[Congressional Record Volume 144, Number 141 (Friday, October 9, 1998)]
[Senate]
[Pages S12257-S12265]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTION OF CHILDREN FROM SEXUAL PREDATORS ACT OF 1998
Mr. COATS. Mr. President, I now ask unanimous consent that the Senate
proceed to the consideration of calendar No. 587, H.R. 3494.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
A bill (H.R. 3494) to amend Title 18 United States Code
with respect to violent sex crimes against children, and for
other purposes.
The PRESIDING OFFICER. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on the Judiciary, with an
amendment to strike all after the enacting clause and inserting in lieu
thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Protection
of Children From Sexual Predators Act of 1998''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--PROTECTION OF CHILDREN FROM PREDATORS
Sec. 101. Use of interstate facilities to transmit identifying
information about a minor for criminal sexual purposes.
Sec. 102. Coercion and enticement.
Sec. 103. Increased penalties for transportation of minors or assumed
minors for illegal sexual activity and related crimes.
Sec. 104. Repeat offenders in transportation offense.
Sec. 105. Inclusion of offenses relating to child pornography in
definition of sexual activity for which any person can be
charged with a criminal offense.
Sec. 106. Transportation generally.
TITLE II--PROTECTION OF CHILDREN FROM CHILD PORNOGRAPHY
Sec. 201. Additional jurisdictional base for prosecution of production
of child pornography.
Sec. 202. Increased penalties for child pornography offenses.
TITLE III--SEXUAL ABUSE PREVENTION
Sec. 301. Elimination of redundancy and ambiguities.
Sec. 302. Increased penalties for abusive sexual contact.
Sec. 303. Repeat offenders in sexual abuse cases.
TITLE IV--PROHIBITION ON TRANSFER OF OBSCENE MATERIAL TO MINORS
Sec. 401. Transfer of obscene material to minors.
TITLE V--INCREASED PENALTIES FOR OFFENSES AGAINST CHILDREN AND FOR
REPEAT OFFENDERS
Sec. 501. Death or life in prison for certain offenses whose victims
are children.
Sec. 502. Sentencing enhancement for chapter 117 offenses.
Sec. 503. Increased penalties for use of a computer in the sexual abuse
or exploitation of a child.
Sec. 504. Increased penalties for knowing misrepresentation in the
sexual abuse or exploitation of a child.
Sec. 505. Increased penalties for pattern of activity of sexual
exploitation of children.
Sec. 506. Clarification of definition of distribution of pornography.
Sec. 507. Directive to the United States Sentencing Commission.
TITLE VI--CRIMINAL, PROCEDURAL, AND ADMINISTRATIVE REFORMS
Sec. 601. Pretrial detention of sexual predators.
Sec. 602. Criminal forfeiture for offenses against minors.
Sec. 603. Civil forfeiture for offenses against minors.
Sec. 604. Reporting of child pornography by electronic communication
service providers.
Sec. 605. Civil remedy for personal injuries resulting from certain sex
crimes against children.
Sec. 606. Administrative subpoenas.
Sec. 607. Grants to States to offset costs associated with sexually
violent offender registration requirements.
TITLE VII--MURDER AND KIDNAPPING INVESTIGATIONS
Sec. 701. Authority to investigate serial killings.
Sec. 702. Kidnapping.
Sec. 703. Morgan P. Hardiman Child Abduction and Serial Murder
Investigative Resources Center.
TITLE VIII--RESTRICTED ACCESS TO INTERACTIVE COMPUTER SERVICES
Sec. 801. Prisoner access.
Sec. 802. Recommended prohibition.
Sec. 803. Survey.
TITLE IX--STUDIES
Sec. 901. Study on limiting the availability of pornography on the
Internet.
Sec. 902. Study of hotlines.
[[Page S12258]]
TITLE I--PROTECTION OF CHILDREN FROM PREDATORS
SEC. 101. USE OF INTERSTATE FACILITIES TO TRANSMIT
IDENTIFYING INFORMATION ABOUT A MINOR FOR
CRIMINAL SEXUAL PURPOSES.
(a) In General.--Chapter 117 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2425. Use of interstate facilities to transmit
information about a minor
``Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States,
knowingly initiates the transmission of the name, address,
telephone number, social security number, or electronic mail
address of another individual, knowing that such other
individual has not attained the age of 16 years, with the
intent to entice, encourage, offer, or solicit any person to
engage in any sexual activity for which any person can be
charged with a criminal offense, or attempts to do so, shall
be fined under this title, imprisoned not more than 5 years,
or both.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 117 of title 18, United States Code, is amended by
adding at the end the following:
``2425. Use of interstate facilities to transmit information about a
minor.''.
SEC. 102. COERCION AND ENTICEMENT.
Section 2422 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting ``or attempts to do so,'' before ``shall
be fined''; and
(B) by striking ``five'' and inserting ``10''; and
(2) by striking subsection (b) and inserting the following:
``(b) Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States
knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to
engage in prostitution or any sexual activity for which any
person can be charged with a criminal offense, or attempts to
do so, shall be fined under this title, imprisoned not more
than 15 years, or both.''.
SEC. 103. INCREASED PENALTIES FOR TRANSPORTATION OF MINORS OR
ASSUMED MINORS FOR ILLEGAL SEXUAL ACTIVITY AND
RELATED CRIMES.
Section 2423 of title 18, United States Code, is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Transportation With Intent To Engage in Criminal
Sexual Activity.--A person who knowingly transports an
individual who has not attained the age of 18 years in
interstate or foreign commerce, or in any territory or
possession of the United States, with intent that the
individual engage in prostitution, or in any sexual activity
for which any person can be charged with a criminal offense,
or attempts to do so, shall be fined under this title,
imprisoned not more than 15 years, or both.''; and
(2) in subsection (b), by striking ``10 years'' and
inserting ``15 years''.
SEC. 104. REPEAT OFFENDERS IN TRANSPORTATION OFFENSE.
(a) In General.--Chapter 117 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2426. Repeat offenders
``(a) Maximum Term of Imprisonment.--The maximum term of
imprisonment for a violation of this chapter after a prior
sex offense conviction shall be twice the term of
imprisonment otherwise provided by this chapter.
``(b) Definitions.--In this section--
``(1) the term `prior sex offense conviction' means a
conviction for an offense--
``(A) under this chapter, chapter 109A, or chapter 110; or
``(B) under State law for an offense consisting of conduct
that would have been an offense under a chapter referred to
in paragraph (1) if the conduct had occurred within the
special maritime and territorial jurisdiction of the United
States; and
``(2) State.--the term `State' means a State of the United
States, the District of Columbia, any commonwealth,
possession, or territory of the United States.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 117 of title 18, United States Code, is amended by
adding at the end the following:
``2426. Repeat offenders.''.
SEC. 105. INCLUSION OF OFFENSES RELATING TO CHILD PORNOGRAPHY
IN DEFINITION OF SEXUAL ACTIVITY FOR WHICH ANY
PERSON CAN BE CHARGED WITH A CRIMINAL OFFENSE.
(a) In General.--Chapter 117 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2427. Inclusion of offenses relating to child
pornography in definition of sexual activity for which any
person can be charged with a criminal offense
``In this chapter, the term `sexual activity for which any
person can be charged with a criminal offense' includes the
production of child pornography, as defined in section
2256(8).''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 117 of title 18, United States Code, is amended by
adding at the end the following:
``2427. Inclusion of offenses relating to child pornography in
definition of sexual activity for which any person can be
charged with a criminal offense.''.
SEC. 106. TRANSPORTATION GENERALLY.
