[Congressional Record Volume 142, Number 138 (Monday, September 30, 1996)]
[Senate]
[Pages S11838-S11845]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OMNIBUS CONSOLIDATED APPROPRIATIONS ACT, 1997
The Senate continued with the consideration of the bill.
Mr. HATCH. Mr. President, we are coming on to the end of this
session. It is a very, very important session. I think we have
accomplished a lot in this Congress. We have made changes, seen major
changes in how the budget is going to be handled. We now have the
President of the United States talking, for the first time--a
Democratic President talking for the first time--in 60 years about
balancing the budget. I do not think we have any choice in the matter.
We have to move toward a balanced budget.
But we have to see change in welfare reform. For the first time we
have actually done something to entitlement programs. We have certainly
passed a whole raft of other bills that are outlined in the newspapers
almost on a daily basis. I think people are amazed what a terrific and
important Congress this has been.
I would like to just take a few minutes this morning to address some
of the measures in the omnibus bill before the Senate. One such measure
is the vast bulk of the immigration conference report. The American
people expect the Federal Government to control our country's borders.
We have not yet done so. The American people expect Congress and the
President to strengthen the national effort against illegal
immigration.
Despite the last-minute political gamesmanship of the President, we
have included in the omnibus measure provisions dealing with the
problem of illegal immigration. This omnibus measure includes the
conference report on H.R. 2202, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, with certain modifications to
title V of the conference report. The legislative history of the
immigration portion of this measure includes the legislative history of
H.R. 2202 and S. 1664, with their accompanying committee reports and
floor debates and, in addition, a joint explanatory statement of the
committee of conference in Report 104-828.
The American people should make no mistake about it. There is no
thanks owed to President Clinton for this achievement.
On August 2, 1996, President Clinton wrote to Speaker Gingrich.
Remarkably, he said unequivocally he would veto this bill even with the
significantly modified Gallegly provision on public education for
illegal aliens, a compromise which was not even yet at that point in
final form. Republican conferees removed that provision from the
proposed conference report, a draft of which was initially circulated
on September 10, 1996. It was the only issue upon which the President
said he would veto this bill.
The President had 2 weeks before the actual conference to register
other objections to the draft conference report. Yet, only after the
conference committee met and filed its report did the President
interpose final objections related to title V of the conference report,
which addresses immigrants' financial responsibilities. The President
was apparently willing to shut down the Government or kill the
immigration bill on his last-minute demands. The immigration measure in
this appropriations bill now contains further concessions to the
President. We have finally cleared away the obstructions, and it is my
understanding that he no longer has any major objections.
This bill is an important bill. It cracks down on illegal
immigration. Among other things, it builds up and strengthens the
Border Patrol. It authorizes 5,000 new agents and 1,500 new support
personnel for the Border Patrol over the next 5 years. This increase
basically doubles the size of the Border Patrol. The proposal adds as
many as 450 investigators and related personnel to combat illegal alien
smuggling into our country over 3 years. The bill provides 300
personnel to investigate those who overstay their visas and thus remain
illegally in our country.
The conference report requires the Attorney General to establish an
automated entry and exit control system to match arriving and departing
aliens and to identify visa overstayers. It authorizes acquisition of
improved equipment and technology for border control, including
helicopters, four-wheel drive vehicles, night vision scopes and sensor
units, just to name a few things.
The bill adds civil penalties to existing criminal penalties against
aliens illegally entering our country. Criminal and civil penalties for
document fraud are increased. Criminal penalties against those who
smuggle aliens into our country are also increased. High speed flight
from an INS checkpoint is a felony punishable by up to 5 years
imprisonment under this bill.
The bill makes it illegal to falsely claim American citizenship with
the purpose of obtaining any Federal or State benefit or service or for
the purpose of voting or registering to vote in any Federal, State or
local election.
This bill gives the INS, the Immigration and Naturalization Service,
wiretap authority in alien smuggling and document fraud cases.
The bill broadens the definition of ``aggravated felony'' for
purposes of our immigration laws, even beyond the new Terrorism Act, to
include crimes of rape and sexual abuse of a minor. It lowers the fine
threshold for money laundering from $100,000 to $10,000. It decreases
the imprisonment threshold for theft, violence, racketeering, and
document fraud from 5 years to 1 year. That is the threshold. The
broadened definition of aggravated felony adds new offenses related to
gambling, bribery, perjury, revealing the identity of undercover
agents, and transporting prostitutes. What does this mean? More
criminal aliens will be deportable and fewer will be eligible for
waivers of deportation.
To assist in the identification and removal of deportable criminal
aliens, the bill authorizes the registration of
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aliens on probation or parole; requires that the criminal alien
identification system be used to assist Federal, State, and local law
enforcement agencies in identifying and locating removable criminal
aliens; and authorizes $5 million per year from 1997 to 2001 for the
criminal alien tracking center. The bill also provides that funds under
the State Criminal Alien Assistance Program may be used for costs of
imprisoning criminal aliens in State or local facilities.
This bill also provides that the fee for adjustment of status be
increased to $1,000 and that at least 80 percent of those fees be spent
on enhancing the Immigration and Naturalization Service's capacity to
detain criminal aliens and others subject to detention. The bill also
authorizes $150 million for detaining and removing deportable and
inadmissible aliens.
To facilitate legal entry, this measure provides for increased full-
time land border inspectors to ensure full staffing of border crossing
lanes during peak crossing hours. The bill will result in the
establishment of preinspection stations at a limited number of foreign
airports.
These provisions are desperately needed to stem the tide of illegal
immigration.
I note that I am not happy with all of the immigration bill's
provisions, but I have to say, I do not think anybody is. The vast
majority of them, however, are good provisions. But let me give you a
couple of illustrations that I am not very happy about. It adds, for
example, personnel for the enforcement of employer sanctions. I believe
we ought to repeal employer sanctions outright as a costly,
counterproductive failure. I cannot help but note that President
Clinton has gone much further than even this bill proposes by signing
an Executive order penalizing Federal contractors who violate the
employer sanctions law. In doing so, he not only throws more good money
after bad, he is inadvertently fostering more discrimination against
those ethnic minorities in our society who look and sound different
from the majority.
