[Congressional Record Volume 148, Number 86 (Tuesday, June 25, 2002)]
[House]
[Pages H3876-H3884]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
{time} 1345
CHILD OBSCENITY AND PORNOGRAPHY PREVENTION ACT OF 2002
Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 4623) to prevent trafficking in child pornography and
obscenity, to proscribe pandering and solicitation relating to visual
depictions of minors engaging in sexually explicit conduct, to prevent
the use of child pornography and obscenity to facilitate crimes against
children, and for other purposes, as amended.
The Clerk read as follows:
H.R. 4623
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Obscenity and
Pornography Prevention Act of 2002''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Obscenity and child pornography are not entitled to
protection under the First Amendment under Miller v.
California, 413 U.S. 15 (1973) (obscenity), or New York v.
Ferber, 458 U.S. 747 (1982) (child pornography) and thus may
be prohibited.
(2) The Government has a compelling state interest in
protecting children from those who sexually exploit them,
including both child molesters and child pornographers. ``The
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing
importance,'' New York v. Ferber, 458 U.S. 747, 757 (1982)
(emphasis added), and this interest extends to stamping out
the vice of child pornography at all levels in the
distribution chain. Osborne v. Ohio, 495 U.S. 103, 110
(1990).
(3) The Government thus has a compelling interest in
ensuring that the criminal prohibitions against child
pornography remain enforceable and effective. ``[T]he most
expeditious if not the only practical method of law
enforcement may be to dry up the market for this material by
imposing severe criminal penalties on persons selling,
advertising, or otherwise promoting the product.'' Ferber,
458 U.S. at 760.
(4) In 1982, when the Supreme Court decided Ferber, the
technology did not exist to: (A) create depictions of virtual
children that are indistinguishable from depictions of real
children; (B) create depictions of virtual children using
compositions of real children to create an unidentifiable
child; or (C) disguise pictures of real children being abused
by making the image look computer generated.
(5) Evidence submitted to the Congress, including from the
National Center for Missing and Exploited Children,
demonstrates that technology already exists to disguise
depictions of real children to make them unidentifiable and
to make depictions of real children appear computer
generated. The technology will soon exist, if it does not
already, to make depictions of virtual children look real.
(6) The vast majority of child pornography prosecutions
today involve images contained on computer hard drives,
computer disks, and/or related media.
(7) There is no substantial evidence that any of the child
pornography images being trafficked today were made other
than by the abuse of real children. Nevertheless,
technological advances since Ferber have led many criminal
defendants to suggest that the images of child pornography
they possess are not those of real children, insisting that
the government prove beyond a reasonable doubt that the
images are not computer-generated. Such challenges will
likely increase after the Ashcroft v. Free Speech Coalition
decision.
(8) Child pornography circulating on the Internet has, by
definition, been digitally uploaded or scanned into computers
and has been transferred over the Internet, often in
different file formats, from trafficker to trafficker. An
image seized from a collector of child pornography is rarely
a first-generation product, and the retransmission of images
can alter the image so as to make it difficult for even an
expert conclusively to opine that a particular image depicts
a real child. If the original image has been scanned from a
paper version into a digital format, this task can be even
harder since proper forensic delineation may depend on the
quality of the image scanned and the tools used to scan it.
(9) The impact on the government's ability to prosecute
child pornography offenders is already evident. The Ninth
Circuit has seen a significant adverse effect on prosecutions
since the 1999 Ninth Circuit Court of Appeals decision in
Free Speech Coalition. After that decision, prosecutions
generally have been brought in the Ninth Circuit only in the
most clear-cut cases in which the government can specifically
identify the child in the depiction or otherwise identify the
origin of the image. This is a fraction of meritorious child
pornography cases. The National Center for Missing and
Exploited Children testified that, in light of the Supreme
Court's affirmation of the Ninth Circuit decision,
prosecutors in various parts of the country have expressed
concern about the continued viability of previously indicted
cases as well as declined potentially meritorious
prosecutions.
(10) In the absence of congressional action, this problem
will continue to grow increasingly worse. The mere prospect
that the technology exists to create computer or computer-
generated depictions that are indistinguishable from
depictions of real children will allow defendants who possess
images of real children to escape prosecution, for it
threatens to create a reasonable doubt in every case of
computer images even when a real child was abused. This
threatens to render child pornography laws that protect
real children unenforceable.
(11) To avoid this grave threat to the Government's
unquestioned compelling interest in effective enforcement of
the child pornography laws that protect real children, a
statute must be adopted that prohibits a narrowly-defined
subcategory of images.
(12) The Supreme Court's 1982 Ferber v. New York decision
holding that child pornography was not protected drove child
pornography off the shelves of adult bookstores.
Congressional action is necessary to ensure that open and
notorious trafficking in such materials does not reappear.
SEC. 3. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD
PORNOGRAPHY.
(a) Section 2256(8)(B) of title 18, United States Code, is
amended to read as follows:
[[Page H3877]]
``(B) such visual depiction is a computer image or
computer-generated image that is, or is indistinguishable (as
defined in section 1466A) from, that of a minor engaging in
sexually explicit conduct; or''.
(b) Section 2256(2) of title 18, United States Code, is
amended to read as follows:
``(2)(A) Except as provided in subparagraph (B), `sexually
explicit conduct' means actual or simulated--
``(i) sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons
of the same or opposite sex;
``(ii) bestiality;
``(iii) masturbation;
``(iv) sadistic or masochistic abuse; or
``(v) lascivious exhibition of the genitals or pubic area
of any person;
``(B) For purposes of subsection 8(B) of this section,
`sexually explicit conduct' means--
``(i) actual sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex, or lascivious simulated
sexual intercourse where the genitals, breast, or pubic area
of any person is exhibited;
``(ii) actual or lascivious simulated;
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic abuse; or
``(iii) actual or simulated lascivious exhibition of the
genitals or pubic area of any person;''.
(c) Section 2252A(c) of title 18, United States Code, is
amended to read as follows:
``(c)(1) Except as provided in paragraph (2), it shall be
an affirmative defense to a charge of violating this section
that the alleged offense did not involve the use of a minor
or an attempt or conspiracy to commit an offense under this
section involving such use.
``(2) A violation of, or an attempt or conspiracy to
violate, this section which involves child pornography as
defined in section 2256(8)(A) or (C) shall be punishable
without regard to the affirmative defense set forth in
paragraph (1).''.
SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD
PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code, is
amended--
(1) in subparagraph (C), by striking ``or'' at the end and
inserting ``and''; and
(2) by striking subparagraph (D).
