[Congressional Record Volume 144, Number 124 (Thursday, September 17, 1998)]
[Senate]
[Pages S10520-S10522]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Leahy, and Mr. DeWine):
  S. 2491. A bill to amend title 18, United States Code, to protect 
children from sexual abuse and exploitation, and for other purposes; to 
the Committee on the Judiciary.


        Protection of Children from Sexual Predators Act of 1998

  Mr. HATCH. Mr. President, today I am proud to introduce S. 2491 the 
Hatch-Leahy-DeWine ``Protection of Children from Sexual Predators Act 
of 1998.'' I want to especially thank Senators Leahy and DeWine for 
their cooperation in drafting this exemplary piece of legislation. S. 
2491 strengthens the ability of law enforcement and the courts to 
respond to high-tech sexual predators of children. Pedophiles who roam 
the Internet, purveyors of child pornography, and serial child 
molesters are specifically targeted.
  The Internet is a wonderful creation. By allowing for instant 
communication around the globe, it has made the world a smaller place, 
a place in which people can express their thoughts and ideas without 
limitation. It has released the creative energies of a new generation 
of entrepreneurs and it is an unparalleled source of information.
  While we should encourage people to take full advantage of the 
opportunities the Internet has to offer, we must also be vigilant in 
seeking to ensure that the Internet is not perverted into a hunting 
ground for pedophiles and other sexual predators, and a drive-through 
library and post office for purveyors of child pornography. Our 
children must be protected from those who would choose to sexually 
abuse and exploit them. And those who take the path of predation should 
know that the consequences of their actions will be severe and 
unforgiving.
  How does this bill provide additional protection for our children? By 
prohibiting the libidinous dissemination on the Internet of information 
related to minors and the sending of obscene material to minors, we 
make it more difficult for sexual predators to gather information on, 
and lower the sexual inhibitions of, potential targets. And by 
requiring electronic communication service providers to report the 
commission of child pornography offenses to authorities, we mandate 
accountability and responsibility on the Internet.
  Additionally, law enforcement is given effective tools to pursue 
sexual predators. The Attorney General is provided with authority to 
issue administrative subpoenas in child pornography cases. Proceeds 
derived from these offenses, and the facilities and instrumentalities 
used to perpetuate these offenses, will be subject to forfeiture. And 
prosecutors will now have the power to seek pretrial detention of 
sexual predators prior to trial.

[[Page S10521]]