Section 2421 of title 18, United States Code, is amended--
(1) by inserting ``or attempts to do so,'' before ``shall
be fined''; and
(2) by striking ``five years'' and inserting ``10 years''.
TITLE II--PROTECTION OF CHILDREN FROM CHILD PORNOGRAPHY
SEC. 201. ADDITIONAL JURISDICTIONAL BASE FOR PROSECUTION OF
PRODUCTION OF CHILD PORNOGRAPHY.
(a) Use of a Child.--Section 2251(a) of title 18, United
States Code, is amended by inserting ``if that visual
depiction was produced using materials that have been mailed,
shipped, or transported in interstate or foreign commerce by
any means, including by computer,'' before ``or if''.
(b) Allowing Use of a Child.--Section 2251(b) of title 18,
United States Code, is amended by inserting ``, if that
visual depiction was produced using materials that have been
mailed, shipped, or transported in interstate or foreign
commerce by any means, including by computer,'' before ``or
if''.
(c) Increased Penalties in Section 2251(d).--Section
2251(d) of title 18, United States Code, is amended by
striking ``or chapter 109A'' each place it appears and
inserting ``, chapter 109A, or chapter 117''.
SEC. 202. INCREASED PENALTIES FOR CHILD PORNOGRAPHY OFFENSES.
(a) Increased Penalties in Section 2252.--Section 2252(b)
of title 18, United States Code, is amended--
(1) in each of paragraphs (1) and (2), by striking ``or
chapter 109A'' and inserting ``, chapter 109A, or chapter
117''; and
(2) in paragraph (2), by striking ``the possession of child
pornography'' and inserting ``aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward,
or the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child
pornography''.
(b) Increased Penalties in Section 2252A.--Section 2252A(b)
of title 18, United States Code, is amended--
(1) in each of paragraphs (1) and (2), by striking ``or
chapter 109A'' and inserting ``, chapter 109A, or chapter
117''; and
(2) in paragraph (2), by striking ``the possession of child
pornography'' and inserting ``aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward,
or the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child
pornography''.
TITLE III--SEXUAL ABUSE PREVENTION
SEC. 301. ELIMINATION OF REDUNDANCY AND AMBIGUITIES.
(a) Making Consistent Language on Age Differential.--
Section 2241(c) of title 18, United States Code, is amended
by striking ``younger than that person'' and inserting
``younger than the person so engaging''.
(b) Redundancy.--Section 2243(a) of title 18, United States
Code, is amended by striking ``crosses a State line with
intent to engage in a sexual act with a person who has not
attained the age of 12 years, or''.
(c) State Defined.--Section 2246 of title 18, United States
Code, is amended--
(1) in paragraph (5), by striking the period at the end and
inserting ``; and''; and
(2) by adding at the end the following:
``(6) the term `State' means a State of the United States,
the District of Columbia, and any commonwealth, possession,
or territory of the United States.''.
SEC. 302. INCREASED PENALTIES FOR ABUSIVE SEXUAL CONTACT.
Section 2244 of title 18, United States Code, is amended by
adding at the end the following:
``(c) Offenses Involving Young Children.--If the sexual
contact that violates this section is with an individual who
has not attained the age of 12 years, the maximum term of
imprisonment that may be imposed for the offense shall be
twice that otherwise provided in this section.''.
SEC. 303. REPEAT OFFENDERS IN SEXUAL ABUSE CASES.
Section 2247 of title 18, United States Code, is amended to
read as follows:
``Sec. 2247. Repeat offenders
``(a) Maximum Term of Imprisonment.--The maximum term of
imprisonment for a violation of this chapter after a prior
sex offense conviction shall be twice the term otherwise
provided by this chapter.
``(b) Prior Sex Offense Conviction Defined.--In this
section, the term `prior sex offense conviction' has the
meaning given that term in section 2426(b).''.
TITLE IV--PROHIBITION ON TRANSFER OF OBSCENE MATERIAL TO MINORS
SEC. 401. TRANSFER OF OBSCENE MATERIAL TO MINORS.
(a) In General.--Chapter 71 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1470. Transfer of obscene material to minors
``Whoever, using the mail or any facility or means of
interstate or foreign commerce, knowingly transfers obscene
matter to another individual who has not attained the age of
16 years, knowing that such other individual has not attained
the age of 16 years, or attempts to do so, shall be fined
under this title, imprisoned not more than 10 years, or
both.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 71 of title 18, United States Code, is amended by
adding at the end the following:
``1470. Transfer of obscene material to minors.''.
[[Page S12259]]
TITLE V--INCREASED PENALTIES FOR OFFENSES AGAINST CHILDREN AND FOR
REPEAT OFFENDERS
SEC. 501. DEATH OR LIFE IN PRISON FOR CERTAIN OFFENSES WHOSE
VICTIMS ARE CHILDREN.
Section 3559 of title 18, United States Code, is amended by
adding at the end the following:
``(d) Death or Imprisonment for Crimes Against Children.--
``(1) In general.--Subject to paragraph (2) and
notwithstanding any other provision of law, a person who is
convicted of a Federal offense that is a serious violent
felony (as defined in subsection (c)) or a violation of
section 2422, 2423, or 2251 shall, unless the sentence of
death is imposed, be sentenced to imprisonment for life, if--
``(A) the victim of the offense has not attained the age of
14 years;
``(B) the victim dies as a result of the offense; and
``(C) the defendant, in the course of the offense, engages
in conduct described in section 3591(a)(2).
``(2) Exception.--With respect to a person convicted of a
Federal offense described in paragraph (1), the court may
impose any lesser sentence that is authorized by law to take
into account any substantial assistance provided by the
defendant in the investigation or prosecution of another
person who has committed an offense, in accordance with the
Federal Sentencing Guidelines and the policy statements of
the Federal Sentencing Commission pursuant to section 994(p)
of title 28, or for other good cause.''.
SEC. 502. SENTENCING ENHANCEMENT FOR CHAPTER 117 OFFENSES.
(a) In General.--Pursuant to its authority under section
994(p) of title 28, United States Code, the United States
Sentencing Commission shall review and amend the Federal
Sentencing Guidelines to provide a sentencing enhancement for
offenses under chapter 117 of title 18, United States Code.
(b) Instruction to Commission.--In carrying out subsection
(a), the United States Sentencing Commission shall ensure
that the sentences, guidelines, and policy statements for
offenders convicted of offenses described in subsection (a)
are appropriately severe and reasonably consistent with other
relevant directives and with other Federal Sentencing
Guidelines.
SEC. 503. INCREASED PENALTIES FOR USE OF A COMPUTER IN THE
SEXUAL ABUSE OR EXPLOITATION OF A CHILD.
Pursuant to its authority under section 994(p) of title 28,
United States Code, the United States Sentencing Commission
shall--
(1) review the Federal Sentencing Guidelines for--
(A) aggravated sexual abuse under section 2241 of title 18,
United States Code;
(B) sexual abuse under section 2242 of title 18, United
States Code;
(C) sexual abuse of a minor or ward under section 2243 of
title 18, United States Code; and
(D) coercion and enticement of a minor under section
2422(b) of title 18, United States Code, contacting a minor
under section 2422(c) of title 18, United States Code, and
transportation of minors and travel under section 2423 of
title 18, United States Code; and
(2) upon completion of the review under paragraph (1),
promulgate amendments to the Federal Sentencing Guidelines to
provide appropriate enhancement if the defendant used a
computer with the intent to persuade, induce, entice,
coerce, or facilitate the transport of a child of an age
specified in the applicable provision of law referred to
in paragraph (1) to engage in any prohibited sexual
activity.
