this Chairman and colleagues like Senator 
Grassley and others who have been on this Committee for the 
past 25 years have known have always been the fruits of the 
obscenity business.
    I started prosecuting obscenity cases the day the Supreme 
Court announced the Miller decision in 1973. I did it in a 
small Bible-belt community called Cleveland, Ohio. I didn't 
have the luxury of starting off with animals and bondage and 
child porn. There was no such thing. We prosecuted the adult 
porn syndicates for the adult pornography product that they 
brought into the American streams of commerce that Congress 
said was a felony, Ohio law said was a crime. New York law, 
California law, Texas law, and all the States have laws against 
obscenity. It has not been a failure of the American people 
that has led us to where we are today. It is more a failure of 
us in law enforcement.
    Congress in the last eight or 10 years, as the Chairman 
noted, because there was no enforcement at Justice, and I was 
there from 1989 through 1994. We were allowed to continue the 
cases we had started, but there were not going to be any new 
obscenity cases. They didn't want to do them, so Congress said, 
well, we are going to pass better laws so that when we have 
prosecutors who will enforce Federal law, they will have better 
tools, and we did that. We passed the Communications Decency 
Act in 1996. In 1997, the Supreme Court said, well, the 
indecency standard is too vague, so Congress passed COPA in 
1998.
    Your statute that was passed in 1996 was replaced in 2003 
with the PROTECT Act. The Communications Decency Act was 
reenacted in the PROTECT Act and now prohibits website 
operators and service providers from making obscenity and child 
porn available to minors. We have the law that makes libraries 
and schools use filters. Why? Because we are not only trying to 
protect kids from seeing adult pornography, but we are trying 
to encourage and give the tools to law enforcement to deal with 
illegal pornography.
    It is my opinion as a prosecutor who has probably done more 
obscenity cases than anybody in the history of the country, in 
more communities across this country--I have done 100 trials in 
almost half of the United States--it is my opinion that we can 
still win because the people still consider obscene all hard-
core pornography that shows penetration clearly visible. Our 
community standards did not sink into the sewer in the last 10 
years so that only animals or bondage or children is going to 
be obscene to our juries. Like Mary Beth Buchanan, the U.S. 
Attorney from Pittsburgh said, our juries are going to have to 
be reeducated. They have forgotten that obscenity is a crime 
because there have not been any cases.
    But one of the beauties of the Internet and the modern 
communication age is that a fewer number of cases will have a 
much greater impact on the crime than in the past. In the 
1970's and 1980's, we had to get hundreds of convictions to 
make a dent in the pornography syndicates who controlled all 
the adult bookstores, all the theaters, all the video 
cassettes, all the TV, cable, radio. All of the pornography 
that was obscene in this country was tightly controlled by a 
couple of mafia families and a few major distributors.
    They still run the show. There are more people involved in 
selling and distributing obscenity, but out of the 260 million 
webpages that have pornography on the web, there maybe are 
150,000 websites. There are probably fewer than a few thousand 
web servers that host all those pictures. There are probably 
less than two dozen kingpins in the business who live in 
California and are controlled with associates in the mafia 
families in New York who control 90 percent of that.
    A few well-placed prosecutions by the Federal Government 
and some of the bigger city district attorneys' offices will be 
able to have the same deterrent effect on the obscenity 
business now that it has always had, meaning that when there 
are Federal prosecutions against child pornography, pedophiles 
are afraid to get it and they are afraid to molest children. 
When there are Federal obscenity cases, the pornography 
syndicates are afraid to distribute material.
    They are deterred by the law when the law is used, and I 
think that our juries are still looking to us, meaning the 
Congress, to have better laws and law enforcement to enforce 
those laws, because we are going to set the standards that they 
will allow themselves and their children to learn from. We 
don't make the laws, we enforce them as prosecutors. But when 
Congress makes laws or State legislatures pass them and no one 
enforces them, the people think it must be legal or it wouldn't 
be there.
    And that, I think, is the misconception that has been 
fostered on this generation. It is one that Congress has done 
what I think you have--you know, all you are able to do to make 
better laws. It is now up to a new administration, a new 
Attorney General. We have given him some time. There has been a 
lack of patience by a lot of groups that it has taken so long 
to get to where we are where they have started some cases. They 
had to hire new people. They had to train the people. But some 
things could still be done to make it better.