I am no fan of verification schemes, and I am skeptical that the
pilot programs provided for in this bill will be worthwhile. Here
again, the President is already using existing authority to implement
verification projects, which I do not believe can work on a national
scale.
Despite my great reluctance, I have agreed to allow the Attorney
General to certify to Congress that she cannot comply with the
mandatory criminal alien detention provisions of the recently enacted
terrorism law, antiterrorism law, thereby obtaining a 1-year grace
period which could be extended or can be extended under this bill for 1
additional year on top of that 1-year grace period. The Clinton
administration has been tenacious in pleading with Congress to ease
this criminal alien detention requirement. I would have preferred that
the administration find facilities necessary to implement these
provisions.
On balance, though, the immigration bill is a very worthy measure,
and I am pleased that it has been included in the omnibus spending
bill.
I ask unanimous consent a statement of legislative history be printed
in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Division C: Statement of Legislative History
Division C shall be considered as the enactment of the
Conference Report (Rept. 104-828) on H.R. 2202, the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
with certain modifications to Title V of the Conference
Report.
The legislative history of Division C shall be considered
to include the Joint Explanatory Statement of the Committee
of Conference in Report 104-828, as well as the reports of
the Committees on the Judiciary, Agriculture, and Economic
and Educational Opportunities of the House of Representatives
on H.R. 2202 (Rept. 104-469, Parts I, II, and III), and the
report of the Committee on the Judiciary of the Senate on S.
1664 (Rept. 104-249).
The following records the disposition in Division C of the
provisions in Title V of the Conference Report. (The
remaining Titles of the Conference Report have not been
modified.) Technical and conforming amendments are not noted.
Section 500: Strike.
Section 501: Modify to amend section 431 of the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (Public Law 104-193) to insert the provisions in section
501(c)(2) of the Conference Report relating to an exception
to ineligibility for benefits for certain battered aliens.
Strike all other provisions of section 501
Section 502: Modify to authorize States to establish pilot
programs, pursuant to regulations promulgated by the Attorney
General. Under the pilot programs, States may deny drivers'
licenses to illegal aliens and otherwise determine the
viability, advisability, and cost effectiveness of denying
driver's licenses to aliens unlawfully in the United States.
Section 503: Strike.
Section 504: Redesignate as section 503 and modify to
include only amendments to section 202 of the Social Security
Act, and new effective date. Strike all other provisions.
Section 505: Redesignate as section 504 and modify to amend
section 432(a) of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 to provide that the
Attorney General shall establish a procedure for persons
applying for public benefits to provide proof of citizenship.
Strike all other provisions.
Section 506: Strike.
Section 507: Redesignate as section 505.
Section 508. Redesignate as section 506 and modify. Strike
subsection (a) and modify requirements in subsection (b)
regarding Report of the Comptroller General.
Section 509. Redesignate as section 507.
Section 510. Redesignate as section 508. Modify subsection
(a) and redesignate as an amendment to section 432 of the
Personal Responsibility and Work Opportunity Reconciliation
Act of 1996. Strike subsection (b).
Section 511. Redesignate as section 509. Modify to change
references to ``eligible aliens'' to ``qualified aliens'' and
make other changes in terminology.
Section 531. No change.
Section 532. Strike.
Section 551. Modify to reduce sponsor income requirements
to 125 percent of poverty level. Strike subsection (e) of
Immigration and Nationality Act (INA) section 213A as added
by this section. Make other changes to conform INA section
213A as added by this section to similar provision enacted in
the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996. Strike subsection (c).
Section 552. Modify to amend section 421 of the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 to include the provisions in section 552(d)(1) and
552(f). Strike all other provisions.
Section 553. Strike.
Section 554. Redesignate as section 553.
Section 561. No change.
Section 562. Strike.
Section 563. Redesignate as section 562.
Section 564. Redesignate as section 563.
Section 565. Redesignate as section 564.
Section 566. Redesignate as section 565 and modify to
strike (4).
Sections 571 through 576. Strike and insert sections 221
through 227 of the Senate amendment to H.R. 2202, as
modified.
Section 591. No change.
Section 592. Strike.
Section 593. Redesignate as 592.
Section 594. Redesignate as 593.
Section 595. Redesignate as 594.
Mr. ABRAHAM. Mr. President, I would like to ask the Chairman of the
Judiciary Committee a few questions to clarify the changes made in the
asylum provisions of the Senate immigration bill when the House and
Senate conferees adopted the conference report on H.R. 2202, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
These provisions are included in this omnibus appropriations measure.
Senator Hatch was a conferee on this legislation and was deeply
involved in the development of this provision.
Section 604 of the conference report would add to the Immigration and
Nationality Act a new section providing that an alien may not apply for
asylum unless he or she demonstrates by clear and convincing evidence
that the application has been filed within 1 year after the date of the
alien's arrival in the United States. That section also includes two
important exceptions--one for changed circumstances that materially
affect the applicant's eligibility for asylum, and the other relating
to the delay in filing an application. Would the Chairman explain the
meaning of these exceptions?
Mr. HATCH. The conference report does include a 1-year time limit,
from the time of entering the United States, on filing applications for
asylum. Conferees also adopted important exceptions, both for changed
circumstances that materially affect an applicant's eligibility for
asylum and for extraordinary circumstances that relate to the delay in
filing the application.
Like my distinguished colleague from Michigan, I too supported the
Senate provision, which received overwhelming, bipartisan support in
the Senate. In fact, that provision was
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adopted by an amendment in the Judiciary Committee that passed by
unanimous consent. The Senate provisions had established a 1-year time
limit only on defensive claims of asylum, that is, those raised for the
first time in deportation proceedings, and provided for a good cause
exception.
