[Congressional Record Volume 163, Number 88 (Monday, May 22, 2017)]
[House]
[Pages H4406-H4409]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TARGETING CHILD PREDATORS ACT OF 2017
Mr. GOODLATTE. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 883) to amend title 18, United States Code, to provide a
certification process for the issuance of nondisclosure requirements
accompanying certain administrative subpoenas, to provide for judicial
review of such nondisclosure requirements, and for other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 883
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 ``Targeting Child Predators
Act of 2017''.
SEC. 2. NONDISCLOSURE OF ADMINISTRATIVE SUBPOENAS.
Section 3486(a) of title 18, United States Code, is
amended--
(1) by striking ``the Secretary of the Treasury'' each
place it appears and inserting ``the Secretary of Homeland
Security'';
(2) in paragraph (5), by striking ``ordered by a court'';
and
(3) by striking paragraph (6) and inserting the following:
``(6)(A)(i) If a subpoena issued under this section is
accompanied by a certification under clause (ii) and notice
of the right to judicial review under subparagraph (C), no
recipient of a subpoena under this section shall disclose to
any person that the Federal official who issued the subpoena
has sought or obtained access to information or records under
this section, for a period of 180 days.
``(ii) The requirements of clause (i) shall apply if the
Federal official who issued the subpoena certifies that the
absence of a prohibition of disclosure under this subsection
may result in--
``(I) endangering the life or physical safety of an
individual;
``(II) flight from prosecution;
``(III) destruction of or tampering with evidence;
``(IV) intimidation of potential witnesses; or
``(V) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
``(B)(i) A recipient of a subpoena under this section may
disclose information otherwise subject to any applicable
nondisclosure requirement to--
``(I) those persons to whom disclosure is necessary in
order to comply with the request;
``(II) an attorney in order to obtain legal advice or
assistance regarding the request; or
``(III) other persons as permitted by the Federal official
who issued the subpoena.
``(ii) A person to whom disclosure is made under clause (i)
shall be subject to the nondisclosure requirements applicable
to a person to whom a subpoena is issued under this section
in the same manner as the person to whom the subpoena was
issued.
``(iii) Any recipient that discloses to a person described
in clause (i) information otherwise subject to a
nondisclosure requirement shall notify the person of the
applicable nondisclosure requirement.
``(iv) At the request of the Federal official who issued
the subpoena, any person making or intending to make a
disclosure under subclause (I) or (III) of clause (i) shall
identify to the individual making the request under this
clause the person to whom such disclosure will be made or to
whom such disclosure was made prior to the request.
``(C)(i) A nondisclosure requirement imposed under
subparagraph (A) shall be subject to judicial review under
section 3486A.
``(ii) A subpoena issued under this section, in connection
with which a nondisclosure requirement under subparagraph (A)
is imposed, shall include notice of the availability of
judicial review described in clause (i).
``(D) A nondisclosure requirement imposed under
subparagraph (A) may be extended in accordance with section
3486A(a)(4).''.
SEC. 3. JUDICIAL REVIEW OF NONDISCLOSURE REQUIREMENTS.
(a) In General.--Chapter 223 of title 18, United States
Code, is amended by inserting after section 3486 the
following:
``Sec. 3486A. Judicial review of nondisclosure requirements
``(a) Nondisclosure.--
``(1) In general.--
``(A) Notice.--If a recipient of a subpoena under section
3486 wishes to have a court review a nondisclosure
requirement imposed in connection with the subpoena, the
recipient may notify the Government or file a petition for
judicial review in any court described in subsection (a)(5)
of section 3486.
``(B) Application.--Not later than 30 days after the date
of receipt of a notification under subparagraph (A), the
Government shall apply for an order prohibiting the
disclosure of the existence or contents of the relevant
subpoena. An application under this subparagraph may be filed
in the district court of the United States for the judicial
district in which the recipient of the subpoena is doing
business or in the district court of the United States for
any judicial district within which the authorized
investigation that is the basis for the subpoena is being
conducted. The applicable nondisclosure requirement shall
remain in effect during the pendency of proceedings relating
to the requirement.
``(C) Consideration.--A district court of the United States
that receives a petition under subparagraph (A) or an
application under subparagraph (B) should rule expeditiously,
and shall, subject to paragraph (3), issue a nondisclosure
order that includes conditions appropriate to the
circumstances.