    There needs to be more training. I think there should be 
more cooperation between State and Federal prosecutors, joint 
training of local prosecutors, cross-designating local district 
attorneys and county prosecutors to handle obscenity cases in 
Federal court. The lack of work power and manpower and 
resources in the Federal Government can be supported by having 
local prosecutors handle Federal cases. That is an established 
part of our system of cooperation and it can be done at very 
minimal cost.
    It could also be the province of Congress to give the 
Postal Inspection Service ten or 20 new investigators to do 
obscenity and child porn, but obscenity in particular, maybe a 
couple of FBI agents to be assigned in headquarters to monitor 
and collect information about the organized crime networks and 
the pornography syndicates.
    If obscenity cases are routinely done, the amount of fines 
and forfeitures far exceeds any budgetary expenditures of the 
law enforcement community. While I was at the Justice 
Department, in 5 years, the budget of the Department's CEOS, 
Child Exploitation and Obscenity Section, was $1 million a year 
and we took in $25 million in fines and forfeitures. It is not 
a reason that we enforce the law, but it is a very poor excuse 
to claim that prosecutors are using valuable resources to 
enforce these laws. The truth is that when the laws are 
enforced, the criminals pay for the cost of their own 
investigations and prosecution.
    I think that that is what needs to be done and I would just 
like to make the record here today that all of the hard-core 
pornography that the syndicate imposes on the American public, 
whether it is through video cassettes, pay-per-view TV, or 
Internet, is still prosecutable in every one of our 
communities, in Utah as well as New York, in Dallas as well as 
Chicago. We can get convictions in all the big cities like we 
always have.
    We need to encourage the Department not to be afraid but to 
go forward, and their young prosecutors will be more like I was 
when I started out and the chief prosecutor in Cleveland said 
to me, go do obscenity cases, and so for the next 3 years, I 
did 200 of them a year, not knowing that they were difficult 
and not knowing that people on the juries would have a second 
thought, because when they were given the chance to vote with 
their verdicts, they did. They told us what was obscene. We did 
not tell them. I think that is still the way it is. The 
American public are entitled to that presumption of their 
decency is still a community standard and that is why I would 
like to thank this Chairman and the members of the Committee 
for making this record that will encourage and, in a sense, 
require the Attorney General to keep going on the path he has 
started.
    Chairman Hatch. Well, thank you, Bruce. We appreciate what 
you have done throughout all the years. You certainly have been 
a bulwark in this area and your advice and counsel has always 
been very helpful to us.
    [The prepared statement of Mr. Taylor appears as a 
submission for the record.]
    Chairman Hatch. Dr. Cline, we will turn to you now to take 
your testimony.

 STATEMENT OF VICTOR CLINE, EMERITUS PROFESSOR, UNIVERSITY OF 
                   UTAH, SALT LAKE CITY, UTAH

    Mr. Cline. Thank you, Mr. Chairman. My name is Victor 
Cline. I am a clinical psychologist and psychotherapist 
specializing in marital and family counseling and the treatment 
of sexual compulsions and addictions. Also, I work with the 
victims of sexual abuse and assault. And additionally, I am a 
behavioral scientist with approximately 85 publications, many 
of which are in the area of media and pornography effects.
    In the last 26 years, I have treated approximately 350 male 
sexual addicts or compulsives, including many pedophiles and 
their victims. I also treat rapists, voyeurs, fetishists, those 
making obscene phone calls, those compulsively promiscuous, et 
cetera, et cetera. These sexual illnesses all have a common 
core and dynamic base. They are sexual in nature, highly 
addictive, compulsive and repetitive, very difficult to treat, 
where self-control and self-discipline don't stop their 
occurrence.
    The Internet represents, in my experience, an area of very 
significant risk for many children. Where parents have 
neglected to protect them with filters on their home computers 
or with frequent access to computers in public libraries, mots 
of which still lack protecting filters, this makes it 
exceedingly easy for children to peruse via the Internet 
explicit depictions of child-adult sex, rape, incest, 
bestiality, plus view cyber warehouses filled with other 
depictions of sexual aberrations. I see too many patients of 
minor age who are stimulated to practice or try out in real 
life the things they see in this material.