  Federal law enforcement will be given increased statutory authority 
to assist the States in kidnaping and serial murder investigations, 
which often involve children. In that vein, S. 2491 calls for the 
creation of the Morgan P. Hardiman Child Abduction and Serial Murder 
Investigative Resources Center. That center will gather information, 
expertise and resources that our nation's law enforcement agencies can 
draw upon to help combat these heinous crimes.
  Sentences for child abuse and exploitation offenses will be made 
tougher. In addition to increasing the maximum penalties available for 
many crimes against children and mandating tough sentences for repeat 
offenders, the bill will also recommend that the Sentencing Commission 
reevaluate the guidelines applicable to these offenses, and increase 
them where appropriate to address the egregiousness of these crimes. 
And S. 2491 calls for life imprisonment in appropriate cases where 
certain crimes result in the death of children.
  Protection of our children is not a partisan issue. We have drawn 
upon the collective wisdom of Senators from both sides of the aisle to 
draft a bill which includes strong, effective legislation protecting 
children. I call upon my colleagues to support this bill and speed its 
passage.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
  [The bill was not available for printing. It will appear in a future 
edition of the Record.]
  Mr. LEAHY. Mr. President, I know everyone is concerned about 
protecting this country's children from those who would prey upon them. 
Those concerns have intensified in recent years with the growing 
popularity of the internet and the world wide web. Cyberspace gives 
users access to a wealth of information; it connects people from around 
the world. But it also creates new opportunities for sexual predators 
and child pornographers to ply their trade. The challenge is to protect 
our children from exploitation in cyberspace while ensuring that the 
vast democratic forum of the Internet remains an engine for the free 
exchange of ideas and information.
  The bill that we are introducing today meets this challenge. While it 
is not a cure-all for the scourge of child pornography, it is a good 
step toward limiting the ability of cyber-pornographers and predators 
from harming children.
  This bill differs markedly from H.R. 3494, the child protection and 
sexual predator bill that the House passed last June. I should note 
that this bill mirrors a Hatch-Leahy-DeWine substitute to H.R. 3494, 
which passed the Judiciary Committee by unanimous consent this 
afternoon.
  I thank the Chairman for working with me to fix the many problems in 
H.R. 3494, and to make this bill more focused and measured. Briefly, I 
would like to highlight and explain some of the differences between the 
bills.
  As passed by the House, H.R. 3494 would make it a crime, punishable 
by up to 5 years' imprisonment, to do nothing more than ``contact'' a 
minor, or even just attempt to ``contact'' a minor, for the purpose of 
engaging in sexual activity. This provision does not appear in the 
Hatch-Leahy-DeWine bill. The act of making contact is not very far 
along the spectrum of an overt criminal act: it is only the expression 
of a criminal intention without follow through. A simple ``hello'' in 
an internet chat room, coupled with bad intentions, would expose the 
speaker to severe criminal sanctions. Targeting ``attempts'' to make 
contact would be even more like prosecuting a thought crime.
  Another new crime created by the House bill prohibited the 
transmittal of identifying information about any person under 18 for 
the purpose of encouraging unlawful sexual activity. In its original 
incarnation, this provision would have had the absurd result of 
prohibiting a person under the age of consent from e-mailing her own 
address or telephone number to her boyfriend. We fixed this problem by 
making it clear that a violation must involve the transmission of 
someone else's identifying information. In addition, to eliminate any 
notice problem arising from the variations in state statutory rape 
laws, we lowered the age of the identified minor from 18 to 16--the 
federal age of consent. Finally, we clarified that the defendant must 
know that the person about whom he was transmitting identifying 
information was, in fact, under 16. This change was particularly 
important because, in the anonymous world of cyberspace, a person may 
have no way of knowing the age of the faceless person with whom he is 
communicating.
  I had many of the same concerns regarding another provision of the 
House bill, which makes it a crime to transfer obscene material to a 
minor. Again, the Hatch-Leahy-DeWine bill lowers the age of minority 
from 18 to 16 and provides that the defendant must know he is dealing 
with someone so young. I would add that this provision of the bill 
applies only to ``obscene'' material, that is, material that enjoys no 
First Amendment protection whatever--material that is patently 
offensive to the average adult. The bill does not purport to proscribe 
the transferral of constitutionally protected material that may, 
however, be unsuitable for minors. Besides raising serious 
constitutional concerns, such a provision would also have the 
unacceptable consequence of reducing the level of discourse over the 
Internet to what would be suitable for a sandbox.
  The original House bill would also have criminalized certain conduct 
directed at a person who had been ``represented'' to be a minor, even 
if that person was, in fact, an adult. The evident purpose was to make 
clear that the targets of sting operations are not relieved of criminal 
liability merely because their intended victim turned out to be an 
undercover agent and not a child. The new ``sting'' provisions 
addressed a problem that simply does not currently exist: no court has 
ever endorsed an impossibility defense along the lines anticipated by 
the House bill. The creation of special ``sting'' provisions in this 
one area could lend credence to impossibility defenses raised in other 
sting and undercover situations. At the same time, these provisions 
would have criminalized conduct that was otherwise lawful: it is not a 
crime for adults to communicate with each other about sex, even if one 
of the adults pretends to be a child. Given these significant concerns, 
the ``sting'' provisions have been stricken from the Hatch-Leahy-DeWine 
bill.
  Another major problem with the House bill is its modification of the 
child pornography possession laws. Current law requires possession of 
three or more pornographic images in order for there to be criminal 
liability. Congress wrote this requirement into the law as a way of 
protecting against government overreaching. By eliminating this numeric 
requirement, the House bill puts at risk the unsuspecting Internet user 
who, by inadvertence or mistake, downloads a single pornographic image 
of a child. The inevitable result would be to chill the free exchange 
of information over the web. I was unwilling to accept this 
possibility; the Hatch-Leahy-DeWine bill keeps current law in place.
  Unlike H.R. 3494, the bill we are introducing today contains no new 
mandatory minimum sentences. I oppose the use of mandatory minimums 
because they take away the discretion of the sentencing judge, which 
can result in unjust sentences and can also induce defendants who would 
otherwise have pled guilty, hoping to obtain some measure of leniency 
from the court, to proceed to trial.
  Another problematic provision of the House bill gives the Attorney 
General sweeping authority to subpoena records and witnesses in 
investigations involving crimes against children. We should be 
extremely wary of further extending the Justice Department's 
administrative subpoena power. The use of administrative subpoenas 
gives federal agents the power to compel disclosures without any 
oversight by a judge, prosecutor, or grand jury, and without any of the 
grand jury secrecy requirements. That being said, the secrecy 
requirements may pose a significant obstacle to the full and efficient 
cooperation of federal/state task forces in their joint efforts to 
reduce the steadily increasing use of the Internet to perpetrate crimes 
against children, including crimes involving the distribution of child 
pornography.
  In addition, it appears that some U.S. Attorneys Offices are 
reluctant to open