(b) Chapter 110 of title 18, United States Code, is
amended--
(1) by inserting after section 2252A the following:
``Sec. 2252B. Pandering and solicitation
``(a) Whoever, in a circumstance described in subsection
(d), offers, agrees, attempts, or conspires to provide or
sell a visual depiction to another, and who in connection
therewith knowingly advertises, promotes, presents, or
describes the visual depiction with the intent to cause any
person to believe that the material is, or contains, a visual
depiction of a minor engaging in sexually explicit conduct
shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection
(d), offers, agrees, attempts, or conspires to receive or
purchase from another a visual depiction that he believes to
be, or to contain, a visual depiction of a minor engaging in
sexually explicit conduct shall be subject to the penalties
set forth in section 2252A(b)(1), including the penalties
provided for cases involving a prior conviction.
``(c) It is not a required element of any offense under
this section that any person actually provide, sell, receive,
purchase, possess, or produce any visual depiction.
``(d) The circumstance referred to in subsection (a) and
(b) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or
transportation of a visual depiction by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.'';
(2) in the analysis for the chapter, by inserting after the
item relating to section 2252A the following:
``2252B. Pandering and solicitation.''.
SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.
(a) Chapter 71 of title 18, United States Code, is
amended--
(1) by inserting after section 1466 the following:
``Sec. 1466A. Obscene visual depictions of young children
``(a) Whoever, in a circumstance described in subsection
(d), knowingly produces, distributes, receives, or possesses
with intent to distribute a visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, or attempts or
conspires to do so, shall be subject to the penalties set
forth in section 2252A(b)(1), including the penalties
provided for cases involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection
(d), knowingly possesses a visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, or attempts or
conspires to do so, shall be subject to the penalties set
forth in section 2252A(b)(2), including the penalties
provided for cases involving a prior conviction.
``(c) For purposes of this section--
``(1) the term `visual depiction' includes undeveloped film
and videotape, and data stored on computer disk or by
electronic means which is capable of conversion into a visual
image, and also includes any photograph, film, video,
picture, or computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or other
means;
``(2) the term `pre-pubescent child' means that (A) the
child, as depicted, is one whose physical development
indicates the child is 12 years of age or younger; or (B) the
child, as depicted, does not exhibit significant pubescent
physical or sexual maturation. Factors that may be considered
in determining significant pubescent physical maturation
include body habitus and musculature, height and weight
proportion, degree of hair distribution over the body,
extremity proportion with respect to the torso, and
dentition. Factors that may be considered in determining
significant pubescent sexual maturation include breast
development, presence of axillary hair, pubic hair
distribution, and visible growth of the sexual organs;
``(3) the term `sexually explicit conduct' has the meaning
set forth in section 2256(2); and
``(4) the term `indistinguishable' used with respect to a
depiction, means virtually indistinguishable, in that the
depiction is such that an ordinary person viewing the
depiction would conclude that the depiction is of an actual
minor engaged in sexually explicit conduct. This definition
does not apply to depictions that are drawings, cartoons,
sculptures, or paintings depicting minors or adults.
``(d) The circumstance referred to in subsections (a) and
(b) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or
transportation of a visual depiction by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(e) In a case under subsection (b), it is an affirmative
defense that the defendant--
``(1) possessed less than three such images; 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.
``Sec. 1466B. Obscene visual representations of pre-pubescent
sexual abuse
``(a) Whoever, in a circumstance described in subsection
(e), knowingly produces, distributes, receives, or possesses
with intent to distribute a visual depiction of any kind,
including a drawing, cartoon, sculpture, or painting, that--
``(1) depicts a pre-pubescent child engaging in sexually
explicit conduct, and
``(2) is obscene, or who attempts or conspires to do so,
shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection
(e), knowingly possesses a visual depiction of any kind,
including a drawing, cartoon, sculpture, or painting, that--
``(1) depicts a pre-pubescent child engaging in sexually
explicit conduct, and
``(2) is obscene,
``or who attempts or conspires to do so, shall be subject
to the penalties set forth in section 2252A(b)(2), including
the penalties provided for cases involving a prior
conviction.
``(c) It is not a required element of any offense under
this section that the pre-pubescent child depicted actually
exist.
``(d) For purposes of this section, the terms `visual
depiction' and `pre-pubescent child' have respectively the
meanings given those terms in seciton 1466A, and the term
`sexually explicit conduct' has the meaning given that term
in section 2256(2)(B).
``(e) The circumstance referred to in subsection (a) and
(b) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or
[[Page H3878]]
transported by the mail, or in interstate or foreign commerce
by any means, including by computer, or any means or
instrumentality of interstate or foreign commerce is
otherwise used in committing or in furtherance of the
commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or
transportation of a visual depiction by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(f) In a case under subsection (b), it is an affirmative
defense that the defendant--
``(1) possessed less than three such images; 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.''; and
(2) in the analysis for the chapter, by inserting after the
item relating to section 1466 the following:
``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual
abuse.''.
(b)(1) Except as provided in paragraph (2), the applicable
category of offense to be used in determining the sentencing
range referred to in section 3553(a)(4) of title 18, United
States Code, with respect to any person convicted under
section 1466A or 1466B of such title, shall be the category
of offenses described in section 2G2.2 of the Sentencing
Guidelines.
(2) The Sentencing Commission may promulgate guidelines
specifically governing offenses under section 1466A of title
18, United States Code, provided that such guidelines shall
not result in sentencing ranges that are lower than those
that would have applied under paragraph (1).
SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE
OFFENSES AGAINST MINORS.
Chapter 71 of title 18, United States Code, is amended--
(1) by inserting at the end the following:
``Sec. 1471. Use of obscene material or child pornography to
facilitate offenses against minors
``(a) Whoever, in any circumstance described in subsection
(c), knowingly--
``(1) provides or shows to a person below the age of 16
years any visual depiction that is, or is indistinguishable
from, that of a pre-pubescent child engaging in sexually
explicit conduct, any obscene matter, or any child
pornography; or
``(2) provides or shows any obscene matter or child
pornography, or any visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, or any other material
assistance to any person in connection with any conduct, or
any attempt, incitement, solicitation, or conspiracy to
engage in any conduct, that involves a minor and that
violates chapter 109A, 110, or 117, or that would violate
chapter 109A if the conduct occurred in the special maritime
and territorial jurisdiction of the United States,
shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
``(b) For purposes of this section--
``(1) the term `child pornography' has the meaning set
forth in section 2256(8);
``(2) the terms `visual depiction', `pre-pubescent child',
and `indistinguishable' have the meanings respectively set
forth for those terms in section 1466A(c); and
``(3) the term `sexually explicit conduct' has the meaning
set forth in section 2256(2).
