[Congressional Record Volume 154, Number 83 (Tuesday, May 20, 2008)]
[Senate]
[Pages S4549-S4554]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            KIDS ACT OF 2007

  Mr. REID. I ask unanimous consent the Senate proceed to the immediate 
consideration of Calendar No. 706, S. 431.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 431) to require convicted sex offenders to 
     register online identifiers, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on the Judiciary, with 
amendments, as follows:
  (The parts of the bill intended to be stricken are shown in boldface 
brackets and the parts of the bill intended to be inserted are shown in 
italics)

       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 ``Keeping the Internet Devoid 
     of Sexual Predators Act of 2007'' or the ``KIDS Act of 
     2007''.

     SEC. 2. REGISTRATION OF ONLINE IDENTIFIERS OF SEX OFFENDERS.

       (a) In General.--Section 114(a) of the Sex Offender 
     Registration and Notification Act (42 U.S.C. 16914(a)) is 
     amended--
       (1) by redesignating paragraphs (4) through (7) as 
     paragraphs (5) through (8); and
       (2) by inserting after paragraph (3) the following:
       [``(4) Any electronic mail address, instant message 
     address, or other similar Internet identifier the sex 
     offender used or will use to communicate over the Internet.]

[[Page S4550]]

       ``(4) Any electronic mail address, instant message address, 
     or other designation the sex offender uses or will use for 
     self-identification or routing in an Internet communication 
     or posting.''.
       (b) Updating of Information.--Section 113(c) of the Sex 
     Offender Registration and Notification Act (42 U.S.C. 
     16913(c)) is amended by inserting ``and before any use of an 
     electronic mail address, instant message address, [or other 
     similar Internet identifier not provided under subsection (b) 
     by the sex offender to communicate over the Internet,] or 
     other designation used for self-identification or routing in 
     an Internet communication or posting that is not included in 
     the sex offender's registration information,'' after ``or 
     student status,''.
       (c) Failure To Register Online Identifiers.--Section 2250 
     of title 18, United States Code, is amended--
       (1) in subsection (b), by inserting ``or (d)'' after 
     ``subsection (a)''; and
       (2) by adding at the end the following:
       ``(d) Knowing. Failure To Register Online Identifiers.--
       ``(1) In general.--It shall be unlawful for any person who 
     is required to register under the Sex Offender Registration 
     and Notification Act (42 U.S.C. 16901 et seq.) to knowingly 
     fail to provide an electronic mail [address, instant message 
     address, or other similar Internet identifier used by that 
     person to communicate over the Internet] address, instant 
     message address, or other designation used for self-
     identification or routing in an Internet communication or 
     posting to the appropriate official for inclusion in the sex 
     offender registry, as required under that Act.
       ``(2) Penalty.--Any person who violates paragraph (1) shall 
     be fined under this title, imprisoned not more than 10 years, 
     or both.''.
       (d) Conforming Amendment; Directive to United States 
     Sentencing Commission.--Section 141(b) of the Adam Walsh 
     Child Protection and Safety Act of 2006 (Public Law 109-248; 
     120 Stat. 602) is amended by striking ``offense specified in 
     subsection (a)'' and inserting ``offenses specified in 
     subsections (a) and (d) of section 2250 of title 18, United 
     States Code''.

     SEC. 3. RELEASE OF ELECTRONIC MAIL ADDRESSES, INSTANT MESSAGE 
                   ADDRESSES, OR OTHER SIMILAR INTERNET 
                   IDENTIFIERS.