SEC. 504. INCREASED PENALTIES FOR KNOWING MISREPRESENTATION
IN THE SEXUAL ABUSE OR EXPLOITATION OF A CHILD.
Pursuant to its authority under section 994(p) of title 28,
United States Code, the United States Sentencing Commission
shall--
(1) review the Federal Sentencing Guidelines on aggravated
sexual abuse under section 2241 of title 18, United States
Code, sexual abuse under section 2242 of title 18, United
States Code, sexual abuse of a minor or ward under section
2243 of title 18, United States Code, coercion and enticement
of a minor under section 2422(b) of title 18, United States
Code, contacting a minor under section 2422(c) of title 18,
United States Code, and transportation of minors and travel
under section 2423 of title 18, United States Code; and
(2) upon completion of the review under paragraph (1),
promulgate amendments to the Federal Sentencing Guidelines to
provide appropriate enhancement if the defendant knowingly
misrepresented the actual identity of the defendant with the
intent to persuade, induce, entice, coerce, or facilitate the
transport of a child of an age specified in the applicable
provision of law referred to in paragraph (1) to engage in a
prohibited sexual activity.
SEC. 505. INCREASED PENALTIES FOR PATTERN OF ACTIVITY OF
SEXUAL EXPLOITATION OF CHILDREN.
Pursuant to its authority under section 994(p) of title 28,
United States Code, the United States Sentencing Commission
shall--
(1) review the Federal Sentencing Guidelines on aggravated
sexual abuse under section 2241 of title 18, United States
Code, sexual abuse under section 2242 of title 18, United
States Code, sexual abuse of a minor or ward under section
2243 of title 18, United States Code, coercion and enticement
of a minor under section 2422(b) of title 18, United States
Code, contacting a minor under section 2422(c) of title 18,
United States Code, and transportation of minors and travel
under section 2423 of title 18, United States Code; and
(2) upon completion of the review under paragraph (1),
promulgate amendments to the Federal Sentencing Guidelines to
increase penalties applicable to the offenses referred to in
paragraph (1) in any case in which the defendant engaged in a
pattern of activity involving the sexual abuse or
exploitation of a minor.
SEC. 506. CLARIFICATION OF DEFINITION OF DISTRIBUTION OF
PORNOGRAPHY.
Pursuant to its authority under section 994(p) of title 28,
United States Code, the United States Sentencing Commission
shall--
(1) review the Federal Sentencing Guidelines relating to
the distribution of pornography covered under chapter 110 of
title 18, United States Code, relating to the sexual
exploitation and other abuse of children; and
(2) upon completion of the review under paragraph (1),
promulgate such amendments to the Federal Sentencing
Guidelines as are necessary to clarify that the term
``distribution of pornography'' applies to the distribution
of pornography--
(A) for monetary remuneration; or
(B) for a nonpecuniary interest.
SEC. 507. DIRECTIVE TO THE UNITED STATES SENTENCING
COMMISSION.
In carrying out this title, the United States Sentencing
Commission shall--
(1) with respect to any action relating to the Federal
Sentencing Guidelines subject to this title, ensure
reasonable consistency with other guidelines of the Federal
Sentencing Guidelines; and
(2) with respect to an offense subject to the Federal
Sentencing Guidelines, avoid duplicative punishment under the
Federal Sentencing Guidelines for substantially the same
offense.
TITLE VI--CRIMINAL, PROCEDURAL, AND ADMINISTRATIVE REFORMS
SEC. 601. PRETRIAL DETENTION OF SEXUAL PREDATORS.
Section 3156(a)(4) of title 18, United States Code, is
amended by striking subparagraph (C) and inserting the
following:
``(C) any felony under chapter 109A, 110, or 117; and''.
SEC. 602. CRIMINAL FORFEITURE FOR OFFENSES AGAINST MINORS.
Section 2253 of title 18, United States Code, is amended by
striking ``or 2252 of this chapter'' and inserting ``2252,
2252A, or 2260 of this chapter, or who is convicted of an
offense under section 2421, 2422, or 2423 of chapter 117,''.
SEC. 603. CIVIL FORFEITURE FOR OFFENSES AGAINST MINORS.
Section 2254(a) of title 18, United States Code, is
amended--
(1) in paragraph (2), by striking ``or 2252 of this
chapter'' and inserting ``2252, 2252A, or 2260 of this
chapter, or used or intended to be used to commit or to
promote the commission of an offense under section 2421,
2422, or 2423 of chapter 117,''; and
(2) in paragraph (3), by striking ``or 2252 of this
chapter'' and inserting ``2252, 2252A, or 2260 of this
chapter, or obtained from a violation of section 2421, 2422,
or 2423 of chapter 117,''.
SEC. 604. REPORTING OF CHILD PORNOGRAPHY BY ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
(a) In General.--The Victims of Child Abuse Act of 1990 (42
U.S.C. 13001 et seq.) is amended by inserting after section
226 the following:
``SEC. 227. REPORTING OF CHILD PORNOGRAPHY BY ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
``(a) Definitions.--In this section--
``(1) the term `electronic communication service' has the
meaning given the term in section 2510 of title 18, United
States Code; and
``(2) the term `remote computing service' has the meaning
given the term in section 2711 of title 18, United States
Code.
``(b) Requirements.--
``(1) Duty to report.--Whoever, while engaged in providing
an electronic communication service or a remote computing
service to the public, through a facility or means of
interstate or foreign commerce, obtains knowledge of facts or
circumstances that provide probable cause to believe that a
violation of section 2251, 2251A, 2252, 2252A, or 2260 of
title 18, United States Code, involving child pornography (as
defined in section 2256 of that title), has occurred shall,
as soon as reasonably possible, make a report of such facts
or circumstances to a law enforcement agency or agencies
designated by the Attorney General.
``(2) Designation of agencies.--Not later than 180 days
after the date of enactment of this section, the Attorney
General shall designate the law enforcement agency or
agencies to which a report shall be made under paragraph (1).
``(3) Failure to report.--A provider of electronic
communication services or remote computing services described
in paragraph (1) who knowingly and willfully fails to make a
report under that paragraph shall be fined--
``(A) in the case of an initial failure to make a report,
not more than $50,000; and
``(B) in the case of any second or subsequent failure to
make a report, not more than $100,000.
``(c) Civil Liability.--No provider or user of an
electronic communication service or a remote computing
service to the public shall be held liable on account of any
action taken in good faith to comply with this section.
``(d) Limitation of Information or Material Required in
Report.--A report under subsection (b)(1) may include
additional information or material developed by an electronic
communication service or remote computing service, except
that the Federal Government may not require the production of
such information or material in that report.
``(e) Monitoring Not Required.--Nothing in this section may
be construed to require a provider of electronic
communication services or remote computing services to engage
in the monitoring of any user, subscriber, or customer of
that provider, or the content of any communication of any
such person.
``(f) Conditions of Disclosure of Information Contained
Within Report.--
[[Page S12260]]
``(1) In general.--No law enforcement agency that receives
a report under subsection (b)(1) shall disclose any
information contained in that report, except that disclosure
of such information may be made--
``(A) to an attorney for the government for use in the
performance of the official duties of the attorney;
``(B) to such officers and employees of the law enforcement
agency, as may be necessary in the performance of their
investigative and recordkeeping functions;
``(C) to such other government personnel (including
personnel of a State or subdivision of a State) as are
determined to be necessary by an attorney for the government
to assist the attorney in the performance of the official
duties of the attorney in enforcing Federal criminal law; or
``(D) as permitted by a court at the request of an attorney
for the government, upon a showing that such information may
disclose a violation of State criminal law, to an appropriate
official of a State or subdivision of a State for the purpose
of enforcing such State law.