``(c) The circumstance referred to in subsection (a) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or
transportation of a visual depiction or obscene matter by the
mail, or in interstate or foreign commerce by any means,
including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction or obscene matter involved in
the offense has been mailed, or has been shipped or
transported in interstate or foreign commerce by any means,
including by computer, or was produced using materials that
have been mailed, or that have been shipped or transported in
interstate or foreign commerce by any means, including by
computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.'';
(2) in the analysis for the chapter, by inserting at the
end the following:
``1471. Use of obscene material or child pornography to facilitate
offenses against minors.''.
SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
Section 2251 is amended--
(1) by striking ``subsection (d)'' each place it appears in
subsections (a), (b), and (c) and inserting ``subsection
(e)'';
(2) by redesignating subsections (c) and (d), respectively,
as subsections (d) and (e); and
(3) by inserting after subsection (b) a new subsection (c)
as follows:
``(c)(1) Any person who, in a circumstance described in
paragraph (2), employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any
other person to engage in, any sexually explicit conduct
outside of the United States, its possessions and
Territories, for the purpose of producing any visual
depiction of such conduct, shall be punished as provided
under subsection (e).
``(2) The circumstance referred to in paragraph (1) is
that--
``(A) the person intends such visual depiction to be
transported to the United States, its possessions, or
territories, by any means including by computer or mail;
``(B) the person transports such visual depiction to, or
otherwise makes it available within, the United States, its
possessions, or territories, by any means including by
computer or mail.''.
SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT
OFFENDERS.
Sections 2251(e) (as redesignated by section 7(2)),
2252(b), and 2252A(b) of title 18, United States Code, are
each amended by inserting ``chapter 71,'' immediately before
each occurrence of ``chapter 109A,''.
SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND
RELATED INFORMATION.
(a) Section 227 of the Victims of Child Abuse Act of 1990
(42 U.S.C. 13032) is amended--
(1) in subsection (b)(1)--
(A) by inserting ``2252B,'' after ``2252A,''; and
(B) by inserting ``or a violation of section 1466A or 1466B
of that title,'' after ``of that title),'';
(2) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
(3) by amending subsection (f)(1)(D) to read as follows:
``(D) where the report discloses 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.'';
(4) by redesignating paragraph (3) of subsection (b) as
paragraph (4); and
(5) by inserting after paragraph (2) of subsection (b) the
following new paragraph:
``(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National Center
for Missing and Exploited Children is authorized to forward
any such report to an appropriate official of a state or
subdivision of a state for the purpose of enforcing state
criminal law.''.
(b) Section 2702 of title 18, United States Code is
amended--
(1) in subsection (b)--
(A) in paragraph (6)--
(i) by inserting ``or'' at the end of subparagraph (A)(ii);
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraph (C) as subparagraph
(B);
(B) by redesignating paragraph (6) as paragraph (7);
(C) by striking ``or'' at the end of paragraph (5); and
(D) by inserting after paragraph (5) the following new
paragraph:
``(6) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''; and
(2) in subsection (c)--
(A) by striking ``or'' at the end of paragraph (4);
(B) by redesignating paragraph (5) as paragraph (6); and
(C) by adding after paragraph (4) the following new
paragraph:
``(5) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''.
SEC. 10. SEVERABILITY.
If any provision of this Act, or the application of such
provision to any person or circumstance, is held invalid, the
remainder of this Act, and the application of such provision
to other persons not similarly situated or to other
circumstances, shall not be affected by such invalidation.
SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD
PORNOGRAPHY.
Section 3486(a)(1)(C)(i) of title 18, United States Code,
is amended by striking ``the name, address'' and all that
follows through ``subscriber or customer'' and inserting
``the information specified in section 2703(c)(2)''.
The SPEAKER pro tempore (Mr. Latham). Pursuant to the rule, the
gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from
Virginia (Mr. Scott) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
[[Page H3879]]
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on the bill, H.R. 4623,
currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, on April 16, 2002, the Supreme Court of the United
States in the case of Ashcroft v. the Free Speech Coalition held that
the current definition of child pornography as enacted by the Child
Pornography Protection Act of 1996 is overbroad and, thus,
unconstitutional.
In response to that decision, Ernest Allen, the president and CEO of
the National Center for Missing and Exploited Children, testified that
he believes that the Court's decision will result in the proliferation
of child pornography in America unlike anything we have seen in more
than 20 years. He concluded that, as a result of the Court's decision,
thousands of children will be sexually victimized, most of whom will
not report the offense.
Technology will exist, or may exist today, to create depictions of
virtual children that are indistinguishable from depictions of real
children. Just the mere possibility that such technology exists will
make it impossible for law enforcement and prosecutors to enforce the
child pornography laws in cases where computers are involved.
A vast majority of child pornography prosecutions today involve
images contained on computer hard drives, computer disks or related
media. A computer image seized from a child pornographer is rarely a
first-generation product. These pictures are e-mailed over and over
again or scanned in from photographs of real children being abused and
exploited. The transmission of images over an e-mail system can alter
the image and make it impossible for even an expert to know whether or
not a particular image depicts a real child. If the original image has
been scanned from a paper version into a digital format, accurate
analysis can be even more difficult because proper forensic delineation
may depend upon the quality of the image scanned and the tools used to
scan it. As a result, the prosecution of child pornography cases that
involve a computer in any form are threatened.
Convicted child pornographers are appealing their cases with claims
that the government must prove that the child in the picture is real.
This can be an insurmountable burden on the prosecution. In fact, on
May 1, the committee received testimony that while there are estimates
that hundreds of thousands of child pornography files are in existence
and available on the Internet, law enforcement has established the
identity of less than 100 children to date.
The government has an obligation to respond to the Supreme Court's
decision, as it has an unquestionable compelling interest to protect
children from those who would sexually exploit them. The Supreme Court
recognized this compelling interest in its 1982 New York v. Ferber
decision, holding that child pornography is not protected by the first
amendment. The government will not be able to protect real children
unless it can effectively prosecute and enforce child pornography laws.
In order to do that, a statute must be adopted that narrows the
definition of child pornography to withstand constitutional muster.
H.R. 4623, the Child Obscenity and Pornography Prevention Act of
2002, does that. In response to the Court's decision, this bill narrows
the definition of child pornography, strengthens the existing
affirmative defense, amends the obscenity laws to address virtual and
real child pornography that involve visual depictions of pre-pubescent
children, creates new offenses against pandering visual depictions as
child pornography, and creates new offenses against providing children
obscene or pornographic material.