Let me say that I share the Senator's concern that we continue to
ensure that asylum is available for those with legitimate claims of
asylum. The way in which the time limit was rewritten in the conference
report--with the two exceptions specified--was intended to provide
adequate protections to those with legitimate claims of asylum. I
expect that circumstances covered by the Senate's good cause exception
will likely be covered by either the changed circumstances exception or
the extraordinary circumstances exception contained in the conference
report language. The conference report provision represents a
compromise in that, unlike the Senate provision, it applies to all
claims of asylum, whether raised affirmatively or defensively.
Mr. ABRAHAM. Would you say that the intent in the changed
circumstances exception is to cover a broad range of circumstances that
may have changed and that affect the applicant's ability to obtain
asylum?
Mr. HATCH. Yes. That exception is intended to deal with circumstances
that changed after the applicant entered the United States and that are
relevant to the applicant's eligibility for asylum. The changed
circumstances provision will deal with situations like those in which
the situation in the alien's home country may have changed, the
applicant obtains more information about likely retribution he or she
might face if the applicant returned home, and other situations that we
in Congress may not be able to anticipate at this time.
Mr. ABRAHAM. It is my understanding that the second exception, for
extraordinary circumstances, relates to legitimate reasons excusing the
alien's failure to meet the 1-year deadline. Is that the case?
Mr. HATCH. Yes, the extraordinary circumstances exception applies to
reasons that are, quite literally, out of the ordinary and that explain
the alien's inability to meet the 1-year deadline. Extraordinary
circumstances excusing the delay could include, for instance, physical
or mental disability, unsuccessful efforts to seek asylum that failed
due to technical defects or errors for which the alien was not
responsible, and other extenuating circumstances.
Mr. ABRAHAM. If the time limit and the exceptions you have discussed
do not provide sufficient protection to aliens with bona fide claims of
asylum, I will be prepared to work with my colleagues to address that
problem. Is my understanding correct that you too will pay close
attention to how this provision is interpreted?
Mr. HATCH. Yes. Like you, I am committed to ensuring that those with
legitimate claims of asylum are not returned to persecution,
particularly for technical deficiencies. If the time limit is not
implemented fairly, or cannot be implemented fairly, I will be prepared
to revisit this issue in a later Congress. I would also like to let the
Senator from Michigan know how much I appreciate his commitment and
dedication on this issue.
Mr. ABRAHAM. Thank you. I would likewise thank the Chairman of the
Judiciary Committee for his diligent efforts on this issue in
conference and his explanation of the conference report's provisions.
Mr. HATCH. I will note, briefly, that the bill modifies the
antiterrorism law's provisions on summary exclusion, in order to better
assure that those who are bona fide asylees are not erroneously
compelled to leave this country.
On a related point, the Clinton administration has recently announced
its plans to cut refugee admissions next year to 78,000. I oppose this
cut. In fiscal year 1995, the level was 110,000. Last year, the level
of refugee admissions was set at 90,000. I believe we should set the
same level of 90,000 refugee admissions for next year. A further cut is
unwarranted, especially with the renewed steps against alien
immigration embodied in the bill. Moreover, I think it sends the wrong
signal to the world.
A Hatch-Biden substitute for my Child Pornography Protection Act, S.
1237, has been included in the omnibus measure. I thank the
appropriators on both sides of the aisle for their cooperation in
including this important measure in this omnibus bill. The legislative
history of the child pornography provisions of this bill includes the
legislative history of S. 1237, including the report of the Committee
of the Judiciary, Report 104-358.
Senators Feinstein and Grassley have important provisions in the
child pornography provisions of this measure and I want to thank them,
as well as Senator Biden, for their important work on these matters.
They have done a very good job, and I have a lot of respect for my
colleagues.
Child Pornography Prevention Act
Mr. HATCH. Mr. President, modern computer imaging and morphing
technology has made possible the production of pornographic depictions
of minors which are virtually indistinguishable to the unsuspecting
viewer from unretouched photographs of actual children engaging in
sexually explicit conduct.
Such computer generated child pornography has many of the same
harmful effects, and thus poses the same threat to the physical and
mental health, safety and well-being of our children and of our society
as pornographic material produced using actual children. However,
because current Federal law pertaining to the sexual exploitation of
children and the production, distribution, possession, sale, or
transportation of child pornography is limited to material produced
using actual children engaging in sexually explicit conduct, computer
generated child pornography is presently outside the scope of Federal
law.
The omnibus bill includes the Child Pornography Prevention Act of
1996. This act will close this computer generated loophole and give our
law enforcement authorities the tools they need to protect our children
by stemming the increasing flow of high-technology child pornography.
The Child Pornography Prevention Act, as introduced, as S. 1237,
addresses the problem of ``high-tech kiddie porn'' by creating a
comprehensive statutory definition of the term ``child pornography'' to
include visual depictions of sexually explicit conduct: First, produced
using children engaging in sexually explicit conduct; Second, computer
generated depictions which are, or appear to be, of minors engaging in
sexually explicit conduct; or Third, materials advertised, described,
or otherwise presented as a visual depiction of a minor engaging in
sexually explicit conduct.
The act establishes a new section in U.S. Code Title 18, Sec. 2252A,
prohibiting the distribution, possession, receipt, reproduction, sale,
or transportation of child pornography. The act contains congressional
findings as to the harmful effects of child pornography and the threat
to the physical and mental health, safety, and well-being of children
and society posed by child pornography, both computer generated
depictions and depictions produced using actual children. The act also
increases the penalties for child sexual exploitation and child
pornography offenses.
At the Judiciary Committee markup of S. 1237, Senator Biden expressed
concern that the bill, as introduced, may not be upheld by the courts.
Specifically, Senator Biden was concerned as to the constitutionality
of the provision in the bill's definition section that classifies as
child pornography a visual depiction which appears to be of a minor
engaging in sexually explicit conduct, even if no actual child was
involved in its production.
In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court, while
upholding prohibitions on child pornography, not otherwise obscene,
where the pornography included actual minors, noted that ``distribution
of descriptions or other depictions of sexual conduct, not otherwise
obscene, which do not involve live performance or photographic or other
visual reproduction of live performances, retains First Amendment
protection.''
