[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

[[Page S238]]

     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

[[Page S240]]

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.

                          ____________________