Congressional Record, Volume 149 Issue 29 (Monday, February 24, 2003)

[Congressional Record Volume 149, Number 29 (Monday, February 24, 2003)]
[Senate]
[Pages S2573-S2590]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PROSECUTORIAL REMEDIES AND TOOLS AGAINST THE EXPLOITATION OF CHILDREN
ACT OF 2003

The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to consider S. 151, which the clerk will report.
The legislative clerk read as follows:

A bill (S. 151) to amend title 18, United States Code, with
respect to the sexual exploitation of children.

The Senate proceeded to consider the bill which had been reported
from the Committee on the Judiciary with amendments, as follows:
[Strike the parts shown in boldface brackets and insert the parts
shown in italic.]

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.

[[Page S2574]]

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;] (A) computer generate depictions of
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] (B) use parts of images of real children to create
a composite image that is unidentifiable as a particular
child and in a way that prevents even an expert from
concluding that parts of images of real children were used;
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]
to computer generate realistic images of children.
(6) The vast majority of child pornography prosecutions
today involve images contained on computer hard drives,
computer disks, [and/or] 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] increased significantly 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] assessment 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) Since the Supreme Court's decision in Free Speech
Coalition, defendants in child pornography cases have almost
universally raised the contention that the images in question
could be virtual, thereby requiring the government, in nearly
every child pornography prosecution, to find proof that the
child is real. Some of these defense efforts have already
been successful.
[(10)] (11) 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. Moreover, imposing an additional
requirement that the Government prove beyond a reasonable
doubt that the defendant knew that the image was in fact a
real child--as some courts have done--threatens to result in
the de facto legalization of the possession, receipt, and
distribution of child pornography for all except the original
producers of the material.
[(11)] (12) To avoid this grave threat to the Government's
unquestioned compelling interest in effective enforcement of
the child pornography laws that protect real children, a
statute must be adopted that prohibits a narrowly-defined
subcategory of images.
[(12)] (13) 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 now to ensure that open and
notorious trafficking in such materials does not reappear,
and even increase, on the Internet.

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]
reflects the belief, or that is intended to cause another to
believe, that the material or purported material is, or
[contains, an obscene visual depiction of a minor engaging in
sexually explicit conduct;'';] contains--
``(i) an obscene visual depiction of a minor engaging in
sexually explicit conduct; or
``(ii) a visual depiction of an actual 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 ``paragraphs (1),
(2), (3), or (4)'' and inserting ``paragraph (1), (2), (3),
(4), or (6)''; and
(3) by striking subsection (c) and inserting the following:
``(c) Affirmative Defense.--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 under subsection (c)(2) shall be
available in any prosecution that involves [obscene child
pornography or] child pornography as described in section
[2256(8)(D)] 2256(8)(C). 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.

[[Page S2575]]

(2) in paragraph (2)--
(A) by striking ``means actual'' and inserting the
following: ``means--
``(A) actual'';
(B) in subparagraphs (A), (B), (C), (D), and (E), by
indenting the left margin 2 ems to the right and
redesignating subparagraphs (A), (B), (C), (D), and (E) as
clauses (i), (ii), (iii), (iv), and (v), respectively;
(C) in subparagraph (A)(v), as redesignated, by inserting
``or'' after the semicolon; and
(D) by adding at the end the following:
``(B)(i) actual sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex, or lascivious
simulated sexual intercourse where the genitals, breast, or
pubic area of any person is exhibited;
``(ii) actual or lascivious simulated--
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic abuse; or
``(iii) actual lascivious or simulated lascivious
exhibition of the genitals or pubic area of any person;'';
(3) in paragraph (8)--
(A) by striking subparagraph (B) and inserting the
following:
``(B) the production of such visual depiction involves the
use of an identifiable minor engaging in sexually explicit
conduct; or'';
(B) in subparagraph (C)--
(i) by inserting after ``is engaging in sexually explicit
conduct'' the following: ``, except that the term
`identifiable minor' as used in this subparagraph shall not
be construed to include the portion of the definition
contained in paragraph (9)(B)''; and
(ii) by striking ``or'' at the end; and
(C) by striking subparagraph (D); and
[(3)] (4) 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.''.]
``(B) means a computer image, computer generated image, or
digital image--
``(i) that is of, or is virtually indistinguishable from
that of, an actual minor; and
``(ii) that depicts sexually explicit conduct as defined in
paragraph (2)(B); and
``(10) `virtually indistinguishable'--
``(A) means that the depiction is such that an ordinary
person viewing the depiction would conclude that the
depiction is of an actual minor; and
``(B) does not apply to depictions that are drawings,
cartoons, sculptures, diagrams, anatomical models, or
paintings depicting minors or adults or reproductions of such
depictions.''.

SEC. 6. OBSCENE VISUAL REPRESENTATIONS OF THE SEXUAL ABUSE OF
CHILDREN.

(a) In General.--Chapter 110 of title 18, United States
Code, is amended by inserting after section 2252A the
following:

``Sec. 2252B. Obscene visual representations of the sexual
abuse of children

``(a) In General.--Any person who, in a circumstance
described in subsection (d), knowingly produces, distributes,
receives, or possesses with intent to distribute, a visual
depiction of any kind, including a drawing, cartoon,
sculpture, or painting, that--
``(1)(A) depicts a minor engaging in sexually explicit
conduct; and
``(B) is obscene; or
``(2)(A) depicts an image that is, or appears to be, of a
minor engaging in graphic 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
``(B) lacks serious literary, artistic, political, or
scientific value;
or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(1), including the
penalties provided for cases involving a prior conviction.
``(b) Additional Offenses.--Any person who, in a
circumstance described in subsection (d), knowingly possesses
a visual depiction of any kind, including a drawing, cartoon,
sculpture, or painting, that--
``(1)(A) depicts a minor engaging in sexually explicit
conduct; and
``(B) is obscene; or
``(2)(A) depicts an image that is, or appears to be, of a
minor engaging in graphic 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
``(B) lacks serious literary, artistic, political, or
scientific value;
or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(2), including the
penalties provided for cases involving a prior conviction.
``(c) Nonrequired Element of Offense.--It is not a required
element of any offense under this section that the minor
depicted actually exist.
``(d) Circumstances.--The circumstance referred to in
subsections (a) and (b) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or
transportation of a visual depiction by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(e) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating subsection (b) that the
defendant--
``(1) possessed less than 3 such visual depictions; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any such visual depiction--
``(A) took reasonable steps to destroy each such visual
depiction; or
``(B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.
``(f) Definitions.--For purposes of this section--
``(1) the term `visual depiction' includes undeveloped film
and videotape, and data stored on a computer disk or by
electronic means which is capable of conversion into a visual
image, and also includes any photograph, film, video,
picture, digital image or picture, computer image or
picture, or computer generated image or picture, whether
made or produced by electronic, mechanical, or other
means;
``(2) the term `sexually explicit conduct' has the meaning
given the term in section 2256(2); and
``(3) the term `graphic', when used with respect to a
depiction of sexually explicit conduct, means that a viewer
can observe any part of the genitals or pubic area of any
depicted person or animal during any part of the time that
the sexually explicit conduct is being depicted.''.
(b) Technical and Conforming Amendment.--The section
analysis for chapter 110 of title 18, United States Code, is
amended by inserting after the item relating to section 2252A
the following:

``2252B. Obscene visual representations of the sexual abuse of
children.''.
(c) Sentencing Guidelines.--
(1) Category.--Except as provided in paragraph (2), the
applicable category of offense to be used in determining the
sentencing range referred to in section 3553(a)(4) of title
18, United States Code, with respect to any person convicted
under section 2252B of such title, shall be the category of
offenses described in section 2G2.2 of the Sentencing
Guidelines.
(2) Ranges.--The Sentencing Commission may promulgate
guidelines specifically governing offenses under section
2252B of title 18, United States Code, if such guidelines do
not result in sentencing ranges that are lower than those
that would have applied under paragraph (1).

SEC. [6.] 7. 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, digital 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.] 8. 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 (b)(1), by inserting ``or a violation of
section 2252B of that title'' after ``of that title)'';
[(1)](2) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
[(2)](3) by amending subsection (f)(1)(D) to read as
follows:
``(D) where the report discloses a violation of State
criminal law, to an appropriate official of a State or
subdivision of a State for the purpose of enforcing such
State law.'';
[(3)](4) by redesignating paragraph (3) of subsection (b)
as paragraph (4); and
[(4)](5) by inserting after paragraph (2) of subsection (b)
the following new paragraph:
``(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National Center
for Missing and Exploited Children is authorized to forward
any such report to an appropriate official of a state or
subdivision of a state for the purpose of enforcing state
criminal law.''.