``(2) Definitions.--In this subsection, the terms `attorney
for the government' and `State' have the meanings given those
terms in Rule 54 of the Federal Rules of Criminal
Procedure.''.
(b) Exception to Prohibition on Disclosure.--Section
2702(b)(6) of title 18, United States Code, is amended to
read as follows:
``(6) to a law enforcement agency--
``(A) if the contents--
``(i) were inadvertently obtained by the service provider;
and
``(ii) appear to pertain to the commission of a crime; or
``(B) if required by section 227 of the Crime Control Act
of 1990.''.
SEC. 605. CIVIL REMEDY FOR PERSONAL INJURIES RESULTING FROM
CERTAIN SEX CRIMES AGAINST CHILDREN.
Section 2255(a) of title 18, United States Code, is amended
by striking ``2251 or 2252'' and inserting ``2241(c), 2242,
2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423''.
SEC. 606. ADMINISTRATIVE SUBPOENAS.
(a) In General.--Chapter 223 of title 18, United States
Code, is amended--
(1) in section 3486, by striking the section designation
and heading and inserting the following:
``Sec. 3486. Administrative subpoenas in Federal health care
investigations''; and
(2) by adding at the end the following:
``Sec. 3486A. Administrative subpoenas in cases involving
child abuse and child sexual exploitation
``(a) Authorization.--
``(1) In general.--In any investigation relating to any act
or activity involving a violation of section 1201, 2241(c),
2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or
2423 of this title in which the victim is an individual who
has not attained the age of 18 years, the Attorney General,
or the designee of the Attorney General, may issue in writing
and cause to be served a subpoena--
``(A) requiring a provider of electronic communication
service or remote computing service to disclose the name,
address, local and long distance telephone toll billing
records, telephone number or other subscriber number or
identity, and length of service of a subscriber to or
customer of such service and the types of services the
subscriber or customer utilized, which may be relevant to an
authorized law enforcement inquiry; or
``(B) requiring a custodian of records to give testimony
concerning the production and authentication of such records
or information.
``(2) Attendance of witnesses.--Witnesses summoned under
this section shall be paid the same fees and mileage that are
paid witnesses in the courts of the United States.
``(b) Procedures Applicable.--The same procedures for
service and enforcement as are provided with respect to
investigative demands in section 3486 apply with respect to a
subpoena issued under this section.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 223 of title 18, United States Code, is amended by
striking the item relating to section 3486 and inserting the
following:
``3486. Administrative subpoenas in Federal health care investigations.
``3486A. Administrative subpoenas in cases involving child abuse and
child sexual exploitation.''.
SEC. 607. GRANTS TO STATES TO OFFSET COSTS ASSOCIATED WITH
SEXUALLY VIOLENT OFFENDER REGISTRATION
REQUIREMENTS.
(a) In General.--Section 170101 of the Violent Crime
Control and Law Enforcement Act of 1994 (42 U.S.C. 14071) is
amended--
(1) by redesignating the second subsection designated as
subsection (g) as subsection (h); and
(2) by adding at the end the following:
``(i) Grants to States for Costs of Compliance.--
``(1) Program authorized.--
``(A) In general.--The Director of the Bureau of Justice
Assistance (in this subsection referred to as the `Director')
shall carry out a program, which shall be known as the `Sex
Offender Management Assistance Program' (in this subsection
referred to as the `SOMA program'), under which the Director
shall award a grant to each eligible State to offset costs
directly associated with complying with this section.
``(B) Uses of funds.--Each grant awarded under this
subsection shall be--
``(i) distributed directly to the State for distribution to
State and local entities; and
``(ii) used for training, salaries, equipment, materials,
and other costs directly associated with complying with this
section.
``(2) Eligibility.--
``(A) Application.--To be eligible to receive a grant under
this subsection, the chief executive of a State shall, on an
annual basis, submit to the Director an application (in such
form and containing such information as the Director may
reasonably require) assuring that--
``(i) the State complies with (or made a good faith effort
to comply with) this section; and
``(ii) where applicable, the State has penalties comparable
to or greater than Federal penalties for crimes listed in
this section, except that the Director may waive the
requirement of this clause if a State demonstrates an
overriding need for assistance under this subsection.
``(B) Regulations.--
``(i) In general.--Not later than 90 days after the date of
enactment of this subsection, the Director shall promulgate
regulations to implement this subsection (including the
information that must be included and the requirements that
the States must meet) in submitting the applications required
under this subsection. In allocating funds under this
subsection, the Director may consider the annual number of
sex offenders registered in each eligible State's monitoring
and notification programs.
``(ii) Certain training programs.--Prior to implementing
this subsection, the Director shall study the feasibility of
incorporating into the SOMA program the activities of any
technical assistance or training program established as a
result of section 40152 of this Act. In a case in which
incorporating such activities into the SOMA program will
eliminate duplication of efforts or administrative costs, the
Director shall take administrative actions, as allowable, and
make recommendations to Congress to incorporate such
activities into the SOMA program prior to implementing the
SOMA program.
``(3) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection, $25,000,000
for each of fiscal years 1999 and 2000.''.
(b) Study.--Not later than March 1, 2000, the Director
shall conduct a study to assess the efficacy of the Sex
Offender Management Assistance Program under section
170101(i) of the Violent Crime Control and Law Enforcement
Act of 1994 (42 U.S.C. 14071(i)), as added by this section,
and submit recommendations to Congress.
TITLE VII--MURDER AND KIDNAPPING INVESTIGATIONS
SEC. 701. AUTHORITY TO INVESTIGATE SERIAL KILLINGS.
(a) In General.--Chapter 33 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 540B. Investigation of serial killings
``(a) In General.--The Attorney General and the Director of
the Federal Bureau of Investigation may investigate serial
killings in violation of the laws of a State or political
subdivision, if such investigation is requested by the head
of a law enforcement agency with investigative or
prosecutorial jurisdiction over the offense.
``(b) Definitions.--In this section:
``(1) Killing.--The term `killing' means conduct that would
constitute an offense under section 1111 of title 18, United
States Code, if Federal jurisdiction existed.
``(2) Serial killings.--The term `serial killings' means a
series of 3 or more killings, not less than 1 of which was
committed within the United States, having common
characteristics such as to suggest the reasonable possibility
that the crimes were committed by the same actor or actors.
``(3) State.--The term `State' means a State of the United
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 33 of title 28, United States Code, is amended by
adding at end the following:
``540B. Investigation of serial killings.''.
SEC. 702. KIDNAPPING.
(a) Clarification of Element of Offense.--Section
1201(a)(1) of title 18, United States Code, is amended by
inserting ``, regardless of whether the person was alive when
transported across a State boundary if the person was alive
when the transportation began'' before the semicolon.
(b) Technical Amendment.--Section 1201(a)(5) of title 18,
United States Code, is amended by striking ``designated'' and
inserting ``described''.
(c) 24-Hour Rule.--Section 1201(b) of title 18, United
States Code, is amended by adding at the end the following:
``Notwithstanding the preceding sentence, the fact that the
presumption under this section has not yet taken effect does
not preclude a Federal investigation of a possible violation
of this section before the 24-hour period has ended.''.
SEC. 703. MORGAN P. HARDIMAN CHILD ABDUCTION AND SERIAL
MURDER INVESTIGATIVE RESOURCES CENTER.