Senator Biden, and some others, worried that, to the extent the bill
reached both child pornography that is within Ferber's four corners,
i.e., material produced utilizing actual minors, and visual depictions
of those who merely appear to be minors--through the use of computer
``morphing,'' for example--it could be struck down. In light of this
[[Page S11841]]
concern, Senator Biden wanted to include in the bill a separate section
expressly covering pornography involving identifiable minors, so that
if the broader appears to be provision is struck down, coverage of
identifiable minor child pornography will survive.
I am confident that the Child Pornography Prevention Act's
prohibition on computer-generated visual depictions which appear to be
of a child engaging in sexually explicit conduct would be found
constitutional, a view shared by the Department of Justice and other
legal experts in this field, and the definition of child pornography
contained in this legislation would be upheld by the courts in its
entirety.
I believe the Supreme Court, in light of technological advances since
the Ferber decision and the record Congress has established with
respect to the harmful effects of computer-generated material which
appears to be of a child engaging in sexually explicit conduct,
including the use of such material to seduce children for sexual abuse
and exploitation, will find it constitutional.
At the same time, I agree that it would be reasonable to include in
the act a fall-back provision specifically covering only identifiable
minor material. Since this type of material involves a depiction of,
and is therefore likely to result in harm to, a real child, i.e., the
child being depicted, such a provision is indisputably constitutional
under Ferber and would provide an enforceable weapon against at least
some computer-generated child pornography in the event that the act's
broader prohibition on computer-generated material which appears to be
of a child engaging in sexually explicit conduct is overturned by the
courts.
Despite concerns about the method proposed by Senator Biden to
address the problem of identifiable minor pornographic material, I
agreed at the markup to accept his amendment, with the understanding
that we would work together to improve the way we are achieving his
objective.
Senator Biden's amendment added to S. 1237 another new statutory
section, as 18 U.S.C. Sec. 2252B, which is directed at one particular
type of computer-created or generated images--visual depictions which
have been created, adapted or modified to make it appear that an
identifiable minor was engaged in sexually explicit conduct. The term
identifiable minor was defined to mean a minor who is capable of being
recognized as an actual person by, for example, his face or other
distinguishing feature or physical characteristic, although a
prosecutor would not be required to prove the minor's actual identity.
Section 2252B duplicated, with respect to identifiable minor
material, the prohibitions and penalties established under Sec. 2252A
for the distribution, possession, receipt, sale or transportation of
material which would be classified as child pornography under this
bill. The bill, as modified in the Judiciary Committee, however, did
not expressly include identifiable minor material in the statutory
definition of ``child pornography,'' although such material could be
classified as child pornography under the definition's ``appears to
be'' language.
I agreed with the goal of Senator Biden's amendment. Visual
depictions of a minor engaging in sexually explicit conduct can haunt
that person for his or her entire life. In addition, there is the
threat that a child molester or pedophile could take pictures of a
child he finds sexually desirable and then produce pornographic
depictions featuring that child engaging in sexual conduct--depictions
which he can use to stimulate his own sexual appetites, sell or
distribute to others, or use in an effort to seduce that child or
others into submitting to sexual exploitation.
The threat posed by, and the harm resulting from, visual depictions
of identifiable minors which have been created or altered so as to make
it appear that the minor is engaging in sexually explicit conduct is
sufficiently distinct and serious to warrant inclusion in the act of
language specifically addressing this type of material.
My concern regarding the Biden amendment was directed solely at the
method used to achieve the goal of prohibiting pornographic material
which uses the image or depiction of an identifiable minor as a clearly
separate offense. It was, in my view, unnecessarily duplicative to
enact two virtually identical statutory sections, 2252A and 2252B, to
deal with computer created or generated child pornography, as the
committee-passed bill with Senator Biden's amendment did.
Further, it was inconsistent and potentially very confusing
specifically to address identifiable minor pornographic material in the
context of this bill, to treat such material in the identical manner as
material formally classified as child pornography under this bill, but
not to include identifiable minor material in the bill's statutory
definition of child pornography. It seemed to me that there is a far
stronger case for the creation of one new section to deal with the new
technology of child pornography, rather than two.
In addition, if we included in this legislation a provision dealing
specifically with identifiable minor material, but failed to include
such material in the bill's definition of child pornography, this fact
could be seized upon by child pornographers and pedophiles to make the
legal argument that identifiable minor material cannot be considered
child pornography within the meaning of federal law. This could have an
adverse impact on law enforcement efforts where, for example, an
individual's involvement with or prior conviction for child pornography
was relevant to an investigation or prosecution, or a factor in
sentencing.
Following continued discussions, Senator Biden and I concluded that
the most appropriate and effective method of dealing with identifiable
minor material, and that most compatible with the framework for dealing
with all forms of child pornography set out by the act, is to include
in the proposed statutory definition of the term child pornography a
subsection specifically covering such material. The Child Pornography
Prevention Act contained in the omnibus bill is the Hatch/Biden
substitute.
Under this bill, a visual depiction would be classified as child
pornography if such visual depiction has been created, adapted or
modified to appear that an identifiable minor is engaging in sexually
explicit conduct. The term identifiable minor would be defined as a
person who was a minor at the time the visual depiction was created,
adapted, or modified, or whose image as a minor was used in creating,
adapting, or modifying the visual depiction, and who is recognizable as
an actual person by the person's face, likeness, or other
distinguishing characteristic, such as a unique birthmark or other
recognizable feature, but such term does not require proof of the
minor's actual identity.
Modifying the definition of child pornography to include identifiable
minor child pornographic material, eliminates any need to establish an
additional section in title 18 pertaining specifically and exclusively
to that particular type of material. Since identifiable minor material
would be classified as child pornography, its distribution, possession,
receipt, reproduction, sale or transportation would, like all other
material so classified pursuant to the Act, be prohibited under the
section 2252A created under this bill.
The act also resolves any concern as to the severability of the
definition's identifiable minor provision in the event the definition's
appears to be language were to be struck down.