SEC. [8.] 9. CONTENTS DISCLOSURE OF STORED COMMUNICATIONS.

Section 2702 of title 18, United States Code, is amended--

[[Page S2576]]

(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.] 10. 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 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.] 11. 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.] 12. 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.] 13. 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.] 14. 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. 15. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN
THE INVESTIGATION OF SEXUAL CRIMES AGAINST
CHILDREN.

Section 2516(1)(c) of title 18, United States Code, is
amended--
(1) by inserting ``section 1591 (sex trafficking of
children by force, fraud, or coercion),'' after ``section
1511 (obstruction of State or local law enforcement),''; and
(2) by inserting ``section 2251A (selling or buying of
children), section 2252A (relating to material constituting
or containing child pornography), section 2252B (relating to
child obscenity), section 2260 (production of sexually
explicit depictions of a minor for importation into the
United States), sections 2421, 2422, 2423, and 2425 (relating
to transportation for illegal sexual activity and related
crimes),'' after ``sections 2251 and 2252 (sexual
exploitation of children),''.

SEC. 16. INVESTIGATIVE AUTHORITY RELATING TO CHILD
PORNOGRAPHY.

Section 3486(a)(1)(C)(i) of title 18, United States Code,
is amended by striking ``the name, address'' and all that
follows through ``subscriber or customer utilized,'' and
inserting ``the information specified in section
2703(c)(2)''.

SEC. [14.] 17. 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.
The PRESIDING OFFICER. Time for debate shall be limited to 2 hours to
be equally divided between the chairman and ranking member of the
Judiciary Committee or their designee.
Mr. LEAHY. Am I correct, at the request of the majority leader, there
will be no vote prior to 5:30?
The PRESIDING OFFICER. That is the understanding of the Chair.
Mr. LEAHY. Mr. President, because we are starting late, I ask
unanimous consent--and obviously I would not object to a change should
the majority leader or his designee ask otherwise--I ask unanimous
consent the vote be at 5:30, and the time be equally divided between
Senator Hatch and myself.
The PRESIDING OFFICER. In my capacity as a Senator from New
Hampshire, I object.
Mr. LEAHY. I understand, Mr. President, having started the debate at
3:30, the time would run out at 5:30; is that correct?
The PRESIDING OFFICER. That is correct.
Mr. LEAHY. Were I to yield back my time, we would still be in a
situation where it would occur prior to 5:30, unless we were in a
quorum call; is that correct?
The PRESIDING OFFICER. That is correct.
Mr. LEAHY. I see your staff running around making suggestions to the
Presiding Officer. I wanted to remind them that while Senators are
merely constitutional impediments to the staff, in the minds of some,
we could still have the vote at 5:30. I am trying to keep this schedule
to what the distinguished majority leader wanted and do what was told
others. Frankly, I don't care when the vote is, but I do thank the
staff for trying to keep us on other schedules.
If we go the full time, then the vote would be, am I correct, unless
some time is yielded back, it would be around 20 minutes to 6 and not
5:30?
The PRESIDING OFFICER. That is correct.
Mr. LEAHY. The distinguished senior Senator from Utah is on his way
back from another engagement. I will begin.
I join with Senator Hatch, the Chairman of the Judiciary Committee,
in urging passage of S. 151, the Hatch-Leahy PROTECT Act, a bill
providing important new tools to fight child pornography. I commend
Senator Hatch for his leadership and his unflagging efforts to protect
our nation's children

[[Page S2577]]

from exploitation by child pornographers.
When Senator Hatch and I introduced this bill last month, I supported
passing a bill that was identical to the measure that we worked so hard
on in the last Congress. That bill had passed the Judiciary Committee
and the Senate unanimously in the 107th Congress. 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 and would not return to take action on this measure that had
passed the Senate unanimously or to work out our differences.
As I said when we introduced the Hatch-Leahy PROTECT Act and again as
the Judiciary Committee considered this measure, although this bill is
not perfect, it is a good faith effort to provide powerful tools for
prosecutors to deal with the problem of child pornography within
constitutional limits. We failed to do that in the 1996 Child
Pornography Prevention Act--``CPPA'', much of which the Supreme Court
struck down last year. We must not make the same mistake again. The
last thing we want to do is to create years of legal limbo for our
nation's children, after which the courts strike down yet another law
as unconstitutional.
I also said at our Judiciary Committee meeting that I hoped we could
pass the bill in the same form as it unanimously passed in the last
Congress. That is still my position and I believe it would have been
wiser to proceed in that manner. Since my colleagues on the other side
of the aisle and the Administration have jointly decided not to follow
this route, however, I have nevertheless continued to work with Senator
Hatch to craft the strongest bill possible that will produce
convictions that will stick under the constitution.
I urge the Senate to pass this legislation, and I strongly urge the
Republican leadership in the House of Representatives to take this
second opportunity to pass this important legislation in the form that
we send to them. I urge the Administration to support this bipartisan
measure, instead of using this debate as an opportunity to add more
changes that strive to make an ideological statement, but which may not
withstand Constitutional scrutiny and may bog down the bill. If we act
in a bipartisan manner, we can have a bill to the President that can
begin working for America's children in short order.
I want to take a moment to speak again about the history of this
important bill and the joint 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 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 produce convictions that stick. In
1996, when we passed the CPPA many warned us that certain provisions of
that Act violated the First Amendment. The Supreme Court's decision
last year 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's decision. It is just as important, however, that
we avoid repeating our past mistakes. Unlike the 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 rather than be stricken from the law
books.
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 bite, not one with false teeth.
After joining Senator Hatch in introducing the PROTECT Act in the
107th Congress, as chairman of the Judiciary Committee in the last
Congress, 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 the Hatch-Leahy PROTECT Act 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. 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.
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 the bill 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 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 certain of Senator Hatch's amendments,
because I thought that they risked having the bill declared
unconstitutional, I nevertheless both called for the Committee to
approve the bill and voted for the bill in its amended form. That is
the legislative process. I compromised on some issues, and Senator
Hatch compromised on others. Even though the bill was not exactly as
either of us would have wished, we both worked fervently to seek its
passage.
I sought, the same day as the bill unanimously passed the Judiciary
Committee, to gain the unanimous consent of the full Senate to pass the
Hatch-Leahy PROTECT Act as reported, and I worked with Senator Hatch to
clear the bill on both sides of the aisle. I am pleased that the Senate
did pass the bill 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, we were forced to repeat the entire process again, and 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. Let me outline some of the bill's important provisions:
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 carries 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

[[Page S2578]]

narrower than the old ``pandering'' definition in at least one way that
responds to a specific Court criticism. 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'' and it requires
the government to demonstrate that the defendant acted with the
specific intent that the material is believed to be child pornography.
The bill also contains a directive to the Sentencing Commission which
asks it to distinguish between those who pander or distribute such
material and those who only ``solicit'' the material. As with narcotics
cases, distributors and producers are more culpable than users and
should be more harshly punished for maximum deterrent effect.
I would have liked for the pandering provision to be crafted more
narrowly so that ``purported'' material was not included and so that
all pandering prosecutions would be linked to ``obscenity'' doctrine.
That is the way that Senator Hatch and I originally wrote and
introduced this provision in the last Congress. Unfortunately, the
amendment process has resulted in some expansions to this once non-
controversial provision that may subject it to a constitutional
challenge. Thus, while it responds to some specific concerns raised by
the Supreme Court there are constitutional issues that the courts will
have to seriously consider with respect to this provision. I will
discuss these issues later.
Second, the bill creates a new crime that I proposed 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 and narrowly tailored 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 B 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 will have sufficient notice to 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 measure also 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. 2252B(b)(2).
This omission may render that provision unconstitutional under the
First Amendment, and I hope that, as the legislative process continues,
we can work 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, the Hatch-Leahy 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 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 serious ``literary, artistic or scientific value.''
Some new provisions of this bill do take this ``obscenity'' approach,
like the new Sec. 2252B(b)(1) and, to a lesser extent the new
Sec. 2252B(b)(2), which I crafted with Senator Hatch. 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. I am not
alone in this view and ask to have supporting letters from
constitutional experts printed in the record.
This 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 Hatch-Leahy PROTECT 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 can and will take
appropriate steps to ensure that such information as the child's name,
address or other

[[Page S2579]]

identifying information not be publicly disclosed during the pretrial
phase of the case or at sentencing as well. 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.
While this change may invite rogue federal, state or local agents to
try 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, it should be well
understood that this is not the intention behind this provision. These
important safeguards are not being altered in any way, and a deliberate
use of the tip line by a government agent to circumvent the well
established statutory requirements of these provisions would be a
serious violation of the law. Nevertheless, we should still consider
further clarification 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.
As I made clear when this bill was introduced, I continue to express
my disappointment in the Department of Justice information sharing
regulations related to the CMEC tip line. According to a recent
Government Accounting Office, (GAO) report, 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 Hatch-Leahy 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 made this request in my statement when we
introduced this bill, but once more 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.

