Congressional Record, Volume 149 Issue 5 (Monday, January 13, 2003)

[Congressional Record Volume 149, Number 5 (Monday, January 13, 2003)]
[Senate]
[Pages S236-S245]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

By Mr. HATCH (for himself, Mr. Leahy, and Mr. Bennett):
S. 151. A bill to amend title 18, United States Code, with respect to
the sexual exploitation of children; to the Committee on the Judiciary.
Mr. HATCH. Mr. President, I rise today to introduce a critically
important piece of legislation, the PROTECT Act of 2003. As its name
makes clear, this bill will help to protect our children from the
horrors of child pornography. Disgusting as child pornography is, the
growth of technology and the rise of the internet have flooded our
Nation with it. This is one area where we cannot afford to simply look
the other way. Child pornography is routinely used by perverts and
pedophiles

[[Page S237]]

not only to whet their sick desires, but also to lure our defenseless
children into unspeakable acts of sexual exploitation. In sum, child
pornography is a root from which more evils grow. It creates a
measurable harm to children in our society. On this record, we must
act.
I am proud to have Senator Leahy as the leading co-sponsor of the
PROTECT Act. We jointly introduced an earlier version of this bill last
year in the wake of the Supreme Court's decision in Ashcroft v. Free
Speech Coalition. That decision greatly weakened the laws pertaining to
child pornography and left some gaping holes in our Nation's ability to
effectively prosecute child pornography offenses. We must now act
quickly to repair our child pornography laws to provide for effective
law enforcement in a manner that accords with the Court's ruling.
The PROTECT Act strikes a necessary balance between the First
Amendment and our Nation's critically important interest in protecting
children. This Act does many things to aid the prosecution of child
PROTECT Act, and I highlight some of its most significant provisions
here.
First, the Act plugs the loophole that exists today where child
pornographers can escape prosecution by claiming that their sexually
explicit material did not actually involve real children. Technology
has advanced so far that even experts often cannot say with absolute
certainty that an image is real or a ``virtual'' computer creation. For
this reason, the Act permits a prosecution to proceed when the child
pornography includes persons who appear virtually indistinguishable
from actual minors. And even when this occurs, the accused is afforded
a complete affirmative defense by showing that the child pornography
did not involve a minor.
Second, the Act prohibits the pandering or solicitation of anything
represented to be obscene child pornography. The Supreme Court has
ruled that this type of conduct does not constitute protected speech.
Congress, moreover, should severely punish those who would try to
profit or satisfy their depraved desires by dealing in such filth.
Third, the Act prohibits any depictions of minors, or apparent
minors, in actual, not simulated, acts of bestiality, sadistic or
masochistic abuse, or sexual intercourse, when such depictions lack
literary, artistic, political or scientific value. This type of
hardcore sexually explicit material merits our highest form of disdain
and disgust and is something that our society ought to try hard to
eradicate. Nor does the First Amendment bar us from banning the
depictions of children actually engaging in the most explicit and
disturbing forms of sexual activity.
Fourth, the Act beefs up existing record keeping requirements for
those who chose to produce sexually explicit materials. These record
keeping requirements are unobjectionable since they do not ban
anything. Rather, the Act simply requires such producers to keep
records confirming that no actual minors were involved in the making of
the sexually explicit materials. In light of the difficulty experts
face in determining an actor's true age and identity just by viewing
the material itself, increasing the criminal penalties for failing to
maintain these records are vital to ensuring that only adults appear in
such productions.
Finally, the Act creates a new civil action for those aggrieved by
the depraved acts of those who violate our child pornography laws. This
is one area of the law where society as a whole can benefit from more
vigorous enforcement, both on the criminal and civil fronts.
I was disappointed that the PROTECT Act did not pass into law last
year, although it unanimously cleared the Senate in the final days of
the 107th Congress. As incoming Chairman of the Judiciary Committee,
passing this important bill will be one of my very top priorities. I
remain open to hearing suggestions from all interested parties on how
to improve the bill or make it even tougher against child
pornographers. I strongly urge my colleagues to work with me and join
with me in promptly passing this important legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 151

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 ``Prosecutorial Remedies and
Tools Against the Exploitation of Children Today Act of
2003'' or ``PROTECT Act''.

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

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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. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING
OR CONTAINING CHILD PORNOGRAPHY.

Section 2252A of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking paragraph (3) and inserting the following:
``(3) knowingly--
``(A) reproduces any child pornography for distribution
through the mails, or in interstate or foreign commerce by
any means, including by computer; or
``(B) advertises, promotes, presents, distributes, or
solicits through the mails, or in interstate or foreign
commerce by any means, including by computer, any material or
purported material in a manner that conveys the impression
that the material or purported material is, or contains, an
obscene visual depiction of a minor engaging in sexually
explicit conduct;'';
(B) in paragraph (4), by striking ``or'' at the end;
(C) in paragraph (5), by striking the period at the end and
inserting ``; or''; and
(D) by adding at the end the following:
``(6) knowingly distributes, offers, sends, or provides to
a minor any visual depiction, including any photograph, film,
video, picture, or computer generated image or picture,
whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct where such visual
depiction is, or appears to be, of a minor engaging in
sexually explicit conduct--
``(A) that has been mailed, shipped, or transported in
interstate or foreign commerce by any means, including by
computer;
``(B) that was produced using materials that have been
mailed, shipped, or transported in interstate or foreign
commerce by any means, including by computer; or
``(C) which distribution, offer, sending, or provision is
accomplished using the mails or by transmitting or causing to
be transmitted any wire communication in interstate or
foreign commerce, including by computer,
for purposes of inducing or persuading a minor to participate
in any activity that is illegal.'';
(2) in subsection (b)(1), by striking ``(1), (2), (3), or
(4)'' and inserting ``(1), (2), (3), (4), or (6)''; and
(3) by striking subsection (c) and inserting the following:
``(c) It shall be an affirmative defense to a charge of
violating paragraph (1), (2), (3), (4), or (5) of subsection
(a) that--
``(1)(A) the alleged child pornography was produced using
an actual person or persons engaging in sexually explicit
conduct; and
``(B) each such person was an adult at the time the
material was produced; or
``(2) the alleged child pornography was not produced using
any actual minor or minors.
No affirmative defense shall be available in any prosecution
that involves obscene child pornography or child pornography
as described in section 2256(8)(D). A defendant may not
assert an affirmative defense to a charge of violating
paragraph (1), (2), (3), (4), or (5) of subsection (a)
unless, within the time provided for filing pretrial motions
or at such time prior to trial as the judge may direct, but
in no event later than 10 days before the commencement of the
trial, the defendant provides the court and the United States
with notice of the intent to assert such defense and the
substance of any expert or other specialized testimony or
evidence upon which the defendant intends to rely. If the
defendant fails to comply with this subsection, the court
shall, absent a finding of extraordinary circumstances that
prevented timely compliance, prohibit the defendant from
asserting such defense to a charge of violating paragraph
(1), (2), (3), (4), or (5) of subsection (a) or presenting
any evidence for which the defendant has failed to provide
proper and timely notice.''.

SEC. 4. ADMISSIBILITY OF EVIDENCE.

