[Congressional Record Volume 153, Number 175 (Tuesday, November 13, 2007)]
[House]
[Pages H13591-H13593]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          EFFECTIVE CHILD PORNOGRAPHY PROSECUTION ACT OF 2007

  Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 4120) to amend title 18, United States Code, to provide for 
more effective prosecution of cases involving child pornography, and 
for other purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4120

       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 ``Effective Child Pornography 
     Prosecution Act of 2007''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Child pornography is estimated to be a multibillion 
     dollar industry of global proportions, facilitated by the 
     growth of the Internet.
       (2) Recent data has shown that 83 percent of child 
     pornography possessors had images of children younger than 12 
     years old, 39 percent had images of children younger than 6 
     years old, and 19 percent had images of children younger than 
     3 years old.
       (3) Child pornography is a permanent record of a child's 
     abuse and the distribution of child pornography images 
     revictimizes the child each time the image is viewed.
       (4) Child pornography is readily available through 
     virtually every Internet technology, including Web sites, 
     email, instant messaging, Internet Relay Chat, newsgroups, 
     bulletin boards, and peer-to-peer.
       (5) The technological ease, lack of expense, and anonymity 
     in obtaining and distributing child pornography over the 
     Internet has resulted in an explosion in the 
     multijurisdictional distribution of child pornography.
       (6) The Internet is well recognized as a method of 
     distributing goods and services across State lines.
       (7) The transmission of child pornography using the 
     Internet constitutes transportation in interstate commerce.

     SEC. 3. EFFECTIVE CHILD PORNOGRAPHY PROSECUTION.

       (a) Section 2252.--Section 2252 of title 18, United States 
     Code, is amended--
       (1) in subsection (a)(1), by inserting ``or affecting'' 
     after ``ships in'';
       (2) in subsection (a)(2), by striking ``knowingly'' and all 
     that follows through ``mails'' and inserting ``knowingly 
     receives, distributes, or reproduces for distribution, in or 
     affecting interstate or foreign commerce, any visual 
     depiction'';
       (3) in subsection (a)(3)(B), by inserting ``or affecting'' 
     before ``interstate''; and
       (4) in subsection (a)(4)(B)--
       (A) by inserting ``in or affecting interstate or foreign 
     commerce'' after ``possesses''; and
       (B) by striking ``that has been'' and all that follows 
     through ``by computer''.
       (b) Section 2252A.--Section 2252A of title 18, United 
     States Code, is amended--
       (1) in paragraphs (1) through (4) and (6) of subsection 
     (a), by inserting ``or affecting'' before ``interstate or 
     foreign commerce'' each place it appears; and
       (2) in subsection (a)(5)(b)--
       (A) by inserting ``in or affecting interstate or foreign 
     commerce'' after ``possesses''; and
       (B) by striking `that has been'' and all that follows 
     through ``by computer'' the second place it appears.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) and the gentleman from Virginia (Mr. Goodlatte) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Members of the committee, H.R. 4120, the Effective Child Pornography 
Prosecution Act, addresses a truly unfortunate and, in my view, wrongly 
decided decision by the 10th Circuit Court of Appeals in the case of 
United States v. Schaefer.
  Now, while the defendant was found to be in the possession of child 
pornography, the court nevertheless reversed his conviction because it 
concluded that the statute required, and the government had failed to 
prove, that the contraband had actually crossed State lines. This 
statute in question makes it illegal to possess child pornography ``in 
commerce.''