The Hatch-Leahy 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. Under
the bill we consider today, however, proof of a specific intent to send
such material to the United States is required.
Finally, the bill provides 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 and his recognition that
such punitive damages provisions are important means of deterring
misconduct. These provisions are important, practical tools to put
child pornographers out of business for good and in jail where they
belong.
As I mentioned previously, the PROTECT Act is a good faith effort to
tackle the child pornography problem, and I have supported its passage
from the outset. I am also glad that because of our bipartisan
cooperation, Senator Hatch and I were able to offer a joint amendment
in Committee that strengthened the bill further against constitutional
attack. Here are some of the improvements that we jointly made to the
bill as introduced.
The Hatch-Leahy amendment created a new specific intent requirement
in the pandering crime. The provision is now better focused on the true
wrongdoers and requires that the government prove beyond a reasonable
doubt that the defendant actually intended others to believe that the
material in question is obscene child pornography. This is a positive
step.
The Hatch-Leahy amendment narrowed the definition of ``sexually
explicit conduct'' for prosecutions of computer created child
pornography. Although I continue to have serious reservations about the
constitutionality of prosecuting cases involving such ``virtual child
pornography'' after the Supreme Court's decision in Free Speech
Coalition v. Ashcroft, narrowing the definition of the conduct covered
provides another argument that the provision is not as overbroad as the
one in the CPPA. I had also proposed a change that contained an even
better definition, in order to focus the provision to true ``hard
core'' child pornography, and I hope we will consider such a change as
the process continues.
The Hatch-Leahy amendment the saved the existing ``anti-morphing''
provision from a fresh constitutional attack by excluding 100% virtual
child pornography from its scope. That morphing provision was one of
the few measures from the CPPA that the Supreme Court did not strike
down last year. I am pleased that we are avoiding placing this measure
in constitutional peril in this bill.
The Hatch-Leahy amendment refined the definition of virtual child
pornography in the provision that Senator Hatch and I worked together
to craft last year, which will be new 18 U.S.C. Sec. 2252B. These
provisions rely to a large extent on obscenity doctrine, and thus are
more rooted in the constitution than other parts of the bill. I was
pleased that the Hatch-Leahy amendments includes in new 2252B(2) a
definition that the image be ``graphic''--that is one where the
genitalia are actually shown during the sex act for two reasons.
First, because the old law would have required proof of ``actual''
minors in cases with ``virtual'' pictures, I believe that this
clarification will remove a potential contradiction from the new law
which pornographers could have used to mount a defense. Second, it will
provide another argument supporting the law's constitutionality because
the new provision is narrowly tailored to cover only the most ``hard
core'' child pornography. I am disappointed that we could not include a
similar definition in the S. 151's other virtual child pornography
provision, which was included at the request of the Administration. I
hope that will be considered as this bill moves forward.
The Hatch-Leahy amendment also clarifies that digital pictures are
covered by the PROTECT Act, an important addition in today's world of
digital cameras and camcorders.
These were important changes, and I was glad to work with Senator
Hatch to craft them.
This law is not perfect, however, and I would have liked to see some
additional improvements to the bill. Let me outline some of them.
First, regarding the tip line, I would have liked to further clarify
that law enforcement agents may not and should not ``tickle the tip
line'' to avoid the key protections of the Electronic Communications
Privacy Act (ECPA). This might have included 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.
It was not the intent of any part of this bill to alter that purpose.

[[Page S2580]]

Second, regarding the affirmative defense, I would have liked to
ensure that there is an affirmative defense for each 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. That will no doubt be a basis for
attacking the constitutionality of this law.
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, 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 and I quote:

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.

Based on this letter, 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. In short, the obscenity approach is the most narrowly
tailored to prevent child pornography. New section 2252B adopts this
obscenity approach, but because that is not the approach that other
parts of the PROTECT Act uses, I recognize that it 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 and one on this Congress to which I objected that
are included in the bill as we consider it today. I felt and still feel
that these alterations from the original way that Senator Hatch and I
introduced the bill needlessly risk a serious constitutional challenge
to a bill that provided prosecutors the tools they needed to do their
jobs, and that the bill would be even stronger than it is now were they
changed. Let me discuss my opposition to these changes adopted by the
Judiciary Committee in this Congress and the last.
Although I worked with Senator Hatch to write the new pandering
provision in the PROTECT Act, I did not support two of Senator Hatch's
amendments extending the provision to cover (1) ``purported'' material,
and (2) material not linked to obscenity.
First, in the last Congress during our markup I objected to an
amendment from Senator Hatch to include in the pandering provision
``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 as introduced last
Congress 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 provision.
I was heartened that Professor Schauer of Harvard, a noted First
Amendment expert, testified at our hearing last year 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 placed his letter
in the record upon introduction of the bill in this Congress on January
13, 2003.
The second amendment to the pandering provision to which I objected
expanded it to cover cases not linked in any way to obscenity. It would
allow prosecution of anyone who ``presented'' a movie that was intended
to cause another person to believe that it included a minor engaging in
sexually explicit conduct, whether or not it was obscene and whether or
not any real child was involved. Any person or movie theater that
presented films like Traffic, Romeo and Juliet, and American Beauty
would be guilty of a felony. The very point of these dramatic works is
to cause a person to believe that something is true when in fact it is
not. These were precisely the overbreadth concerns that led 7 justices
of the Supreme Court to strike down parts of the 1996 Act. We do not
want to put child porn convictions on hold while we wait another 6
years to see if the law will survive constitutional scrutiny.
Because these two changes endanger the entire pandering provision,
because they are unwise, and because that section is already strong
enough to prosecute those who peddle child pornography, I oppose those
expansions of the provision and still hope that we can reconsider them.
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.'' Unfortunately, this provision remains
problematic and susceptible to constitutional challenge.

As the bill developed, a change to the definition of ``identifiable
minor'' expanded it to cover ``virtual'' child pornography--that is,
100% computer generated pictures not involving any real children. For
that reason, it presented additional constitutional problems similar to
the Administration supported House bill. 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.
The ``identifiable minor'' provision in the PROTECT Act may be used
without any link to obscenity doctrine. Therefore, what potentially
saved the original version we 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.
The change adopted in the Judiciary Committee last year and supported
by the Administration, 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 not the original goal of this provision, and that was the
reason it was constitutional. There are other provisions in this bill
that deal with obscene virtual child pornography that I support, such
as those in new section 2252B, which are linked to obscenity doctrine.
This provision, however, was intended to ease the prosecutor's burden
in cases where images of real children were cleverly altered to avoid
prosecution. By changing the identifiable minor provision into a
virtual porn provision, the Administration has needlessly endangered
its constitutionality.
For these reasons, I was glad to work alongside Senator Hatch to
narrow this provision before the Judiciary Committee. Unfortunately,
despite our best efforts, I fear we did not do everything possible to
strengthen it against constitutional attack. Let me explain.
Although the Hatch-Leahy amendment adopted in Committee included a

