[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.

       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

[[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.

       Section 2256 of title 18, United States Code, is amended--
       (1) in paragraph (1), by inserting before the semicolon the 
     following: ``and shall not be construed to require proof of 
     the actual identity of the person'';
       [(2) in paragraph (8)--
       (A) in subparagraph (B), by inserting ``is obscene and'' 
     before ``is'';
       (B) in subparagraph (C), by striking ``or'' at the end; and
       (C) by striking subparagraph (D) and inserting the 
     following:
       ``(D) such visual depiction--
       ``(i) is, or appears to be, of a minor actually engaging in 
     bestiality, sadistic or masochistic abuse, or sexual 
     intercourse, including genital-genital, oral-genital, anal-
     genital, or oral-anal, whether between persons of the same or 
     opposite sex; and
       ``(ii) lacks serious literary, artistic, political, or 
     scientific value; or
       ``(E) the production of such visual depiction involves the 
     use of an identifiable minor engaging in sexually explicit 
     conduct;''; and]

[[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.

       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 reflects the belief, or 
     that is intended to cause another to believe, that the 
     material or purported material is, or 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, 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 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.

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

     SEC. 5. DEFINITIONS.

       Section 2256 of title 18, United States Code, is amended--
       (1) in paragraph (1), by inserting before the semicolon the 
     following: ``and shall not be construed to require proof of 
     the actual identity of the person'';
       (2) in paragraph (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

       ``(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

[[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.

       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. 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.

       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. 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. 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.

       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. 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.

[[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.

       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. 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.

                          ____________________