S. 1237, as introduced, resolved the question of severability by the
bill's severability clause, which explicitly states that if any
provision of this act, which would include the legislation's definition
of child pornography, is held to be unconstitutional, the remainder of
the act shall not be affected. In order to set to rest any lingering
concern, however, the Hatch/Biden substitute amended the act's
severability clause to specifically state that if any provision of
section of the definition of the term child pornography is held to be
unconstitutional, any remaining provision or section of the definition
shall not be affected.
We know that child pornography aggravates child sexual molestation.
We must take steps to deal with this latest technological challenge to
our laws protecting children. I believe that the Child Pornography
Prevention Act shows that the intent of Congress is not to stand idle
and thereby abet this pernicious activity. I urge all senators to
support this act.
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I ask unanimous consent a section-by-section analysis of the child
pornography provision be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Child Pornography Prevention Act of 1996
section 1
This section sets forth the short title for the
legislation, the ``Child Pornography Prevention Act of
1996.''
section 2
This section sets forth a statement of Congressional
findings with respect to child pornography and computer-
generated depictions of, or which appear to be of, minors
engaging in sexually explicit conduct. Child pornography is a
form of sexual abuse and exploitation which can result in
physical or psychological harm, or both, to children. Child
pornography permanently records the victim's abuse, can cause
continuing harm to the depicted individual for years to come,
can be used to seduce minors into sexual activity, and is
used by pedophiles and child sex abusers to stimulate and
whet their own sexual appetites.
New photographic and computer imaging technologies are
capable of producing computer-generated visual depictions of
children engaging in sexually explicit conduct which are
virtually indistinguishable to an unsuspecting viewer from
unretouched photographs of actual minors engaging in such
conduct. The effect of such child pornography on a child
molester or pedophile using the material to whet his sexual
appetites, or on a child shown such material as a means of
seducing the child into sexual activity, is the same whether
the material is photographic or computer-generated depictions
of child sexual activity. Computer-generated child
pornography results in many of the same types of harm, and
poses the same danger to the well-being of children, as
photographic child pornography, and provide a compelling
governmental interest for prohibiting the production,
distribution, possessing, sale or viewing of all forms of
child pornography, including computer-generated depictions
which are, or appear to be, of children engaging in sexually
explicit conduct.
section 3
This section amends the definition of the term ``visual
depiction'' at 18 U.S.C. Sec. 2256(5) to include stored
computer data.
This section further amends Title 18 of the United States
Code by adding a new subsection, as 18 U.S.C. Sec. 2256(8),
establishing a definition of the term ``child pornography,''
which is defined as ``any visual depiction, including any
photograph, film, video, picture, drawing or computer or
computer-generated image or picture, which is produced by
electronic, mechanical or other means, of sexually explicit
conduct, where: (1) its production involved the use of a
minor engaging in sexually explicit conduct, or; (2) such
visual depiction is, or appears to be, of a minor engaging in
sexually explicit conduct; (3) such visual depiction has been
created, adapted or modified to appear that an ``identifiable
minor'' is engaging in sexually explicit conduct; or (4) it
is advertised, distributed, promoted or presented in such a
manner as to convey the impression that it is a visual
depiction of a minor engaging in sexually explicit conduct.''
The term ``identifiable minor'' would be identified in 18
U.S.C. Sec. 2256(9) to mean a minor who is capable of being
recognized as an actual person by, for example, his face or
other distinguishing feature or physical characteristic,
although a prosecutor would not be required to prove the
minor's actual identity.
Section 4
This section adds a new and distinct section to title 18 of
the United States Code, as 18 U.S.C. Sec. 2252A. This section
makes it unlawful for any person to knowingly mail, or ship,
or transport child pornography in interstate or foreign
commerce; to receive or distribute in interstate or foreign
commerce child pornography, or material containing child
pornography that has been mailed, or shipped, or transported
in interstate or foreign commerce; or to reproduce child
pornography for distribution through the mail. This section
further makes it unlawful in the special maritime and
territorial jurisdiction of the United States, or on any land
or building owned or controlled by the United States, or in
the Indian territory, to knowingly sell, or possess with
intent to sell, any child pornography; or to possess any
book, magazine, periodical, film, videotape, computer disk,
or any other material that contains 3 or more images of child
pornography.
Section 2252A mirrors with respect to ``child pornography''
(as that term is defined under Section 3 of this bill) the
prohibitions on the distribution, possession, receipt,
reproduction, sale or transportation of material produced
using an actual minor engaging in sexually explicit conduct
contained in 18 U.S.C. Sec. 2252. The penalties in
Sec. Sec. 2252 and 2252A would be identical. Violation of
paragraphs (1), (2), or (3) of Sec. 2252A(a) pertaining to
the distribution, reproduction, receipt, sale or
transportation of child pornography would be fined or
imprisoned for not less than 15 years, or both; a repeat
offender with a prior conviction under Chapter 109A or 110 of
Title 18, or under any state child abuse law or law relating
to the production, receipt or distribution of child
pornography would be fined and imprisoned for not less than 5
years nor more than 30 years. Any person who violates
paragraph (4) of Sec. 2252A(a) pertaining to the possession
of child pornography would be fined or imprisoned for not
more than 5 years, or both; a repeat offender with a prior
conviction under Chapter 109A or 110 of Title 18, or under
any state law relating to the possession of child pornography
would be fined and imprisoned for not less than 2 years nor
more than 10 years.
This section also establishes an affirmative defense for
material depicting sexually explicit conduct where the
material was produced using actual persons engaging in
sexually explicit conduct and each such person was an adult
at the time the material was produced, provided the material
has not been pandered as child pornography.
Section 5
This section amends 18 U.S.C. Sec. 2251(d) to increase the
penalties for sexual exploitation of children. An individual
who violates Sec. 2251 would be fined or imprisoned for not
less than 10 years nor more than 20 years, or both. A
repeat offender with one prior conviction under Chapter
109A or 110 of Title 18, or under any state law relating
to the sexual exploitation of children would be fined and
imprisoned for not less than 15 years nor more than 30
years; an individual with two or more prior such
convictions would be fined and imprisoned for not less
than 30 years nor more than life. If an offense under
Sec. 2251 resulted in the death of a person, the offender
would be punished by death or imprisonment for any term of
years or for life.