[[Page S2581]]

slightly narrower definition of sexually explicit conduct and excluded
cartoons, sculptures, paintings, anatomical models and the like, the
virtual porn provision still sweeps quite broadly and is potentially
vague. New section 2252A(2)(B)(i) lumps in such truly ``hard core''
sexual activities such as intercourse, bestiality, and s&m in with
simple lascivious exhibition of the genitals and simulated intercourse
where any part of a breast is shown. Equating such disparate types of
conduct, however, does not mesh with community standards and is
precisely the type of ``one size fits all'' approach that the Supreme
Court rejected in the area of virtual pornography in the Free Speech
case. The contrast between this broad definition and the tighter
definition in new Section 2252B(b)(2), crafted by Senator Hatch and
myself, is striking. In fact, I suggested that we include the same
definition of ``graphic'' conduct found in new section 2252B in the new
Section 2252A virtual child porn provision to better focus it on hard
core conduct. Unfortunately, the Administration rejected that proposal
and the provision may be open to overbreadth attacks.
I also believe that there is a vagueness concern in the new statute
2252A because, while it is clearly aimed at ``virtual'' child
pornography (where no real children are involved), it still requires
``actual'' conduct. In the realm of computer generated images, however,
the distinction between actual and simulated conduct makes no sense. It
is so vague and confusing that I fear that clever defendants might seek
to argue that this new provision still requires proof ``actual'' sexual
acts involving real children. I hope that this language is further
clarified in order to address these concerns.
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.
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. The amended
identifiable minor provision, which would include most ``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.
Another new provision in the bill includes a mandatory directive to
the United States Sentencing Commission to establish penalties for
these new crimes at certain levels. In my experience, however, the non-
partisan Sentencing Commission operates best when it is allowed to
study an issue carefully and come up with a particular sentencing
guideline based upon its expertise in these matters. In fact, in child
pornography cases the Sentencing Commission has established
appropriately high penalties in the past, and there is no reason to
believe that it would not do so again with respect to these new laws.
While most all of the provisions of the Hatch-Leahy PROTECT Act are
designed to withstand constitutional scrutiny, unfortunately legal
experts could not 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.
I supported passage of the PROTECT Act as Senator Hatch and I
introduced it and as it passed the Senate unanimously in the last
Senate. Even so, I was willing to work with him to further amend the
bill in the Judiciary Committee. Some amendments that we considered in
committee I supported because they improved the bill. Others went too
far.
These provisions raise legitimate concerns, but in the interest of
making progress I support consideration and passage of the measure in
its current form. I hope that we can work to further improve this bill
so that it has the best possible 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. The floor statements, including my statement today and the
statement and material I placed in the Congressional Record on
introduction of this bill on January 13, 2003, will be important to the
legislative history of this matter, and so I seek consent to place
letters from experts in the record commenting upon aspects of the bill.
Creating a comprehensive record is especially important for statutes
that face constitutional challenges, as this law nearly certainly will.
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 and seek
further changes that could bog the bill down. I urge swift
consideration and passage of this important bill as it is currently
written. It is aimed at protecting our Nation's children.
Just to further explain my support for this measure and to reiterate,
let me continue. As I said when we introduced the Hatch-Leahy PROTECT
Act, again, as the Judiciary Committee considered this measure,
although the bill is not perfect, and on this subject it is difficult
to get a perfect bill, it is a good-faith effort to provide powerful
tools for prosecutors to deal with the problem of child pornography
within constitutional limits. We failed to do that in 1996 with the
Child Pornography Prevention Act, much of which the Supreme Court
struck down last year.
I hope we would not make the same mistake again. The last thing we
want to do is to create years of legal limbo for our Nation's children,
after which the courts strike down yet another law as unconstitutional.
I also said at our Judiciary Committee meeting that I hoped we could
pass the bill in the same form as unanimously passed in the last
Congress. That is still my position. I believe it would have been wiser
to have proceeded in that manner. Since my colleagues on the other side
of the aisle, at the request of the administration, have decided not to
follow this route, I have nevertheless continued to work with Senator
Hatch to craft the strongest bill possible to produce convictions that
will stick under the Constitution.
In my years as a prosecutor, I learned that it was important to make
sure that any cases we brought were based on legislation that was
constitutional in the first place so the prosecution would stick.
I urge the Senate to pass the Hatch-Leahy bill, and I urge the
Republican leadership in the House of Representatives to take the
second opportunity to pass this important legislation. As I said
earlier, the Senate did pass it last year. The other body did not take
up our bill.
I also urge the administration to support this bipartisan measure. It
is not a partisan issue to be against child pornographers. We are all
against child pornographers, Republican or Democrats. Those who are
parents or grandparents feel very strongly the desire to pass this
legislation. If we act in a bipartisan manner we can have a bill to the
President that begins working to

[[Page S2582]]

protect America's children, and we can do it in very short order.
Our children deserve more than a press conference on this issue. It
is easy enough for people to stand up and say they are against child
pornographers, as though anyone here would be for them. But it is one
thing to have a press conference and another thing to give to
prosecutors tools they can use. Our children deserve a law that will
last rather than one that is passed to make political points but will
be struck down as unconstitutional.

Let me describe a few of the provisions in the Hatch-Leahy bill.
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. The bill creates a new crime that I
propose to take direct aim at one of the chief evils of child
pornography; namely, its use by sexual predators to entice minors to
either engage in sexual activity or other crimes. This 15-year felony
will provide prosecutors a potent new tool to put away those who
actually prey upon children in using such pornography.
Next, this bill revamps existing affirmative defense of child
pornography cases, both in response to criticisms of the Supreme Court.
As a former prosecutor, I made sure that the provision is drafted to
protect prosecutors from unfair surprise in the use of affirmative
defense by requiring a defendant give advance notice of his intent to
assert.
Frankly, what I did was put myself in the position of what
prosecutors would have to do to get convictions. I tried to make sure
by the provisions I put into this bill, that prosecutors would have the
tools to give them the best chance to get such convictions.
Next, the Hatch-Leahy bill contains several provisions altering the
definition of child pornography in response to the free speech case in
allowing prosecution of virtual or computer-created child porn. Some
such provisions take the traditional obscenity approach, like the new
section 2252(b) which I crafted with Senator Hatch. Other provisions,
however, take a broader approach as advocated by the administration
last year. I predict this provision will be the center of much
constitutional debate. I am afraid that some in the administration were
more eager to have a debating point than they were to have something on
which prosecutors could rely.

The bill also contains a variety of other measures designed to
increase jail sentences in cases where victims are actually sexually
victimized by sexual predators. The bill requires the U.S. Sentencing
Commission to address what I believe is a disturbing disparity in the
current sentencing guidelines.
What is disturbing to me is that the current sentences for a person
who actually travels across State lines to have sex with a child are
not as high as they are for child pornography. The Commission needs to
correct this oversight immediately so prosecutors can take such
dangerous sexual predators off the streets.
The Hatch-Leahy PROTECT Act also has several provisions designed to
protect the children who are victims in these horrible cases. Privacy
of the children must be paramount. Unfortunately, sometimes, if you
drag the name of a child who has been the victim of a sexual predator
out into the public, then they are victimized yet again, even as you go
after the predator. The bill provides for the first time ever an
explicit shield law that prohibits a name or other nonphysical
identifying information of the child victim from being admitted at
child pornography trials.
Finally, the bill provides a new private right of action for the
victims of child pornography. This is something we have not done before
in this arena. This provision has real teeth. It includes injunctive
relief and punitive damages to help put those who produce child
pornography out of business for good. I commend Senator Hatch for his
recognition that punitive damage provisions are an important means for
deterring misconduct.
Some of these people think if they just move from place to place and
nothing happens to them, they are free. If they know that whatever
profits they make are gone and they are going to have punitive damages
assessed and still may face, on top of that, criminal action, then they
will think twice. These are important, practical tools not only to put
child pornographers out of business but to put them in jail.
The law is not perfect. As I said, I wish we had adopted the version
that had unanimously passed the Senate last Congress, that all
Republicans and Democrats supported. That was the decision made by the
majority not to do that.
As a general matter, it is worth repeating that we could be avoiding
all problems if we were to take the simple approach of outlawing
obscene child pornography of all types. The reason I say that is
because of the experts in this area, and it is a very difficult area,
agree. This approach is supported by the National Center for Missing
and Exploited Children. I think we all respect them as true experts on
protecting the children. I wish we had followed their approach.
Following, again, is an excerpt from the answer to the Senator's
written questions submitted after a hearing and I quote:

Our view is that the vast majority (99-100 percent) 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. . . .
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 least likely to raise constitutional questions--
using established obscenity law--is also an effective one.
Because certain provisions do not follow this approach, I recognize
that some may have legitimate constitutional questions about provisions
in this act. These provisions raise legitimate concerns, but in the
interests of making progress, I support consideration and passage of
the measure in its current form, and I hope we can work to improve the
bill so it has the best possible chance of withstanding a
constitutional challenge.
The bill is not perfect but I am glad to stand with Senator Hatch to
secure its approval by the Senate, as I did in the last Congress.
I know I speak for the Senator from Utah that the thing both of us
want is that we have a bill that can be used by those attacking
pornographers, prosecutors attacking pornographers, that will stand up
in court. It is not a case of there are people for or against child
pornographers. We are all against them. But we want to make sure for
the prosecutor, if you sue them, if you seek injunctive relief if you
prosecute, that you win.
I believe 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 it contains. I hope the administration, and
the other body, do not decide to play politics with this issue and seek
further changes that could bog down the bill. Had they allowed the bill
to go forward last year, the one Senator Hatch and I brought to the
floor of the Senate and passed unanimously, we would have a bill in
law--a law on the books today. But I urge swift consideration and
passage of this important bill as it is currently written. It is aimed
at protecting our Nation's children.
It is important 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 bite, not one with false teeth.
I ask unanimous consent to have expert views on this legislation
printed in the Record, in addition to the supporting letters and
materials to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Center for Missing

and Exploited Children,

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.