       (a) Public Access.--Section 118(b) of the Sex Offender 
     Registration and Notification Act (42 U.S.C. 16918(b)) is 
     amended--
       (1) in paragraph (3), by striking ``and'' at the end;
       (2) by redesignating paragraph (4) as paragraph (5); and
       (3) by inserting after paragraph (3) the following:
       ``(4) any electronic mail address, instant message address, 
     or other similar Internet identifier used by the sex 
     offender; and''.
       (b) National Registry.--Section 119 of the Sex Offender 
     Registration and Notification Act (42 U.S.C. 16919) is 
     amended by adding at the end the following:
       ``(c) Release of Electronic Mail Addresses, Instant Message 
     Addresses, or Other Similar Internet Identifiers to 
     Commercial Social Networking Website.--
       ``(1) In general.--The Attorney General shall maintain a 
     system allowing a commercial social networking website to 
     compare the database of registered users of that commercial 
     social networking website to the list of electronic mail 
     addresses, instant message addresses, and other similar 
     Internet identifiers of persons in the National Sex Offender 
     Registry.
       ``(2) Process for release of electronic mail addresses, 
     instant message addresses, or other similar internet 
     identifiers.--A commercial social networking website desiring 
     to compare its database of registered users to the list of 
     electronic mail addresses, instant messages, and other 
     similar Internet identifiers of persons in the National Sex 
     Offender Registry shall provide to the Attorney General--
       ``(A) the name, address, and telephone number of the 
     commercial social networking website;
       ``(B) the specific legal nature and corporate status of the 
     commercial social networking website;
       ``(C) an affirmation signed by the chief legal officer of 
     the commercial social networking website that the information 
     obtained from that database shall not be disclosed for any 
     purpose other than for comparing the database of registered 
     users of that commercial social networking website against 
     the list of electronic mail addresses, instant message 
     addresses, and other similar Internet identifiers of persons 
     in the National Sex Offender Registry to protect [children] 
     individuals from online sexual predators and that disclosure 
     of this information for purposes other than those under this 
     section may be unlawful; and
       ``(D) the name, address, and telephone number of a natural 
     person who consents to service of process for the commercial 
     social networking website.
       ``(3) Use of database.--After a commercial social 
     networking website has complied with paragraph (2) and paid 
     any fee established by the Attorney General, the commercial 
     social networking website may screen new users or compare its 
     database of registered users to the list of electronic mail 
     addresses, instant message addresses, and other similar 
     Internet identifiers of persons in the National Sex Offender 
     Registry as frequently as the Attorney General may allow for 
     the purpose of identifying a registered user associated with 
     an electronic mail address, instant message address, or other 
     similar Internet identifier contained in the National Sex 
     Offender Registry.
       [``(4) Liability relief for social networking sites using 
     the registry information to protect users.--
       [``(A) In general.--If a commercial social networking 
     website complies with this section, a covered civil action 
     against that commercial social networking website or any 
     director, officer, employee, or agent of that commercial 
     social networking website may not be brought in any Federal 
     or State court.
       [``(B) Definition.--In this paragraph, the term `covered 
     civil action' means a civil action relating to the use of the 
     information in the National Sex Offender Registry by a 
     commercial social networking website to screen users or 
     compare its database of registered users for the purpose of 
     identifying a registered user associated with an electronic 
     mail address, instant message address, or other similar 
     Internet identifier information contained in the National Sex 
     Offender Registry.
       [``(5) Interim period.--In any interim period before the 
     National Sex Offender Registry is implemented, any commercial 
     social networking website shall have access to the electronic 
     mail addresses, instant message addresses, and other similar 
     Internet identifiers of persons required to register in a 
     jurisdiction's sex offender registry through the methods set 
     forth in paragraphs (2) and (3). Until such time as the 
     National Sex Offender Registry is implemented, the term 
     `Attorney General' shall be replaced with `the jurisdiction' 
     and the term `the National Sex Offender Registry' shall be 
     replaced with `a jurisdiction's sex offender registry' in 
     paragraphs (2) and (3).''.]
       ``(4) Limitation on release of internet identifiers.--
     Except as explicitly provided for in this section or for a 
     necessary law enforcement purpose, the Attorney General may 
     not authorize the release or dissemination of any Internet 
     identifier contained in the National Sex Offender Registry.
       ``(5) Limitation on liability.--
       ``(A) In general.--A civil claim against a commercial 
     social networking website, including any director, officer, 
     employee, or agent of that commercial social networking 
     website, arising from the use by such website of the National 
     Sex Offender Registry, may not be brought in any Federal or 
     State court.
       ``(B) Intentional, reckless, or other misconduct.--
     Subsection (a) shall not apply to a claim if the commercial 
     social networking website, or a director, officer, employee, 
     or agent of that commercial social networking website--
       ``(i) engaged in intentional misconduct; or
       ``(ii) acted, or failed to act--

       ``(I) with actual malice;
       ``(II) with reckless disregard to a substantial risk of 
     causing injury without legal justification; or
       ``(III) for a purpose unrelated to the performance of any 
     responsibility or function described in paragraph (3).

       ``(C) Ordinary business activities.--Subsection (a) shall 
     not apply to an act or omission to act relating to an 
     ordinary business activity of any commercial social 
     networking website, including to any acts related to the 
     general administration or operations of such website, the use 
     of motor vehicles by employees or agents of such website, or 
     any personnel management decisions of such websites.
       ``(D) Minimizing access.--A commercial social networking 
     website shall minimize the number of employees that are 
     provided access to the list of electronic mail addresses, 
     instant message addresses, and other similar Internet 
     identifiers of persons in the National Sex Offender Registry.
       ``(6) Rule of construction.--Nothing is this section shall 
     be construed to require any Internet website, including a 
     commercial social networking website, to compare its database 
     of registered users with the list of electronic mail 
     addresses, instant message addresses, and other similar 
     Internet identifiers of persons in the National Sex Offender 
     Registry, and no Federal or State liability, or any other 
     actionable adverse consequence, shall be imposed on such 
     website based on its decision not to compare its database 
     with such list.''.

     SEC. 4. DEFINITIONS.

       Section 111 of the Sex Offender Registration and 
     Notification Act (42 U.S.C. 16911) [is amended--
       [(1) in paragraph (7)(H), by striking the period and 
     inserting the following: ``, except that it shall not be 
     necessary to show that the sexual conduct actually occurred 
     or to offer proof that the defendant engaged in an act, other 
     than use of the Internet to facilitate criminal sexual 
     conduct involving a minor.''; and
       [(2) by adding at the end the following:] is amended by 
     adding at the end the following:
       ``(15) The term `commercial social networking website' 
     means a commercially operated Internet website that--
       [``(A) allows users to create web pages or profiles that 
     provide information about themselves and are available 
     publicly or to other users; and]
       ``(A) allows users, through the creation of web pages or 
     profiles or by other means, to provide information about 
     themselves that is available publicly or to other users; and
       ``(B) offers a mechanism for communication with other 
     users, such as a forum, chat room, electronic mail, or 
     instant messenger.
       [``(16) The term `chat room' means any Internet website 
     through which a number of users can communicate in real time 
     via text and that allows messages to be almost immediately 
     visible to all other users or to a designated segment of all 
     other users.]

[[Page S4551]]

       ``(16) The term `chat room' means any Internet service 
     through which a number of users can communicate in real time 
     so that communications are almost immediately available to 
     all other users or to a designated segment of all other 
     users.
       ``(17) The term `Internet' has the meaning given that term 
     in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 
     151 note).
       ``(18) The term `electronic mail address' has the meaning 
     given that term in section 3 of the Controlling the Assault 
     of Non-Solicited Pornography and Marketing Act of 2003 (15 
     U.S.C. 7702).
       ``(19) The term `instant message address' means an 
     identifier that allows a person to [communication] 
     communicate in real-time with another person using the 
     Internet.''.