Section 2252A of title 18, United States Code, is amended
by adding at the end the following:
``(e) Admissibility of Evidence.--On motion of the
government, in any prosecution under this chapter, except for
good cause shown, the name, address, social security number,
or other nonphysical identifying information, other than the
age or approximate age, of any minor who is depicted in any
child pornography shall not be admissible and may be redacted
from any otherwise admissible evidence, and the jury shall be
instructed, upon request of the United States, that it can
draw no inference from the absence of such evidence in
deciding whether the child pornography depicts an actual
minor .''.

SEC. 5. DEFINITIONS.

Section 2256 of title 18, United States Code, is amended--
(1) in paragraph (1), by inserting before the semicolon the
following: ``and shall not be construed to require proof of
the actual identity of the person'';
(2) in paragraph (8)--
(A) in subparagraph (B), by inserting ``is obscene and''
before ``is'';
(B) in subparagraph (C), by striking ``or'' at the end; and
(C) by striking subparagraph (D) and inserting the
following:
``(D) such visual depiction--
``(i) is, or appears to be, of a minor actually engaging in
bestiality, sadistic or masochistic abuse, or sexual
intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or
opposite sex; and
``(ii) lacks serious literary, artistic, political, or
scientific value; or
``(E) the production of such visual depiction involves the
use of an identifiable minor engaging in sexually explicit
conduct;''; and
(3) by striking paragraph (9), and inserting the following:
``(9) `identifiable minor'--
``(A)(i) means a person--
``(I)(aa) who was a minor at the time the visual depiction
was created, adapted, or modified; or
``(bb) whose image as a minor was used in creating,
adapting, or modifying the visual depiction; and
``(II) who is recognizable as an actual person by the
person's face, likeness, or other distinguishing
characteristic, such as a unique birthmark or other
recognizable feature; and
``(ii) shall not be construed to require proof of the
actual identity of the identifiable minor; or
``(B) means a computer or computer generated image that is
virtually indistinguishable from an actual minor; and
``(10) `virtually indistinguishable' means that the
depiction is such that an ordinary person viewing the
depiction would conclude that the depiction is of an actual
minor.''.

SEC. 6. RECORDKEEPING REQUIREMENTS.

Section 2257 of title 18, United States Code, is amended--
(1) in subsection (d)(2), by striking ``of this section''
and inserting ``of this chapter or chapter 71,'';
(2) in subsection (h)(3), by inserting ``, computer
generated image or picture,'' after ``video tape''; and
(3) in subsection (i)--
(A) by striking ``not more than 2 years'' and inserting
``not more than 5 years''; and
(B) by striking ``5 years'' and inserting ``10 years''.

SEC. 7. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND
RELATED INFORMATION.

Section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032) is amended--
(1) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
(2) 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.'';
(3) by redesignating paragraph (3) of subsection (b) as
paragraph (4); and
(4) 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.''.

SEC. 8. CONTENTS DISCLOSURE OF STORED COMMUNICATIONS.

Section 2702 of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (5), by striking ``or'' at the end;
(B) in paragraph (6)--
(i) in subparagraph (A)(ii), by inserting ``or'' at the
end;
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraph (C) as subparagraph
(B);
(C) by redesignating paragraph (6) as paragraph (7); and
(D) by inserting after paragraph (5) the following:
``(6) to the National Center for Missing and Exploited
Children, in connection with a report submitted under section
227 of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13032); or''; and
(2) in subsection (c)--
(A) in paragraph (4), by striking ``or'' at the end;
(B) by redesignating paragraph (5) as paragraph (6); and
(C) by inserting after paragraph (4) the following:
``(5) to the National Center for Missing and Exploited
Children, in connection with a report submitted under section
227 of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13032); or''.

SEC. 9. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.

Section 2251 of title 18, United States Code, is amended--
(1) by striking ``subsection (d)'' each place that term
appears and inserting ``subsection (e)'';
(2) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(3) by inserting after subsection (b) the following:
``(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 territories or possessions,
for the

[[Page S239]]

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 territories or
possessions, by any means, including by computer or mail; or
``(B) the person transports such visual depiction to the
United States, its territories or possessions, by any means,
including by computer or mail.''.

SEC. 10. CIVIL REMEDIES.

Section 2252A of title 18, United States Code, as amended
by this Act, is amended by adding at the end the following:
``(f) Civil Remedies.--
``(1) In general.--Any person aggrieved by reason of the
conduct prohibited under subsection (a) or (b) may commence a
civil action for the relief set forth in paragraph (2).
``(2) Relief.--In any action commenced in accordance with
paragraph (1), the court may award appropriate relief,
including--
``(A) temporary, preliminary, or permanent injunctive
relief;
``(B) compensatory and punitive damages; and
``(C) the costs of the civil action and reasonable fees for
attorneys and expert witnesses.''.

SEC. 11. ENHANCED PENALTIES FOR RECIDIVISTS.

Sections 2251(d), 2252(b), and 2252A(b) of title 18, United
States Code, are amended by inserting ``chapter 71,'' before
``chapter 109A,'' each place it appears.

SEC. 12. SENTENCING ENHANCEMENTS FOR INTERSTATE TRAVEL TO
ENGAGE IN SEXUAL ACT WITH A JUVENILE.

Pursuant to its authority under section 994(p) of title 18,
United States Code, and in accordance with this section, the
United States Sentencing Commission shall review and, as
appropriate, amend the Federal Sentencing Guidelines and
policy statements to ensure that guideline penalties are
adequate in cases that involve interstate travel with the
intent to engage in a sexual act with a juvenile in violation
of section 2423 of title 18, United States Code, to deter and
punish such conduct.

SEC. 13. MISCELLANEOUS PROVISIONS.

(a) Appointment of Trial Attorneys.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the Attorney General shall appoint 25
additional trial attorneys to the Child Exploitation and
Obscenity Section of the Criminal Division of the Department
of Justice or to appropriate U.S. Attorney's Offices, and
those trial attorneys shall have as their primary focus, the
investigation and prosecution of Federal child pornography
laws.
(2) Authorization of appropriations.--There are authorized
to be appropriated to the Department of Justice such sums as
may be necessary to carry out this subsection.
(b) Report to Congressional Committees.--
(1) In general.--Not later than 9 months after the date of
enactment of this Act, and every 2 years thereafter, the
Attorney General shall report to the Chairpersons and Ranking
Members of the Committees on the Judiciary of the Senate and
the House of Representatives on the Federal enforcement
actions under chapter 110 of title 18, United States Code.
(2) Contents.--The report required under paragraph (1)
shall include--
(A) an evaluation of the prosecutions brought under chapter
110 of title 18, United States Code;
(B) an outcome-based measurement of performance; and
(C) an analysis of the technology being used by the child
pornography industry.
(c) Sentencing Guidelines.--Pursuant to its authority under
section 994(p) of title 18, United States Code, and in
accordance with this section, the United States Sentencing
Commission shall review and, as appropriate, amend the
Federal Sentencing Guidelines and policy statements to ensure
that the guidelines are adequate to deter and punish conduct
that involves a violation of paragraph (3)(B) or (6) of
section 2252A(a) of title 18, United States Code, as created
by this Act. With respect to the guidelines for section
2252A(a)(3)(B), the Commission shall consider the relative
culpability of promoting, presenting, describing, or
distributing material in violation of that section as
compared with solicitation of such material.