    Now, the best evidence suggests to date that most or all 
sexual deviations are learned behaviors, usually through 
inadvertent or accidental conditioning. There is no convincing 
evidence to date suggesting the hereditary transmission of any 
pathological sexual behavior pattern, such as pedophilia, rape, 
incest, exhibitionism, and so forth. In fact, one British 
psychologist, Dr. Stanley Rachman, demonstrated in the 
laboratory using live male subjects how easy it is to 
repeatedly condition normal males into sexual illness or 
addiction.
    Child pornography is particularly pernicious because the 
child victims, whether they are sexually abused while being 
photographed or exposed to the erotic pictures as part of their 
seduction, are relatively powerless due to their young age and 
innocence and immaturity, as well as not fully understanding 
the harm potential. Their frequent willingness to trust an 
older person who appears to be kind and accepting of them makes 
them easy prey.
    In my experience as a sexual therapist, any individual who 
regularly masturbates to pornography is at risk of becoming, in 
time, a sexual addict, as well as conditioning himself into 
having a sexual deviancy. In time, the high obtained from 
masturbating to pornography becomes more important than real-
life relationships. It makes no difference if one is an eminent 
physician, attorney, minister, athlete, corporate executive, 
college president, unskilled laborer, President of the U.S., or 
an average 16-year-old boy. All can be self-conditioned into 
deviancy, and I have seen this for 25 years. I attend all the 
national meetings where these sorts of things and the research 
is discussed.
    The process of masturbatory conditioning is inexorable and 
does not spontaneously remiss. The course of this illness may 
be slow and is nearly all hidden from view. It is usually a 
secret part of a man's life, and like a cancer, it keeps 
growing and spreading. It rarely ever reverses itself. It is 
also very difficult to treat and heal. Denial on the part of 
the addict and refusal to confront the problem are typical and 
predictable.
    The presence of child pornography creates the potential of 
many types of harms in the community, including helping to 
create sexual predators or pedophiles and later their victims.
    In the case of pedophiles, the overwhelming majority in my 
clinical experience use child pornography and/or create it to 
stimulate and whet their sexual appetites, which they 
masturbate to, then later use as a model for their own sexual 
acting out with children. I find that the use of child 
pornography in time desensitizes the viewer to its pathology, 
no matter how aberrant or disturbing. It becomes acceptable and 
preferred. The man always escalates to more deviant material 
and the acting out continues and escalates despite very painful 
consequences such as the destruction of the family, loss of 
spouse, children, job, health, or incarceration after 
committing criminal acts.
    Some also use it to seduce children into engaging in sexual 
acts with themselves. When they introduce it to children, the 
suggestion is that this is normal behavior and many other young 
people like themselves also use it and do these things. I find 
that my pedophiles that I work with often trade, lend, and sell 
the pictures they make of young people nude and having sex 
through an informal network.
    Some of the pornography they accumulate is of females fully 
developed anatomically, but made to look young and immature by 
dressing them in children's clothes and arranging their hair, 
such as with a ponytail, to suggest to the viewer that they are 
underage minors when, in fact, they may not be. While the 
producers of this material may claim that no underage children 
were used in producing this pornographic material, to the 
viewer, this is irrelevant because they are perceived as minors 
by the psyche and this erotic arousal may generalize to all 
potential real child victims. Thank you.
    Chairman Hatch. Thank you. That is startling testimony, but 
I know that you have worked long and hard in this particular 
area and have an international reputation and we are very 
appreciative for you taking the time to be with us.
    [The prepared statement of Mr. Cline appears as a 
submission for the record.]
    Chairman Hatch. Mr. Takeshita, we will take your testimony 
now.

 STATEMENT OF STEVEN TAKESHITA, OFFICER IN CHARGE, PORNOGRAPHY 
  UNIT, ORGANIZED CRIME AND VICE DIVISION, LOS ANGELES POLICE 
              DEPARTMENT, LOS ANGELES, CALIFORNIA

    Mr. Takeshita. Good afternoon, honorable Chairman and 
members of the Senate Judiciary Committee. I am Detective 
Steven Takeshita and I am the Officer in Charge of the 
Pornography Unit at the Organized Crime and Vice Division of 
the Los Angeles Police Department. Before I begin, I would like 
to thank the honorable Committee for your invitation to 
provide, which I hope will be useful testimony about the 
pornography industry.