Section 6
This section amends 18 U.S.C. Sec. 2252(d) to increase the
penalties for offenses involving material produced using a
minor engaging in sexually explicit conduct. As amended, 18
U.S.C. Sec. 2252 will provide the identical penalties as 18
U.S.C. Sec. 2252A for offenses relating to the distribution,
possession, receipt, reproduction, sale or transportation of
prohibited child pornographic material.
Section 7
This section amends the Privacy Protection Act, 42 U.S.C.
Sec. 2000aa, to extend the existing exemption for searches
and seizures where the offense consists of the receipt,
possession or communication of information pertaining to the
national defense, classified information or restricted data,
to include an exemption for searches and seizures where the
offense involves the sexual exploitation of children, the
sale or buying of children, or the production, possession,
sale or distribution of child pornography under Title 18 of
the United States Code, 2251, 2251A, 2252, or 2252A.
Section 8
This section, the Amber Hagerman Child Protection Act of
1996, amends 18 U.S.C. Sec. Sec. 2241(c) and 2243(a) to
provide for a mandatory sentence of life in prison for repeat
offenders convicted of sexual abuse of a minor or aggravated
sexual abuse of a minor.
Section 9
This section includes in the bill a severability clause
providing that in the event any provision of the bill,
specifically including any provision or section of the
definition of the term child pornography, amendment made by
the bill, or application of the bill to any person or
circumstance is held to be unconstitutional, the remainder of
the bill shall not be affected.
Mr. HATCH. Mr. President, in addition, we were able to include a
measure I sponsored which reimburses Billy Dale and the other members
of the White House Travel Office for the legal expenses they incurred
in defending themselves against the Clinton administration's
politically generated investigation into the office. I am pleased that
the Congress will soon pass this measure.
I want to commend Senator Gregg of New Hampshire for his efforts in
securing $1.4 billion in funding for our Federal antiterrorism effort.
As well, this bill enhances the Federal commitment to combat illegal
drugs by providing a significant increase in our drug control budget. I
have to say that Senator Gregg has played a significant and pivotal war
in the antiterrorism fights of this past Congress. He has done a
terrific job and he deserves a lot of credit for the strides we have
been able to make. I want to pay public acknowledgment to him for the
good work he has done.
With regard to the significant increase in our drug control budget,
for example, the bill provides $140 million in funding for five new
high intensity trafficking area task forces, one of which the Judiciary
Committee expects will serve several Rocky Mountain States.
An additional $197 million for the Drug Enforcement Administration,
$46 million more than the President's request, has been provided as
well as a significant increase in funding for the Office of National
Drug Control Policy, the drug czar's office.
Further, the omnibus bill also contains legislation which I
introduced to allow the Office of Independent Counsel to obtain an
additional 6-month extension for travel expenses. Ken Starr needs this
time extension, and I am
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pleased the leadership saw fit to include this measure.
As well, the bill contains $11.4 million in funding for the first
phase of construction of a long-needed annex for the Federal courthouse
in Salt Lake City. This has been a priority of the judicial branch for
some time and it is a highly warranted expenditure.
Moreover, I urged the negotiators to include a provision which
clarifies the effective date of an important change to the rules of
evidence which allows evidence of prior conduct to be admitted into
evidence in Federal sex offense cases. This was a much needed
clarification which Senator Kyl and Congresswoman Molinari urged be
adopted. I am very pleased it was included.
Finally, I express my opposition to the medical patents provision
which was included in this bill. This measure was added notwithstanding
the fact that there were no Senate hearings, and over the objections of
myself, the chairman of the Finance Committee and the U.S. Trade
Representative. It is an unprecedented change to our patent code and it
is my intention to closely scrutinize the implementation of this new
law.
Mr. President, before I close, I wanted also to make a few comments
about a provision tucked inside this omnibus legislation which is of
great concern to me. The provision would functionally eliminate the
patenting of medical procedures.
I know that the authors of this provision are doing what they think
is in the best interest of our citizens.
Nevertheless, I take exception to their amendment on medical process
patents. I think this amendment is bad patent policy and questionable
trade law.
A patent that is not enforceable is like no patent at all. That is
simply what this issue boils down to.
And further, to exempt large multi-million-dollar organizations such
as HMOs from the reach of patent code enforcement, flies in the face of
the American tradition of encouraging individual initiative.
My final concern, a very serious concern, is about the Uruguay Round
Agreements Act [URAA], the General Agreement on Tariffs and Trade
[GATT] implementing legislation. Substantial questions have been raised
about whether this provision is consistent with the Agreement on Trade-
Related Intellectual Property [TRIPs]. In fact, it now appears that the
amendment may not be consistent with TRIPs, a grave matter of
international import.
I also have concerns about the process implications of inserting this
language in the appropriations bill. As chairman of the Judiciary
Committee, I try to take special care of all of the statutes under the
Committee's primary jurisdiction such as the patent code.
As a member of the Finance Committee, I am also charged with the
responsibility of upholding the laws that affect our Nation's
international trade.
In this regard, after serious study of this issue, on September 27,
Chairman Roth and I wrote to our colleagues, Senators Lott, Daschle,
Hatfield and Byrd, and indicated our concern about inserting this
provision in the final legislation due to its unstudied impact.
Mr. President, I ask unanimous consent that a copy of that letter be
printed in the Record at this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, September 27, 1996.
Hon. Trent Lott,
Majority Leader,
U.S. Senate, Washington, DC.
Dear Mr. Leader: As Chairmen of the Senate Finance and
Judiciary Committees, we strongly oppose inclusion of
proposed section 616 in the omnibus appropriations bill.
Inclusion of the provision, which concerns medical procedure
patents, is inappropriate for several reasons.