SEC. 14. SEVERABILITY.

If any provision of this Act, an amendment made by this
Act, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the
remainder of this Act, the amendments made by this Act, and
the application of the provisions of such to any person or
circumstance shall not be affected thereby.
Mr. LEAHY. Mr. President, I rise today to join my good friend, the
senior Senator from Utah, in introducing the PROTECT Act, a bill
providing important new tools to fight child pornography. This bill is
identical to the measure that Senator Hatch and I worked so hard on in
the last Congress. The bill passed the Senate by unanimous consent in
the 107th Congress and I am proud to be the lead cosponsor of this
legislation for the 108th Congress as well, but unfortunately, it did
not become law last year because, even though the Senate was still
meeting, considering and passing legislation, the House of
Representatives had adjourned. The House would not return to take
action on this measure that had passed the Senate unanimously or to
work out our differences.
I hope that the full Senate will quickly pass this bill again, and I
strongly urge the Republican leadership in the House of Representatives
to take this second opportunity to pass this important legislation. I
also urge the Administration to support this bipartisan measure,
instead of using this debate as an opportunity to push for legislation
that strives to make an ideological statement, but which may not
withstand Constitutional scrutiny.
I want to take a moment to speak about the history of this important
bill and the effort that it took to get to this point. In May of 2002,
I came to the Senate floor and joined Senator Hatch in introducing S.
2520, the PROTECT Act, after the Supreme Court's decision in Ashcroft
v. Free Speech Coalition, (``Free Speech''). Although there were some
others who raised constitutional concerns about specific provisions in
that bill, I believed that unlike legislative language proposed by the
Administration in the last Congress, it was a good faith effort to work
within the First Amendment.
Everyone in the Senate agrees that we should do all we can to protect
our children from being victimized by child pornography. That would be
an easy debate and vote. The more difficult thing is to write a law
that will both do that and will stick. In 1996, when we passed the
Child Pornography Prevention Act, (``CPPA''), many warned us that
certain provisions of that Act violated the First Amendment. The
Supreme Court's recent decision in Free Speech has proven them correct.
We should not sit by and do nothing. It is important that we respond
to the Supreme Court decision. It is just as important, however, that
we avoid repeating our past mistakes. Unlike the 1996 CPPA, this time
we should respond with a law that passes constitutional muster. Our
children deserve more than a press conference on this issue. They
deserve a law that will last.
It is important that we do all we can to end the victimization of
real children by child pornographers, but it is also important that we
pass a law that will withstand First Amendment scrutiny. We need a law
with real teeth, not one with false teeth.
After joining Senator Hatch in introducing the PROTECT Act in the
107th Congress, as Chairman of the Judiciary Committee I convened a
hearing on October 2, 2002 on the legislation. We heard from the
Administration, from the National Center for Missing and Exploited
Children, (``NCMEC''), and from experts who came and told us that our
bill, as introduced, would pass constitutional muster, but the House-
passed bill supported by the Administration would not.
I then placed S. 2520 on the Judiciary Committee's calendar for the
October 8, 2002, business meeting. I continued to work with Senator
Hatch to improve the bill so that it could be quickly enacted. Senator
Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute
that improved the bill before our October 8 business meeting.
Unfortunately the Judiciary Committee was unable to consider it because
of procedural maneuvering by my colleagues that had nothing to do with
this important legislation, including the refusal of Committee members
on the other side of the aisle to consider any pending legislation on
the Committee's agenda.
I still wanted to get this bill done. That is why, for a full week in
October, I worked to clear and have the full Senate pass a substitute
to S. 2520 that tracked the Hatch-Leahy proposed committee substitute
in nearly every area. Indeed, the substitute I offered even adopted
parts of the House bill which would help the NCMEC work with local and
state law enforcement on these cases. Twice, I spoke on the Senate
floor imploring that we approve such legislation. As I stated then,
every single Democratic Senator cleared that measure. I then urged
Republicans to work on their side of the aisle to clear this measure--
so similar to the joint Hatch-Leahy substitute--so that we could
swiftly enact a law that would pass constitutional muster.
Unfortunately, they did not. Facing