(a) Establishment.--Not later than 90 days after the date
of enactment of this Act, the Attorney General shall
establish within the Federal Bureau of Investigation a Child
Abduction and Serial Murder Investigative Resources Center to
be known as the ``Morgan P. Hardiman Child Abduction and
Serial Murder Investigative Resources Center'' (in this
section referred to as the ``CASMIRC'').
(b) Purpose.--The CASMIRC shall be managed by National
Center for the Analysis of Violent Crime of the Critical
Incident Response Group of the Federal Bureau of
Investigation (in this section referred to as the ``NCAVC''),
and by multidisciplinary resource teams in Federal Bureau of
Investigation field offices, in order to provide
investigative support through the coordination and provision
of Federal law enforcement resources, training, and
application of other multidisciplinary expertise, to assist
Federal, State, and local authorities in matters
[[Page S12261]]
involving child abductions, mysterious disappearance of
children, child homicide, and serial murder across the
country. The CASMIRC shall be co-located with the NCAVC.
(c) Duties of the CASMIRC.--The CASMIRC shall perform such
duties as the Attorney General determines appropriate to
carry out the purposes of the CASMIRC, including--
(1) identifying, developing, researching, acquiring, and
refining multidisciplinary information and specialities to
provide for the most current expertise available to advance
investigative knowledge and practices used in child
abduction, mysterious disappearance of children, child
homicide, and serial murder investigations;
(2) providing advice and coordinating the application of
current and emerging technical, forensic, and other Federal
assistance to Federal, State, and local authorities in child
abduction, mysterious disappearances of children, child
homicide, and serial murder investigations;
(3) providing investigative support, research findings, and
violent crime analysis to Federal, State, and local
authorities in child abduction, mysterious disappearances of
children, child homicide, and serial murder investigations;
(4) providing, if requested by a Federal, State, or local
law enforcement agency, on site consultation and advice in
child abduction, mysterious disappearances of children, child
homicide and serial murder investigations;
(5) coordinating the application of resources of pertinent
Federal law enforcement agencies, and other Federal entities
including, but not limited to, the United States Customs
Service, the Secret Service, the Postal Inspection Service,
and the United States Marshals Service, as appropriate, and
with the concurrence of the agency head to support Federal,
State, and local law enforcement involved in child abduction,
mysterious disappearance of a child, child homicide, and
serial murder investigations;
(6) conducting ongoing research related to child
abductions, mysterious disappearances of children, child
homicides, and serial murder, including identification and
investigative application of current and emerging
technologies, identification of investigative searching
technologies and methods for physically locating abducted
children, investigative use of offender behavioral assessment
and analysis concepts, gathering statistics and information
necessary for case identification, trend analysis, and case
linkages to advance the investigative effectiveness of
outstanding abducted children cases, develop investigative
systems to identify and track serious serial offenders that
repeatedly victimize children for comparison to unsolved
cases, and other investigative research pertinent to child
abduction, mysterious disappearance of a child, child
homicide, and serial murder covered in this section;
(7) working under the NCAVC in coordination with the
National Center For Missing and Exploited Children and the
Office of Juvenile Justice and Delinquency Prevention of the
Department of Justice to provide appropriate training to
Federal, State, and local law enforcement in matters
regarding child abductions, mysterious disappearances of
children, child homicides; and
(8) establishing a centralized repository based upon case
data reflecting child abductions, mysterious disappearances
of children, child homicides and serial murder submitted by
State and local agencies, and an automated system for the
efficient collection, retrieval, analysis, and reporting of
information regarding CASMIRC investigative resources,
research, and requests for and provision of investigative
support services.
(d) Appointment of Personnel to the CASMIRC.--
(1) Selection of members of the casmirc and participating
state and local law enforcement personnel.--The Director of
the Federal Bureau of Investigation shall appoint the members
of the CASMIRC. The CASMIRC shall be staffed with Federal
Bureau of Investigation personnel and other necessary
personnel selected for their expertise that would enable them
to assist in the research, data collection, and analysis, and
provision of investigative support in child abduction,
mysterious disappearance of children, child homicide and
serial murder investigations. The Director may, with
concurrence of the appropriate State or local agency, also
appoint State and local law enforcement personnel to work
with the CASMIRC.
(2) Status.--Each member of the CASMIRC (and each
individual from any State or local law enforcement agency
appointed to work with the CASMIRC) shall remain as an
employee of that member's or individual's respective agency
for all purposes (including the purpose of performance
review), and service with the CASMIRC shall be without
interruption or loss of civil service privilege or status and
shall be on a nonreimbursable basis, except if appropriate to
reimburse State and local law enforcement for overtime costs
for an individual appointed to work with the resource team.
Additionally, reimbursement of travel and per diem expenses
will occur for State and local law enforcement participation
in resident fellowship programs at the NCAVC when offered.
(3) Training.--CASMIRC personnel, under the guidance of the
Federal Bureau of Investigation's National Center for the
Analysis of Violent Crime and in consultation with the
National Center For Missing and Exploited Children, shall
develop a specialized course of instruction devoted to
training members of the CASMIRC consistent with the
purpose of this section. The CASMIRC shall also work with
the National Center For Missing and Exploited Children and
the Office of Juvenile Justice and Delinquency Prevention
of the Department of Justice to develop a course of
instruction for State and local law enforcement personnel
to facilitate the dissemination of the most current
multidisciplinary expertise in the investigation of child
abductions, mysterious disappearances of children, child
homicides, and serial murder of children.
(e) Report to Congress.--One year after the establishment
of the CASMIRC, the Attorney General shall submit to Congress
a report, which shall include--
(1) a description of the goals and activities of the
CASMIRC; and
(2) information regarding--
(A) the number and qualifications of the members appointed
to the CASMIRC;
(B) the provision of equipment, administrative support, and
office space for the CASMIRC; and
(C) the projected resource needs for the CASMIRC.
(f) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section such sums as may
be necessary for each of fiscal years 1999, 2000, and 2001.
(g) Conforming Amendment.--Subtitle C of title XVII of the
Violent Crime Control and Law Enforcement Act of 1994 (42
U.S.C. 5776a et seq.) is repealed.
TITLE VIII--RESTRICTED ACCESS TO INTERACTIVE COMPUTER SERVICES
SEC. 801. PRISONER ACCESS.
Notwithstanding any other provision of law, no agency,
officer, or employee of the United States shall implement, or
provide any financial assistance to, any Federal program or
Federal activity in which a Federal prisoner is allowed
access to any electronic communication service or remote
computing service without the supervision of an official of
the Federal Government.
SEC. 802. RECOMMENDED PROHIBITION.
(a) Findings.--Congress finds that--
(1) a Minnesota State prisoner, serving 23 years for
molesting teenage girls, worked for a nonprofit work and
education program inside the prison, through which the
prisoner had unsupervised access to the Internet;
(2) the prisoner, through his unsupervised access to the
Internet, trafficked in child pornography over the Internet;
(3) Federal law enforcement authorities caught the prisoner
with a computer disk containing 280 pictures of juveniles
engaged in sexually explicit conduct;
(4) a jury found the prisoner guilty of conspiring to trade
in child pornography and possessing child pornography;
(5) the United States District Court for the District of
Minnesota sentenced the prisoner to 87 months in Federal
prison, to be served upon the completion of his 23-year State
prison term; and
(6) there has been an explosion in the use of the Internet
in the United States, further placing our Nation's children
at risk of harm and exploitation at the hands of predators on
the Internet and increasing the ease of trafficking in child
pornography.