[[Page S2583]]

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 valuable
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 re-
victimization 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 in 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, thee 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.
____

May 13, 2002.
Chairman Patrick J. Leahy,
U.S. Senate Judiciary Committee, Dirksen Senate Office
Building, 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 and Block, LLC,
Washington, DC.
Erwin Chemerinsky, Sydney M. Irmas Professor of Public
Interest Law, Legal Ethics and Political Science, University
of Southern California Law School, Los Angeles, CA.
Paul Hoffman, Partner, Schonbrun, DeSimone, Seplow, Harris
and 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 and Block, LLC,
Washington, DC.
____

Harvard University,

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 or 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 constitutionally of
this provision are already difficult ones after Free Speech
Coalition, anything that makes this provision less like a
straight offer to engage in 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 the constitutional defense I outlined in my
written statement and oral testimony.
I hope that this is helpful.
Yours sincerely,

Frederick Schauer,

Frank Stranton Professor
of the First Amendment.

Mr. LEAHY. Mr. President, I see the distinguished senior Senator from
Utah, the chairman of our committee, in the Chamber. As I said earlier,
I would certainly yield once he arrived. I commend him for his
cosponsorship of this bill. I yield the floor, reserving the remainder
of my time.
Mr. HATCH. I thank my colleague.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I ask unanimous consent that the committee
amendments be adopted en bloc and that the motion to reconsider be laid
on the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee amendments were agreed to.
Mr. HATCH. Mr. President, I am delighted that we are considering S.
151, the PROTECT Act of 2003. Senator Leahy and I introduced this bill
last May following the Supreme Court's decision in Ashcroft v. Free
Speech Coalition, a ruling that made child pornography prosecutions
immeasurably

[[Page S2584]]

more difficult. This problem is intolerable and demands our immediate
attention. Because we could not get this bill to the President's desk
last year, it has been my top priority this year.
I want to begin by thanking Senator Leahy and his staff for working
so diligently with me in writing the PROTECT Act during the past ten
months. While we have not seen eye to eye on every provision, we have
agreed about most of them. We still have some honestly held
disagreements, but that is hardly unusual when people talk about the
First Amendment. Senator Leahy's valuable input and insights helped to
make this a better bill. I very much hope that he is as proud of the
final result as I am.
Mr. President, Congress has long recognized that child pornography
produces three distinct and lasting harms to our children. First, child
pornography whets the appetites of pedophiles and prompts them to act
out their perverse sexual fantasies on real children. Second, child
pornography is a tool used by pedophiles to break down the inhibitions
of children. Third, child pornography creates an immeasurable and
indelible harm on the children who are abused to manufacture it.
It goes without saying that we have a compelling interest in
protecting our children from harm. The PROTECT Act strikes a necessary
balance between this goal and the First Amendment.
First--and most significantly--the bill plugs a gaping loophole that
exists in current law. Following the Supreme Court's decision last
April, child pornographers can evade even legitimate prosecutions by
falsely claiming that their sexually explicit materials did not depict
real children. This frivolous argument is made possible by the growth
of technology. Computer imaging technology has become so sophisticated
that even experts often cannot say with absolute certainty that an
image is real or a ``virtual'' computer creation. The PROTECT Act
therefore permits a prosecution to proceed when the child pornography
involves life-like computer images of real kids. The bill balances this
provision by creating a new and powerful affirmative defense. In
virtually every prosecution for child pornography, the PROTECT Act
affords the accused a complete defense to liability upon a showing that
the child pornography did not involve an actual minor. In creating this
new balance, the bill responds directly to the concerns expressed by
the Supreme Court in the Free Speech Coalition decision.
Second, the PROTECT Act creates three brand new offenses that are
designed to target some particular problems that stem from child
pornography. One provision prohibits the use of child pornography to
entice a minor to participate in sexual activity or some other crime.
Another prohibits offers to buy, sell or trade either obscene or actual
child pornography. The third creates a new offense for obscene child
pornography that will be punished more severely than ordinary
obscenity.
Third, the PROTECT Act expands the record keeping requirements in
existing law that apply to those who decide to produce sexually
explicit materials. Section 7 of the bill expands the scope of
materials covered to reflect the computerized manner in which they are
increasingly being distributed and sold. Producers of such sexually
explicit materials must make and maintain 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,
maintaining these records is vital to ensuring that only adults appear
in such productions.
Fourth, in recognition of the enormous breadth and scope of the
problem, the PROTECT Act broadens enforcement efforts in order to
create a more level playing field. Section 9 of the bill provides
extra-territorial jurisdiction over those foreign producers of child
pornography who transport, or intend to transport, such materials to
the United States. Because this is one area of the law where we can
truly benefit from more vigorous enforcement, section 14 of the bill
directs the Department of Justice to appoint 25 additional attorneys
dedicated to enforcing child pornography laws, and section 11 creates a
new civil action for those aggrieved by such violations. The PROTECT
Act also toughens existing penalties for offenders. Not only does it
broaden the category of repeat offenders subject to more stringent
criminal sentences, but it also calls on the U.S. Sentencing Commission
to review the appalling low sentences that currently apply to offenders
who travel across state lines in order to have sex with children.
Finally, the PROTECT Act contains new provisions to refine and
enhance the government's existing authority to tackle child sex crimes.
Section 15 adds a number of child crimes into the section of Title 18
that authorizes the government to apply for wiretaps. Without this new
provision, the government could not seek a wiretap to investigate cases
where, for example, children are being forced to engaging in sex for
money. Section 16 updates the type of information the government can
obtain from telephone companies with an administrative subpoena in,
among other things, an investigation involving the sexual exploitation
of children. Other sections of the bill, moreover, enhance the ability
of internet service providers to report instances when they spot child
pornography, and authorize the release of that information to state and
local officials for prosecution.
The PROTECT Act has been carefully drafted to avoid constitutional
concern. I wish it could be stronger. But because of the Supreme Court
decisions, we have had to draft it the way we have. From the beginning,
I have worked very hard to digest the relevant legal issues and to make
the PROTECT Act square with the law as articulated by the Supreme
Court. This bill has gone through more than a dozen rounds of edits
since we began drafting it in April 2002. The issues are complex, and
we have meticulously gone over every word and phase numerous times in
order to write a carefully tailored law that will withstand judicial
review. I am confident that we have done just that. The end result of
all of our hard work is a bill that we can all be proud of: One that is
tough on pedophiles and child pornographers in a measured and
constitutional way.