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the recess before the mid-term elections, we were stymied again.
Even after the last election, however, during our lame duck session,
I continued to work with Senator Hatch to pass this legislation through
the Senate. As I had stated I would do prior to the election, I called
a meeting of the Judiciary Committee on November 14, 2002. In the last
meeting of the Judiciary Committee under my Chairmanship in the 107th
Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda
yet again. At that meeting the Judiciary Committee amended and approved
this legislation. We agreed on a substitute and to improvements in the
victim shield provision that I authored.
Although I did not agree with two of Senator Hatch's amendments,
because I thought that they risked having the bill declared
unconstitutional, I nevertheless called both for the Committee to
approve the bill and voted for the bill in its amended form. I will
discuss these provisions later.
I then sought, that same day, to gain the unanimous consent of the
full Senate to pass S. 2520 as reported by the Judiciary Committee, and
I worked with Senator Hatch to clear the bill on both sides of the
aisle. I am pleased that the Senate did pass S. 2520 by unanimous
consent. I want to thank Senator Hatch for all he did to help clear the
bill for passage in the 107th Congress.
Unfortunately, the House failed to act on this measure last year and
the Administration decided not to push for passage. If they had, we
could have passed a bill, sent it to the President, and already had a
new law on the books.
Instead, I am here again with Senator Hatch asking yet again that
this bill be enacted. I am glad to have been able to work hand in hand
with Senator Hatch on the PROTECT Act because it is a bill that gives
prosecutors and investigators the tools they need to combat child
pornography. The Hatch-Leahy PROTECT Act strives to be a serious
response to a serious problem.
The provisions of the Hatch-Leahy bill, as we introduce it, are
bipartisan and good faith efforts to protect both our children and to
honor the Constitution. At our hearing last October, Constitutional and
criminal law scholars--one of whom was the same person who warned us
last time that the CPPA would be struck down--stated that the PROTECT
Act as introduced in the last Congress could withstand Constitutional
scrutiny, although there were parts that were very close to the line.
Let me outline some of the bill's important provisions:
I would like to emphasize some key provisions of the PROTECT Act.
Section 3 of the bill creates two new crimes aimed at people who
distribute child pornography and those who use such material to entice
children to do illegal acts. Each of these new crimes carry a 15 year
maximum prison sentence for a first offense and double that term for
repeat offenders. First, the bill criminalizes the pandering of child
pornography, creating a new crime to respond to the Supreme Court's
recent ruling striking down the CPPA's definition of pandering. This
provision is narrower than the old ``pandering'' definition for two
reasons, both of which respond to specific Court criticisms: First, the
new crime only applies to the people who actually pander the child
pornography or solicit it, not to all those who possess the material
``downstream.''
The bill also contains a directive to the Sentencing Commission which
asks them to distinguish between those who pander or distribute such
material who are more culpable than those who solicit the material.
Second, the pandering in this provision must be linked to ``obscene''
material, which is totally unprotected speech under Miller. Thus, while
I would have liked for the provision to be crafted more narrowly so
that ``purported'' material was not included, and I acknowledge that
this provision may well be challenged on some of the same grounds as
the prior CPPA provision, it responds to some specific concerns raised
by the Supreme Court and is significantly narrower than the CPPA's
definition of pandering.
Second, the bill creates a new crime to take direct aim at one of the
chief evils of child pornography: namely, its use by sexual predators
to entice minors either to engage in sexual activity or the production
of more child pornography. This was one of the compelling arguments
made by the government before the Supreme Court in support of the CPPA,
but the Court rejected that argument as an insufficient basis to ban
the production, distribution or possession of ``virtual'' child
pornography. This bill addresses that same harm in a more targeted
manner. It creates a new felony, which applies to both actual and
virtual child pornography, for people who use such material to entice
minors to participate in illegal activity. This will provide
prosecutors a potent new tool to put away those who prey upon children
using such pornography--whether the child pornography is virtual or
not.
Next, this bill attempts to revamp the existing affirmative defense
in child pornography cases both in response to criticisms of the
Supreme Court and so that the defense does not erect unfair hurdles to
the prosecution of cases involving real children. Responding directly
to criticisms of the Court, the new affirmative defense applies equally
to those who are charged with possessing child pornography and to those
who actually produce it, a change from current law. It also allows,
again responding to specific Supreme Court criticisms, for a defense
that no actual children were used in the production of the child
pornography--i.e. that it was made using computers. At the same time,
this provision protects prosecutors from unfair surprise in the use of
this affirmative defense by requiring that a defendant give advance
notice of his intent to assert it, just as defendants are currently
required to give if they plan to assert an alibi or insanity defense.
As a former prosecutor I suggested this provision because it effects
the real way that these important trials are conducted. With the
provision, the government can marshal the expert testimony that may be
needed to rebut this ``virtual porn'' defense in cases where real
children were victimized.
This improved affirmative defense provides important support for the
constitutionality of much of this bill after the Free Speech decision.
Even Justice Thomas specifically wrote that it would be a key factor
for him. This is one reason for making the defense applicable to all
non-obscene, child pornography, as defined in 18 U.S.C. Sec. 2256. In
the bill's current form, however, the affirmative defense is not
available in one of the new proposed classes of virtual child
pornography, which would be found at 18 U.S.C. Sec. 2256(8)(D). This
omission may render that provision unconstitutional under the First
Amendment, and I hope that, as the legislative process continues, we
can work with constitutional experts to improve the bill in this and
other ways. I do not want to be here again in five years, after yet
another Supreme Court decision striking this law down.
The bill also provides needed assistance to prosecutors in rebutting
the virtual porn defense by removing a restriction on the use of
records of performers portrayed in certain sexually explicit conduct
that are required to be maintained under 18 U.S.C. Sec. 2257, and
expanding such records to cover computer images. These records, which
will be helpful in proving that the material in question is not
``virtual'' child pornography, may be used in federal child pornography
and obscenity prosecutions under this Act. The purpose of this
provision is to protect real children from exploitation. It is
important that prosecutors have access to this information in both
child pornography and obscenity prosecutions, since the Supreme Court's
recent decision has had the effect of narrowing the child pornography
laws, making more likely that the general obscenity statutes will be
important tools in protecting children from exploitation. In addition,
the Act raises the penalties for not keeping accurate records, further
deterring the exploitation of minors and enhancing the reliability of
the records.
Next, this bill contains several provisions altering the definition
of ``child pornography'' in response to the Free Speech case. One
approach would have been simply to add an ``obscenity'' requirement to
the child pornography definitions. Outlawing all obscene child
pornography real and virtual; minor and `youthful-adult;' simulated and

[[Page S241]]

real--would clearly pass a constitutional challenge because obscene
speech enjoys no protection at all. Under the Miller obscenity test,
such material (1) ``appeals to the prurient interest,'' (2) is utterly
``offensive'' in any ``community,'' and (3) has absolutely no
``literary, artistic or scientific value.''

Some new provisions of this bill do take this ``obscenity'' approach,
like the new Sec. 2256(8)(B). Other provisions, however, take a
different approach. Specifically, the CPPA's definition of
``identifiable minor'' has been modified in the bill to include a prong
for persons who are ``virtually indistinguishable from an actual
minor.'' This adopts language from Justice O'Connor's concurrence in
the Free Speech case. Thus, while this language is defensible, I
predict that this provision will be the center of much constitutional
debate. Although I will explain in more detail later, these new
definitional provisions risk crossing the constitutional line.
It does not do America's children any good to write a law that might
get struck down by our courts in order to prove an ideological point.
These provisions should be fully debated and examined during the
legislative process, and I will speak about them in more detail later.
The bill also contains a variety of other measures designed to
increase jail sentences in cases where children are victimized by
sexual predators. First, it enhances penalties for repeat offenders of
child sex offenses by expanding the predicate crimes which trigger
tough, mandatory minimum sentences. Second, the bill requires the U.S.
Sentencing Commission to address a disturbing disparity in the current
Sentencing Guidelines. The current sentences for a person who actually
travels across state lines to have sex with a child are not as high as
for child pornography. The Commission needs to correct this oversight
immediately, so that prosecutors can take these dangerous sexual
predators off the street. These are all strong measures designed to
protect children and increase prison sentences for child molesters and
those who otherwise exploit children.
The Act also has several provisions designed to protect the children
who are victims in these horrible cases. Privacy of the children must
be paramount. It is important that they not be victimized yet again in
the criminal process. This bill provides for the first time ever an
explicit shield law that prohibits the name or other non physical
identifying information of the child victim, other than the age or
approximate age, from being admitted at any child pornography trial. It
is also intended that judges will take appropriate steps to ensure that
such information as the child's name, address or other identifying
information not be publicly disclosed during the pretrial phase of the
case or at sentencing. The bill also contains a provision requiring the
judge to instruct the jury, upon request of the government, that no
inference should be drawn against the United States because of
information inadmissible under the new shield law.
The Hatch-Leahy PROTECT Act also amends certain reporting provisions
governing child pornography. Specifically, it allows federal
authorities to report information they receive from the Center from
Missing and Exploited Children, CMEC, to state and local police without
a court order. In addition, the bill removes the restrictions under the
Electronic Communications Privacy Act, ECPA, for reporting the contents
of, and information pertaining to, a subscriber of stored electronic
communications to the CMEC when a mandatory child porn report is filed
with the CMEC pursuant to 42 U.S.C. Sec. 13032. This change may invite
federal, state or local authorities to circumvent all subpoena and
court order requirements under ECPA and allow them to obtain subscriber
emails and information by triggering the initial report to the CMEC
themselves. To the extent that these changes in ECPA may have that
unintended effect, as this bill is considered in the Judiciary
Committee and on the floor, we should consider mechanisms to guard
against subverting the safeguards in ECPA from government officials
going on fishing expeditions for stored electronic communications under
the rubric of child porn investigations.
I also must express my disappointment in a recent Government
Accounting Office, GAO, report that criticizes the Department of
Justice information sharing regulations related to the CMEC tip line.
Evidently, due to outdated turf mentalities, the Attorney General's
regulations exclude both the United States Secret Service and the U.S.
Postal Inspection Service from direct access to important tip line
information. That is totally unacceptable, especially in the post 9-11
world where the importance of information sharing is greater than ever.
How can the Administration justify support of this bill, which allows
state and local law enforcement officers such access, when they are
simultaneously refusing to allow other federal law enforcement agencies
access to the same information? I urge the Attorney General to end this
unseemly turf battle and to issue regulations allowing both the Secret
Service and the Postal Inspection Service, who both perform valuable
work in investigating these cases, to have access to this important
information so that they can better protect our nation's children.
This bill also provides for extraterritorial jurisdiction where a
defendant induces a child to engage in sexually explicit conduct
outside the United States for the purposes of producing child
pornography which they intend to transport to the United States. The
provision is crafted to require the intent of actual transport of the
material into the United States, unlike the House bill from the last
Congress, which criminalized even an intent to make such material
``accessible.'' Under that overly broad wording, any material posted on
a web site internationally could be covered, whether or not it was ever
intended that the material be downloaded in the United States.
Finally, the bill provides also a new private right of action for the
victims of child pornography. This provision has teeth, including
injunctive relief and punitive damages that will help to put those who
produce child pornography out of business for good. I commend Senator
Hatch for his leadership on this provision.
These provisions are important, practical tools to put child
pornographers out of business for good and in jail where they belong.
As to the administration proposal, unfortunately legal experts could
not also vouch for the constitutionality of the bill supported by the
Administration in the last Congress, which seemed to challenge the
Supreme Court's decision, rather than accommodate the restraints
spelled out by the Supreme Court. That proposal and the associated
House bill from the 107th Congress simply ignored the Supreme Court's
decision, reflecting an ideological response rather than a carefully
drawn bill that would stand up to scrutiny. Last year, I received
letters from other Constitutional scholars and practitioners expressing
the same conclusion, which I will place in the record with unanimous
consent.
With regard to the potential constitutional issues and suggested
improvements, as I mentioned previously, the PROTECT Act is a good
faith effort to tackle this problem, but it is not perfect and I would
like to see some additional changes to the bill. I hope that we can
consider these as the process moves forward.
First, regarding the tip line, I would like to clarify that law
enforcement agents cannot ``tickle the tip line'' to avoid the key
protections of the Electronic Communications Privacy Act. This may
include clarifying 42 U.S.C. Sec. 13032 that the initial tip triggering
the report may not be generated by the government's investigative
agents themselves. A tip line to the CMEC is just that--a way for
outsiders to report wrongdoing to the CMEC and the government, not for
the government to generate a report to itself without following
otherwise required lawful process.
Second, regarding the affirmative defense, I would like to ensure
that there is an affirmative defense for the new category of child
pornography and for all cases where a defendant can prove in court that
a specific, non-obscene image was made using not any child but only
actual, identifiable adults.
As a general matter, it is worth repeating that we could be avoiding
all these problems were we to take the simple approach of outlawing
``obscene'' child pornography of all types,