     SEC. 5. CRIMINALIZATION OF AGE MISREPRESENTATION IN 
                   CONNECTION WITH ONLINE SOLICITATION OF A MINOR.

       Section 2252C of title 18, United States Code, is amended--
       (1) by redesignating subsections (c) and (d) as subsections 
     (d) and (e), respectively; and
       (2) by inserting after subsection (b) the following:
       [``(c) Age Misrepresentation.--Any person 18 years or older 
     who knowingly misrepresents their age with the intent to use 
     the Internet to engage in criminal sexual conduct involving a 
     minor, or to facilitate or attempt such conduct, shall be 
     fined under this title and imprisoned for not more than 20 
     years. Such penalty shall be in addition to any penalty 
     pursuant to the laws of any jurisdiction for the crime of 
     using the Internet to engage in criminal sexual conduct 
     involving a minor, or to facilitate or attempt such 
     conduct.''.]
       ``(c) Age of Misrepresentation.--Any person 18 years or 
     older who knowingly misrepresents his or her age with the 
     intent to use the Internet, to operate a facility, by mail, 
     or by any other means of interstate or foreign commerce to 
     engage in criminal sexual conduct involving a minor who is at 
     least 4 years younger than the person engaging in such 
     conduct, or to facilitate or attempt such conduct, shall be 
     fined under this title and imprisoned for not more than 20 
     years. Such penalty shall be in addition to any penalty 
     pursuant to the laws of any jurisdiction for the crime of 
     using the Internet to engage in criminal sexual conduct 
     involving a minor, or to facilitate or attempt such 
     conduct.''.

     SEC. 6. KNOWINGLY ACCESSING CHILD PORNOGRAPHY WITH THE INTENT 
                   TO WATCH CHILD PORNOGRAPHY.

       (a) Materials Involving Sexual Exploitation of Minors.--
     Section 2252(a)(4) of title 18, United States Code, is 
     amended--
       (1) in subparagraph (A), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''; and
       (2) in subparagraph (B), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''.
       (b) Materials Constituting or Containing Child 
     Pornography.--Section 2252A(a)(5) of title 18, United States 
     Code, is amended--
       (1) in subparagraph (A), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''; and
       (2) in subparagraph (B), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''.

     SEC. 7. CLARIFYING BAN OF CHILD PORNOGRAPHY.

       (a) In General.--Chapter 110 of title 18, United States 
     Code, is amended--
       (1) in section 2251--
       (A) in each of subsections (a), (b), and (d), by inserting 
     ``using any means or facility of interstate or foreign 
     commerce or'' after ``be transported'';
       (B) in each of subsections (a) and (b), by inserting 
     ``using any means or facility of interstate or foreign 
     commerce or'' after ``been transported''; and
       (C) in subsection (d), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``is 
     transported'';
       (2) in section 2251A(c), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``or 
     transported'';
       (3) in section 2252(a)--
       (A) in paragraph (1), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after 
     ``ships'';
       (B) in paragraph (2)--
       (i) by inserting ``using any means or facility of 
     interstate or foreign commerce or'' after ``distributes, any 
     visual depiction''; and
       (ii) by inserting ``using any means or facility of 
     interstate or foreign commerce or'' after ``depiction for 
     distribution''; and
       (C) in paragraph (4), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``has 
     been shipped or transported''; and
       (4) in section 2252A(a)--
       (A) in paragraph (1), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after 
     ``ships'';
       (B) in paragraph (3), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after 
     ``mails, or'' each place it appears;
       (C) in each of paragraphs (4) and (5), by inserting ``using 
     any means or facility of interstate or foreign commerce or'' 
     after ``has been mailed, or shipped or transported''; and
       (D) in paragraph (6), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``has 
     been mailed, shipped, or transported''.
       (b) Affecting Interstate Commerce.--Chapter 110 of title 
     18, United States Code, is amended in each of sections 2251, 
     2251A, 2252, and 2252A, by striking ``in interstate'' each 
     place it appears and inserting ``in or affecting 
     interstate''.
       (c) Certain Activities Relating to Material Involving the 
     Sexual Exploitation of Minors.--Section 2252(a)(3)(B) of 
     title 18, United States Code, is amended by inserting ``, 
     shipped, or transported using any means or facility of 
     interstate or foreign commerce'' after ``that has been 
     mailed''.
       (d) Certain Activities Relating to Material Constituting or 
     Containing Child Pornography.--Section 2252A(a)(6)(C) of 
     title 18, United States Code, is amended by striking ``or by 
     transmitting'' and all that follows through ``by computer,'' 
     and inserting ``or any means or facility of interstate or 
     foreign commerce,''.