Congress has consistently acted in a bipartisan manner to address the
harms of child pornography. I am pleased to report that we are doing so
again with the PROTECT Act. This has been a bipartisan effort from the
beginning, and it remains a bipartisan effort today.
I respect my colleagues on the other side for being willing to work
with us to fashion this bill in a constitutionally sound form. We
expect the overwhelming support of Members on both sides of the aisle,
and, quite frankly, our Nation's children deserve no less.
Mr. President, I ask unanimous consent that the Congressional Budget
Office cost estimate for the PROTECT Act, S. 151, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Congress,

Congressional Budget Office,

Washington, DC, February 19, 2003.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 151, the
Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas Holtz-Eakin.
Enclosure.
____

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE, FEBRUARY 19, 2003

S. 151: Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act of 2003

[As reported by the Senate Committee on the Judiciary on January 30,
2003]

summary

S. 151 would establish new federal crimes and expand
authorities under existing crimes against child pornography.
It also would give law enforcement agents additional powers
to investigate offenders. The bill would authorize the
appropriation of such sums as may be necessary for the
Attorney General to appoint 25 additional trial attorneys to
prosecute child pornographers.
Assuming appropriations of the necessary amounts, CBO
estimates that implementing S. 151 would cost about $55
million over the 2003-2008 period for new attorneys and for
anticipated costs to the federal court and prison system as a
result of those hires. About

[[Page S2585]]

$30 million of the total estimated would be to accommodate
more convicted offenders in federal prisons. This legislation
could affect direct spending and receipts, but we estimate
that any such effects would be less than $500,000 annually.
S. 151 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA). Any costs resulting
from the voluntary disclosure of stored communications by
public electronic communications providers would be
insignificant. The bill would impose a private-sector mandate
as defined in UMRA on producers involved in interstate and
foreign commerce of certain sexually explicit material. CBO
estimates that the cost of the mandate would not exceed the
annual threshold by UMRA ($117 million in 2003, adjusted
annually for inflation).

estimated cost to the federal government

The estimated budgetary impact of S. 151 is shown in the
following table. The costs of this legislation fall within
budget function 750 (administration of justice).

------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------
2003 2004 2005 2006 2007 2008
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorized Level.... 1 5 9 12 14 15
Estimated Outlays............. 1 5 9 12 14 15
------------------------------------------------------------------------

In addition to the costs shown above, enacting S. 151 could
affect direct spending and receipts. However, we estimate
that any such effects would be less than $500,000 in any
year.

basis of estimate

CBO estimates that implementing S. 151 would cost about $55
million over the 2003-2008 period, mostly to hire attorneys
and to accommodate more prisoners in the federal prison
system. For this estimate, CBO assumes that the bill will be
enacted during 2003 and that the necessary amounts will be
appropriated for each fiscal year. In addition, we estimate
that the bill would increase revenues and direct spending by
less than $500,000 each year.
Spending subject to appropriation
Based on information from the Department of Justice, CBO
estimates that the costs of hiring 25 additional attorneys
and necessary support staff would reach $3 million in fiscal
year 2004 and would total $18 million over the 2003-2008
period, subject to the appropriation of the necessary
amounts.
Because the bill would establish new federal crimes and
would provide funding for more attorneys to prosecute
offenders, the government would be able to pursue more cases
than it could under current law. Based on information from
the Administrative Office of the United States Courts, CBO
expects the 25 new attorneys to generate roughly 600 new
cases each year against child sex offenders, which would
increase court costs by about $9 million over the 2003-2008
period. Those costs would be subject to the availability of
appropriated funds.
In addition, implementing S. 151 would increase costs to
the federal prison system to accommodate more convicted
offenders. The effects of this legislation on the prison
system cannot be predicted with certainty, but based on
incarceration rates and prison sentences for current sex
offenders, CBO expects that the additional cases generated
by S. 151 would increase the prison population by roughly
1,000 prisoners per year by 2008. At an annual cost per
prisoner of about $7,000 (at 2003 prices), CBO estimates
that the cost to support those additional prisoners would
be a little less than $30 million over the 2003-2008
period.
Direct spending and receipts
Because those prosecuted and convicted under S. 151 could
be subject to criminal fines, the federal government might
collect additional fines if the legislation is enacted.
Collections of such fines are recorded in the budget as
revenues (i.e., governmental receipts), which are deposited
in the Crime Victims Fund and later spent. CBO expects that
any additional revenues and direct spending would be less
than $500,000 annually.

ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

S. 151 contains no intergovernmental mandates as defined in
UMRA. Any costs resulting from the voluntary disclosure of
stored communications by public electronic communications
providers would be insignificant.

ESTIMATED IMPACT ON THE PRIVATE SECTOR

S. 151 would impose a private-sector mandate as defined by
UMRA on producers involved in interstate and foreign commerce
of certain sexually explicit material. Under current law,
those producers are required to create and maintain records
of all performers portrayed in certain sexually explicit
conduct displayed in any book, magazine, periodical, film, or
video tape. This bill would expand the recordkeeping
requirement to include performers portrayed in a computer-
generated image, digital image, or picture. CBO estimates
that the cost for additional recordkeeping would be small and
would not exceed the annual threshold established by UMRA
($117 million in 2003, adjusted annually for inflation).
Estimate Prepared By: Federal Costs: Mark Grabowicz (226-
2860); Impact on State, Local, and Tribal Governments: Greg
Waring (225-3220); and Impact on the Private Sector: Jean
Talarico (226-2949)
Estimate Approved By: Peter H. Fontaine; Deputy Assistant
Director for Budget Analysis.
Mr. HATCH. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Fitzgerald). Without objection, it is so
ordered.
Mr. LEAHY. Mr. President, how much time remains for the Senator from
Vermont or his designees?
The PRESIDING OFFICER. Thirty-nine minutes and 13 seconds.
Mr. LEAHY. Mr. President, I ask how much time is remaining to the
Senator from Vermont and how much time to the Senator from Utah.
The PRESIDING OFFICER. The Senator has 33 minutes; the Senator from
Utah has no time remaining.
Mr. HATCH. Mr. President, would I be correct, if I yielded back my
time, then all time would be yielded back? Is that correct?
The PRESIDING OFFICER. That is correct.
Mr. LEAHY. While sorely tempted only as a chance to demonstrate an
earlier point, I will refrain from that and suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I rise today in support of the PROTECT
Act, which I am proud to be co-sponsoring with Senators Hatch, Leahy
and others. I have been greatly concerned with the increase in reports
of child abductions and murders, so I am glad to be a part of this
effort to address this growing problem. In my tenure on the Judiciary
Committee, I have long fought for our Nation's children, and have
ardently supported laws that bring them and their families greater
protection.
This legislation comes at a critical time because we are hearing more
and more about children being taken from their homes or schools and
abused, or worse, murdered. Our children are a gift to us, are our
national treasure, and are our future. We must do all that we can to
protect these innocents and give law enforcement every tool possible to
ferret out the criminals who would do our children harm. With this
legislation, we will be ensuring a greater measure of protection for
our children.
This bill helps the public know about sexual predators in their
communities, improves the Nation's ability to respond to child
abduction reports, and aids criminal investigators and prosecutors in
their efforts to protect the public by identifying and locking-up child
predators.
I urge my fellow Senators to vote for this important bill.
Mr. SCHUMER. Mr. President, I rise today in support of S. 151, the
Prosecutorial Remedies and Tools Against the Exploitation of Children
Today Act, or the PROTECT Act, a critical piece of legislation which is
desperately needed to fight the war on child pornography.
And make no mistake, the fight against child pornography is indeed a
war. It's a worldwide war being fought out largely on the worldwide
web. Child pornographers are organized and spread across the globe, but
the globe is a lot smaller now that the Internet reaches from Antwerp,
Belgium, to Antwerp, New York, and everywhere in between.
As I speak, prosecutors across our country are fighting an
exponential growth in child pornography, from here and abroad, and they
are struggling to keep up with the wily tactics of the child
pornographers.
To fight this critical fight, our prosecutors need new, more, and
better weapons. Just as our local police in so many communities are
taking to the streets outgunned by drug dealers, our cybercops are
working at a technological disadvantage as they go after cybersmut
purveyors.
The enemy does not sit still and neither should we. The PROTECT Act
gives prosecutors more of the weapons they need.

[[Page S2586]]

We cannot and we will not permit child pornographers to hide behind
the courts or modern technology. We cannot and we will not permit them
to continue to abuse children, real, live children, children from all
races, backgrounds and creeds.
We must send child pornographers the message that Congress will not
tolerate child abuse or child pornography, today, tomorrow, or ever, no
matter what the state of technology is. Technology is intended to help
children, not hurt them. This bill helps us take a big step in that
direction.
The PROTECT Act goes a long way toward strengthening federal law
against child pornography.
For starters, it creates two new crimes which target distributors of
child pornography and people who entice new children to engage in it.
The bill provides tough punishment with both of these crimes carrying
a maximum penalty of 15 years in prison for a first offense and double
that for repeat offenders. Only through serious measures like these can
we show that we are serious about fighting this war on child
pornography.
Like our anti-terrorism laws which deal with the threat from
overseas, the PROTECT Act deals with the threat to our children from
those who make child pornography overseas then bring it into the United
States. This new law will say that if you force a child to participate
in pornography and intend to send that pornography to the United
States, you are committing a crime and answerable to our system of
justice. In short, you are going to jail, and you're not looking at a
short stint in any country club prison. You are doing serious time.