    I am a 25-year veteran of the department and I have been 
investigating the distribution of obscenity for the past 18 
years. I have developed my expertise over the years by working 
with more experienced officers and by obtaining first-hand 
experience as an undercover operative in a joint investigation 
with the Federal Bureau of Investigation into the nationwide 
distribution of obscenity.
    In the 1950s, the Los Angeles Police Department formed the 
Pornography Unit when it became aware that the pornography 
industry was developing its base in the Los Angeles area. The 
duties of the unit were to monitor the distribution of 
pornographic material and to prosecute the illegal distribution 
of obscenity as it affected the quality of life to the citizens 
of Los Angeles.
    During this time period, the adult industry was taking 
advantage of the resources available in the Los Angeles area 
for their productions. The overabundance of unemployed hopeful 
adult actors and actresses and the support personnel who were 
willing to participate in the adult industry to meet their 
basic living expense and financial obligations. Because of the 
wide variety of scenic locations and the great weather, both 
the general and adult film industries favored the Los Angeles 
area. They could film a mountain, desert, or beach scene all in 
1 day, an ideal environment for filming.
    The industry has progressed from the ``T.J. Bibles,'' 
sexually explicit pocketbooks bought in Tijuana, and eight-
millimeter films to the DVD and the Internet. The Internet has 
been referred to as the ``Wild West'' of the 1990s. This Wild 
West of the 1990s has progressed to the point where the average 
distributor on the Internet thinks that they are immune from 
prosecution because of the Internet. The Internet is just a 
vehicle for distribution. For example, if I were telephoning a 
minor to entice the minor for sexual activity, there would be 
no difference than if I chatted to that minor online for the 
same sexual activity. The Internet is just a vehicle the 
illegal activity.
    This vehicle has posed new investigative methods. No longer 
do we respond to an advertisement in a local adult periodical 
to find the distributor in our backyard. Now, our response may 
be directed to a city across the nation or even a foreign 
country. Since our investigations deal directly with a person's 
First Amendment rights, all of our investigative evidence is 
acquired with either a search warrant or consent search. No 
longer can we establish agency liaisons only within our county, 
but now we must need to network with agencies across the nation 
and sometimes worldwide. These liaisons are critical for our 
surveillances and search warrants.
    The Los Angeles area is no longer the base of distribution 
for 90 percent of the adult product within our Nation as it was 
in the earlier years. The increased use of the Internet has 
made the distribution of obscenity a national problem. The 
extreme adult product distributed nowadays was self-banned by 
the adult industry at large only 10 years ago. The recent 
hiatus in Federal prosecution of obscenity has brought forth 
the courage in the adult industry to produce this extreme 
sexually explicit product.
    The adult industry must produce different types of products 
to encourage the consumer to continue in the purchasing of 
their product. The tight competition for the consumer dollar 
has encouraged the major adult industry producers to venture to 
the edge of the envelope with the distribution of some of the 
most extreme sexual product.
    We have laws in place to protect the abuse the women endure 
during the filming of these extreme sexual videos. We have the 
laws in place to protect the exposure of this type of product 
to our children. We have the laws in place to create a better 
quality of life for our citizens. We need the assistance of the 
Federal Government to prosecute the violators of the statutes 
that Congress has enacted to put the welfare of our communities 
as one of our priorities.
    Most recently, the Western District of Pennsylvania, 
Honorable United States Attorney Mary Beth Buchanan, who was 
here earlier, and her staff, the Child Exploitation and 
Obscenity Section, CEOS, of the United States Department of 
Justice, and the United States Postal Inspection Service have 
investigated and also assisted in our investigations in the 
distribution of obscenity. These entities have been very 
supportive and taken the lead into investigating the 
distribution of obscenity.
    What we need today is for all law enforcement entities to 
prosecute aggressively any violator of the distribution of 
obscenity within their investigative jurisdiction to the 
maximum.
    The First Amendment is listed first because our forefathers 
felt its importance. The adult industry tries to hide behind 
the First Amendment in the distribution of their product. The 
Supreme Court has ruled that the First Amendment does not 
protect obscenity.
    I would like to thank the honorable Committee members for 
letting me have this opportunity to testify before you. Thank 
you.
    Chairman Hatch. Thank you.
    [The prepared statement of Mr. Takeshita appears as a 
submission for the record.]