(b) Sense of Congress.--It is the sense of Congress that
State Governors, State legislators, and State prison
administrators should prohibit unsupervised access to the
Internet by State prisoners.
SEC. 803. SURVEY.
(a) Survey.--Not later than 6 months after the date of
enactment of this Act, the Attorney General shall conduct a
survey of the States to determine to what extent each State
allows prisoners access to any interactive computer service
and whether such access is supervised by a prison official.
(b) Report.--The Attorney General shall submit a report to
Congress of the findings of the survey conducted pursuant to
subsection (a).
(c) State Defined.--In this section, the term ``State''
means each of the 50 States and the District of Columbia.
TITLE IX--STUDIES
SEC. 901. STUDY ON LIMITING THE AVAILABILITY OF PORNOGRAPHY
ON THE INTERNET.
(a) In General.--Not later than 90 days after the date of
enactment of this Act, the Attorney General shall request
that the National Academy of Sciences, acting through its
National Research Council, enter into a contract to conduct a
study of computer-based technologies and other approaches to
the problem of the availability of pornographic material to
children on the Internet, in order to develop possible
amendments to Federal criminal law and other law enforcement
techniques to respond to the problem.
(b) Contents of Study.--The study under this section shall
address each of the following:
(1) The capabilities of present-day computer-based control
technologies for controlling electronic transmission of
pornographic images.
(2) Research needed to develop computer-based control
technologies to the point of practical utility for
controlling the electronic transmission of pornographic
images.
(3) Any inherent limitations of computer-based control
technologies for controlling electronic transmission of
pornographic images.
(4) Operational policies or management techniques needed to
ensure the effectiveness of these control technologies for
controlling electronic transmission of pornographic images.
(c) Final Report.--Not later than 2 years after the date of
enactment of this Act, the Attorney General shall submit to
the Committees on the Judiciary of the House of
Representatives and the Senate a final report of the study
under this section, which report shall--
(1) set forth the findings, conclusions, and
recommendations of the Council; and
(2) be submitted by the Committees on the Judiciary of the
House of Representatives and the Senate to relevant
Government agencies and committees of Congress.
SEC. 902. STUDY OF HOTLINES.
(a) In General.--Not later than 1 year after the date of
the enactment of this Act, the Attorney General shall conduct
a study in accordance with subsection (b) and submit to
Congress a report on the results of that study.
(b) Contents of Study.--The study under this section shall
include an examination of--
[[Page S12262]]
(1) existing State programs for informing the public about
the presence of sexual predators released from prison, as
required in section 170101 of the Violent Crime Control and
Law Enforcement Act of 1994 (42 U.S.C. 14071), including the
use of CD-ROMs, Internet databases, and Sexual Offender
Identification Hotlines, such as those used in the State of
California; and
(2) the feasibility of establishing a national hotline for
parents to access a Federal Bureau of Investigation database
that tracks the location of convicted sexual predators
established under section 170102 of the Violent Crime Control
and Law Enforcement Act of 1994 (42 U.S.C. 14072) and, in
determining that feasibility, the Attorney General shall
examine issues including the cost, necessary changes to
Federal and State laws necessitated by the creation of such a
hotline, consistency with Federal and State case law
pertaining to community notification, and the need for, and
accuracy and reliability of, the information available
through such a hotline.
Amendment No. 3811
(Purpose: To make technical and conforming amendments)
Mr. COATS. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Indiana [Mr. Coats], for Mr. Hatch, Mr.
Leahy, and Mr. DeWine, proposes an amendment numbered 3811.
Mr. COATS. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 116, lines 22 and 23, strike ``territory'' and
insert ``commonwealth, territory,''.
On page 118, strike lines 1 through 3, and insert the
following:
``(2) the term `State' means a State of the United States,
the District of Columbia, and any commonwealth, territory, or
possession of the United''.
On page 132, lines 9 and 10, strike ``that provide probable
cause to believe that'' and insert ``from which''.
On page 132, line 13, strike ``has occurred'' and insert
``is apparent,''.
Mr. COATS. Mr. President, I ask unanimous consent that the amendment
be agreed to.
The amendment (No. 3811) was agreed to.
Amendment No. 3812
(Purpose: To amend chapter 110 of title 18, United States Code, to
provide for ``zero tolerance'' for possession of child pornography)
Mr. COATS. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Indiana [Mr. Coats], for Mr. Hatch,
proposes an amendment numbered 3812.
Mr. COATS. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 121, between lines 6 and 7, insert the following:
SEC. 203. ``ZERO TOLERANCE'' FOR POSSESSION OF CHILD
PORNOGRAPHY.
(a) Material Involving the Sexual Exploitation of Minors.--
Section 2252 of title 18, United States Code, is amended--
(1) in subsection (a)(4), by striking ``3 or more'' each
place that term appears and inserting ``1 or more''; and
(2) by adding at the end the following:
``(c) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating paragraph (4) of subsection
(a) that the defendant--
``(1) possessed less than 3 matters containing any visual
depiction proscribed by that paragraph; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any visual depiction or copy thereof--
``(A) took reasonable steps to destroy each such visual
depiction; or
``(B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.''.
(b) Material Constituting or Containing Child
Pornography.--Section 2252A of title 18, United States Code,
is amended--
(1) in subsection (a)(5), by striking ``3 or more images''
each place that term appears and inserting ``an image''; and
(2) by adding at the end the following:
``(d) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating subsection (a)(5) that the
defendant--
``(1) possessed less than 3 images of child pornography;
and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof--
``(A) took reasonable steps to destroy each such image; or
``(B) reported the matter to a law enforcement agency and
afforded that agency access to each such image.''.
Mr. COATS. Mr. President, I ask unanimous consent that the amendment
be agreed to, the committee substitute be agreed to, the bill
considered read the third time and passed, as amended, the amendment to
the title be agreed to, and the title, as amended, be agreed to, the
motion to reconsider be laid upon the table, and that any statements
relating to the bill appear at this point in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3812) was agreed to.
The committee amendment, as amended, was agreed to.
The bill (H.R. 3494), as amended, was considered read the third time,
and passed.
The title amendment was agreed to.
The title amendment, as amended, was agreed to.
The title was amended so as to read:
``To amend title 18, United States Code, to protect children from
sexual abuse and exploitation, and for other purposes.''
Mr. HATCH. Mr. President, I am pleased to note the passage of H.R.
3494, the Hatch-Leahy-DeWine ``Protection of Children from Sexual
Predators Act of 1998.'' I want to thank Senators Leahy and DeWine for
their cooperation in drafting and advocating the passage of this
important piece of legislation. I also want to commend Congressman
McCollum for his determined efforts in marshaling H.R. 3494 through the
House.
Although it was necessary to make some changes to the House version
in an effort to achieve bipartisan support in the Senate, the final
product is a strong bill which goes a long way toward improving 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. By prohibiting
to possession of even one item or image containing child pornography,
we are stating in no uncertain terms that we have ``zero tolerance''
for the sexual exploitation of children. 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 not have the power to seek pretrial detention of
sexual predators prior to trial.
Federal law enforcement will be given increased statutory authority
to assist the States in kidnapping and serial murder investigations,
which often involve children. In that vein, H.R. 3494 calls for the
creation of the Morgan P. Hardiman Child Abduction and Serial Murder
Investigative Resources Center.
[[Page S12263]]
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 H.R. 3494 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 the House as well as from Senators on
both sides of the aisle to draft a bill which includes strong,
effective legislation protecting children. Once again, I urge the House
to act quickly to pass this bill so that we can get it to the President
for his signature this session. Protection for our children delayed is
protection denied.