[[Page H13592]]

  The court held that this phrase, ``in commerce,'' meant that Congress 
intended that the contraband had to actually cross State lines. Had the 
statute instead used the phrase ``in or affecting interstate 
commerce,'' the court held, the conviction would have been upheld, as 
that phrase is well understood as reflecting Congress' intent to use 
the full reach of its constitutional commerce clause power.
  H.R. 4120 makes clear that the Congress intends that the prohibitions 
against child pornography reach the full extent of its constitutional 
authority. And as hearings in the Judiciary Committee hearing 
demonstrated, the child pornography business is no respecter of 
national or international borders. Even conduct that may appear to be 
wholly localized in its manifestation can nevertheless have an 
unmistakable effect in interstate commerce.
  So let there be no mistake that Congress intends to use its full 
commerce clause authority to reach activities concluded by this odious 
business. And we want to make it so clear that even the 10th Circuit 
Court of Appeals cannot be mistaken by that.
  And so I urge my colleagues to fully support this bill, as I expect 
that they will.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of H.R. 4120, the Effective Child 
Pornography Prosecution Act of 2007.
  This bill responds to a recent decision by the 10th Circuit United 
States Court of Appeals in United States v. Schaefer, in which the 
court ruled that the transmission of child pornography on the Internet 
did not satisfy the interstate requirement in child pornography laws.
  The proposed legislative fix will allow the government to satisfy the 
interstate requirement by proving beyond a reasonable doubt that the 
material moved in or affected interstate foreign commerce, which would 
expand the jurisdiction to prosecute these crimes when the Internet is 
used. This is the broadest assertion of interstate commerce power that 
the Congress can make consistent with the Constitution.
  Unfortunately, this bill, and the majority's package of bills, does 
not include a needed modification to existing law which would require a 
2-year mandatory minimum for possession of child pornography. At an 
October 17, 2007, full committee hearing on the subject, the Justice 
Department witness outlined why such a measure was needed. Deputy 
Assistant Attorney General Laurence Rothenberg explained that child 
pornography fueled the victimization of children and led to sexual 
assaults against children. He also noted that Federal judges were 
routinely giving out lenient sentences to child pornographers below 
levels established by the Federal sentencing guidelines.
  While the fix proposed today in H.R. 4120 is a good step forward, it 
is a limited step in comparison to other measures that are needed, 
including a mandatory minimum for child pornography crimes.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I want to again extend my compliments and 
express my gratefulness to the gentleman from Virginia for his support 
on this measure. And as usual, he points out perhaps small items that 
only a person with his experience would want to bring to the attention 
of the Members of the House.
  The author of this bill is Nancy Boyda of Kansas, our distinguished 
colleague, to whom I am proud to yield as much time as she may consume.
  Mrs. BOYDA of Kansas. Mr. Speaker, the Department of Justice 
estimates last year that one in five children between the ages of 10 
and 17 had received a sexual solicitation or approach while they were 
using the Internet. With so many threats out there, Congress must 
provide a unified message that we, as a society, together, will stand 
strong for Internet safety.
  What we will do today is good; it's very good. We will pass five 
pieces of legislation that will help keep our children safe. And I'm so 
proud that my legislation, H.R. 4120, the Effective Child Pornography 
Prosecution Act of 2007, is going to be part of that message.

