[Congressional Record Volume 151, Number 162 (Friday, December 16, 2005)]
[Senate]
[Pages S13810-S13811]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      BY Mr. HATCH (for himself and Mr. Brownback):
  S. 2140. A bill to enhance protection of children from sexual 
exploitation by strengthening section 2257 of title 18, United States 
Code, requiring producers of sexually explicit material to keep and 
permit inspection of records regarding the age of performers, and for 
other purposes; to the Committee on the Judiciary.
  Mr. HATCH. Mr. President, joined by my friend from Kansas, Senator 
Brownback, I am today introducing the Protecting Children from Sexual 
Exploitation Act of 2005.
  This bill will strengthen an important tool for protecting children 
from the exploitation of child pornography.
  Pornography is devastating communities, families, and individual 
lives.
  On November 10, the Senator from Kansas chaired a hearing in the 
Judiciary Subcommittee on the Constitution titled ``Why the Government 
Should Care About Pornography.''
  Witnesses at that hearing included authors and researchers 
documenting the devastation wrought by pornography.
  Children are pornography's most vulnerable and most devastated 
victims.
  Abusing children through early exposure to pornography has lifelong 
effects.
  Even worse, however, is the actual use of children to make sexually 
explicit material.
  This is perhaps the worst form of sexual exploitation because the 
abuse only begins with its production.
  Children lack the maturity to choose participation in that activity 
and to accept its aftermath.
  Everyone who intentionally copies, distributes, advertises, 
purchases, or consumes sexually explicit material involving children 
should be held responsible as part of the ongoing chain of 
exploitation.
  For this compelling reason, Federal law prohibits using children to 
produce visual depictions of either actual or simulated sexually 
explicit conduct.
  As an additional deterrent to this abhorrent practice, Federal law 
also requires those who produce sexually explicit material to keep 
records regarding the age of performers and to make those records 
available for inspection.
  That recordkeeping statute is found in the United States Code in 
section 2257 of title 18.
  Section 2257 is inadequate for its crucial task and the bill I 
introduce today strengthens it in four ways.
  First, section 2257 defines actual sexually explicit conduct too 
narrowly, incorporating only four of the five. part definition found 
right next door in the definitional section 2256.
  Our bill makes these definitions consistent.
  Second, and more importantly, while Federal law prohibits using 
children to make depictions of either actual or simulated sexually 
explicit conduct, section 2257 applies only to those who produce 
depictions of actual conduct.
  Our bill applies the same recordkeeping requirements to those who 
produce depictions of simulated conduct.
  The purpose is obvious.
  If you produce sexually explicit material, you have to keep age-
related records.
  Period.
  Third, while section 2257 requires maintaining records and making 
them available for inspection, it only makes unlawful failure to 
maintain the records.
  This implies that while making these important records available for 
inspection is a duty, refusing to do so is not a crime.
  Our bill corrects that error by explicitly stating that refusal to 
permit inspection of these records is also a crime.
  Eliminating such ambiguity is very important.
  Maintaining records is necessary, but not sufficient, to ensure that 
children are not being exploited.
  Because inspection of those records makes the circle of protection 
complete, we must make crystal clear that refusal to permit inspections 
is a crime.
  Fourth, the definition in section 2257 of what it means to produce 
sexually explicit material is inadequate.
  That definition must be guided by the nature of the harm that flows 
from this kind of sexual exploitation.
  Filming or taking a picture of a child engaged in sexually explicit 
conduct is certainly sexual exploitation by itself.
  But the abuse does not end there.
  Those whose actions constitute links in the chain of exploitation 
must be covered by this recordkeeping statute if it is to be an 
effective tool to protect children.
  My friend from Kansas, Senator Brownback, graciously allowed me to 
participate in the latest hearing in his subcommittee on the effects of 
pornography.
  Witnesses highlighted how new technology can magnify those effects.
  While the Internet can be a powerful tool for good, it can also be an 
insidious tool for evil.
  It can compound the sexual exploitation of children by disseminating 
and commercializing child pornography.
  And while we all know how difficult it is for sound public policy to 
keep pace with developing and changing technology, failing to do so in 
this area leaves children even more exposed to ongoing victimization 
and exploitation.
  For that reason, our bill provides both a substantive definition of 
that important term, ``produces,'' and lists five targeted exceptions, 
five specific categories of those who are not included in this 
definition.
  The definition includes obvious activities such as filming or 
photographing someone but also activities such as duplicating or 
reissuing images for commercial distribution.
  It also includes managing the sexually explicit content of a computer 
site.
  At the same time, our bill does not include in the definition of the 
term ``produces'' activities that do not involve the hiring, managing, 
or arranging for the performers' participation.
  It exempts provision of Web-hosting services when the provider does 
not manage sexually explicit content.
  In strengthening section 2257, the bill we are introducing today 
meets three important objectives.
  First and foremost, this bill will make the recordkeeping statute a 
more effective tool for protecting children from sexual exploitation.
  Second, our bill strengthens the recordkeeping statute while 
minimizing unintended consequences.
  I mentioned the care with which our bill defines key terms such as 
``produces.''
  Our bill also places the extension of recordkeeping requirements 
regarding depictions of simulated material in a separate section 2257A.
  This step responded to a legitimate concern by the motion picture 
industry.
  Third, our bill strengthens the recordkeeping statute in ways that 
make it a more workable and practical tool for the prosecutors who have 
to use it.
  I believe that as the Congress deals with this difficult issue, we 
must keep all three of these objectives in mind.
  Some might want to create a draconian statute that sweeps too 
broadly.
  Others may want to water down the statute in ways that create 
obstacles for prosecutors and make the statute ineffective.
  My bill strengthens this important tool for protecting children 
without sweeping too broadly and without needlessly hobbling 
prosecutors.
  Finally, let me say just a few things about the process leading up to 
introduction of this bill today.
  Two versions of this bill have been introduced in the other body, 
most recently last week as title VI of H.R.4472, the Children's Safety 
and Violent Crime Reduction Act of 2005.
  Representatives of the motion picture industry and Internet companies 
have been working with us to refine this legislation.
  I also commend my colleagues in the House, Representative Mike Pence 
and Chairman Jim Sensenbrenner, for their leadership on this issue.
  In addition, the Department of Justice has provided valuable input in 
this