Mr. Speaker, this is carefully crafted legislation that will help to
protect our children from the worst predators in our society. I urge my
colleagues to support it.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, H.R. 4623 is a hasty attempt to override the United
States Supreme Court decision of just 2 months ago, Ashcroft v. Free
Speech Coalition. Unfortunately, it tries to do exactly what the
Supreme Court said could not be done. H.R. 4623 seeks to ban virtual
child pornography. It not only defines child pornography to include
virtual child pornography that is indistinguishable from real child
pornography, but makes even possession of an image that is
indistinguishable a crime. Child pornography may be banned and
prosecuted. However, pornography that does not involve a real child is
just that, pornography which, if not obscene, has been ruled by the
Supreme Court to be not illegal. To constitute child pornography, a
real child must be involved. The Supreme Court has ruled that computer-
generated images depicting childlike characters which do not involve
real children do not constitute child pornography any more than a movie
with a 22-year-old actor who plays and looks like a 15-year-old
engaging in sex would be illegal.
The Supreme Court has ruled that pornography, computer-generated or
not, which is not produced using real children, and is not otherwise
obscene, is protected under the first amendment. H.R. 4623, like the
CPPA struck down in Ashcroft v. Free Speech, attempts to ban this
protected material and therefore is likely to meet the same fate. The
fatal flaw in the CPPA was its criminalization of speech that was
neither obscene under Supreme Court guidelines nor child pornography
involving the abuse of real children under New York v. Ferber.
H.R. 4623 repeats that mistake. Like the CPPA, this bill would not
only criminalize speech that is not obscene but also speech that has
redeeming literary, artistic, political or other social value. For
example, the bill would punish therapists and academic researchers who
used computer-generated images in their research and filmmakers who
create explicit anti-child abuse documentaries.
The bill creates a strict liability offense. Under the bill,
prohibited images may not be possessed for any reason, however
legitimate. Therefore, any scholarly research that may be used to
verify or refute the underlying assumptions in the bill is rendered
impossible. Proponents of the bill believe the Court left open the
question of whether the government can criminalize computer-generated
images that are not obscene and do not involve real children. Obscene
images can always be prosecuted, but the Court clearly said that the
government cannot criminalize images which are not obscene unless the
product involved actual children.
In striking down the bill and upholding its decision in Ferber, the
Supreme Court stated: ``In contrast to the speech in Ferber, speech
that itself is the record of sexual abuse, the CPPA prohibits speech
that records no crime and creates no victims by its production. Virtual
child pornography is not intrinsically related to the sexual abuse of
children as were the materials in Ferber. Ferber, then, not only
referred to the distinction between actual and virtual child
pornography, it relied on it as a reason for supporting its holding.
Ferber provides no support for a statute that eliminates the
distinction and makes the alternative mode criminal as well.''
In interpreting the Osborne case of 1990, the Court said: ``Osborne
also noted the State's interest in preventing child pornography from
being used as an aid in the solicitation of minors. The Court, however,
anchored its holding in the concern for the participants, those whom it
called the victims of child pornography. It did not suggest that,
absent this concern, other governmental interests would suffice. The
case reaffirmed that where the speech is neither obscene nor the
product of sexual abuse, it does not fall outside the protection of the
first amendment. The distribution of descriptions or other depictions
of sexual conduct, not otherwise obscene, which do not involve live
performance or photographic or other visual reproduction of live
performances, retains first amendment protection.''
[[Page H3880]]
Proponents also argue that the Court did not consider the harm to
real children that will occur when, through technological advances, it
may become impossible to tell whether it is real children or virtual
children, thereby allowing harm to real children because the government
cannot tell the difference for purposes of bringing prosecution. The
Court did consider that and said: ``The government next argues that its
objective of eliminating the market for pornography produced using real
children necessitates a prohibition on virtual images as well. Virtual
images, the government contends, are indistinguishable from real ones;
they are part of the same market and are often exchanged. In this way,
it is said, virtual images promote the trafficking in works produced
through the exploitation of real children. The hypothesis is somewhat
implausible. If virtual images were identical to illegal child
pornography, the illegal images would be driven from the market by the
indistinguishable substitutes. Few pornographers would risk prosecution
by abusing real children if fictional, computerized images would
suffice.''
Nor was the Court persuaded, Mr. Speaker, by the argument that
virtual images will make it very difficult for the government to
prosecute cases. As to that concern, the Court stated: ``Finally, the
government says that the possibility of producing images by using
computer imaging makes it very difficult for it to prosecute those who
produce pornography by using real children. Experts, we are told, may
have difficulty in saying whether the pictures were made by using real
children or by using computer imaging. The necessary solution, the
argument runs, is to prohibit both kinds of images. The argument, in
essence, is that protected speech may be banned as a means to ban
unprotected speech. This analysis turns the first amendment upside
down. The government may not suppress lawful speech as the means to
suppress unlawful speech.''
It also talked about the affirmative defense and said: ``To avoid
this objection, the government would have us read the CPPA not as a
measure suppressing speech but as a law shifting the burden to the
accused to prove the speech is lawful. In this connection, the
government relies on an affirmative defense under the statute, which
allows a defendant to avoid conviction for nonpossession offenses by
showing that the materials were produced using only adults and were not
otherwise distributed in a manner conveying the impression that they
depicted real children. The government raises serious constitutional
difficulties by seeking to impose on the defendant the burden of
proving his speech is not unlawful. An affirmative defense applies only
after prosecution has begun, and the speaker must himself prove, on
pain of a felony conviction, that his conduct falls within the
affirmative defense. In cases under the CPPA, the evidentiary burden is
not trivial. Where the defendant is not the producer of the work, he
may have no way of establishing the identity, or even the existence, of
the actors. If the evidentiary issue is a serious problem for the
government, as it asserts, it will be at least as difficult for the
innocent possessor.''
The Ashcroft decision in essence reiterates the principles of Ferber
regarding the boundaries for fighting child pornography, like, number
one, nonobscene descriptions or depictions of sexual conduct that do
not involve real children are a form of speech which, even if
despicable, is protected by the first amendment. The Court said that
the government should focus its efforts on education and on punishment
for violations of the law by those who actually harm children in the
creation of child pornography rather than abridging the rights of free
speech of those who would create something from their imagination.
{time} 1400
Again, the Court said that the fact that the speech may be used to
perpetrate a crime is insufficient reason to ban the speech. ``The
government may not prohibit speech because it increases the chance an
unlawful act will be committed `at some indefinite future time.'''
Further, the Government said, ``The Government may not suppress lawful
speech as the means to suppress unlawful speech.''
So, therefore, Mr. Speaker, this bill just reiterates the mistakes in
the original legislation. It is unlikely that the bill will ever be
upheld and, therefore, ought to be defeated.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume
to the gentleman from Texas (Mr. Smith), the subcommittee chairman.