[[Page S242]]

which we do in one new provision that I suggested. That approach would
produce a law beyond any possible challenge. This approach is also
supported by the National Center for Missing and Exploited Children,
which we all respect as the true expert in this field.
Following is an excerpt from the Center's answer to written questions
submitted after our hearing, which I will place in the Record in its
entirety:

Our view is that the vast majority (99-100%) of all child
pornography would be found to be obscene by most judges and
juries, even under a standard of beyond a reasonable doubt in
criminal cases. Even within the reasonable person under
community standards model, it is highly unlikely that any
community would not find child pornography obscene. . . .
In the post Free Speech decision legal climate, the
prosecution of child pornography under an obscenity approach
is a reasonable strategy and sound policy.

Thus, according to the National Center for Missing and Exploited
Children, the approach that is least likely to raise constitutional
questions--using established obscenity law--is also an effective one.
Because that is not the approach we have decided to use, I recognize
that the PROTECT Act contains provisions about which some may have
legitimate Constitutional questions.
Specifically, in addition to the provisions that I have already
discussed, there were two amendments adopted in the Judiciary Committee
in the last Congress to which I objected that are included in the bill
as we introduce it today. I felt and still feel that these provisions
needlessly risked a serious constitutional challenge to a bill that
provided prosecutors the tools they needed to do their jobs. Let me
discuss my opposition to these two amendments offered by my good friend
Senator Hatch last Congress.
As to the expansion of the pandering provision, although I worked
with Senator Hatch to write the new pandering provision in the PROTECT
Act, I did not support Senator Hatch's amendment extending the
provision to cover ``purported'' material, which criminalizes speech
even when there is no underlying material at all--whether obscene or
non-obscene, virtual or real, child or adult.
The pandering provision is an important tool for prosecutors to
punish true child pornographers who for some technical reason are
beyond the reach of the normal child porn distribution or production
statutes. It is not meant to federally criminalize talking dirty over
the internet or the telephone when the person never possesses any
material at all. That is speech, and that goes too far.
The original pandering provision in S. 2520 was quite broad, and some
argued that it presented constitutional problems as written, but I
thought that prosecutors needed a strong tool, so I supported Senator
Hatch on that current provision.
I was heartened that Professor Schauer of Harvard, a noted First
Amendment expert, testified at our hearing that he thought that the
original provision was Constitutional, barely. Unfortunately, Professor
Schauer has since written to me stating that this new amendment to
include ``purported'' material ``would push well over the
constitutional edge a provision that is now up against the edge, but
probably barely on the constitutional side of it.'' I will place that
letter and other materials in the record with unanimous consent of the
Senate.
Because this change endangers the entire pandering provision, because
it is unwise, and because that section is already strong enough to
prosecute those who peddle child pornography, I hope that we can debate
the merits of that provision as the legislative process continues.
And as to the inclusion of 100 percent virtual child pornography in
``Identifiable Minor'' provision, a change to the definition of
``identifiable minor'' would expand the bill to cover ``virtual'' child
pornography that is, 100 percent computer generated pictures not
involving any real children. For that reason, it also presents
constitutional problems. I objected to this amendment when it was added
to the bill in the last Congress in Committee and I continue to have
serious concerns with it now.