``(2) Application contents.--An application for a
nondisclosure order or extension thereof or a response to a
petition filed under paragraph (1) shall include a
certification from the Federal official who issued the
subpoena indicating that the absence of a prohibition of
disclosure under this subsection may result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses; or
``(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
``(3) Standard.--A district court of the United States
shall issue a nondisclosure order or extension thereof under
this subsection if the court determines that there is reason
to believe that disclosure of the information subject to the
nondisclosure requirement during the applicable time period
may result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses; or
``(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
``(4) Extension.--Upon a showing that the circumstances
described in subparagraphs (A) through (E) of paragraph (3)
continue to exist, a district court of the United States may
issue an ex parte order extending a nondisclosure order
imposed under this subsection or under section 3486(a)(6)(A)
for additional periods of 180 days, or, if the court
determines that the circumstances necessitate a longer period
of nondisclosure, for additional periods which are longer
than 180 days.
``(b) Closed Hearings.--In all proceedings under this
section, subject to any right to an open hearing in a
contempt proceeding, the court must close any hearing to the
extent necessary to prevent an unauthorized disclosure of a
request for records, a report, or other information made to
any person or entity under section 3486. Petitions, filings,
records, orders, certifications, and subpoenas must also be
kept under seal to the extent and as long as necessary to
prevent the unauthorized disclosure of a subpoena under
section 3486.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 223 of title 18, United States Code, is
amended by inserting after the item relating to section 3486
the following:
``3486A. Judicial review of nondisclosure requirements.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Goodlatte) and the gentleman from Michigan (Mr. Conyers)
each will control 20 minutes.
The Chair recognizes the gentleman from Virginia.
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous materials on H.R. 883, currently under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, over the years, we as a society have made great strides
in combating crimes against children. As with many crimes, however, law
enforcement often struggles to keep pace with modern technology. That
is why H.R. 883, the Targeting Child Predators Act, is both an
important and a timely piece of legislation.
While many of the bills we have discussed today have been aimed at
prevention and punishment, H.R. 883 provides law enforcement with the
tools necessary to stop ongoing abuse, occurring in real time, and to
locate offenders.
Because of the severity of sex crimes committed against children and
the often irreparable harm they cause, we must take steps to ensure
that law enforcement has the ability to swiftly locate sexual
predators.
In 1998, Congress recognized this urgency by passing the Protection
of Children From Sexual Predators Act, which permitted the FBI to use
administrative subpoenas in cases of child exploitation. That
legislation was intended to enhance the FBI's ability to
[[Page H4407]]
investigate online child exploitation offenses in an expeditious
manner.
Administrative subpoenas are especially useful in child exploitation
cases because they are not burdened with grand jury secrecy
obligations, so the information may be shared among law enforcement to
quickly locate offenders in emergency situations.
Under current law, the FBI is permitted to use an administrative
subpoena to obtain non-content information from internet service
providers in child exploitation cases.
H.R. 883 allows the government to prohibit the recipient of a
subpoena from disclosing the existence of the subpoena, provided the
government certifies there is reason to believe that disclosure may
result in endangerment to the life or physical safety of any person,
flight to avoid prosecution, destruction of or tampering with evidence,
or intimidation of potential witnesses.
Presently, if agents want to obtain this information with a
nondisclosure provision, it must go through the courts, which, of
course, defeats the purpose of a speedy mechanism to obtain non-content
information.
Importantly, the bill contains a provision that allows a company in
receipt of such a subpoena to insist that the government obtain a court
order prohibiting the company from disclosing the subpoena to the
target. Alternatively, the company may initiate such proceedings itself
in a relevant court to challenge the nondisclosure requirement.
Mr. Speaker, a nondisclosure provision is vitally important in child
exploitation cases. If a bad guy who has taken a child knows that law
enforcement is on to him, or is looking for him, what might he do to
get away? What might he do to that child?
H.R. 883 is an important bill which promotes Congress' original
intent to ensure law enforcement has quick access to this information.
It is narrowly tailored to ensure that its provisions apply in cases
where time is of the essence. It provides a mechanism for companies to
challenge the nondisclosure requirements.
{time} 1730
I commend Mr. DeSantis, the gentleman from Florida and a member of
the Judiciary Committee, for introducing this bill, and I urge my
colleagues to support it.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I reluctantly rise in opposition to H.R. 883, the
Targeting Child Predators Act of 2017.