  Mr. KYL. Mr. President, I rise to say a few words about final passage 
of the KIDS Act, S. 431. This bill authorizes procedures for social 
networking Web sites to check whether a particular email address is 
registered to a sex offender. The bill also includes provisions that 
would make it an offense to use the Internet to lure a victim and then 
sexually assault her, that expand the jurisdictional predicates for the 
child-porn possession offenses, and that make it an offense to 
knowingly access child pornography on the Internet with the intent to 
view child pornography.
  Section 7 of the bill, which expands the jurisdictional predicates 
for offenses relating to child pornography, is of particular interest 
to me. I offered this proposal as an amendment in the Judiciary 
Committee after it was informally proposed to me by the Justice 
Department. The proposal addresses a problem highlighted by United 
States v. Schaefer, 501 F.3d 1197, 10th Circuit 2007, which dismissed a 
conviction for receipt and possession of child pornography because the 
court found that proof that an image traveled over the Internet is not 
sufficient to prove that the image in question moved in interstate 
commerce. I understand that this ruling has had a substantial impact on 
prosecutions pertaining to sexually abusive images of children, 
particularly in the Tenth Circuit.
  In Schaefer, the Tenth Circuit found that evidence that an image had 
traveled through servers in another State could prove that the image 
moved across State lines. Unfortunately, this conclusion provides 
little help for Federal prosecutions in the State of Colorado because 
the largest Internet service provider in Colorado maintains all of it 
servers in that State. Therefore, in Colorado it is extremely difficult 
to get the kind of evidence required by the Tenth Circuit's decision.
  It is an irony of the Internet that the more that it grows, the 
harder that it is to prove that an image of child pornography crossed 
State lines. As in Colorado, many Internet service providers are 
setting up server farms across the United States, so it is harder to 
get the requisite evidence that the images moved through out-of-State 
servers. Additionally, with the advent of different ways of connecting 
to the Internet, such as wireless, broadband, and DSL, it can be harder 
to trace the route that an image took across the Internet. And with 
certain Internet-based technologies, such as instant messaging and 
peer-to-peer file sharing, it can be impossible to find out to whom or 
from where a defendant sent or received an image.
  The child pornography statutes were enacted, for the most part, 
before Internet and cell phone technology existed. At the time the 
statutes were originally written, there were really only two ways to 
transport this contraband: by mailing it or by physically carrying it 
on one's person. The statutes were drafted accordingly. Now, however, 
because of technological developments, Federal laws pertaining to 
sexually abusive images of children simply do not reach all of the 
crimes they could under the Constitution.
  Section 7 of the KIDS Act adds the words ``affecting interstate or 
foreign commerce'' and ``using a facility or means of interstate or 
foreign commerce'' to the child pornography laws, thereby employing 
maximum Federal power to proscribe child pornography. The primary 
advantage of the ``facility or means'' language is that it accurately 
reflects how sexually abusive images of children are traded today, 
which is to say, over the Internet and phone lines. The Supreme Court 
and courts of appeals have long recognized that the Internet and phones 
are facilities of interstate commerce, regardless of whether the actual 
transmission goes across State lines. Finally, the ``facility or 
means'' language tracks that in 18 U.S.C. Sec. Sec.  1470 and 2422(b).

[[Page S4552]]

Thus there is already a body of case law to guide the drafting of jury 
instructions and statutory interpretation.
  My second favorite provision in S. 431 is section 6, which makes it a 
crime to knowingly access child pornography with the intent to view 
child pornography. This proposal was brought to my attention by my 
colleague Senator Vitter, who persuaded me to offer it as an amendment 
in the Judiciary Committee. Like section 7, section 6 adapts our laws 
to address a new obstacle to child-pornography prosecutions that was 
created by changes in technology and that is exemplified by a recent 
court of appeals decision. The Vitter staff also provided me with the 
following Justice Department testimony, which explains the need for 
this provision and is worth quoting in full. It is the testimony of 
Larry Rothenberg, a Deputy Assistant Attorney General in the Justice 
Department's Office of Legal Policy, before the House Judiciary 
Committee on October 17 of last year:

       18 U.S.C. Sec. Sec.  2252 and 2252A currently criminalize 
     various activities related to child pornography including 
     transportation, trafficking, and possession. Some courts have 
     narrowly interpreted (incorrectly, in our view) the 
     definition of possession so that a person would not have 
     violated the statute if he, for example, viewed images of 
     child pornography on his computer but did not save them onto 
     his disk drive. Even if, in his computer's ``temporary 
     Internet cache,'' we have a record of his viewing the images, 
     and thus proof that he accessed them on a website, under this 
     narrow interpretation, he would not be guilty of violating 
     the statute if he did not know that his temporary Internet 
     cache automatically saved the images on his computer.
       Two recent cases demonstrate the need for these changes. In 
     United States v. Teal, No. 1:04-CR-00042-CCB-1 (D. Md., 
     motion to dismiss granted Aug. 13, 2004), the Maryland U.S. 
     Attorney's Office prosecuted Marvin Teal, a former 
     administrative law judge who had prior convictions for 
     sexually abusing children, for possession and attempted 
     possession of child pornography based on his viewing child 
     pornography at a public library in Baltimore, Maryland. 
     Library police officers saw child pornography on the computer 
     Teal was using, arrested him, and printed out the images that 
     could be seen on the computer screen. Because there was no 
     evidence that the defendant had himself downloaded or saved 
anything, the District Court dismissed the case. We chose not to 
appeal, given the state of the law and the facts of the case.