Mr. SMITH of Texas. Mr. Speaker, first of all, I thank the chairman
of the Committee on the Judiciary for yielding me this time.
Mr. Speaker, H.R. 4623, the Child Obscenity and Pornography
Prevention Act of 2002, is a bipartisan piece of legislation that was
passed by the Committee on the Judiciary 22 to 3. Because I see him on
the floor, I would especially like to thank the gentleman from
California (Mr. Schiff) for his contributions to this bill as well.
Mr. Speaker, H.R. 2623 responds to the Ashcroft v. Free Speech
Coalition Supreme Court decision. This decision will have a devastating
effect on the prosecution of child pornographers who are so often child
molesters as well.
Just this month, a doctor in San Antonio appealed his conviction for
possessing child pornography. The appeal came after the Free Speech
Coalition decision and challenged the conviction because the government
was not required to prove that the children depicted in his
pornographic images obtained on-line were real. The San Antonio
Express-News reported that these appeals are occurring nationwide.
Mr. Speaker, this legislation addresses the concerns of the Supreme
Court. Specifically, this bill narrows the definition of child
pornography and amends the obscenity laws to address virtual and real
child pornography that involves visual depictions of pre-pubescent
children. It also creates new offenses against providing children
obscene or pornographic material.
The Court was concerned in Free Speech Coalition that the breadth of
the language would prohibit legitimate movies like ``Traffic'' or plays
like ``Romeo and Juliet.'' Limiting the definition to computer images
or computer-generated images will help exclude ordinary motion pictures
from the coverage of ``virtual child pornography.''
Next, the bill narrows the definition by replacing the phrase
``appears to be'' with the phrase ``is indistinguishable from'' and
clarifies that this definition does not apply to depictions that are
drawings, cartoons, sculptures, or paintings depicting minors or
adults.
At the request of the National Center for Missing and Exploited
Children, this bill allows the Federally-funded Internet Crimes Against
Children Task Forces to receive reports from the Cyber Tipline. These
task forces are State and local police agencies that have been
identified by the National Center as competent to investigate and
prosecute computer-facilitated crimes against children.
Mr. Speaker, finally, in response to a new website that displays
pictures of children being raped and sodomized by adults, where the
pictures are clearly virtual, but obscene, this bill includes a
provision that would enhance the penalties for such obscenity.
Mr. Speaker, children are the most innocent and vulnerable among us.
We should do everything we possibly can to protect them, and that is
why I hope my colleagues will support this piece of legislation.
Mr. SCOTT. Mr. Speaker, I yield 3 minutes to the gentleman from North
Dakota (Mr. Pomeroy).
Mr. POMEROY. Mr. Speaker, I thank the ranking member for yielding me
this time.
These are dangerous times when it comes to child pornography. The
Internet has allowed distribution in ways never imagined before, making
it much more prevalent throughout our society, at the very time we have
a Supreme Court ruling knocking out the prohibition on computer-
generated child pornography. We need to respond, and we need to respond
immediately. That is why I commend the gentleman from Texas (Mr.
Smith), the chairman of the subcommittee, and others who have worked on
this legislation, including the gentleman from Florida (Mr. Foley) and
the gentleman from Texas (Mr. Lampson). This has been a truly
bipartisan effort to forge immediately a response that will withstand
constitutional review and put back into
[[Page H3881]]
the code strong protections for our children against child pornography.
In the end, make no bones about it. This is about protecting our
children. Meetings I have held with prosecutors, with child protection
advocates, have made it very clear to me that the use of child
pornography is damaging to children, sets them up as targets for
ultimate exploitation, and whets the appetite of the exploiters, making
them more likely to commit acts against our children.
The Attorney General and the Justice Department were very involved in
assembling a panel of constitutional experts reviewing the court ruling
and fashioning a legislative response that will withstand court review.
This is not about some immediate, knee-jerk response to a Supreme Court
ruling that causes us concern. This is a carefully calibrated effort to
put back into the code constitutional standards and prohibitions now
needed to be restored against virtual child pornography. There are new
constitutionally compliant definitions about the virtual imagery that
we are condemning, a tighter and stronger affirmative defense for those
prosecuted under this, required, as my prosecutors tell me, to allow
them to be able to continue to prosecute these matters.
I had a prosecutor in North Dakota tell me he took two cases right
off his desk and put them right back into the file, being unable to
prosecute them under the court ruling. This will put him back into
business in bringing these needed actions.
It stops commercial trade in child pornography: the trading, the
selling, the buying. This is not constitutionally protected free
speech, and the prohibition is restored with this legislation. It
clarifies the definition of obscenity by defining, whether real or
virtual, explicit sex involving young children as per se obscene.
Clearly, I believe we are on very strong ground that will withstand
constitutional muster and make an important contribution to prosecutors
trying to bring actions against this kind of material.
There is a severability clause in this legislation, thus raising the
very sincere arguments that they have about whether or not this is
constitutional. Clearly, the several clauses of this bill are not all
constitutional. I absolutely believe they are all constitutional, but,
in any event, we should pass the law, have the Justices review it, and
I believe ultimately strengthen significantly the protections of our
children against child pornography.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from Utah (Mr. Cannon).
Mr. CANNON. Mr. Speaker, I would like to associate myself with the
comments of the gentleman from Wisconsin (Mr. Sensenbrenner) and those
of the gentleman from Texas (Mr. Smith). I believe that in light of the
Supreme Court decision of Free Speech Coalition against Ashcroft,
Congress must act again and immediately to give law enforcement the
ability to fight the scourge of child pornography, whether real or
virtual.
The Supreme Court struck down provisions of the law passed by this
Congress in 1996 because some were poorly defined and too broadly
targeted. We have heard some criticism today that this bill is still in
conflict with the recent decision by the Supreme Court. I think that
criticism is unfounded, and I want to speak for a moment about some of
the specific changes we have made to focus and narrow and improve the
bill.
In response to the Free Speech Coalition decision, section 3(a) of
this bill narrows the definition of child pornography so that it is a
computer image or computer-generated image that is, or is
indistinguishable from, that of a minor engaging in sexually explicit
conduct. This provision narrows the definition in several ways. First,
it limits the definition to computer images or computer-generated
images; second, it limits the definition by requiring the virtual
images be indistinguishable from real images; and, third, it uses the
newly defined definition for ``sexually explicit conduct.''
The bill also strengthens the affirmative defense for those charged
under the law to address another criticism of the Supreme Court.
Finally, the bill also narrows the definition for the offense of
pandering material as child pornography.
