[Congressional Record Volume 148, Number 136 (Wednesday, October 16, 2002)]
[Senate]
[Pages S10487-S10488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 THE PROSECUTORIAL REMEDIES AND TOOLS AGAINST EXPLOITATION OF CHILDREN 
                          TODAY (PROTECT) ACT

  Mr. LEAHY. Mr. President, I rise today to urge the Senate to pass S. 
2520, the Prosecutorial Remedies and Tools Against the Exploitation of 
Children Today, PROTECT, Act of 2002. This bill and the substitute I 
offer will protect our Nation's children from exploitation by those who 
produce and distribute child pornography, within the parameters of the 
First Amendment. I was an original cosponsor of S. 2520 and joined 
Senator Hatch, the ranking Republican member of the Judiciary 
Committee, on the Senate floor when the bill was introduced.
  Since that time, I have been working with Senator Hatch both to 
improve the bill that we introduced together and to build consensus for 
it. Unlike the Administration's bill, which has been widely criticized 
by constitutional and criminal law scholars and practitioners, we have 
been largely successful in that effort. The substitute I offer today is 
virtually identical to the version circulated by Senator Hatch before 
the October 8, 2002 meeting of the Judiciary Committee. I am glad to 
report that this substitute has been approved by every single 
Democratic Senator. Moreover, every Democratic Senator has agreed to 
discharge S. 2520 from the Judiciary Committee for consideration and 
passage by the Senate, with a refining amendment.
  I am now asking my colleagues on the Republican side of the aisle to 
lift any holds and to allow this important legislation to pass the 
Senate. That way, the House may take up the bill and the PROTECT Act 
may become law before we adjourn. I know that there are some who would 
rather play politics with this issue, but I hope that they reconsider. 
It is more important that we unite to pass a bill that will both 
protect our Nation's children and produce convictions rather than tying 
up prosecutorial resources litigating the constitutionality of the 
tools we give the Justice Department to use. This legislation will 
accomplish those goals.
  Two weeks ago I convened a hearing on this issue to hear from the 
Justice Department, the National Center for Missing and Exploited 
Children, CMEC, and constitutional scholars. The constitutional 
scholars testified that the provisions of S. 2520 were likely to 
withstand the inevitable court challenges ahead. Unfortunately, they 
could not say the same of the Administration's proposal and H.R. 4623. 
Professor Frederick Schauer from Harvard, who served on the Meese 
Commission on pornography and authored its findings, as well as 
Professor Anne Coughlin from the University of Virginia both agreed 
that the Administration's bill and H.R. 4623 crossed over the First 
Amendment line after the Supreme Court's decision in Ashcroft v. Free 
Speech Coalition, 122 S. Ct. 1389. Even the ACLU has passed along views 
from its First Amendment expert that S. 2520 is ``well crafted and 
should survive constitutional scrutiny.''
  That point is crucially important, because it does no one any good to 
pass a ``quick fix'' law that will land us right back where we started 
in five years, with no valid law on the books to protect our Nation's 
children from exploitation. We owe our children more than a press 
conference on this issue, we owe them a law that lasts.
  I am not alone in that view. Testimony at the Judiciary Committee 
hearing made this point clearly. Professor Schauer testified in support 
of the basic provisions of the PROTECT Act, but warned us about the 
Administration's proposal. Incidently, this same constitutional law 
scholar testified in favor of the Child Pornography Prevention Act, 
CPPA, in 1996, but he also correctly warned us then about the precise 
parts of that law that would be struck down. Here is what he said this 
time around:

       [W]hether it is open to academic or congressional 
     criticism, Justice Kennedy's opinion for a 7-2 Court still 
     represents the definitive and authoritative interpretation of 
     the First Amendment in the child pornography context, and 
     thus represents the law. Legislation inconsistent with Free 
     Speech Coalition would not only be inconsistent with current 
     constitutional law, therefore, but would also represent a 
     tactical mistake in an attempt to combat the horror of child 
     pornography. As the six year course of litigation under the 
     previous Act so well demonstrates, constitutionally suspect 
     legislation under existing Supreme Court interpretations of 
     the First Amendment, whatever we may think of the wisdom and 
     accuracy of those interpretations, puts the process of 
     prosecuting the creators of child pornography on hold while 
     the appellate courts proceed at their own slow pace. There is 
     room in our legislative world for legislation that is largely 
     symbolic, but for Congress to enact symbolic but likely 
     unconstitutional legislation would have the principal effect 
     of postponing for conceivably six more years the ability to 
     prosecute those creators of child pornography whose 
     prosecution is consistent with the Supreme Court's view of 
     the First Amendment.