Senator Hatch and I agree that legislation in this area is important.
But regardless of our personal views, any law must be within
constitutional limits or it does no good at all. This change which
would include all ``virtual child pornography'' in the definition of
child pornography, in my view, crosses the constitutional line,
however, and needlessly risks protracted litigation that could assist
child pornographers in escaping punishment. I hope we can work to
narrow this provision.
Although I joined Senator Hatch in introducing this bill, even when
it was introduced last year I expressed concern over certain
provisions. One such provision was the new definition of ``identifiable
minor.'' When the bill was introduced, I noted that this provision
might ``both confuse the statute unnecessarily and endanger the already
upheld 'morphing' section of the CPPA.'' I said I was concerned that it
``could present both overbreadth and vagueness problems in a later
constitutional challenge.''
The Supreme Court made it clear that we can only outlaw child
pornography in two situations: No. 1, it is obscene, or No. 2, it
involves real kids. That is the law as stated by the Supreme Court,
whether or not we agree with it.
The original ``identifiable minor'' provision in the PROTECT Act may
be used without any link to obscenity doctrine. Therefore, what saved
the original version as introduced in the 107th Congress was that it
applied to child porn made with real ``persons.'' The provision was
designed to cover all sorts of images of real kids that are morphed or
altered, but not something entirely made by computer, with no child
involved. That is the provision as Senator Hatch and I introduced this
bill last year.
The change adopted in the Judiciary Committee last year, however,
redefined ``identifiable minor'' by creating a new category of
pornography for any ``computer generated image that is virtually
indistinguishable from an actual minor'' dislodged, in my view, that
sole constitutional anchor. The new provision could be read to include
images that never involved real children at all but were 100 percent
computer generated.
That was never the goal of this provision and that was the reason it
was constitutional. There are other provisions in the bill that deal
with obscene virtual child pornography that I support. This provision
was intended to ease the prosecutor's burden in cases where images of
real children were cleverly altered to avoid prosecution.
I support the definition of ``identifiable minor'' as we originally
wrote and introduced it last Congress. Because this new change
seriously weakens the constitutional argument supporting this entire
provision, I oppose it and I hope that we can work to further narrow
this provision.
These provisions raise legitimate concerns, but in the interest of
making progress I support consideration of the measure as introduced. I
hope that we can work to debate these issues and improve it and produce
a bill with the best chance of withstanding a constitutional challenge.
That is not everyone's view. Others evidently think it is more
important to make an ideological statement than to write a law. A media
report on this legislation at the end of the last Congress reported the
wide consensus that the Hatch-Leahy bill was more likely than the House
bill to withstand scrutiny, but quoted a Republican House member as
stating: ``Even if it comes back to Congress three times we will have
created better legislation.''
To me, that makes no sense. Why not create the ``better legislation''
right now for today's children, instead of inviting more years of
litigation and putting at risk any convictions obtained in the interim
period before the Supreme Court again reviews the constitutionality of
Congress' effort to address this serious problem? That is what the
PROTECT Act seeks to accomplish.
Even though this bill is not perfect, I am glad to stand with Senator
Hatch to secure its approval by the Senate as I did in the last
Congress.
As I have explained, I believe that this issue is so important that I
have been willing to compromise and to support a measure even though I
do not agree with each and every provision that it contains. That is
how legislation is normally passed. I hope that the Administration and
the House do not decide to play politics with this issue

[[Page S243]]

this year as I fear they did at the close of the last Congress. I urge
swift consideration and passage of this important bill aimed at
protecting our nation's children.
Mr. President, I ask unanimous consent that the letters and materials
to which I referred be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
October 17, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senator Leahy: Thank you for the opportunity to
express the views of the National Center for Missing and
Exploited Children on these critically important issues for
our nation's children. Your stewardship of the Committee's
tireless efforts to craft a statute that will withstand
constitutional scrutiny is wise and in the long-term best
interest of the nation. The National Center for Missing and
Exploited Children is grateful for your leadership on this
issue.
Please find below my response to your written questions
submitted on October 9, 2002, regarding the ``Stopping Child
Pornography: Protecting our Children and the Constitution.''
1. Our view is that the vast majority (99-100%) of all
child pornography would be found to be obscene by most judges
and juries, even under the standard of beyond a reasonable
doubt in criminal cases. Even within the reasonable person
under community standards model, it is highly unlikely that
any community would not find child pornography obscene.
There is a legitimate concern that the obscenity standard
does not fully recognize, and therefore punish the
exceptional harm to children inherent in child pornography.
This issue can be addressed by the enactment of tougher
sentencing provisions if the obscenity standard is
implemented in the law regarding child pornography. Moreover,
mere possession of obscene materials under current law in
most jurisdictions is not a criminal violation. If the
obscenity standard were implemented for child pornography the
legislative intent should be clear concerning punishment for
possession of child obscene pornography.
In the post--Free Speech decision legal climate the
prosecution of child pornography cases under an obscenity
approach is a reasonable strategy and sound policy.
2. Based on my experience all the images in actual criminal
cases meet the lawful definition of obscenity, irrespective
of what community you litigate the case. In my experience
there has never been a visual depiction of child pornography
that did not meet the constitutional requirements for
obscenity.
3. The National Center for Missing and Exploited Children
fully supports the correction of this sentencing disparity
and welcomes the provision of additional tools for federal
judges to remove these predators from our communities. These
types of offenders belong to a demographic that is the
highest percentile in terms of recidivism than any other
single offender category.
4. The National Center for Missing and Exploited Children
fully supports language that allows only ``non-government
sources'' to provide tips to the CyberTipline. The role of
the CyberTipline at the National Center for Missing and
Exploited Children is to provide tips received from the
public and Electronic Communication Services communities and
make them available to appropriate law enforcement agencies.
Due in part to the overwhelming success of the system and in
part to the tragedies of September 11, 2001, federal law
enforcement resources cannot address all of the legitimate
tips and leads received by the CyberTipline. Allowing the
National Center for Missing and Exploited Children and
appropriate federal agencies to forward this information to
state and local law enforcement while at the same time
addressing legitimate privacy concerns is fully supported.
5. The victim shield provision is an excellent and timely
policy initiative and one that is fully supported by the
National Center for Missing and Exploited Children. This
provision should allow the narrow exception to a general non-
disclosure clause that anticipates the need for law
enforcement and prosecutors to use the victim's photography
and other relevant information for the sole purpose of
verification and authentication of an actual child victim in
future cases. This exception would allow the successful
prosecution of other cases that may involve a particular
victim and still provide the protection against the
revictimization by the criminal justice system.
6. The National Center for Missing and Exploited Children
fully supports extending the terms of authorized supervised
release in federal cases involving the exploitation of
minors. The evidence for extended supervision in such cases
is overwhelming. Without adequate treatment and continued
supervision, there is a significantly higher risk for re-
offending by this type of offender. Moreover, there is a
significant link between those offenders who possess child
pornography and those who sexually assault children. Please
see the attached studies that the National Center for Missing
and Exploited Children has produced on these issues.
Thank you again for the opportunity to address these
important issues. Should you need further input or assistance
please contact us at your convenience.
Sincerely,

Daniel Armagh,

Director, Legal Resource Division,
National Center for Missing and Exploited Children.
____