    Chairman Hatch. Thanks to each of you. We appreciate having 
you with us.
    Let me start with you, Mr. Taylor. As I understand it, when 
you were at CEOS through the Child Exploitation Unit or Section 
and Obscenity Section in its early days, from 1989 to 1994, as 
you are probably aware, CEOS has had an almost complete 
turnover of its prosecutors in this administration. Can you 
please talk about some of the challenges that you faced when 
CEOS was in its inception and any observations as to how DOJ 
can meet the challenges it currently faces.
    Mr. Taylor. In some ways, they are similar. One of the 
differences is that when CEOS was first created in the late 
1980's, it tended to try to hire prosecutors who had some 
experience. So when I was brought in, we had a prosecutor from 
Oklahoma, Dallas, Buffalo, places where the prosecutors had 
already done obscenity cases and knew how to do it. We didn't 
have to learn the business, we just had to start the 
investigations. It still takes, as you found out today, three, 
six, 8 months to do an investigation, but we didn't have 
another lag time of a year or two to learn how to be the 
prosecutors.
    The present staff of the CEOS is made up of a lot of bright 
young lawyers who did have to learn and are still learning the 
tricks of the trade of this business. The pornography lawyers 
know this business. They have been doing the same trials, the 
same arguments, same witnesses, same trial tactics and briefs 
for 30 years. There are some of us who have seen enough of 
their lawyers and their trials to know how to pass on to a new 
group of prosecutors sort of what they are going to see when 
they go to court, what the defense lawyer is going to say, what 
his witnesses are going to do.
    But the good thing about the new prosecutors is that they 
are somewhat fearless. They do what they are told. You tell 
them to go to work, they do. They stay up late. They do their 
homework. Like I said, when I started out, I didn't know I 
couldn't do 200 obscenity cases a year. I didn't know we 
couldn't go after all of the people involved and we shouldn't 
be able to do every kind of material they do, and I think that 
could be the attitude that will save this CEOS group of lawyers 
from being discouraged or letting their guard down. I think 
they will go after the enforcement of the law as we expect 
Federal prosecutors to do, meaning spend all your time and all 
your effort doing as good a job as you can and you let the jury 
make the decision.
    But we don't decide for the jury that they are not going to 
hear certain kinds of cases. We let them hear all of them, and 
I think we are more likely to see a bigger variety of cases out 
of this group over the next couple years, even though it has 
had to wait a couple of years because they had to start over 
and get trained. But I think we should start judging them 
starting today rather than from where they have come to.
    Chairman Hatch. You feel pretty confident that this process 
is really in full swing now and that we are going to really 
start going after these people with--
    Mr. Taylor. I do. I think that the Attorney General has 
meant it, since we met with him 2 years ago, that he wanted to 
enforce the law. It has been frustrating to say, well, they had 
to get a new chief, and they did. They had to get new lawyers, 
and they did. They had to train the lawyers, and they did. And 
so we have had to be patient while they had to start, and maybe 
the reason for the delay is that they hired people who didn't 
have the experience. That is up to them to decide how to do. It 
is not a criticism, but it is an explanation.
    But now that they have had the time, they have got the 
staff, they know how to do it, I think that they will be able 
to do a good job and it will make a difference. It is not a 
losing proposition. There is no history of failure in Federal 
law enforcement in this area. There is always success among the 
juries when they are given a chance, and I think they will be 
given a lot of chances in the next 2 years.
    Chairman Hatch. Thank you. Dr. Cline, in an article that 
you published in April of 1999, you indicate that about 94 
percent of the 350 males that you treated for sexual addictions 
over the last 25 years, that pornography was a contributor, 
facilitator, or direct causal agent in acquiring these sexual 
illnesses. Moreover, you have stated that these illnesses are 
particularly difficult to treat, as you said earlier.
    Do you think the greater proliferation of pornography now 
available on the Internet, on cable TV, and in hotels, do you 
think that this greater proliferation has contributed to the 
number of sexual addicts or hindered the treatment of sexual 
compulsions?
    Mr. Cline. I think that the ease in obtaining this material 
has actually facilitated the amount of pathology that we are 
seeing. In fact, Patrick Carnes, the world's leading researcher 
on this area has found that when he surveyed nearly 1,000 
sexual addicts, he asked them the question of whether 
pornography had anything to do with it or not. Something like 
over 90 percent said, absolutely, the pornography is the thing 
that contributed ultimately to their criminal and their 
inappropriate or their sick kind of behavior, which now has 
become very addictive and repetitive and they can't control it.