Mr. LEAHY. Mr. President, I am glad that we have been able to achieve
passage of a bill that will help protect children from sexual
predators.
As the leaders of the Senate Judiciary Committee, it is the
responsibility of Chairman Hatch and myself to schedule legislation for
consideration by the Committee and to draft changes, if warranted. Many
bills never are scheduled for committee votes, and as the legislative
session draws to a close, it becomes increasingly important that any
bills brought to the Senate Floor adequately address concerns raised,
to improve their chances for enactment. At this stage of the
legislative process, even one senator can prevent passage of an ill-
considered or controversial bill. Passage today of the Hatch-Leahy-
DeWine substitute to H.R. 3494 is due to the efforts of those members
who have worked to resolve the legitimate concerns raised by the
original bill we received from the House.
In the case of H.R. 3494, the Chairman and I, joined by Senator
DeWine. worked hard to bring forward a bill that was both strong and
sensible and that would have a chance to win enactment in the short
time remaining in the legislative session.
Unlike some who may just want to score political points, we actually
want to enact this bill to protect children, something that I worked
hard to do as a prosecutor, when I convicted child molesters in the
state of Vermont. We wanted to bring forward a bill that could pass.
The problem area is the original House bill as it reached the
Committee centered on its unintended consequences for law enforcement,
regulation of the Internet, and important privacy rights that have
nothing to do with child pornography.
As I have said before, the whole world watches when the United States
regulates the Internet, and we have a special obligation to do it
right.
The goal of H.R. 3494, and of the Hatch-Leahy-DeWine substitute, is
to provide stronger protections for children from those who would prey
upon them. Concerns over protecting our children have only 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 is also
creates new opportunities for sexual predators and child pornographers
to ply their trade.
The challenge is to protect 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 Hatch-Leahy-DeWine version of the bill meets this challenge.
While neither version is a cure-all for the scourge of child
pornography, the substitute is a useful step toward limiting the
ability of cyber-pornographers and predators from harming children.
The bill has come a long way since it was passed by the House last
June. Significant objections were raised by civil liberties
organizations and others to provisions in the original H.R. 3494, and
we worked hard on a bipartisan basis to ensure that this bill would
pass in the short time remaining in this Congress.
I thank the Chairman and Senator DeWine, and other members of the
Committee, for working together to address the legitimate concerns
about certain provisions in the House-passed bill, and to make this
substitute more focused and measured. Briefly, I would like to
highlight and explain some of the changes we made, and why we made
them.
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, which would be extremely
difficult to enforce and would invite court challenges, does not appear
in the Hatch-Leahy-DeWine substitute. In criminal law terms, the act of
making contact is not very far along the spectrum of an overt criminal
act. Targeting ``attempts'' to make contact would be even more like
prosecuting a thought crime. It is difficult to see how such a
provision would be enforced without inviting significant litigation.
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. The Hatch-Leahy-DeWine
substitute fixes 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, the Senate bill conforms the bill to the
federal age of consent--16--in provisions regarding the age of the
identified minor. The Senate bill also clarifies 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.
Another provision of the House bill, which makes it a crime to
transfer obscene material to a minor, raised similar concerns. Again,
the Hatch-Leahy-DeWine bill lowers the age of minority from 18 to 16--
the federal age of majority--and provides that the defendant must know
he is dealing with someone so young. This provision of the Senate bill,
like the House 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.
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 unintentionally harm law enforcement interests by
lending 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 House Leahy-DeWine
substitute.
Another concern with the House bill was 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
[[Page S12264]]
requirement, the House bill put at risk the unsuspecting Internet user
who, by inadvertence or mistake, downleaded a single pornographic image
of a child. While we support the concept of zero tolerance for child
pornography, the inevitable result of the House language in overriding
the earlier congressional definition would be to chill the free
exchange of information over the Web by making users fearful that, if
they download illegal material by mistake, they could go to jail.
More importantly, this provision could also inadvertently harm law
enforcement interests by chilling those who inadvertently or mistakenly
come upon child pornography from bringing the material to the attention
of law enforcement officers. Technically, under the House-passed bill,
these law-abiding citizens would be subject to criminal liabiilty.
Efforts to avoid these unintended consequences, while promoting zero
tolerance of child pornography, could not be resolved in the time
constraints facing the Committee. However, our bipartisan efforts to
draft workable language have borne fruit. The Hatch-Leahy-DeWine-
Sessions amendment accommodates the objective of ``zero balance'' for
child pornography, but permits a narrow affirmative defense for certain
defendants who, in good faith, destroyed the prohibited material or
reported it to law enforcement authorities. With this amendment, we
have achieved zero tolerance without unintended consequences for
innocent Internet users and for law enforcement.
The House bill would have given the Attorney General sweeping
administrative authority to subpoena records and witnesses
investigations involving crimes against children. This proposed
authority to issue administrative subpoenas would have given 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. We appreciate that such secretary requirements
may pose obstacles to 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, we
understand that some U.S. Attorneys' Offices are reluctant to open
grand jury investigations 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 substitute accommodates these competing
interests by granting the Department a narrowly drawn authority to
subpoena the information that it most needs: Routine subscriber account
information from Internet Service Providers (ISPS), which may provide
appropriate notice to subscribers.
The new reporting requirement established by H.R. 3494 would also
create new problems. Under current law, ISPs are generally free to
report suspicious communications to law enforcement authorities. Under
H.R. 3494, ISPs would be required to report such communications when
they involve child pornography; failure to do so would be punishable by
a substantial fine.
In addressing this issue, the Chairman, Senator DeWine and I are
committed to eradicating the market of child pornography, believing
that child pornography is inherently harmful to children. ISPs 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 following
statutory defined procedures to safeguard privacy and ensure due
process.
The ISPs have cooperated in refining this provision of the House bill
to make it more workable. Particular consideration was given to the
appropriate standard for triggering a duty to report. We wanted to make
the bar sufficiently high to discourage ISPs from erring on the side of
over-reporting every questionable image. Over-reporting would overwhelm
law enforcement agencies with worthless investigative leads and make it
more difficult for them to isolate the leads worth pursuing. Over-
reporting would also jeopardize the First Amendment rights of Internet
users, while needlessly magnifying the administrative burden of the
ISPs.
Under H.R. 3494, ISPs have a duty to make a report to law enforcement
authorities only when they obtain knowledge of material from which a
violation of the federal child pornography laws ``is apparent.'' While
the committee-reported bill required ISPs to make a report only when
they had ``probable cause'' to believe that the child pornography laws
were being violated, the substitute passed today adopts an ``is
apparent'' standard. The latter standard is stricter than the
``probable cause'' standard and so will reduce any incentive for over-
reporting. I ask unanimous consent that a letter from America Online
regarding the ``is apparent'' standard be included in the record.
If the ``is apparent'' standard is met, an ISP must expeditiously
file a report with law enforcement authorities. This report is to
include the ``facts or circumstances'' from which a violation of the
law is apparent, so that law enforcement agencies can determine whether
or not further investigation or prosecution is called for. Information
in the ISP's files identifying the name of a subscriber does not fall
within this description, since child pornography offenses will either
be apparent or not, without regard to the name of a party to an image
transmission or other violative act. If law enforcement determines that
further investigation is warranted, it may subpoena, the ISP for any
identifying information that the ISP may possess. The new
administrative subpoena power should expedite this process.
The substitute also refines the reporting requirement in other ways:
First, by providing that there is no liability for failing to make a
report unless the ISP knew both of the existence of child pornography
and of the duty to report it (if it rises to the level of probable
cause).