It is clear from these provisions and others in the bill that the
drafting was done very carefully to address the issues raised by the
Supreme Court decision and improved the law as the court suggested. I
urge my colleagues to support the bill and once again make it clear
that some material is so universally offensive that it does not deserve
unlimited protect of the first amendment.
Mr. SCOTT. Mr. Speaker, I yield 3 minutes to the gentleman from
California (Mr. Schiff).
Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding me this
time.
Mr. Speaker, I rise in support of the bill, and I want to commend the
gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the
committee, and the gentleman from Texas (Mr. Smith), the chairman of
the subcommittee, for their work on this issue.
In the Ashcroft decision, the Supreme Court struck down the existing
child pornography laws on the basis that they, in addition to
prohibiting child pornography that was made by using, by molesting real
children, that it also prohibited the use of adults who looked youthful
looking, looked like children, and also prohibited virtual pornography,
virtual child pornography produced using computers and computer
graphics. But effectively, by striking down this law and by stating
that only real child pornography could be prosecuted, the court struck
the heart out of efforts to prosecute the real thing.
Computer technology has advanced to the point now where it is simply
not possible for the government to meet a burden of demonstrating
whether images were created using computer technology or the images are
real. So the committee and the subcommittee worked together to try to
address the concerns that the court raised and, at the same time,
restore the ability of prosecutors to bring these cases against those
who would victimize and molest children to produce child pornography.
In the Ashcroft decision, it recognized this dilemma, this problem,
the need to go after these cases and yet the need to draft the law
narrowly, and the court specifically said, we leave open, we leave open
the question of whether there could be an affirmative defense; in other
words, whether the burden could be shifted on this particular element
to the defense to demonstrate that they only used adult actors who
looked like children or they only used computer technology. That
question was left open.
That is a difficult constitutional question, but if we are to restore
the prosecution's ability to prosecute child pornography using real
children, we must embrace this affirmative defense as the method to do
so. And the law is very narrowly crafted. It prohibits the use, the
sales, the pandering of child pornography that is virtually
indistinguishable from real, that is generated by computers, but
virtually indistinguishable from real, and then it allows the defense
to affirmatively defend by saying, no, this was solely developed using
computers, or, no, this was developed only by using youthful-looking
adults, facts which are much more likely to be in the sole possession
of the defense than in the possession of the prosecution.
So what we have is a bill that restores the prosecution's ability to
bring these cases, that frames it as narrowly as possible to survive
constitutional scrutiny, that indeed makes use of the vehicle the
Supreme Court itself identified, that of an affirmative defense.
Will this statute survive against scrutiny by the Supreme Court? I
believe it will. It will be a tough decision, but the fact of the
matter is, in the absence of this legislative action, we will simply be
incapable of prosecuting child pornography. I urge Members to support
the bill.
Mr. SENSENBRENNER. Mr. Speaker, I yield 1\1/2\ minutes to the
gentleman from Alabama (Mr. Bachus).
Mr. BACHUS. Mr. Speaker, I thank the gentleman for yielding me this
time.
Mr. Speaker, many of us serve on the Committee on the Judiciary
because we have a legal degree from a good law school, we have a great
legal education, but let me tell my colleagues, a
[[Page H3882]]
legal education sometimes is a terrible thing to inflict on society. I
think that the Supreme Court must have had too much legal education
when they made the decision they made, because we know when our
children go on line, when they get on their computers and they see
child pornography, we know they can be exploited, we know they can be
molested, and we know as parents that it does not make a bit of
difference whether it is computer-generated, actual or real.
The Supreme Court said this despicable junk can go on; it is not
illegal if it is computer-generated. If a prosecutor cannot play the
impossible game of picking out an actual, identifiable child, then the
molester goes off, he is free to molest, free to continue to abuse our
children.
If there is anything as a society we ought to do, it is protect our
young people. If there is anything we ought to do, it is stop playing
legal games with our fine legal educations and start doing what ought
to be done, and that is protecting our children from these sexual
predators no matter whether they use computer-driven images or actual
images. It is time to stop it. It is time to stop drawing legal
distinctions.
Mr. SCOTT. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Nadler).
{time} 1415
Mr. NADLER. Mr. Speaker, this debate is an exercise in surrealism.
The Supreme Court recently handed down a decision directly on point.
What the sponsors of this bill are trying to do is to overturn a
Supreme Court decision that they do not like by statute. We know we
cannot do that. Congress cannot overturn a Supreme Court decision.
Now, it is elementary that the first amendment says that one can say,
write, draw, or photograph and distribute whatever one wants. The
Supreme Court has made one exception to that, or a number of
exceptions. One exception is obscenity. If it is obscene, one cannot
ban it.
There is another exception: where, to protect children from
exploitation, we can stop the distribution of child pornography,
defined as pornography that shows children. Why? To protect the
children who are exploited in making it.
Now, if the material is itself obscene, we can ban it anyway; but if
it is not in itself obscene, it has to be real children, because those
are the people we are protecting. The Court clearly said the government
cannot criminalize images which are not obscene unless the product
involved actual children, because if it does not, the images do not
fall outside the protection of the first amendment.
Now we are told by the gentleman from Alabama (Mr. Bachus) and by the
government that the possibility of producing images by using computer
imaging, and I am quoting directly from the Supreme Court decision,
``makes it very difficult to prosecute those who produce pornography by
using real children. Experts, we are told, may have difficulty in
saying whether the pictures were made by using real children or by
using computer imaging.
``The necessary solution, the argument runs,'' and the Court may just
as well have been quoting the gentleman from Alabama, ``is to prohibit
both kinds of images. In order to enable prosecution of the real thing,
you should be able to prosecute the virtual images.'' The Court
continues, the Supreme Court of the United States, ``The argument, in
essence, is that protected speech may be banned as a means to ban
unprotected speech. This analysis turns the first amendment upside
down. The government may not suppress lawful speech as a means to
suppress unlawful speech.''
So it is very clear. This bill is clearly unconstitutional. It is an
exercise in pure politics. It is simply going to get the Supreme Court
to rule again, when it has already told us on exactly the same point.
The attempt by the bill to slightly narrow the definition does not
matter. Either it is obscene or it is not. If it is not obscene, it is
protected, unless real children were used in the production of it; and
if they were not, it is still protected speech, period.
That is the Court's analysis. If we want to change that, we cannot do
it by a law passed here, so we are wasting our time and misleading the
public, who think that we are doing something, because we cannot
overturn a Supreme Court decision, one I happen to think is correct,
but that is beside the point. We cannot overturn a Supreme Court
interpretation of the Constitution of the United States by a bill in
Congress.
Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman
from Pennsylvania (Mr. Gekas).