University of Virginia

School of Law

Charlottesville, VA, Nov. 28, 2002.
Senator Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Dear Chairman Leahy: On October 2, 2002, I testified before
the Senate Judiciary Committee concerning S. 2520 and H.R.
4623. Each of these bills was drafted in response to Ashcroft
v. Free Speech Coalition, 122 S.Ct. 1389 (2002), in which the
Supreme Court threw out key provisions of the federal child
pornography laws. As I stated in my testimony, the new
sections contained in S. 2520 have been carefully tailored
with an eye towards satisfying the precise concerns
identified by the Supreme Court. Recently, Senator Hatch
offered an amendment in the nature of a substitute to S. 2520
(hereinafter ``the Hatch Substitute''). I have examined the
Hatch Substitute, and I believe that it contains a definition
of child pornography that is nearly identical to the
definition rejected by Free Speech Coalition. Therefore, the
Hatch Substitute is unlikely to survive constitutional
challenge in the federal courts, and the Committee should
decline to adopt it.
As you know, each of these bills contains some complicated
provisions, including especially their definition sections.
As you also know, this complexity is unavoidable, for the
Congress aims to intervene in and eliminate some of the
complex law enforcement problems created by the phenomenon of
virtual pornography. In the following comments, I will try to
state my concerns about the Hatch Substitute as concisely as
possible, while identifying the statutory nuances that are
likely to generate significant constitutional questions in
the event that the Hatch Substitute is enacted.
In Free Speech Coalition, the Supreme Court scrutinized
provisions of the Child Pornography Prevention Act of 1996
(``CPPA'') that were designed to eliminate obstacles to law
enforcement created by virtual child pornography. The
proliferation of virtual pornography has enabled child
pornographers to escape conviction by arguing that it is so
difficult to distinguish the virtual child from the real one
that (1) the government cannot carry its burden of proving
that the pornography was made using real children and/or (2)
the government cannot carry its burden of proving scienter
because the defenders believed that the images in their
possession depicted virtual children, rather than real ones.
In order to foreclose these arguments, the CPPA defined
``child pornography'' broadly so that it extended not only to
a sexually-explicit image that had been produced using a real
minor, but also to an image that ``appears to be of a minor''
engaging in sexually-explicit conduct. Free Speech Coalition
rejected this definition on First Amendment grounds. The
Court reaffirmed the holding of New York v. Ferber, 458 U.S.
747 (1982), under which the government is free to regulate
sexually-explicit materials produced using real minors
without regard to the value of those materials. However, the
Court refused to extend the Ferber analysis to sexually-
explicit materials that only appear to depict minors. The
Court noticed that many mainstream movies, as well as works
of great artistic, literary, and scientific significance,
explore the sexuality of adolescents and children. Such
works, including ones that are sexually explicit, are
valuable in the eyes of the community, and, as long as
their production involves no real children, such works are
protected by the First Amendment against governmental
regulation.
In Free Speech Coalition, the Supreme Court expressly
considered and rejected a number of arguments made by the
Solicitor General on behalf of the CPPA definition. One of
these arguments was that the ``speech prohibited by the CPPA
is virtually indistinguishable from child pornography, which
may be banned without regard to whether it depicts works of
value.'' In his opinion for the Court, Justice Kennedy
explained that this argument fundamentally misconceived the
nature of the First Amendment inquiry. Materials that satisfy
the Ferber definition are regulable not because they are
necessarily without value; to the contrary, Ferber itself
recognized that some child pornography might have significant
value. Indeed, the Court there reasoned that the ban on the
use of actual children was permissible in part because
virtual images--by definition, images ``virtually
indistinguishable'' from child pornography--were an available
and lawful alternative. Hence, as Justice Kennedy put it:
``Ferber, then, not only referred to the distinction between
actual and virtual child pornography, it relied on [the
distinction] as a reason supporting its holding. Ferber
provides no support for a statute that eliminates the
distinction and makes the alternative mode criminal as
well.''
S. 2520 aims to reform the CPPA in ways that are sensitive
to these First Amendment value judgments. By contrast, the
Hatch Substitute proposes that the Congress should reenact a
definition that is almost identical to the one that the
Supreme Court just rejected. In the Hatch Substitute, the
definition of child pornography would cover,

[[Page S244]]

among other things, sexually-explicit materials whose
production involved the use of an ``identifiable minor.'' The
Hatch Substitute defines ``identifiable minor'' as including
a ``computer or computer generated image that is virtually
indistinguishable from an actual minor.'' As I explained
above, the Solicitor General suggested in Free Speech
Coalition that the First Amendment would be satisfied if the
Supreme Court limited the CPPA to depictions that are
``virtually indistinguishable'' from child pornography, and
the Court rejected that interpretation. To put it mildly, it
is hard to imagine that the Supreme Court would be inclined
to view the Hatch Substitute as a good-faith legislative
response to Free Speech Coalition when all it does is reenact
a definition that the Court there expressly considered and
disapproved. You will notice that I here am paraphrasing the
definition provisions in the Hatch Substitute and omitting
some of their complexity. In particular, the Hatch Substitute
provides a further definition of the phrase ``virtually
indistinguishable,'' requiring that the quality of the
depiction be determined from the viewpoint of an ``ordinary
person'' and providing an exception for ``drawings, cartoons,
sculptures, or paintings.'' But neither the definition of
``identifiable minor'' nor these refinements of ``virtually
indistinguishable'' are calculated to satisfy the concerns
raised in Free Speech Coalition. As Justice Kennedy explained
for the Court, an absolute ban on pornography made with real
children is compatible with First Amendment rights precisely
because computer-generated images are an available
alternative, and, yet, the Hatch Substitute proposes to
forbid the computer-generated alternative as well. Likewise,
an exception for cartoons and so forth is insensitive to the
Supreme Court's commitment to protect realistic portrayals of
child sexuality, a commitment that is clearly expressed in
the Court's recognition of the value of (among other things)
mainstream movies such as Traffic and American Beauty.
In this regard, you will notice that the Hatch Substitute
closely resembles some of the defective provisions of H.R.
4623, which would prohibit virtual child porn that is
``indistinguishable'' from porn produced with real minors.
Unlike S. 2520, both H.R. 4623 and the Hatch Substitute seem
to embody a decision merely to endorse the unconstitutional
portions of the CPPA all over again. The Committee should
refuse to engage in such a futile and disrespectful exercise.
The law enforcement problems posed by virtual pornography are
not symbolic but real, and the Congress should make a real
effort to solve them. In my judgment, S. 2520 is a real
effort to solve them, and the Committee should use S. 2520 as
the basis for correcting the CPPA.
The Hatch Substitute contains additional innovations that
the Committee should study carefully. Because this letter
already is too long, I will allude to only one of them here.
The ``pandering'' provision set forth in the Hatch Substitute
contains some language that strikes me as being both vague
and unnecessarily broad, and the provision therefore is
likely to attract unfavorable attention in the federal
courts. The Hatch pandering provision would punish anyone who
``advertises, promotes, presents, distributes, or solicits .
. . any material or purported material in a manner that
conveys the impression that the material or purported
material'' is child pornography. To be completely candid, I
am not sure that I understand what problems would be solved
by defining the items that may not be pandered so that they
include not only actual ``material,'' but also ``purported
material.'' I suppose that there might be cases where a
person offers to sell pornographic materials that do not
actually exist and that the person might make the offer in a
manner that violates the pandering prohibition. If that is
the problem that the drafters of the Hatch Substitute have in
mind, it seems that they might solve that problem more
cleanly by adding the word ``offers'' to the list of
forbidden conduct and deleting the reference to ``purported
material.'' (In other words, the provision would punish
anyone who ``advertises, offers, promotes, presents,
distributes, or solicits through the mails . . . any material
on a manner that conveys the impression that the material''
is child pornography.) If that is not the problem that the
Hatch Substitute has in mind, I would suggest that the
drafters identify the problem precisely and develop language
that is clearer and narrower than the phrase ``purported
material,'' for that ambiguous term is likely to generate
First Amendment concerns that otherwise could and should be
avoided.
Respectfully yours,
Anne M. Coughlin,
Class of 1948 Research Professor of Law.
____