  In United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006), the 
Ninth Circuit vacated and remanded the sentence of an offender found 
with between 15,120 and 19,000 separate images of child pornography on 
his computer on the basis that he did not know that they were in his 
Internet cache. The court stated, ``There is no question that the child 
pornography images were found on the computer's hard drive and that 
Kuchinski possessed the computer itself. Also, there is no doubt that 
he had accessed the web page that had those images somewhere upon it, 
whether he actually saw the images or not. What is in question is 
whether it makes a difference that, as far as this record shows, 
Kuchinski had no knowledge of the images that were simply in the cache 
files. It does.'' Of course we acknowledge the Ninth Circuit's 
authority to interpret the law this way. However, we think the court's 
distinction should not make a difference under the law.
  Our proposal [which is identical to Section 6 of the KIDS Act] would 
correct these anomalies while protecting unsuspecting persons who 
unintentionally access child pornography from prosecution. 
Specifically, the bill would amend 18 U.S.C. Sec.  2252(a)(4) and 18 
U.S.C. Sec.  2252A(a)(5) to criminalize not only possession of child 
pornography, but also ``knowingly accessing child pornography with the 
intent to view it.'' That is, a person would be liable to prosecution 
if he purposefully clicked on a link with the intent that when the link 
opened, he would view child pornography. It would therefore be a two-
step test that the prosecution would have to satisfy--first, that he 
purposefully (that is, not accidentally) clicked the link, and, second, 
he did so with the intent that by clicking on the link child 
pornography would appear on his computer screen. This test would not be 
difficult to satisfy in the case of people who really did want to view 
child pornography. Extrinsic evidence--such as the name of the link, 
which would probably have terms indicating that it displayed child 
pornography, and payment for the images--would be used to prove the 
violation. But in the case of an ``innocent viewer'' who accidentally 
came across child pornography, the two-step proof would be his 
protection.
  I would also like to express my appreciation to the sponsors of this 
bill for their willingness to work with the Justice Department to 
address technical concerns with the bill. It is particularly important 
that the bill has been modified to minimize conflict with the Justice 
Department's forthcoming guidelines for implementation of SORNA, which 
serve many of the same ends as the bill. Earlier versions of the KIDS 
Act used terminology inconsistent with that used in SORNA, 
unnecessarily required that sex offenders appear in person to report 
their e-mail addresses, did not clearly provide the Attorney General 
with discretion to screen out ill-intentioned users of the checking 
system, limited access to the checking system to only commercial 
websites, and unnecessarily restricted to only the SORNA database the 
sources on which the checking system may rely for Internet addresses. I 
am pleased to report that all of these problems will be corrected in 
the floor amendment for the bill. While these issues may seem like 
technicalities, had they not been addressed they would have degraded 
the utility of the checking system.
  The committee-reported bill also appeared to limit existing programs 
for helping law enforcement and parents to determine whether the 
individual using a particular address is a sex offender. The final 
Senate bill includes a rule of construction that makes clear that the 
bill does not limit the Attorney General's preexisting authority to 
allow such searches. The final bill also includes a compromise on how 
the Attorney General and social networking Web sites may disseminate 
sex-offender e-mail addresses. The compromise is somewhat complicated 
and merits explanation. The bill still does bar the wholesale 
distribution to the general public of sex offenders' e-mail information 
contained in the system, and further requires that the AG limit how the 
social networking sites disseminate the information about individual 
offenders that such sites receive. I understand that some Senators 
expressed concern that such bulk distribution of offenders' e-mail 
addresses would make it possible for malicious individuals to identify 
individual offenders' e-mail addresses and use those addresses to 
harass an offender. Preventing the publication of lists of offenders' 
e-mail addresses also will prevent offenders from using the checking 
system to identify each other's e-mail addresses and communicate with 
each other. We should not allow the system's information about sex 
offenders' e-mail addresses to be used in this way. The bill creates a 
two-tiered limit on distribution of these e-mail addresses in proposed 
SORNA section 121(d)(4)(A) and (B). Subparagraph (A) bars bulk 
distribution of offenders' addresses contained in the system to the 
public at large, and subparagraph (B) further requires the AG to limit 
how social networking sites disseminate the information that they 
receive. Subparagraph (A) bars both the AG and the participating 
social-networking sites from disseminating lists of sex-offender e-mail 
information that are generated through the operation of the checking 
system unless the information is only given to a limited set of sources 
with a particular need for the information, as opposed to the public at 
large. It does not limit dissemination of information generated from 
other sources, but should substantially prevent the creation of bulk 
public lists of sex-offender e-mail information as a result of the 
operation of the checking system. Subparagraph (B) complements this 
provision by requiring the AG to regulate how participating social 
networking sites use the information that they receive. It is likely 
that some social-networking sites will come into possession of large 
amounts of sex-offender e-mail information as a result of their 
participation in this system. It is thus important that the AG see to 
it that those sites do not liberally disseminate such information in a 
way that would allow others to create bulk public lists of sex 
offenders' e-mail information. Although subparagraph (B) contains no 
specific mandate to the AG, I trust that he will apply this provision 
with this purpose in mind.

[[Page S4553]]

  In addition, I would like to address two urgently-needed reforms to 
our Nation's child pornography laws that are not included in this bill, 
but that I hope to amend onto future legislation. We need tougher, 
mandatory penalties for possession of child pornography, and Congress 
needs to act to stiffen and expand penalties for electronic-
communication service providers who fail to report the presence of 
child pornography on their systems. The case for both of these 
provisions is made in the Rothenberg testimony noted above, and I quote 
it in full:

       [W]e urge Congress to establish a mandatory minimum 
     sentence for possession of child pornography. This is crucial 
     because too many people believe that child pornography is 
     ``just pictures'' and is not ``a big deal.'' That is wrong. 
     Each pornographic image of a child is the visual record of 
     the sexual exploitation of that child. It is not just a 
     picture. Every time that image is viewed, the child is 
     violated once again. Moreover, the demand for such images is 
     what fuels the physical violation of the children in these 
     images in the first place. Possession of child pornography is 
     victimization of a child and should be punished accordingly.
       Unfortunately, since the Federal Sentencing Guidelines 
     became advisory under the Supreme Court's decision in United 
     States v. Booker the number of downward departures by judges 
     in federal child pornography possession cases has increased. 
     After enactment of the PROTECT Act of 2003, which restricted 
     in various ways the authority of courts to make non-
     government-sponsored downward departures in sentences, the 
     rate of non-government-sponsored below-range sentences for 
     all offense types was about 5 percent. See United States 
     Sentencing Commission, Final Report on the Impact of United 
     States v. Booker on Federal Sentencing (March 2006), at p. 
     54, available at http://www.ussc.gov/booker_report/
Booker_Report
.pdf. Following Booker, that rate jumped up to 12.5 percent. 
     Id. at p. 47. For child pornography possession offenses, 
     however, the rate of non-government-sponsored below-range 
     sentences leapt to 26.3 percent, more than twice the average 
     rate. Id. at p. 122. By way of comparison, for drug 
     trafficking and firearms violations, the rate has increased 
     to 12.8 percent and 15.2 percent, respectively, much closer 
     to the average. Id. at table on page D-5.
       The increase in non-government-sponsored, below-range 
     sentences for possession offenses after Booker demonstrates 
     the need for a mandatory minimum sentence for possession 
     offenses. Establishing a two-year minimum sentence will be a 
     warning to potential consumers of child pornography, prevent 
     unwarranted downward departures, and forcefully express our 
     revulsion at this type of material. This change is contained 
     in section 201 of the Department's Violent Crime and Anti-
     Terrorism Act of 2007 and is included as section 201 of H.R. 
     3156, the Violent Crime Control Act of 2007.
       Our second proposal would amend an existing law that 
     requires certain providers of electronic communications 
     services to report violations of the child pornography laws. 
     Currently the law provides that a provider who knowingly and 
     willfully fails to report the presence of child pornography 
     images on its computer servers shall be subject to a criminal 
     fine of up to $50,000 for the initial failure to report and 
     $100,000 for each subsequent failure to report. Prosecutors 
     and law enforcement sources report that this criminal 
     provision has been virtually impossible to enforce because of 
     the particular mens rea requirement and the low amount of the 
     potential penalty. These impediments severely hinder the 
     needed crackdown on the presence of child pornography on the 
     Internet.
       Our legislation would triple the criminal fines available 
     for knowing and willful failures to report, making the 
     available fines $150,000 for the initial violation and 
     $300,000 for each subsequent violation.
       Even more importantly, the legislation would add civil 
     fines for negligent failure to report a child pornography 
     offense. The civil penalty is set at $50,000 for the initial 
     violation and $100,000 for each subsequent violation. The 
     Federal Communications Commission would be provided with the 
     authority to levy the civil fines under this section and to 
     promulgate the necessary regulations, in consultation with 
     the Attorney General, for imposing the fines and for 
     providing an appropriate administrative review process.
       These proposals would make it much more likely that service 
     providers will exercise sound practices for weeding out child 
     pornography. The images are out there, too often on 
     commercial computer servers, and law enforcement needs to 
     know about them to investigate and to prosecute the sexual 
     predators who consume them. This amendment is contained in 
     section 202 of the Department's Violent Crime and Anti-
     Terrorism Act of 2007 and in section 202 of H.R. 3156.

  Finally, I would like to thank Preet Bharara and Lee Dunn, staffers 
to Senators Schumer and McCain, respectively, who have worked 
tirelessly to see this bill through the Senate. S. 431 is a good bill, 
and I hope to see it enacted into law.
  Mr. REID. I ask unanimous consent a Schumer amendment which is at the 
desk be agreed to, the committee amendments, as amended, be agreed to, 
the bill, as amended, be read a third time and passed, the motions to 
reconsider be laid upon the table with no intervening action or debate, 
and any statements be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 4798) was agreed to.
  (The text of the amendment is printed in today's Record under ``Text 
of Amendments.'')
  The committee amendments, as amended, were agreed to.
  The bill (S. 431), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed, as follows:

                                 S. 431

       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 ``Keeping the Internet Devoid 
     of Sexual Predators Act of 2008'' or the ``KIDS Act of 
     2008''.

     SEC. 2. REGISTRATION OF ONLINE IDENTIFIERS OF SEX OFFENDERS.

       (a) In General.--Section 114(a) of the Sex Offender 
     Registration and Notification Act (42 U.S.C. 16914(a)) is 
     amended--
       (1) by redesignating paragraphs (4) through (7) as 
     paragraphs (5) through (8); and
       (2) by inserting after paragraph (3) the following:
       ``(4) Any electronic mail address or other designation the 
     sex offender uses or will use for self-identification or 
     routing in Internet communication or posting.''.
       (b) Updating of Information.--Section 113(c) of the Sex 
     Offender Registration and Notification Act (42 U.S.C. 
     16913(c)) is amended by adding at the end the following: 
     ``The Attorney General shall have the authority to specify 
     the time and manner for reporting of other changes in 
     registration information, including any addition or change of 
     an electronic mail address or other designation used for 
     self-identification or routing in Internet communication or 
     posting.''.
       (c) Failure To Register Online Identifiers.--Section 2250 
     of title 18, United States Code, is amended--
       (1) in subsection (b), by inserting ``or (d)'' after 
     ``subsection (a)''; and
       (2) by adding at the end the following:
       ``(d) Knowing Failure To Register Online Identifiers.--
     Whoever--
       ``(1) is required to register under the Sex Offender 
     Registration and Notification Act (42 U.S.C. 16901 et seq.); 
     and
       ``(2) uses an email address or any other designation used 
     for self-identification or routing in Internet communication 
     or posting which the individual knowingly failed to provide 
     for inclusion in a sex offender registry as required under 
     that Act;
     shall be fined under this title or imprisoned not more than 
     10 years, or both.''.
       (d) Conforming Amendment; Directive to United States 
     Sentencing Commission.--Section 141(b) of the Adam Walsh 
     Child Protection and Safety Act of 2006 (Public Law 109-248; 
     120 Stat. 602) is amended by striking ``offense specified in 
     subsection (a)'' and inserting ``offenses specified in 
     subsections (a) and (d) of section 2250 of title 18, United 
     States Code''.