Section 616 implicates U.S. obligations under an
international trade agreement, specifically the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPs)
administered by the World Trade Organization (WTO). As a
result, this aspect of section 616 falls under the Senate
Committee on Finance's jurisdiction on international trade
agreements.
Moreover, the provision raises serious questions regarding
U.S. compliance with its obligations under TRIPs. It could
also establish a precedent which other countries might invoke
to deny or weaken patent protection afforded to U.S. industry
under the TRIPs. The Committee on Finance has not had an
opportunity to hold a hearing on this matter to consider
these broader ramifications for U.S. trade policy.
Section 616 is very controversial and constitutes a
significant departure from principles of American patent law
that have been on the books for over two hundred years. The
amendment would preclude a certain class of patent-holders
from enforcing their patent rights against infringement, a
change that renders these patents virtually meaningless. That
there is no consensus on this significant change in U.S.
patent law is underscored by the fact that the Clinton
Administration, the American Intellectual Property Law
Association, the Intellectual Property Owners, and the
Intellectual Property Law Section of the American Bar
Association are on record as opposing the provisions
contained in section 616.
As noted, section 616 has not been properly vetted through
the Committees of jurisdiction. This is exactly the type of
complex, technical provision that should not be hastily
included in end-of-the-session omnibus legislation. As two
Committee Chairmen with jurisdiction over this provision, we
urge that you not include this provision in the bill.
Sincerely,
Orrin G. Hatch,
Chairman, Committee on the Judiciary.
William V. Roth, Jr.,
Chairman, Committee on Finance.
Mr. HATCH. In short, this letter said, that as chairmen of the
committees with jurisdiction over key substantive issues raised by the
medical process patent amendment, we did not think that this complex,
technical legislation with such a substantive impact should be included
at this time and in this vehicle given there has been no study by the
relevant authorizing committees. I feel it would have been preferable
to look carefully before we leap into this legislative abyss which has
such far reaching precedential significance.
Subsequent to that letter, I received a letter from the General
Counsel of the Office of the U.S. Trade Representative [USTR] stating,
in sum, that the proposed policy may run afoul of the TRIP's agreement
and also encourage our trading partners to follow this example to
discriminate against other types of technologies.
I ask unanimous consent to place in the Record at this point a copy
of this September 27, 1996 letter from the Office of the U.S. Trade
Representative with respect to the application of articles 27, 28 and
30 of TRIP's and how our trading partners may use this unfortunate
precedent. I wish to commend the staff at USTR for their work on this
vexatious issue.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Office of the U.S. Trade Representative, Executive Office
of the President,
Washington, DC, September 27, 1996.
Hon. Orrin G. Hatch,
U.S. Senate, Senate Judiciary Committee,
Washington, DC.
Dear Chairman Hatch: You have requested the Office of the
U.S. Trade Representative's views on whether the proposed
limitation on patient infringements relating to a medical
practitioners performance of a medical activity are
consistent with U.S. obligations under the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPs
Agreement). As I understand the proposal, it would generally
deny the remedies available under title 35 for infringement
of patents on diagnostic, therapeutic and surgical
techniques.
USTR has serious concerns about the consistency of this
provision with the TRIPs Agreement. Moreover, we believe that
the proposal sets a damaging precedent that other TRIPs
Members might apply to other technologies.
Although TRIPs Article 27:3 permits Members to exclude
diagnostic, therapeutic and surgical techniques from
patentability, we believe that if a member makes patents
available for this field of technology, a Member must accord
the full rights required under the TRIPs Agreement. Article
27:1 requires that patent rights be enjoyable without
discrimination as to the field of technology. Those rights
are specified in Article 28 and include the right to prevent
third parties from the act of using a patented process.
Moreover, TRIPs Articles 44 and 45 specify remedies,
including injunctions and damages; that must be made
available to address patent infringement.
While TRIPs Article 30 permits Members to provide limited
exceptions to the exclusive rights conferred by a patent,
such exceptions must not unreasonably conflict with the
normal exploitation of the patent and must not unreasonably
prejudice the legitimate interests of the patent holder.
Precluding the grant of damages and injunctive relief for
patent infringement under the circumstances set forth in the
proposed legislation, goes far beyond other exceptions
provided in title 35 and raises questions about
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whether the exception is covered by Article 30.
We are particularly concerned because other TRIPs Members
might follow this example and apply this type of exception to
other technologies. We could be seen as endorsing this type
of action.
Please contact me or my staff if we can provide further
information or assistance.
Sincerely,
Jennifer Hillman,
General Counsel.
Mr. HATCH. Now that this amendment will become law, I hope that those
who interpret the bill as being consistent with TRIP's are correct. For
if they are not, we will have unwittingly shown the way for our trading
partners to absolve themselves of their responsibilities under TRIP's.
The stakes are high. Virtually every trade expert believes that
worldwide adherence to TRIP means jobs for American workers, and
lowered costs for American consumers as piracy of products is reduced
and others pay their fair share of research and development costs.
Let me take a few moments to explain my concern about the impact that
this provision will have on the patent code.
Section 101 of the patent code has been essentially unchanged since
1793. Section 101 broadly states: ``Whoever invents or discovers any
new and useful process, machine, manufacture, or composition of matter,
or any new and useful improvement thereof, may obtain a patent * * *''
One leading Supreme Court case, Diamond versus Diehr, decided in
1981, quoted approvingly from the Judiciary Committee bill report on
the 1952 recodification of the patent code, and emphasized that
patentable subject matter under section 101 ``includes everything under
the sun invented by man'' and noted that process patents have been
available since 1793.
Judge Giles Rich of the Federal Circuit is one of America's greatest
all-time experts in patent law. Circuit Judge Rich drafted the 1952
recodification in which the word ``process'' was substituted for
``art''--the first and only change in section 101 since 1793.
Incidentally, I am told that Thomas Jefferson apparently helped draft
this statute and in his capacity of Secretary of State had a
ministerial role in actually issuing some of our Nation's first letters
patent.