Second, by making clear that we are not imposing a monitoring
requirement of any kind: ISPs must report child pornography when they
come across it or it is brought to their attention, but they are not
obligated to go out looking for it, which raises significant privacy
concerns and conflicts with other laws.
Third, by adding privacy protections for any information reported
under the bill.
Fourth, to protect smaller ISPs who could be put out of business for
a first offense, by lowering the maximum fine for first offenders to
$50,000; a second or subsequent failure to report, however, may still
result in a fine of up to $100,000.
Thus, improved, the reporting requirement will accomplish its
objectives without violating the privacy rights of Internet users,
unduly burdening the ISPs, or inundating law enforcement with a lot of
worthless information.
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 substitute that
goes a long way toward achieving our common goals.
America Online Inc.,
Washington, DC, September 25, 1998.
Hon. Patrick Leahy,
Ranking Member, Judiciary Committee, US Senate, Washington,
DC.
Dear Senator Leahy: I am writing to follow up on the letter
of September 18 on the ISP reporting provisions of H.R. 3494,
to which America Online was a signatory.
In discussions preceding markup, there was an ISP request
for a tighter standard for the duty-to-report screening test,
to avoid unnecessary and counter-productive reporting. In
response, the committee used a ``probable cause'' standard.
While we are grateful for your intent, there has remained
some uncertainty about the effect of the original ``is
apparent'' standard and, thus, about which standard is
actually more limiting of the material covered, and thus more
workable for ISP's. Subsequently, a number of ISP's have
analyzed and discussed the question, and it is our collective
judgment that the ``is apparent'' standard is preferable.
This is the basis for our request that the language be
changed.
To elaborate: under proposed 227(b)(1) of the Victims of
Child Abuse Act, as added by Sec. 604 of H.R. 3494, Internet
and online service providers (ISP's) would have a duty to
report to a law enforcement authority any child pornography
of which it gains knowledge in the provision of its service.
In each case the ISP must judge whether material is covered
under this duty or not. The test it
[[Page S12265]]
uses in this process of analysis is the subject of our
request. Based on our review of the history of the ``is
apparent'' standard, we believe it to result in a narrower
reporting scope than ``probably cause,'' which at best calls
for an uncertain ``more likely than not'' judgment.
A more workable approach is to trigger the duty when the
ISP receives knowledge of ``facts or circumstances from which
a violation of [applicable law] is apparent****'' While the
ISP has no duty to monitor its users, in essence this
language creates a ``red flag:'' if the ISP in the operation
of its service obtains knowledge of material which is clearly
child pornography, a red flag should be raised. Such material
must be reported to the authorities. It is not, the ISP may
be heavily fined--it ignores the red flag at its peril.
As you are aware, this standard originated in Title II of
the Digital Millennium Copyright Act, developed in the
Judiciary Committee and passed 99-0 by the Senate earlier
this summer. For material present on ISPs' servers or
material to which ISP's link on the Internet, committee
desired to create a standard of liability triggered by
disregard of any ``red flags''. It sought a test falling
between the familiar ``should have known, could have known''
standard, which was deemed too broad in its coverage, and
absolute certainty of infringement, which was deemed too
narrow. ``Apparent'' has more the meaning of ``clear on its
face,'' and is a higher standard of evidence of illegality
than ``probable cause'', which implies ``more likely than
not, based on all the circumstances.''. As the bill's
extensively-negotiated ``Section by Section'' written
analysis states: ``Under this standard, a service provider
would have no obligation to seek out copyright infringement,
but it would not qualify for the safe habor if it had turned
a blind eye to `red flags' of obvious infringement.''
Again, given this history and understanding of the ``is
apparent'' standard, we believe it will be a significant
improvement over ``probable cause'' in H.R. 3494's duty-to-
report provisions.
In conclusion, thank you for your willingness to continue
working with us on this point. Your sensitivity, and that of
the Chairman, have once again been crucial in laying down a
workable legislative road map for the Internet/online medium.
Very truly yours,
Jill A. Lesser,
Director, Law & Public Policy,
Assistant General Counsel.
Mr. LAUTENBERG. Mr. President, we live in a world where it is
increasingly difficult to protect our children. The advent of
sophisticated computer technology has made it too easy for depraved
criminals to gather information about children and prey upon them. And
nothing is more heinous and reprehensible than the brutalization of a
child. We cannot be too vigilant in the battle against child predators.
I am pleased that today, with the passage of the Child Protection and
Sexual Predator Punishment Act, the Senate is marching forward in this
fight. This legislation will provide tough punishment for those who
would sexually abuse the youth of our Nation.
This measure contains an important provision, the Joan's Law Act,
that Senator Torricelli and I originally introduced as a separate bill.
This measure is based on a New Jersey law, which was named after a 7-
year-old-girl, Joan D'Alessandro. Tragically, Joan was raped and killed
in 1973. Although her murderer was convicted of the crime and sentenced
to 20 years in State prison, he has become eligible for parole and
continues to seek his release.
Joan's family has repeatedly had to fight against parole for this
vicious killer. They have been forced to relive this tragedy again and
again, as they try to ensure that others are protected from the
terrible horror they have suffered.
Joan's law will spare other families from these battles. It provides
that, unless the death sentenced is imposed, any criminal convicted of
a sexual offense that results in the death of a minor under the age of
14 will be sentenced to life imprisonment. With this effort, we will
ensure that cold-blooded murderers who abuse our children will be kept
behind bars for the rest of their lives.
Mr. President, I wish that we could do more to alleviate the pain and
trauma suffered by the D'Alessandro family. With profound courage and
dignity, they have endured so much for so long. Their relentless battle
for justice, and their tireless efforts to protect others is an
inspiration to us all. I am deeply heartened that Congress has passed
this legislative memorial to Joan.
Mr. CONRAD. Mr. President, I would like to say a few words about my
strong support of the Mississippi Sioux Tribes Judgment Fund
Distribution Act.
In 1967, the Indian Claims Commission rendered a judgment in favor of
the Sisseton-Wahpeton Sioux Tribe, the Devils Lake Sioux Tribe (now the
Spirit Lake Nation), and the Assiniboine and Sioux Tribe of Fort Peck,
to satisfy land compensation claims. In 1968, Congress appropriated
$5.9 million for this settlement.
In 1972, Congress passed legislation to provide for the distribution
of this award to the three Tribes. Twenty-five percent ($1.5 million)
was set aside for lineal descendants who are not tribal members. Funds
were distributed to the Devils Lake Sioux and the Sisseton-Wahpeton
Sioux in 1974, and a partial distribution was made to the Assiniboine
and Sioux Tribe in 1979. However, because the original judgment did not
include shares for the lineal descendants, the issue has been tied up
in litigation and the lineal descendants' share of the funds has
remained undistributed since the passage of distribution legislation in
1972. Since that time, the interest on the fund has grown to nearly $15
million. The bill we have approved today will distribute 71.6005
percent of these funds to the lineal descendants, and 28.3995 percent
to the Tribes.
I say again, as I have said on numerous occasions, this situation has
gone on long enough. Neither the Tribes nor the lineal descendants
benefit from these funds being tied up in court. The Indian Affairs
Committee has worked with the Tribes, the Department of the Interior,
and representatives of the lineal descendants to craft the compromise
embodied in this legislation.
Mr. President, I am pleased by the passage of this legislation, which
helps finalize a judgment made three decades ago. This legislation is a
fair compromise, one that will help break the stalemate that has
prevented the distribution of these judgment funds. I thank my
colleagues for their support and assistance.
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