     SEC. 3. CHECKING OF ONLINE IDENTIFIERS AGAINST SEX OFFENDER 
                   REGISTRATION INFORMATION.

       (a) Public Access.--Section 118(b) of the Sex Offender 
     Registration and Notification Act (42 U.S.C. 16918(b)) is 
     amended--
       (1) in paragraph (3), by striking ``and'' at the end;
       (2) by redesignating paragraph (4) as paragraph (5); and
       (3) by inserting after paragraph (3) the following:
       ``(4) any electronic mail address or designation used for 
     self-identification or routing in Internet communication or 
     posting; and''.
       (b) Online Identifier Checking System for Social Networking 
     Websites.--Section 121 of the Sex Offender Registration and 
     Notification Act (42 U.S.C. 16921) is amended by adding at 
     the end the following:
       ``(d) Checking System for Social Networking Websites.--
       ``(1) In general.--The Attorney General shall maintain a 
     system available to social networking websites that permits 
     the automated comparison of lists or databases of the 
     electronic mail addresses and other designations used for 
     self-identification or routing in Internet communication or 
     posting of the registered users of such websites, to the 
     corresponding information contained in or derived from sex 
     offender registries.
       ``(2) Qualification for use of system.--A social networking 
     website seeking to use the system established under paragraph 
     (1) shall submit an application to the Attorney General which 
     provides--
       ``(A) the name and legal status of the website;
       ``(B) the contact information for the website;
       ``(C) a description of the nature and operations of the 
     website;
       ``(D) a statement explaining why the website seeks to use 
     the system; and
       ``(E) such other information or attestations as the 
     Attorney General may require

[[Page S4554]]

     to ensure that the website will use the system--
       ``(i) to protect the safety of the users of such website; 
     and
       ``(ii) not for any unlawful or improper purpose.
       ``(3) Searches against the system.--
       ``(A) In general.--A social networking website approved to 
     use the system established under paragraph (1) shall--
       ``(i) submit the information to be compared in a form 
     satisfying the technical requirements for searches against 
     the system; and
       ``(ii) pay any fee established by the Attorney General for 
     use of the system.
       ``(B) Frequency of use of the system.--A social networking 
     website approved by the Attorney General to use the system 
     established under paragraph (1) may conduct searches under 
     the system as frequently as the Attorney General may allow.
       ``(C) Authority of ag to suspend use.--The Attorney General 
     may deny, suspend, or terminate use of the system by a social 
     networking website that--
       ``(i) provides false information in its application for use 
     of the system; or
       ``(ii) may be using or seeks to use the system for any 
     unlawful or improper purpose.
       ``(4) Limitation on release of internet identifiers.--
       ``(A) No public release.--Neither the Attorney General nor 
     a social networking website approved to use the system 
     established under paragraph (1) may release to the public any 
     list of the e-mail addresses or other designations used for 
     self-identification or routing in Internet communication or 
     posting of sex offenders contained in the system.
       ``(B) Additional limitations.--The Attorney General shall 
     limit the release of information obtained through the use of 
     the system established under paragraph (1) by social 
     networking websites approved to use such system.
       ``(C) Strict adherence to limitation.--The use of the 
     system established under paragraph (1) by a social networking 
     website shall be conditioned on the website's agreement to 
     observe the limitations required under this paragraph.
       ``(D) Rule of construction.--This subsection shall not be 
     construed to limit the authority of the Attorney General 
     under any other provision of law to conduct or to allow 
     searches or checks against sex offender registration 
     information.
       ``(5) Limitation on liability.--
       ``(A) In general.--A civil claim against a social 
     networking website, including any director, officer, 
     employee, parent, or agent of that social networking website, 
     arising from the use by such website of the National Sex 
     Offender Registry, may not be brought in any Federal or State 
     court.
       ``(B) Intentional, reckless, or other misconduct.--
     Subsection (a) shall not apply to a claim if the social 
     networking website, or a director, officer, employee, or 
     agent of that social networking website--
       ``(i) engaged in intentional misconduct; or
       ``(ii) acted, or failed to act--

       ``(I) with actual malice;
       ``(II) with reckless disregard to a substantial risk of 
     causing injury without legal justification; or
       ``(III) for a purpose unrelated to the performance of any 
     responsibility or function described in paragraph (3).

       ``(C) Ordinary business activities.--Subsection (a) shall 
     not apply to an act or omission to act relating to an 
     ordinary business activity of any social networking website, 
     including to any acts related to the general administration 
     or operations of such website, the use of motor vehicles by 
     employees or agents of such website, or any personnel 
     management decisions of such websites.
       ``(D) Minimizing access.--A social networking website shall 
     minimize the number of employees that are provided access to 
     the list of electronic mail addresses, and other designations 
     used for self-identification or routing in Internet 
     communication or posting by persons in the National Sex 
     Offender Registry.
       ``(6) Rule of construction.--Nothing is this section shall 
     be construed to require any Internet website, including a 
     social networking website, to compare its database of 
     registered users with the list of electronic mail addresses 
     and other designations used for self-identification or 
     routing in Internet communication or posting by persons in 
     the National Sex Offender Registry, and no Federal or State 
     liability, or any other actionable adverse consequence, shall 
     be imposed on such website based on its decision not to 
     compare its database with such list.''.