[[Page S10522]]

a grand jury investigation when the only goal is to identify 
individuals who have not yet, and may never, commit a federal (as 
opposed to state or local) offense. The Hatch-Leahy-DeWine bill 
accommodates all the competing interests by granting the Department a 
narrowly drawn authority to subpoena only the information that it most 
needs: routine subscriber account information from Internet service 
providers. Importantly, subscribers may obtain notice from their 
service provider.
  The new reporting requirement established by H.R. 3494 is also 
troubling. Under current law, Internet service providers are generally 
free to report suspicious communications to law enforcement 
authorities. Under H.R. 3494, service providers would be required to 
report such communications when they involve child pornography; failure 
to do so would be punishable by a substantial fine.
  Of course, we are all committed to eradicating the market for child 
pornography. Child pornography is inherently harmful to children. 
Service providers that come across such material should report it, and, 
in most cases, they already do. We must tread cautiously, however, 
before we compel private citizens to act as good Samaritans or to 
assume duties and responsibilities that are better left to law 
enforcement.
  Working with the service providers, we have refined the House bill in 
various ways.
  First, we raised the bar for the reporting duty; a service provider 
has no obligation to make a report unless it has ``probable cause'' to 
believe that the child pornography laws are being violated. By setting 
such a high standard, we intended to discourage service providers from 
erring on the side of over-reporting every questionable image. This 
would also overwhelm the FBI and law enforcement agencies.
  Second, we provided that there is no liability for failing to make a 
report unless the service provider knew both of the existence of child 
pornography and of the duty to report it (if it rises to the level of 
probable cause).
  Third, we made clear that we are not imposing a monitoring 
requirement of any kind: service providers must report child 
pornography when they come across it or it is brought to their 
attention, but they remain under no obligation to go out looking for 
it.
  Fourth, we added privacy protections for any information reported 
under the bill.
  Fifth, we lowered the maximum fine for first offenders to $50,000; a 
second or subsequent failure to report, however, may still result in a 
fine up to $100,000.
  Thus improved, I am confident that the reporting requirement will 
accomplish its objectives without unduly burdening the service 
providers or violating the privacy rights of internet users.
  Beyond this, the Hatch-Leahy-DeWine bill strips the House bill of 
various other extraneous or improvident provisions. Our bill is also 
free of certain add-ons that appeared in the original version offered 
by Senator Hatch. In particular, the original version would have opened 
the floodgates of federal inchoate crime prosecutions by creating a 
general attempt statute--making it a crime to commit each and every 
offense in title 18--and by making the penalty for its violation as 
well as for violation of the general conspiracy statute (which is now 
capped at 5 years) equal to the penalty for the offense that was the 
object of the attempt or conspiracy. The Chairman's original bill also 
created a new rule of criminal procedure requiring defendants to 
provide notice of their intention to assert an entrapment defense.
  I think there are good reasons why these ideas have been rejected in 
the past, both by the Congress and by the Federal Judicial Conference, 
and why they are opposed by business and civil liberties groups alike. 
At the very least, we should not usher in such radical changes to the 
federal criminal law without more careful consideration, after proper 
hearings.
  In conclusion, I commend Senators Hatch and DeWine for their efforts 
to address the terrible problem of child predators and pornographers. I 
am glad that we were able to join forces to construct a bill that goes 
a long way towards achieving our common goals.
Mr. LAUTENBERG. Mr. President, I rise to express my outrage at 
the depraved criminals who are using the Internet to exploit children.
  Recently, the United States Customs Service, in cooperation with 
authorities in fourteen other nations, conducted successful raids on an 
extensive Internet child pornography ring. The ring, called the 
Wonderland Club, had been distributing more than 100,000 pornographic 
photographs of children. Some of the children were as young as 18 
months. I am deeply disturbed, and disgusted, that people would 
victimize innocent children in this way.
  I want to commend the Customs Service and the other international law 
enforcement agencies involved on their successful effort. They made 46 
arrests worldwide and there may be hundreds more after all the evidence 
is analyzed. The raids also covered 22 states, including one location 
in my home state of New Jersey.
  While this raid has put this one ring of Internet pedophiles out of 
business, I am concerned that there may be others. Many law enforcement 
officials are concerned that the advancements in Internet technology 
are making it that much easier for pedophiles to conduct their 
sickening schemes. Additionally, the anonymity of the Internet makes it 
easier for these criminals to evade detection.
  Clearly, we must fight back against these cyberspace criminals. One 
step that we can take is to ensure strong penalties for those who use 
the Internet for these horrible purposes. That is why I support the 
Child Protection and Sexual Predator Punishment Act of 1998. This 
measure would double the maximum penalty for sexual abuse of a child 
under twelve--from ten years to twenty years. It would also increase 
the prison terms and fines for anyone using the Internet, or the mail, 
to contact a minor for the purpose of engaging in sexual activity or 
transferring obscene material.
  I urge my colleagues to support this bill, and I hope it will pass 
the Senate before we adjourn this year. We must act quickly to help 
prevent another generation of children from suffering.
                                 ______