The PROTECT Act specifically increases penalties for people who
commit repeat acts of sex offenses by expanding the types of crimes
which can trigger mandatory minimum sentences. In this bill, we back up
our tough talk on penalties by requiring the U.S. Sentencing Commission
to fix a disparity in the current sentencing scheme.
Believe it or not, under current law, under some circumstances you
can get less jail time for having sex with a child than you'd get for
possessing child pornography. The PROTECT Act fixes this absurd
disparity.
The PROTECT Act also provides protection for the true victims of
child pornography, the children who are used and abused to make it.
A recent New York Times article highlighted the horrific truth about
who these children are. In the article, in the Sunday New York Times
from February 9, 2003, the author wrote that ``most children depicted
in child pornography are prepubescent, with most of them appearing to
be from 6 to 11 years old'' and ``many of the victims appear to be
toddlers or infants.'' These are real children, our children, children
who need to be protected from this despicable evil.
And as its name implies, the PROTECT Act protects these children.
This legislation provides, for the first time, a ``child victim shield
provision'' to protect the names of victims. Under this provision, the
Government can file a motion in a child pornography case to keep the
name, address, social security number and other nonphysical identifying
information of the real child victim from being revealed.
This is critical to successful child pornography prosecutions. To get
child victims to cooperate, we must protect their identities. To reveal
the name of a child pornography victim without good cause and through a
judge, would be to victimize that child twice. We cannot permit that to
happen.
This bill also protects victims by creating, again for the first
time, a new private right of action for victims of child pornography
against those who produce it. We are hearing a lot about tort reform
here these days, but I hope my colleagues will agree that victims of
child pornography should have the right to collect punitive damages
from their abusers. If anyone deserves punitive damages, they do.
But the bill does not stop there. It also addresses a subject that
has been of some controversy in light of the Supreme Court decision
last year, but which we need to address. That subject is the use of
modern technology by child pornographers to attempt to hide the fact
that their images are made using real children.
In the old days, child pornographers would ply their filthy craft by
taking photographs and distributing them. With the advent of
television, child pornographers began to take video images, images
which displayed real, live children engaged in sick, perverted sexual
or obscene acts.

With the development of the video recorder, child pornographers were
able to store these images and distribute them more widely. With the
development of the CD and DVD, the images could be stored on a disk
which could literally fit in the palm of your hand.
The greatest growth in the creation and distribution of child
pornography, however, has come in recent years with the development of
the Internet and the digital image. These developments have permitted
child pornographers to disseminate their product exponentially, not
only across America, but around the world, with a few simple strokes of
a keyboard.
As the New York Times observed, ``the combination of digital
photograph and high-speed home Internet across has set off what
authorities say is an explosion of homemade child pornography in recent
years, with growing numbers of victims.'' We need to stop the number of
victims by shrinking the number of child pornographers.
In fact, today, it has become apparent through evidence submitted to
Congress by the National Center for Missing and Exploited Children and
other groups that child pornographers use technology to disguise
depictions of real children to make them unidentifiable and appear to
be computer generated.
Some efforts are being undertaken to deal with so-called ``virtual
porn'' which distorts the images of real children, but those efforts
don't go far enough.
We need to do more to bring the law up to speed with the technology
of child pornography. The PROTECT Act attempts to do so.
One of our Nation's biggest law enforcement problems is the failure
of Federal authorities to work closely with their state counterparts.
This is especially true when it comes to child pornography. There are
countless cases where Federal officials have stepped on state officers'
toes while conducting parallel investigations and never talking with
each other. This bill requires a greater degree of Federal local
coordination than has ever happened before in these kinds of cases.
In sum, the time has come to send a message to child pornographers.
We are telling them that no matter how advanced their computers and
cameras are, child porn makers and puveryors cannot run and hide from
American law enforcement.
This is a 21st century problem in need of a 21st century solution.
The PROTECT Act does not solve all of our problems in this area, but
it's a step in the right direction.
Mr. LEAHY. Mr. President, we are near 5:30. Even though I have more
time remaining, in a couple of minutes I am going to yield back that
time. I understand from both the Republican side and the Democratic
side that Members prefer to vote at 5:30.
Let me first ask for the yeas and nays on the pending legislation.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. LEAHY. I thank the Chair.
Mr. President, as I said earlier in my speech, I would much prefer
that we pass exactly the bill Senator Hatch and I wrote last year and
which passed the Senate unanimously. It was then for some reason that
leadership in the other body decided not to bring it up. Now we have
written one that is very much like the original Hatch-Leahy bill with
some modification. I am worried about some of the modifications because
of the constitutional problem that may arise, but I am willing to
support this bill and will vote for this bill.

I would hope the other body would take this bill as it is and not add
further to it. I think what happened last year was the case where we
passed a good piece of legislation. Republicans and Democrats came
together across the political spectrum and passed a good bill on child
pornography. And some, I guess, were more concerned about making
speeches and all than to actually pass a piece of legislation that
would protect children.

[[Page S2587]]

I have looked at this with the eyes of a former prosecutor. I want to
be able to go after child pornographers. There is nobody in this body--
Republican or Democrat--who is on the side of child pornographers. This
is not a free speech question; this a child abuse question. Nobody
supports those who abuse children for this purpose.
So let us understand that and know we can pass this piece of
legislation. Let's hope nobody tries to change it to make a political
football of it. Let it go forward.
Mr. President, I ask unanimous consent that Senator Blanche Lincoln
of Arkansas be added as a cosponsor of the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. With that, Mr. President, I yield the floor and yield back
the remainder of my time.
The PRESIDING OFFICER. The clerk will read the bill for the third
time.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill, as amended, pass? The yeas and nays have
been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Kansas (Mr.
Brownback), the Senator from Rhode Island (Mr. Chafee), the Senator
from Alaska (Ms. Murkowski), and the Senator from Alaska (Mr. Stevens)
are necessarily absent.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from West Virginia (Mr. Byrd), the Senator from South Dakota
(Mr. Daschle), the Senator from Florida (Mr. Graham), the Senator from
Vermont (Mr. Jeffords), the Senator from Massachusetts (Mr. Kerry), the
Senator from Connecticut (Mr. Lieberman), the Senator from Arkansas
(Mrs. Lincoln), the Senator from Florida (Mr. Nelson), the Senator from
Nebraska (Mr. Nelson), the Senator from Rhode Island (Mr. Reed), and
the Senator from Oregon (Mr. Wyden), are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Biden), the Senator from Massachusetts (Mr. Kerry), the
Senator from Arkansas (Mrs. Lincoln), the Senator from Rhode Island
(Mr. Reed), and the Senator from Oregon (Mr. Wyden) would each vote
``aye''.
The PRESIDING OFFICER (Mr. Alexander). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 84, nays 0, as follows:

[Rollcall Vote No. 35 Leg.]

YEAS--84

Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Bond
Boxer
Breaux
Bunning
Burns
Campbell
Cantwell
Carper
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchison
Inhofe
Inouye
Johnson
Kennedy
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murray
Nickles
Pryor
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Sununu
Talent
Thomas
Voinovich
Warner

NOT VOTING--16

Biden
Brownback
Byrd
Chafee
Daschle
Graham (FL)
Jeffords
Kerry
Lieberman
Lincoln
Murkowski
Nelson (FL)
Nelson (NE)
Reed
Stevens
Wyden
The bill (S. 151), as amended, was passed, 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) computer generate depictions
of children that are indistinguishable from depictions of
real children; (B) use parts of images of real children to
create a composite image that is unidentifiable as a
particular child and in a way that prevents even an expert
from concluding that parts of images of real children were
used; 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 computer generate realistic images of children.
(6) The vast majority of child pornography prosecutions
today involve images contained on computer hard drives,
computer disks, 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 increased
significantly 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 assessment 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) Since the Supreme Court's decision in Free Speech
Coalition, defendants in child pornography cases have almost
universally raised the contention that the images in question
could be virtual, thereby requiring the government, in nearly
every child pornography prosecution, to find proof that the
child is real. Some of these defense efforts have already
been successful.
(11) 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. Moreover, imposing an additional
requirement that the Government prove beyond a reasonable
doubt that the defendant knew that the image was in fact a
real child--as some courts have done--threatens to result in
the de facto legalization of the possession, receipt, and
distribution of child pornography

[[Page S2588]]

for all except the original producers of the material.
(12) To avoid this grave threat to the Government's
unquestioned compelling interest in effective enforcement of
the child pornography laws that protect real children, a
statute must be adopted that prohibits a narrowly-defined
subcategory of images.
(13) The Supreme Court's 1982 Ferber decision holding that
child pornography was not protected drove child pornography
off the shelves of adult bookstores. Congressional action is
necessary now to ensure that open and notorious trafficking
in such materials does not reappear, and even increase, on
the Internet.