    Chairman Hatch. I have heard cases of very, very 
outstanding, religious, decent, honorable people who, once 
exposed to repetitive pornographic visualizations and 
obscenity, has had that exposure or exposures, have had those 
exposures just so distort their minds that they have a rough 
time handling it, many of them.
    Mr. Cline. Let me take a few--
    Chairman Hatch. Have you had that experience?
    Mr. Cline. Yes. Oh, absolutely, again and again and again. 
I see corporate executives fired from their jobs because of 
sexual harassment and because they have gotten into this. They 
are using the computers that their company owns two or three 
hours a day, you know, into pornography and the company has a 
policy that that is not tolerated and they are losing their 
jobs and all kinds of consequences, especially for the man who 
is married. His wife reaches a point where she can no longer 
tolerate it and the marriage is broken up. The husband promises 
he will quit, but he can't keep his promise.
    Chairman Hatch. This could happen to anybody, any normal 
person who gets caught up in pornography?
    Mr. Cline. Especially males. The way we are wired, we are 
much more vulnerable than females, and most pornography is very 
hostile to women and very anti-feminine. There are major gender 
differences in who it is marketed to.
    Chairman Hatch. And your testimony has been that with 
regard to children, it is even more volatile.
    Mr. Cline. Yes.
    Chairman Hatch. Or difficult.
    Mr. Cline. See, there is a problem with the adults who are 
into it, so it goes far beyond just the child pornography. But 
if an adult masturbates to child porn and this gets them turned 
on and excited, then what this does is this creates within them 
over time an attraction toward children and eventually wanting 
to act it out and to have some kind of sexual contact with 
children. So both the adult and the child suffer.
    Chairman Hatch. Mr. Takeshita, we are happy to have you, as 
well. Now, you mention in your written testimony that Los 
Angeles used to be responsible for the production of 90 percent 
of all pornographic material. The Internet has made 
distribution centers all over the nation. How much has this 
change in the Internet affected the portion of your 
investigations that are local versus multi-jurisdictional?
    Mr. Takeshita. Our investigations generally have a basis in 
L.A. one way or the other. The product is either sent to the 
city or is distributed from the city. The Internet has made it 
so that the distribution point could be anywhere in the nation. 
The website owner or the person that owns the website may take 
our order and ship the product from his home to our 
jurisdiction.
    Chairman Hatch. What sort of cooperation do you expect or 
do you receive from other law enforcement agencies?
    Mr. Takeshita. The difficulty in our investigations is we 
have to show that the person we are going to prosecute, the 
owner of the business, has direct knowledge that his company is 
distributing sexually explicit product. That is one of the 
requirements for our prosecution.
    With the cooperation of outside agencies, we would be able 
to have them do the fundamental surveillances, getting down as 
the location where the business is at, where his residence is 
at, so that when we go over and do our surveillances, we are 
not needed to be there for maybe a month to six weeks to 
establish a pattern. We can utilize the outside agency as our 
foothold into the investigation.
    Chairman Hatch. Have you faced any challenges with an 
investigation you have worked on in California but then find it 
was prosecuted in another jurisdiction?
    Mr. Takeshita. Usually, as you state, the investigation can 
be prosecuted either where the person is at or in California. 
Finding that type of conflict really doesn't occur. We usually 
have an open conversation with the investigative agency in the 
other State and that is all settled before we ask them to 
assist us in our investigation.
    Chairman Hatch. That is great. I will tell you, the 
testimony of you three has been very beneficial to us here 
today.
    Again, I will challenge you to think in terms of how you 
might be able to help this Committee to come up with the 
changes in the law or improvement in the laws that currently 
exist that might help us to do a better job in this particular 
area. We hold these hearings to be able to try and come up with 
new and better ideas, and also to inform the public of the 
insidious nature of this type of activity. So please feel free 
to contact us and let us know how we can do a better job here 
in the United States Senate.
    With that, this has been a very interesting hearing and one 
that we hope to act upon in the immediate future and we can use 
your help on it. So with that, we will recess until further 
notice. Thank you.
    [Whereupon, at 3:37 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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