Mr. GEKAS. Mr. Speaker, I thank the gentleman for yielding time to
me.
Mr. Speaker, the public demands that we do something about child
pornography, and the type that now has beset us across the Internet
world is even worse than some of the expected child pornography that we
have contemplated over the years.
What we are doing here is not trying to overturn the constitutional
questions that the Supreme Court used in its rejection of the last
case, but rather, to conform to the standards that the Supreme Court
has set forth in its very rejection of the first statute.
So it uses words like ``indistinguishable'' and ``broad'' or ``less
broad'' than the language that was contained in the first bill that was
knocked down by the Supreme Court.
It comes down to this: we want to protect everyone from sex
pornography of all sorts, but particularly that involving infants and
youngsters. So we have to do everything we can, and the authors of this
legislation did everything that they could to make it conform to
constitutional standards.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Florida (Mr. Foley).
Mr. FOLEY. Mr. Speaker, I thank the gentleman for yielding time to
me, and I thank the chairman for his hard work on this issue, as well
the gentleman from Texas (Mr. Smith).
I have heard terms described today that this has been rushed to the
floor of the House. Maybe those who claim it has been rushed have not
had a chance to see the virtual pornography that has been created since
the Supreme Court's ruling, endangering our children, virtually
created; horrible portrayals of our young and most fragile citizens on
the Internet.
Today's passage of this legislation is a pedophile's worst nightmare.
Congress is one step closer to helping the High Court side with
children over pedophiles.
Mr. Speaker, I ask Members to make no mistake about it. We are not
talking about Scooby Doo or Lilo & Stitch, American Beauty, or any of
the other characterizations that have been lobbed against the passage
of this legislation. The images of exploited children are indeed
virtually indistinguishable from the real thing. Our legislation
unshackles prosecutors so they can start protecting the children once
again.
In the past, prosecution was swift and severe, for good reason, when
sexual images of exploited minors were found in someone's possession.
Now, after the Supreme Court ruling, unless the prosecutors can find
the child in the photo, even if the photo is 10 or 20 years old, the
pedophiles walk free. Prosecutors never needed to match the photos with
the child, since that is nearly impossible with the laundering system
that has been developed from State to State and country to country.
I urge the High Court to reconsider the consequences of its actions
the next time they rule on legislation dealing with the protection of
our children.
Lastly, we need to get this ban through the Senate and onto the
President's desk immediately. With every passing day, another pedophile
escapes prosecution because of this flawed ruling of the Supreme Court.
Let us stop wasting time and start focusing on protecting our children.
Mr. SENSENBRENNER. Mr. Speaker, I yield 1\1/2\ minutes to the
gentleman from Nebraska (Mr. Osborne).
Mr. OSBORNE. Mr. Speaker, I thank the gentleman from Texas (Mr.
Smith) and the gentleman from Florida (Mr. Foley) for bringing this
legislation forward.
Many times, defenders of the first amendment claim that what we hear
and see has no bearing on our behavior; hence, pornography is harmless.
If this is true, why is it that advertisers spend billions of dollars
annually? Obviously, there is a strong connection between what we see
and what we hear and what we do.
A recent study indicates that 80 percent of molesters of boys
regularly use
[[Page H3883]]
hard-core pornography, and 90 percent of molesters of girls use hard-
core pornography.
The important thing to realize here is that these people, these
perpetrators, are incited by an image. It does not make any difference
whether that image is real or virtual. They are incited by that image,
and real children are hurt. That is the whole issue, that real children
are being hurt by this practice.
Pornography is a $15 billion business or industry in our Nation.
There were 1 million porn sites on the Internet. This has become a real
threat to our young people, and it has become a national disgrace. The
courts have consistently allowed more and more obscene material under
first amendment protection.
The Supreme Court recently overturned a law similar to H.R. 4623. The
courts have overturned three other laws in the past 6 years intended to
control the spread of pornography. This has inflicted great damage on
our young people and on our culture.
Hopefully, H.R. 4623 is written tightly enough that it will withstand
a court challenge. I believe it is. The stakes are too high not to try.
I urge adoption of H.R. 4623.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Tennessee (Mr. Wamp).
(Mr. WAMP asked and was given permission to revise and extend his
remarks.)
Mr. WAMP. Mr. Speaker, I thank the distinguished chairman for
yielding time to me, and I appreciate his willingness to stand in the
gap for something that is right, and also the authors of the bill.
Mr. Speaker, I come as a father. I have a 15-year-old son and a 13-
year-old daughter. Like most teenagers in America today, they spend
more time on the Internet than I would personally care for. However,
that is the reality that we live in.
I think we have an obligation as legislators to try to keep up with
the incredible growth of technology through the Internet and the
Internet communication, because if we just buried our heads in the sand
and took the position of one of the speakers a moment ago and said that
the Congress cannot do anything, basically, about a Supreme Court
ruling, I think that is nonsense. We have an obligation to come with
new legislation so we can find the right cure that is acceptable before
the Supreme Court, and that is what I think this is.
We should persevere, here. This is a world that changes day by day.
We are in the Information Age, the third great wave of change in our
country. In the Information Age, we are going to see more and more
virtual everything, where if one has a headset on, one might not know
where they are at times. As a result, we have an obligation to protect
our children.
One of my greatest fears as a parent is a pedophile preying on my
children. There are child lures through the Internet now that are so
dangerous and so manipulative that we have to have protections for our
children who are in this cyberworld and they are unprotected. That is a
reality.
We have an obligation as Federal legislators to work within our
constitutional law to find a remedy. That is what this bill represents.
Frankly, if the Supreme Court rejects this, we need to come back with
another bill and continue to persevere until we find something that is
acceptable before the Court so our children are protected. This is
fundamental to our job and our responsibility as Federal legislators.
I commend the authors and the committee for taking it up; and if we
have to come back to the well again and again and again, we should.
Mr. SCOTT. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, I just wanted to make two different points. First, the
question has been raised about how difficult it is for the government
to actually prosecute the cases.
The Supreme Court dealt with that when they said, in throwing out the
previous language: ``The government raises serious constitutional
difficulties by seeking to impose on the defendant the burden of
proving that his speech is not unlawful. That affirmative defense
applies only after the prosecution has begun, and the speaker must
himself prove on the pain of felony conviction that his conduct falls
within the affirmative defense.''
It goes on to say: ``Where the defendant is not the producer of the
work, he may have no way of establishing the identity or even the
existence of actors. If the evidentiary issue is a serious problem for
the government, as it asserts, it will be at least as difficult for the
innocent possessor.'' It dealt with the issue of prosecution and said
that is not something that can be used.