[[Page S13811]]

process. I applaud Attorney General Gonzales for making the prosecution 
of obscenity, child pornography, and other forms of child exploitation 
a real priority.
  I understand that the Attorney General today announced arrests in 
several States as part of its Innocence Lost initiative against child 
prostitution.
  I want to be very clear here.
  Those who produce either actual or simulated sexually explicit 
material are breaking the law if that material depicts children.
  The primary goal of protecting those children from such exploitation 
requires that all producers of sexually explicit material must keep 
age-related records, make those records available for inspection, and 
face criminal penalties if they refuse.
  We have taken several concrete steps to respond to legitimate 
concerns from the motion picture industry and Internet companies.
  We have already modified our bill several times and in several ways 
as a response to our meetings with the Department of Justice and 
affected parties.
  We remain open to making further refinements in this language if it 
will strengthen the bill.
  But that process of compromise must stop if it undermines the primary 
objective of protecting children from sexual exploitation or begins to 
make the statute unenforceable or feckless.
  I hope that those who are affected by this legislation and have 
participated in helping us craft this bill will demonstrate their 
concern for protecting children by supporting this straighforward and 
commonsense bill.
  Again, I want to thank my friend from Kansas for joining me in 
cosponsoring this bill and for his efforts in this area.
  I hope all my colleagues will join us in strengthening this tool for 
protecting children.
                                  ____

  Mr. BROWNBACK. Mr. President, I applaud my colleague from Utah for 
helping lead the fight against child pornography. This is an issue upon 
which all Senators can unite, and it is a battle we must not lose.
  Pornography is no longer isolated to a small segment of society. It 
has pervaded our culture. As we learned in a recent hearing I chaired 
in the Judiciary Subcommittee on the Constitution, Civil Rights and 
Property Rights, pornography has infiltrated homes and families and is 
having devastating effects. According to recent reports, 1 in 5 
children between the ages of 10 and 17 have received a sexual 
solicitation over the Internet, and 9 out of 10 children between the 
ages of 8 and 16 who have Internet access have viewed porn Web sites, 
usually in the course of looking up information for homework.
  Perhaps the ugliest aspect of the pornography epidemic is child 
pornography. Children as young as 5 years old are being used for profit 
in this fast-growing industry. We have a duty to protect the weakest 
members of our society from exploitation and abuse. I believe this bill 
is the first step in that fight.
  First, this bill will expand recordkeeping requirements to those who 
produce soft-core, or simulated, pornography. Current law only requires 
that records be kept by producers of hardcore, or actual, pornography. 
Under this language, producers will now be required to verify the ages 
of their actors and keep records of such information, regardless of 
whether the material they produce contains actual sexual activity or 
only a simulation of such activity. Further, this bill will require 
producers of such materials to disclose such records to the Attorney 
General for inspection. It will make refusal to permit inspection of 
such records a crime. This will be effective not only as a tool in 
prosecutions as a means of deterrence. Producers will be less likely to 
use child actors if they know they may be required to disclose the ages 
of their actors.
  Today, recordkeeping requirements apply only to ``actual'' sexual 
conduct, leaving a loophole for soft-core pornography. Such material is 
no less damaging to children than hardcore pornography and 
recordkeeping and disclosure requirements must apply to this material 
as well. This bill will close the current loophole.
  Again, I appreciate the leadership of Senator Hatch, and I hope my 
colleagues will join us passing this legislation to protect children 
from victimization and abuse.

                          ____________________