     SEC. 4. DEFINITIONS.

       Section 111 of the Sex Offender Registration and 
     Notification Act (42 U.S.C. 16911) is amended by adding at 
     the end the following:
       ``(15) The term `social networking website' means an 
     Internet website that--
       ``(A) allows users, through the creation of web pages or 
     profiles or by other means, to provide information about 
     themselves that is available publicly or to other users; and
       ``(B) offers a mechanism for communication with other 
     users.
       ``(16) The term `Internet' has the meaning given that term 
     in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 
     151 note).
       ``(17) The term `electronic mail address' has the meaning 
     given that term in section 3 of the Controlling the Assault 
     of Non-Solicited Pornography and Marketing Act of 2003 (15 
     U.S.C. 7702).''.

     SEC. 5. CRIMINALIZATION OF AGE MISREPRESENTATION IN 
                   CONNECTION WITH ONLINE SOLICITATION OF A MINOR.

       Section 2422 of title 18, United States Code, is amended by 
     adding at the end the following:
       ``(c) Misrepresentation of Age.--Whoever knowingly 
     misrepresents his or her age using the Internet or any other 
     facility or means of interstate or foreign commerce or the 
     mail, with the intent to further or facilitate a violation of 
     this section, shall be fined under this title and imprisoned 
     not more than 20 years. A sentence imposed under this 
     subsection shall be in addition and consecutive to any 
     sentence imposed for the offense the age misrepresentation 
     was intended to further or facilitate.''.

     SEC. 6. KNOWINGLY ACCESSING CHILD PORNOGRAPHY WITH THE INTENT 
                   TO VIEW CHILD PORNOGRAPHY.

       (a) Materials Involving Sexual Exploitation of Minors.--
     Section 2252(a)(4) of title 18, United States Code, is 
     amended--
       (1) in subparagraph (A), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''; and
       (2) in subparagraph (B), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''.
       (b) Materials Constituting or Containing Child 
     Pornography.--Section 2252A(a)(5) of title 18, United States 
     Code, is amended--
       (1) in subparagraph (A), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''; and
       (2) in subparagraph (B), by inserting ``, or knowingly 
     accesses with intent to view,'' after ``possesses''.

     SEC. 7. CLARIFYING BAN OF CHILD PORNOGRAPHY.

       (a) In General.--Chapter 110 of title 18, United States 
     Code, is amended--
       (1) in section 2251--
       (A) in each of subsections (a), (b), and (d), by inserting 
     ``using any means or facility of interstate or foreign 
     commerce or'' after ``be transported'';
       (B) in each of subsections (a) and (b), by inserting 
     ``using any means or facility of interstate or foreign 
     commerce or'' after ``been transported'';
       (C) in subsection (c), by striking ``computer'' each place 
     that term appears and inserting ``using any means or facility 
     of interstate or foreign commerce''; and
       (D) in subsection (d), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``is 
     transported'';
       (2) in section 2251A(c), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``or 
     transported'';
       (3) in section 2252(a)--
       (A) in paragraph (1), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after 
     ``ships'';
       (B) in paragraph (2)--
       (i) by inserting ``using any means or facility of 
     interstate or foreign commerce or'' after ``distributes, any 
     visual depiction''; and
       (ii) by inserting ``using any means or facility of 
     interstate or foreign commerce or'' after ``depiction for 
     distribution'';
       (C) in paragraph (3)--
       (i) by inserting ``using any means or facility of 
     interstate or foreign commerce'' after ``so shipped or 
     transported''; and
       (ii) by striking ``by any means,''; and
       (D) in paragraph (4), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``has 
     been shipped or transported''; and
       (4) in section 2252A(a)--
       (A) in paragraph (1), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after 
     ``ships'';
       (B) in paragraph (2), by inserting ``using any means or 
     facility of interstate or foreign commerce'' after ``mailed, 
     or'' each place it appears;
       (C) in paragraph (3), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after 
     ``mails, or'' each place it appears;
       (D) in each of paragraphs (4) and (5), by inserting ``using 
     any means or facility of interstate or foreign commerce or'' 
     after ``has been mailed, or shipped or transported''; and
       (E) in paragraph (6), by inserting ``using any means or 
     facility of interstate or foreign commerce or'' after ``has 
     been mailed, shipped, or transported''.
       (b) Affecting Interstate Commerce.--Chapter 110 of title 
     18, United States Code, is amended in each of sections 2251, 
     2251A, 2252, and 2252A, by striking ``in interstate'' each 
     place it appears and inserting ``in or affecting 
     interstate''.
       (c) Certain Activities Relating to Material Involving the 
     Sexual Exploitation of Minors.--Section 2252(a)(3)(B) of 
     title 18, United States Code, is amended by inserting ``, 
     shipped, or transported using any means or facility of 
     interstate or foreign commerce'' after ``that has been 
     mailed''.
       (d) Certain Activities Relating to Material Constituting or 
     Containing Child Pornography.--Section 2252A(a)(6)(C) of 
     title 18, United States Code, is amended by striking ``or by 
     transmitting'' and all that follows through ``by computer,'' 
     and inserting ``or any means or facility of interstate or 
     foreign commerce,''.

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