Also, let me cite another part of the case. It says: ``The government
says that indirect harms are sufficient because, as Ferber
acknowledged, child pornography rarely can be valuable speech . . .
This argument, however, suffers from two flaws. First, Ferber's
judgment about child pornography was based on how it was made, not on
what it communicated. The case reaffirmed that where speech is neither
obscene nor the product of sexual abuse, it does not fall outside the
protection of the first amendment.''
And second: ``Ferber did not hold that child pornography is by
definition without value. On the contrary, the Court recognized that
some works in the category might have significant value, but relied on
virtual images, the very images prohibited by the CPPA, as an
alternative and permissible means of expression.''
Finally, Mr. Speaker, let me just say that the word
``indistinguishable'' has been used. The only thing indistinguishable
in this debate is that this bill is indistinguishable from the law the
Supreme Court threw out just 2 months ago, and this bill should
therefore be defeated.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, this bill is necessary for two reasons: first, the
technology has gotten so good that it is very hard to determine whether
the picture that is being transmitted and retransmitted on the Internet
is a real child or a computer-created child. That means that if the
government cannot prove that a real child was used, then the person who
is the defendant will be able to walk out of the courtroom scot-free.
Secondly, as has been stated previously, every conviction of child
pornographers as a result of the Ashcroft v. Free Speech Coalition
decision is placed in jeopardy because at the time the prosecution took
place, it was not a requirement that the government prove beyond a
reasonable doubt that it was a real child that was being used for this
purpose.
So the Ashcroft decision virtually guts our child pornography laws.
That is why the Supreme Court has to be given an opportunity to reflect
on the consequences of its decision. What this bill does is it attempts
to respond to Ashcroft v. Free Speech Coalition in a way that we can
have constitutional and effective anti-child pornography laws in this
age of computers, the Internet, and e-mails.
Mr. Speaker, I urge every Member who is concerned about having that
type of a law to vote ``aye'' on the motion to suspend the rules.
Mr. GOODLATTE. Mr. Speaker, new technologies offer a wide variety of
resources for research and communication; however, we must face the
reality that technology can also be used or harm. For example,
computers may be used to generate pornographic depictions of children.
In addition, the Internet offers predators unparalleled access to our
children and can provide an avenue for abuse and exploitation. The
Internet has become a attractive arena for child sex abusers, child
pornographers and pedophiles because it is easy for them to share
images and information about children and to make contact with
children.
As advances in technology began to threaten the protection of
children by interfering with the effective prosecution of the child
pornography laws that cover the visual depictions of real children,
Congress in 1996 attempted to address this concern with the ``Child
Pornography Prevention Act.'' The 1996 language included a prohibition
of any virtual depictions as well as pictures of youthful-looking
adults. However, in a disturbing decision on April 16, 2002, the
Supreme Court ruled in Ashcroft v. the Free Speech Coalition that this
language was overbroad and unconstitutional, paving the way for child
molesters to hide their abuse behind technology; for example, with
altered photographs of their victims.
Computer technology exists today to disguise depictions of real
children to make them unidentifiable and to make depictions of real
children appear compute generated. Furthermore, future technology will
have the capability to make depictions of virtual children look real
and completely indistinguishable.
[[Page H3884]]
Congress has a compelling interest to protect children from sexual
exploitation. Sexually explicit computer images that are virtually
indistinguishable from images of real minors engaged in sexually
explicit conduct poses a serious danger to future prosecutions
involving child pornography. The April 16 Supreme Court decision gives
protection to child molesters who may claim that the images they
possess are not those of real children, insisting that the government
prove beyond a reasonable doubt that the images are not computer-
generated. To prove a child is real will require identifying the actual
child. This is usually impossible since many of the victimized children
are from third world countries. The impossible task of identifying the
child will allow child molesters and pornographers to escape
prosecution for their crimes against children.
Child pornography, virtual or otherwise, is detrimental to our
nation's children. Regardless of the method of its production, child
pornography is used to promote and incite deviant and dangerous
behavior in our society.
I urge each of my colleagues to join me in support H.R. 4623, which
will address the April 16 Supreme Court decision in Ashcroft v. the
Free Speech Coalition to ensure the continued protection of children
from sexual exploitation.
Mr. PAUL. Mr. Speaker, as a parent, grandparent and OB-GYN who has
had the privilege of delivering over 4,000 babies, I share the
revulsion of all decent people at child pornography. Those who would
destroy the innocence of children by using them in sexually-explicit
material deserve the harshest punishment. However, the Child Obscenity
and Pornography Prevention Act (H.R. 4623) exceeds Congress'
constitutional power and does nothing to protect any child from being
abused and exploited by pornographers. Instead, H.R. 4623 redirects law
enforcement resources to investigations and prosecutions of ``virtual''
pornography which, by definition, do not involve the abuse or
exploitation of children. Therefore, H.R. 4623 may reduce law
enforcement's ability to investigate and prosecute legitimate cases of
child pornography.
H.R. 4623 furthers one of the most disturbing trends in modern
politics, the federalization of crimes. We have been reminded by both
Chief Justice William H. Rehnquist and former U.S. Attorney General Ed
Meese that more federal crimes, while they make politicians feel good,
are neither constitutionally sound nor prudent. Rehnquist has stated
that ``The trend to federalize crimes that traditionally have been
handled in state courts . . . threatens to change entirely the nature
of our federal system.'' Meese stated that Congress' tendency in recent
decades to make federal crimes out of offenses that have historically
been state matters has dangerous implications both for the fair
administration of justice and for the principle that states are
something more than mere administrative districts of a nation governed
mainly from Washington.
Legislation outlawing virtual pornography is, to say the least, of
dubious constitutionality. The constitution grants the federal
government jurisdiction over only three crimes: treason,
counterfeiting, and piracy. It is hard to stretch the definition of
treason, counterfeiting, or piracy to cover sending obscene or
pornographic materials over the internet. Therefore, Congress should
leave the issue of whether or not to regulate or outlaw virtual
pornography to states and local governments.
In conclusion, Mr. Speaker, while I share my colleagues' revulsion at
child pornography, I do not believe that this justifies expanding the
federal police state to outlaw distribution of pornographic images not
containing actual children. I am further concerned by the possibility
that passage of H.R. 4623 will divert law enforcement resources away
from the prosecution of actual child pornography. H.R. 4623 also
represents another step toward the nationalization of all police
functions, a dangerous trend that will undermine both effective law
enforcement an constitutional government. It is for these reasons that
I must oppose this well-intentioned but fundamentally flawed bill.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
{time} 1430
The SPEAKER pro tempore (Mr. Gutknecht). The question is on the
motion offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that
the House suspend the rules and pass the bill, H.R. 4623, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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