In a leading decision in the area of biotechnology, In
Re Chackrabarty, written in 1979 by Judge Rich--then of the predecessor
Court of Customs and Patent Appeals --and affirmed by the Supreme Court
in 1981, Judge Rich noted that a broad interpretation of what is
patentable under section 101 has served our Nation well through out
history:
The present recital of categories in section 101. . . has
been the same ever since the Patent Act of 1793, except for
substituting ``process'' for ``art'' and defining it . . . to
include art. For nearly 200 years since, those words have
been liberally construed to include the most diverse range
imaginable of unforseen developments in technology. The list
is endless and beyond recitation. We merely suggest that the
Founding Fathers and the Congresses of the past century could
not have foreseen the technologies that have allowed man to
walk on the moon, switch travel from railroads to heavier-
than-air craft, fill the houses with color TV, cure normally
fatal diseases with antibiotics produced by cultures of molds
. . . and give to schoolchildren at small cost pocket
calculators with which they can produce square roots on an .
. . integrated circuit so small the circuits are not visible
to the naked eye . . . We believe section 101 and its
predecessor statutes were broadly drawn in general terms to
broadly encompass unforeseeable future developments.
In contrast to this soaring rendition of why a policy of broad
patentability is beneficial to society, comes now this cleverly drafted
and hastily adopted medical procedure patent amendment.
Although the amendment goes through the back door of the enforcement
provisions of section 287, when all is said and done the practical
effect is to preclude an important class of endeavor--medical
procedures--from protection under section 101.
Somehow I cannot help but think that Thomas Jefferson and Judge Rich
and many others will be disappointed in this shrinking of the patent
code.
Putting aside my major concerns about the trade ramifications, in
terms of pure patent law, I think there should be a very heavy burden
on those advocating change of a law that appears to be working well and
has worked well for a long time.
In my view, this burden has not been met.
What is broken? Can anyone show me an actual example of health care
negatively affected due to the existence of a procedure patent?
How can we be sure that research on tomorrow's medical procedures
will continue apace absent patent protection?
Frankly, I find it odd that in the case that precipitated this
alleged ``crisis'' that compels adoption of this particular amendment
before there has been even one hearing--the Pallin ``stitch-less''
cataract surgery process, the patent was not upheld by the courts.
Some argue that such process patents will drive up health care costs.
But in the Pallin case the requested $4 per operation fee was much less
than the $17 per stitch charge, so money was saved.
Where is the crisis that justifies inviting considerable mischief by
our trading partners in dragging their feet in implementing TRIP's?
If we have unwittingly misinterpreted TRIP's, we will all be asking
down the road, where was the Finance Committee and the Ways and Means
Committee when this happened?
Before we set this precedent by adopting the curious rule that you-
can-have-a-patent-but-you-just-cannot-en-
force-it, would it not have been better for the Judiciary Committee and
full Senate to study and carefully debate the merits of this proposal?
While this rule may be good in the short run for physician
organizations, the health care products industry and large
organizations like HMO's and hospitals, can we say for certain that
categorically taking away the incentives to patent medical procedures
is in the interests of the American public?
One allegation that has been stressed repeatedly by the authors of
this amendment is that ``pure'' process patents cost very little to
develop, and thus, patent protections for such processes should not
lead to substantial royalties. What this somewhat simplistic argument
fails to consider are cases in which there has been substantial R&D for
a process, at a cost to the inventor. For now, under the language we
will approve today, any incentive for inventors to patent those
discoveries will be removed, and very possibly, the incentive for
research and development as well. Medical research, and medical
progress, can only suffer.
Over the course of the last few days, when it became clear that the
negotiators for the omnibus bill might include this medical process
patent provision in the final compromise, I sent three dear colleague
letters in opposition to the provision. I regret that my colleagues
were either unaware, or unpersuaded by, my arguments.
Mr. President, I ask unanimous consent that those letters be printed
in the Record at this point.
There being no objection, the letters were ordered to be printed in
the Record; as follows:
September 26, 1996.
Dear Colleague: H.L. Mencken once said, ``There is always
an easy solution to every human problem--neat, plausible, and
wrong.'' I am afraid that this is the case with the Ganske/
Frist amendment on medical procedure patents.
As Chairman of the Committee with substantive jurisdiction
over the patent code, I urge your opposition to inclusion in
the omnibus appropriations bill of the Ganske/Frist
amendment, a provision that would effectively preclude the
enforcement of medical process patents. With all due respect
to my colleagues Congressman Ganske and Senator Frist, this
language, either as passed by the House or in a more recent
form, raises significant procedural and substantive
questions, and should not be adopted without a full review by
this body.
PROCEDURAL CONCERNS
Authorizing Language on Appropriations Bill: The Ganske/
Frist amendment circumvents the normal Committee process by
misusing the appropriations mechanism to amend a highly
technical and very complex area of substantive patent law.
This is precisely the type of non-germane amendment that
Senators Hatfield and Byrd and others have admonished the
Senate not to incorporate within this type of omnibus
appropriations vehicle.
Not Reviewed by Judiciary Committee: The language of the
latest Ganske/Frist compromise has never been the subject of
a hearing or mark-up by any Committee of Congress. The Senate
Judiciary Committee and the full Senate should have the
opportunity to carefully consider and meaningfully debate
this issue before final action is taken on this provision.
The original Ganske proposal, which would have excluded
surgical and medical procedures from patentability, was the
subject of
[[Page S11845]]
a 1995 hearing of the House Judiciary Committee, Subcommittee
on Courts and Intellectual Property. The bill, H.R. 1127, was
opposed by the Biotechnology industry Organization, the
Section of Intellectual Property Law of the American Bar
Association, and the American Intellectual Property Law
Association.
An amendment to bar the Patent and Trademark Office from
spending its funds to issue such patents was adopted on the
Commerce-State-Justice appropriations bill in the House on
July 24, 1996. Joining those opposed to this amendment were
the Intellectual Property Owners, the Pharmaceutical Research
and Manufacturers of America, and Chairman Moorhead and
Ranking Member Schroeder of the Subcommittee that conducted
the earlier hearing.
____________________