  After our Judiciary Committee hearing, Senator Hatch and I continued 
to work to improve our bill to address concerns that had been raised. 
We worked to come up with a Hatch-Leahy substitute amendment for 
consideration by the Judiciary Committee that included technical 
corrections and improvements to the original text of S. 2520 that we 
could both agree upon. These included addressing some issues raised by 
the National Center for Missing and Exploited Children, CMEC, 
concerning the scope of the victim shield provision to limit that 
provision to ``non-physical'' information.
  The changes in the proposed Hatch-Leahy substitute also included 
adopting the House bill's measures allowing the CMEC to share 
information from its tip line directly with State and local law 
enforcement officers, instead of always passing the information through 
the FBI. Although the Administration did not originally ask for this 
change, the CMEC has reported that the FBI is either unwilling or 
unable to share information from the child exploitation tip line in a 
timely manner with state and local law enforcement. As the Chairman of 
the Committee charged with overseeing the FBI, I was disappointed to 
hear this appraisal of the FBI. To remedy this situation, and in the 
spirit of compromise and reconciling this legislation with the House 
passed bill, the substitute to S. 2520 incorporates this change.

  I note that Senator Hatch would not agree to accept my proposal that 
we also include a provision that would ensure that tips to the child 
exploitation tip lines come from ``non governmental sources'' so that 
government agents could not ``tickle'' the tip line to try to avoid the 
legal requirements of the Electronic Communications Privacy Act. I did 
not insist on this important provision because, with time running out 
in this Congress, we must all compromise if we want to pass a bill, and 
I want to pass this bill.
  In any event, I placed S. 2520 on the Judiciary Committee agenda for 
its meeting on October 8, 2002. Unfortunately, due to procedural 
issues, including the two hour rule that was invoked because of the 
debate on Iraq, and procedural maneuvering that centered around 
judicial nominations, members from the other side of the aisle objected 
to the consideration of this and all other legislative proposals before 
the Judiciary Committee. The Judiciary Committee was, consequently, 
unable to consider the bipartisan substitute circulated by Senator 
Hatch, and to which I agreed.
  The substitute for which I now seek unanimous consent is identical to 
the proposed Committee substitute that Senator Hatch circulated with 
two exceptions. First, the substitute removes three lines that were not 
in the original language of S. 2520 as introduced by Senator Hatch and 
that were inadvertently included in the version of the substitute 
circulated by Senator Hatch. Indeed, I am advised that Senator Hatch 
was prepared to strike these 3 lines had the Judiciary Committee 
considered the substitute. The Leahy amendment simply corrects this 
inadvertent error, which was totally understandable in the rush of 
business.
  The second change the substitute makes in order to assure swift 
passage of this measure is to render the new affirmative defense 
created in S. 2520 available to defendants who can prove

[[Page S10488]]

that actual adults, and no children, were used to create the visual 
images involved. This change would provide no help to defendants 
seeking to assert a ``virtual porn'' defense, which would still be 
blocked both for the new category of material created by the statute 
and any obscene child pornography. But in the case of a defendant who 
can, for instance, actually produce in court the 25-year old that is 
shown in the allegedly obscene material and prove that it is not, in 
fact, child pornography, or even virtual child pornography, the defense 
would be available. Indeed, Justice O'Connor in her concurring opinion 
in the Free Speech case specifically concluded that the prior law's 
prohibition on such ``youthful adult'' pornography was overbroad. As 
the testimony at our Committee hearing made clear, we should be careful 
not to repeat this mistake.
  Other than that, this substitute is the exactly same as the 
substitute circulated by Senator Hatch before the Judiciary Committee's 
meeting on October 8, 2002. The definitions of child pornography are 
the same; the new tools for prosecutors to catch and punish those who 
exploit children are the same; the new tools given to the Center for 
Missing and Exploited Children are the same. This is, for all intent 
and purposes, the same as the Hatch-Leahy substitute.
  This is a bipartisan compromise that will protect our children and 
honor the Constitution. I urge members from the other side of the aisle 
to join us. Do not hold this bill hostage as part of some effort at 
political payback or a ``tit for tat'' strategy. Let this bill pass the 
Senate and give law enforcement the tools they need to protect our 
children in the internet age.

                          ____________________