                              {time}  1700

  In September of this year, a man that I am sorry to say was from 
Kansas, William Schaefer, was found guilty of both ``knowingly 
receiving'' and ``knowingly possessing'' child pornography that had 
``been transported in interstate commerce, by any means including by 
computer.'' Sadly, the 10th Circuit Court of Appeals overturned the 
decision and that offender was acquitted. The Court ruled that just 
because images are obtained on the Internet doesn't mean that they were 
necessarily transmitted across State lines. The Court essentially then 
asked Congress to clarify its intent that the Internet is, in fact, 
interstate commerce, and we will do that with the passage of the 
Effective Child Pornography Prosecution Act of 2007. This legislation 
closes the judicial loophole that allowed a guilty man who hurt our 
children and was allowed to go free.
  As concerned citizens, as parents, and as Members of Congress, Mr. 
Speaker, we must do all that we can to keep our children safe. That 
means we must make a commitment to being tough on crime, and to make 
sure those who violate the law are fully prosecuted, to ensure that the 
law is so clear that it deters such heinous crimes from ever happening 
again.
  Mr. GOODLATTE. Mr. Speaker, I yield myself 30 seconds to thank the 
chairman of the Judiciary Committee for his gracious comments regarding 
my involvement on issues related to the Internet, particularly as it 
relates to fighting child pornography, but also to point out that a 
mandatory minimum sentence of 2 years for these child pornographers is 
not a small thing. What is a small thing are the sentences that many 
judges unfortunately are imposing upon child pornographers much, much 
less than 2 years, and a mandatory minimum sentence would go a long way 
towards curing this problem and keeping more of these pornographers off 
of the Internet.
  Mr. CONYERS. I couldn't agree with the gentleman more.
  Mr. GOODLATTE. I thank the chairman.
  It is now my pleasure to yield for such time as she may consume the 
gentlewoman from Illinois (Mrs. Biggert) who has been a leading 
advocate on this issue and a strong supporter of this legislation.
  Mrs. BIGGERT. I thank the gentleman for yielding.
  Mr. Speaker, I rise today to express my strong support for H.R. 4120, 
the Effective Child Pornography Prosecution Act. I am very pleased to 
be the lead Republican cosponsor, and I thank the gentlewoman from 
Kansas for all of her hard work, but I am proud to be part of this 
important bill which will close an unacceptable loophole in the Federal 
criminal code.
  As my colleagues have already pointed out, the U.S. Court of Appeals 
for the 10th Circuit handed down a decision this year which freed a 
defendant who had been convicted of receiving and possessing child 
pornography. The case of U.S. v. Schaefer was not overturned for lack 
of evidence but rather because the prosecution failed to prove that 
images downloaded from the Internet moved across State lines in 
``interstate commerce.''
  The judges who decided this case pointed out that the use of the 
phrase ``in commerce'' instead of ``affecting commerce'' in the law 
signaled Congress' intent to limit Federal jurisdiction in the 
prosecution of child pornographers. As cochair of the Missing and 
Exploited Children's Caucus, I can assure you, Mr. Speaker, nothing 
could be further from the truth. We in Congress know the horrible 
consequences that result from the sexual exploitation of children used 
to create these images. We also take very seriously our duty to do 
everything in our power to protect children, punish predators and deter 
future acts of abuse.
  That is why the bill we are considering today deserves our full 
support. It will close the loophole in current law by replacing the 
phrase ``in commerce'' with the phrase ``affecting commerce'' in the 
child pornography statute. It classifies the intent of Congress and 
will ensure that predators that use the Internet to transmit child 
pornography end up behind bars where they belong.
  I would like to take this opportunity to again thank the gentlewoman 
from Kansas, my good friend, Nancy Boyda,

[[Page H13593]]

for introducing this legislation. I also would like to thank the 
National Center for Missing and Exploited Children for their assistance 
and counsel in drafting the bill. Mr. Speaker, as a mother of four and 
grandmother of seven, I know there is nothing more important than 
safeguarding our children from predators. We must not allow those who 
sexually exploit children to avoid prosecution because of a 
technicality.
  I urge all my colleagues to support H.R. 4120 to help close this 
egregious loophole in the law.
  Mr. CONYERS. Mr. Speaker, I yield to the gentlewoman from Kansas.
  Mrs. BOYDA of Kansas. I thank my esteemed colleague from Illinois for 
her help. I know the fathers in this room are just as concerned as the 
mothers, but as we mothers stick together and stand up to keep our 
children safe, this bill will go a long way, and I certainly appreciate 
the wonderful help that we have had on this bill. Thank you so much.
  Mr. CONYERS. I thank the author (Mrs. Boyda) and her Republican 
cosponsor.
  I return the balance of our time. There are no further speakers.
  Mr. GOODLATTE. Mr. Speaker, I have no further speakers, and I yield 
back.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Michigan (Mr. Conyers) that the House suspend the rules 
and pass the bill, H.R. 4120.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.

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