Washington, DC, Oct. 11, 2002.
Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Dear Chairman Leahy: I want to thank you for your efforts
to protect American children by filling the gap left by the
Supreme Court's decision to strike down the Child Pornography
Prevention Act. Ashcroft v. Free Speech Coalition dealt a
blow to those who appreciate the important role the federal
government must ply in protecting young people from those who
would exploit them. Your efforts to craft a bill, the PROTECT
Act, that will withstand Constitutional scrutiny deserves the
public's applause.
I would like to draw your attention to a similar, but
separate, matter that also reflects on the health and
security of our children in regards to pornography. Like the
Child Pornography Prevention Act, the Child Internet
Protection Act (CIPA), which was passed by the 106th
Congress, has been struck down by the federal judiciary. In
American Library Association, et al. v. United States of
America, et al, a District Court in Pennsylvania threw CIPA
out, arguing that its efforts to prevent children from
exposure to harmful material on school and library computers
amounted to a violation of the First Amendment. The Justice
Department has appealed that case to the Supreme Court, where
the lower court's decision will very likely be upheld.
Unfortunately, as Harvard Law School professor Frederick
Schauer testified at the hearing you recently held on CPPA,
``constitutionally suspect legislation under existing Supreme
Court interpretation of the First Amendment, whatever we may
think of the wisdom and accuracy of those interpretations,
puts the process of [prosecution] . . . on hold while the . .
. courts proceed at their own pace.
I think we ought not wait for what will likely be a
disappointing conclusion. Rather, I hope you will lead an
effort to craft new legislation which (1) passes
Constitutional muster, and (2) better enables schools and
libraries to protect children from harmful images and
websites. Let me take a moment to delimit how exactly a new,
improved Children's Internet Protection Act would differ from
the bill passed by the 106th Congress.
First, a new bill should distinguish clearly between
measures affecting adults and minors. Though the title of the
legislation is the Children's Internet Protection Act, it
requires technology protection measures on all computers with
Internet access, regardless of the age of the patron using
each computer. If the aim is to protect minors, it is
unnecessary to put filters on every computer in a library.
This, of course, was one of the District Court's primary
concerns. I hope you will draft legislation requiring
separate computers for adults and minors. All those under 18
should be required to use filtered computers, unless
accompanied by a parent or teacher. Those over 18 should have
access to un-filtered computers in a separate area. I smaller
facilities, where only one computer is available, special
adult hours could be set during which the filter is disabled
and only adults may use the computer. The rest of the time a
filter would be in place.
Second, I would encourage you to incorporate language that
distinguishes children 12 and under from teenagers 13-18.
Teenagers have greater capacities to process information than
children, as well as different needs for information. In
recognition of this, I would hope that your new bill would
require different policies for children and teenagers, such
as providing different filter settings.
Third, I hope you will consider expanding the scope of your
bill to include provisions that protect minors from violent
images as well as sexual ones. I realize that limiting the
access of children to violent content poses a potentially
more difficult constitutional question, but based on the
weight of social science evidence showing the harm caused to
children by violence in the media, I believe that violence
must be included in any definition of content that is
``harmful to children.''
To further explain the reasoning behind these
recommendations, I am enclosing a law review article, ``On
Protecting Children from Speech,'' which will be published
next fall in the Chicago-Kent Law Review. I would welcome the
opportunity to discuss our position with you further. In the
meantime, please feel free to contact Marc Dunkelman,
Assistant Director of the Communitarian Network, with any
questions. Thank you for your consideration.
Sincerely,
Amitai Etzioni,
Founder & Director.
____

May 13, 2002.
Chairman Patrick J. Leahy,
U.S. Senate Judiciary Committee,
Washington, DC.
Dear Chairman Leahy: We write to express our grave concern
with the legislation recently proposed by the Department of
Justice in response to the Supreme Court's decision in
Ashcroft, et al. v. The Free Speech Coalition, et al., No.
00-795 (Apr. 16, 2002). In particular, the proposed
legislation purports to ban speech that is neither obscene
nor unprotected child pornography (indeed, the bill expressly
targets images that do not involve real human beings at all).
Accordingly, in our view, it suffers from the same
infirmities that led the Court to invalidate the statute at
issue in Ashcroft.
We emphasize that we share the revulsion all Americans feel
toward those who harm children, and fully support legitimate
efforts to eradicate child pornography. As the Court in
Ashcroft emphasized, however, in doing so Congress must act
within the limits of the First Amendment. In our view, the
bill proposed by the Department of Justice fails to do so.
Respectfully submitted,
Jodie L. Kelley,
Partner, Jenner & Block, LLC, Washington, DC.
Erwin Chemerinsky,
Sydney M. Irmas Professor of Public Interest Law, Legal
Ethics and Political

[[Page S245]]

Science, University of Southern California Law School, Los
Angeles, CA.
Paul Hoffman,
Partner, Schonbrun, DeSimone, Seplow, Harris & Hoffman,
LLP, Venice, CA.
Adjunct Professor, University of Southern California Law
School, Los Angeles, CA.
Gregory P. Magarian,
Assistant Professor of Law, Villanova University School of
Law, Villanova, PA.
Jamin Raskin,
Professor of Law, American University, Washington College
of Law, Washington, DC.
Donald B. Verrilli, Jr.,
Partner, Jenner & Block, LLC, Washington, DC.
____

Harvard University,John F. Kennedy School of Government,
Cambridge, MA, October 3, 2002.
Re S. 2520.

Hon. Patrick Leahy,
U.S. Senate, Committee on the Judiciary, Washington, DC.
Dear Senator Leahy: Following up on my written statement
and on my oral testimony before the Committee on Wednesday,
October 2, 2002, the staff of the Committee has asked me to
comment on the constitutional implications of changing the
current version of S. 2520 to change the word ``material'' in
Section 2 of the bill (page 2, lines 17 and 19) to
``purported material.''
In my opinion the change would push well over the
constitutional edge a provision that is now right up against
that edge, but probably barely on the constitutional side of
it.
As I explained in my statement and orally, the Supreme
Court has from the Ginzburg decision in 1966 to the Hamling
decision in 1973 to the Free Speech Coalition decision in
2002 consistently refused to accept that ``pandering'' may be
an independent offense, as opposed to being evidence of the
offense of obscenity (and, by implication, child
pornography). The basic premise of the pandering prohibition
in S. 2520 is thus in some tension with more than thirty-five
years of Supreme Court doctrine. What may save the provision,
however, is the fact that pandering may also be seen as
commercial advertisement, and the commercial advertisement of
an unlawful product or service is not protected by the
Supreme Court's commercial speech doctrine, as the Court made
clear in both Virginia Pharmacy and also in Pittsburgh Press
v. Human Relations Commission, 413 U.S. 376 (1973). It is
important to recognize, however, that this feature of
commercial speech doctrine does not apply to non-commercial
speech, where the description on advocacy of illegal acts is
fully protected unless under the narrow circumstances, not
applicable here, of immediate incitement.
The implication of this is that moving away from
communication that could be described as an actual commercial
advertisement decreases the availability of this approach to
defending Section 2 of S. 2520. Although it may appear as if
advertising ``material'' that does not exist at all
(``purported material'') makes little difference, there is a
substantial risk that the change moves the entire section
away from the straight commercial speech category into more
general description, conversation, and perhaps even advocacy.
Because the existing arguments for the constitutionality of
this provision are already difficult ones after Free Speech
Coalition, anything that makes this provision less like a
straight offer to engage in a commercial transaction
increases the degree of constitutional jeopardy. By including
``purported'' in the relevant section, the pandering looks
less commercial, and thus less like commercial speech, and
thus less open to constitutional defense I outlined in my
written statement and oral testimony.
I hope that this is helpful.
Yours sincerely,
Frederick Schauer,
Frank Stanton Professor of the First Amendment.

____________________