SEC. 3. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING
OR CONTAINING CHILD PORNOGRAPHY.

for purposes of inducing or persuading a minor to participate
in any activity that is illegal.'';
(2) in subsection (b)(1), by striking ``paragraphs (1),
(2), (3), or (4)'' and inserting ``paragraph (1), (2), (3),
(4), or (6)''; and
(3) by striking subsection (c) and inserting the following:
``(c) Affirmative Defense.--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 under subsection (c)(2) shall be
available in any prosecution that involves child pornography
as described in section 2256(8)(C). 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.

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 (2)--
(A) by striking ``means actual'' and inserting the
following: ``means--
``(A) actual'';
(B) in subparagraphs (A), (B), (C), (D), and (E), by
indenting the left margin 2 ems to the right and
redesignating subparagraphs (A), (B), (C), (D), and (E) as
clauses (i), (ii), (iii), (iv), and (v), respectively;
(C) in subparagraph (A)(v), as redesignated, by inserting
``or'' after the semicolon; and
(D) by adding at the end the following:
``(B)(i) actual sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex, or lascivious
simulated sexual intercourse where the genitals, breast, or
pubic area of any person is exhibited;
``(ii) actual or lascivious simulated--
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic abuse; or
``(iii) actual lascivious or simulated lascivious
exhibition of the genitals or pubic area of any person;'';
(3) in paragraph (8)--
(A) by striking subparagraph (B) and inserting the
following:
``(B) the production of such visual depiction involves the
use of an identifiable minor engaging in sexually explicit
conduct; or'';
(B) in subparagraph (C)--
(i) by inserting after ``is engaging in sexually explicit
conduct'' the following: ``, except that the term
`identifiable minor' as used in this subparagraph shall not
be construed to include the portion of the definition
contained in paragraph (9)(B)''; and
(ii) by striking ``or'' at the end; and
(C) by striking subparagraph (D); and
(4) 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 image, computer generated image, or
digital image--
``(i) that is of, or is virtually indistinguishable from
that of, an actual minor; and
``(ii) that depicts sexually explicit conduct as defined in
paragraph (2)(B); and
``(10) `virtually indistinguishable'--
``(A) means that the depiction is such that an ordinary
person viewing the depiction would conclude that the
depiction is of an actual minor; and
``(B) does not apply to depictions that are drawings,
cartoons, sculptures, diagrams, anatomical models, or
paintings depicting minors or adults or reproductions of such
depictions.''.

SEC. 6. OBSCENE VISUAL REPRESENTATIONS OF THE SEXUAL ABUSE OF
CHILDREN.

(a) In General.--Chapter 110 of title 18, United States
Code, is amended by inserting after section 2252A the
following:

``Sec. 2252B. Obscene visual representations of the sexual
abuse of children

or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(1), including the
penalties provided for cases involving a prior conviction.
``(b) Additional Offenses.--Any person who, in a
circumstance described in subsection (d), knowingly possesses
a visual depiction of any kind, including a drawing, cartoon,
sculpture, or painting, that--
``(1)(A) depicts a minor engaging in sexually explicit
conduct; and
``(B) is obscene; or
``(2)(A) depicts an image that is, or appears to be, of a
minor engaging in graphic 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
``(B) lacks serious literary, artistic, political, or
scientific value;
or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(2), including the
penalties provided for cases involving a prior conviction.
``(c) Nonrequired Element of Offense.--It is not a required
element of any offense

[[Page S2589]]

under this section that the minor depicted actually exist.
``(d) Circumstances.--The circumstance referred to in
subsections (a) and (b) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or
transportation of a visual depiction by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(e) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating subsection (b) that the
defendant--
``(1) possessed less than 3 such visual depictions; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any such visual depiction--
``(A) took reasonable steps to destroy each such visual
depiction; or
``(B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.
``(f) Definitions.--For purposes of this section--
``(1) the term `visual depiction' includes undeveloped film
and videotape, and data stored on a computer disk or by
electronic means which is capable of conversion into a visual
image, and also includes any photograph, film, video,
picture, digital image or picture, computer image or picture,
or computer generated image or picture, whether made or
produced by electronic, mechanical, or other means;
``(2) the term `sexually explicit conduct' has the meaning
given the term in section 2256(2); and
``(3) the term `graphic', when used with respect to a
depiction of sexually explicit conduct, means that a viewer
can observe any part of the genitals or pubic area of any
depicted person or animal during any part of the time that
the sexually explicit conduct is being depicted.''.
(b) Technical and Conforming Amendment.--The section
analysis for chapter 110 of title 18, United States Code, is
amended by inserting after the item relating to section 2252A
the following:

``2252B. Obscene visual representations of the sexual abuse of
children.''.

(c) Sentencing Guidelines.--
(1) Category.--Except as provided in paragraph (2), the
applicable category of offense to be used in determining the
sentencing range referred to in section 3553(a)(4) of title
18, United States Code, with respect to any person convicted
under section 2252B of such title, shall be the category of
offenses described in section 2G2.2 of the Sentencing
Guidelines.
(2) Ranges.--The Sentencing Commission may promulgate
guidelines specifically governing offenses under section
2252B of title 18, United States Code, if such guidelines do
not result in sentencing ranges that are lower than those
that would have applied under paragraph (1).

SEC. 7. RECORDKEEPING REQUIREMENTS.

SEC. 8. 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 (b)(1), by inserting ``or a violation of
section 2252B of that title'' after ``of that title)'';
(2) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
(3) by amending subsection (f)(1)(D) to read as follows:
``(D) where the report discloses a violation of State
criminal law, to an appropriate official of a State or
subdivision of a State for the purpose of enforcing such
State law.'';
(4) by redesignating paragraph (3) of subsection (b) as
paragraph (4); and
(5) by inserting after paragraph (2) of subsection (b) the
following new paragraph:
``(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National Center
for Missing and Exploited Children is authorized to forward
any such report to an appropriate official of a state or
subdivision of a state for the purpose of enforcing state
criminal law.''.

SEC. 9. 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. 10. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.

SEC. 11. CIVIL REMEDIES.

SEC. 12. 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. 13. SENTENCING ENHANCEMENTS FOR INTERSTATE TRAVEL TO
ENGAGE IN SEXUAL ACT WITH A JUVENILE.

SEC. 14. MISCELLANEOUS PROVISIONS.

[[Page S2590]]

(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. 15. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN
THE INVESTIGATION OF SEXUAL CRIMES AGAINST
CHILDREN.

SEC. 16. INVESTIGATIVE AUTHORITY RELATING TO CHILD
PORNOGRAPHY.

SEC. 17. 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. NELSON of Florida. Mr. President, I strongly support S.
151, the PROTECT Act. Unfortunately, I was detained in Florida earlier
today and was not able to cast my vote in favor of this important
legislation.
Current law not only provides a convenient defense for child
pornographers, but also allows a practice to continue which endangers
the Nation's kids regardless of whether actual children are used in the
production of the pornographic materials in question.
Because of the Supreme Court's decision in Free Speech Coalition,
defendants in child pornography cases are now arguing that the
pornographic images at issue are computer generated and are therefore
legal and harmless. This defense requires the government, in nearly
every child pornography prosecution, to prove that the child portrayed
in the image is in fact a minor. Unfortunately, those who would prey on
our children have already successfully used this defense.
Even when pornographic materials are not generated using actual
children, simply implying that the image is of child contributes to
behaviors, which endanger the Nation's kids by encouraging exploitive
practices.
The exploitation of children through child pornography is one of the
most despicable crimes in our society. The government clearly has a
compelling interest in curbing child pornography, whether virtual or
real, and I believe this legislation was drafted narrowly enough to
withstand constitutional scrutiny.
I hope the House will join the Senate in quickly passing this
legislation, so that it can be sent to the President as soon as
possible.
Mr. LOTT. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

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