You see, child sexual exploitation and abuse are reprehensible crimes
committed against the most vulnerable members of our society.
Unfortunately, these offenses have been increasingly facilitated by the
use of the internet in recent years. H.R. 883 would change the
administrative subpoena statute to facilitate the prosecution of
criminals who commit these terrible crimes against children.
Without question, I support the goal of pursuing these criminals,
but, nevertheless, I am concerned that this bill would eliminate
judicial oversight of nondisclosure orders currently required prior to
the issuance of the administrative subpoenas.
Section 3486 of title 18 of the United States Code authorizes
investigators to request a 90-day order of nondisclosure from a
district court judge. The order of nondisclosure forbids the recipient,
such as an internet service provider, from alerting the target of the
investigation of the law enforcement's inquiry. H.R. 883 would extend
the nondisclosure period from 90 days to 180 days to allow
investigators more time to complete their investigations before the
target is informed of the inquiry.
Although I would like to have more information about why it is
necessary to extend this time period, it is particularly problematic
combined with the other significant change to the law made by this very
legislation. H.R. 883 would allow investigators to require
nondisclosure of internet service providers without the approval of a
judge, thereby eliminating any judicial oversight prior to issuance of
the subpoena.
The administrative subpoena authority is an extraordinary power given
to certain agencies by Congress under its limited circumstances. While
the legislation would allow a recipient to challenge a nondisclosure
order in court, I am concerned about the bill's elimination of judicial
approval on the front end.
I understand the desire to do more to facilitate the investigation of
these crimes and that the online context for them has raised issues
that we should continue to examine, but I do not believe we have been
given enough information justifying this bill, at least in its current
form.
Elimination of prior judicial approval of nondisclosure orders is a
step we should undertake only based on evidence and careful
deliberation. A bill such as the one before us warrants at least a
legislative hearing to consider its potential ramifications. I don't
think that is asking too much that we have a hearing on this matter
before we decide what to do with the proposal rather than not have one
at all. Our committee has not had the benefit of any such hearing on
this legislation, and I think this is not the proper way the members of
the House Judiciary Committee, who are mostly lawyers, should proceed.
Mr. Speaker, accordingly, I oppose H.R. 883, and I reserve the
balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield such time as he may consume to
the gentleman from Florida (Mr. DeSantis), who is the chief sponsor of
this legislation.
Mr. DeSANTIS. Mr. Speaker, every year, thousands of children are
victims of cyber exploitation. As a former prosecutor who has handled
child exploitation cases, I know just how important it is to preserve
evidence that can bring predators to justice.
After speaking with Florida law enforcement officials about the
challenges they face when tracking suspects online, I introduced the
Targeting Child Predators Act. This is a sensible reform that will
better protect our children by preventing suspected child predators
from destroying evidence and covering their tracks.
When tracking a suspected child predator online, law enforcement far
too often hits roadblocks that can critically threaten their
investigation. Internet service providers who have been issued a duly
issued, lawful subpoena from law enforcement will often inform the
suspect that police investigators have requested their information.
Once notified that they are the target of an investigation, child
predators can wipe their systems clean and go into hiding, leaving law
enforcement empty-handed and potentially putting their victims at
further risk.
The Targeting Child Predators Act is a simple and necessary amendment
to our criminal code requiring that ISPs wait 180 days before
disclosing to suspected child predators that their information has been
requested by law enforcement. The bill is narrowly targeted to child
exploitation cases where the destruction of valuable evidence could
endanger the safety of a child or seriously jeopardize an ongoing
investigation. Additionally, the Targeting Child Predators Act provides
judicial review of subpoenas and affords both ISPs and suspects due
process as required by law.
The Targeting Child Predators Act will protect our children from
those who wish to exploit them while maintaining the constitutional
rights of suspected criminals. This is an issue that should garner wide
bipartisan support from the House.
Mr. Speaker, I urge my colleagues to step up. Let's support our
vulnerable children. Let's target child predators, and let's vote
``yes'' on this bill.
Mr. CONYERS. Mr. Speaker, I yield such time as she may consume to the
gentlewoman from Texas (Ms. Jackson Lee), who is one of the consistent
leaders for a good criminal justice system.
Ms. JACKSON LEE. Mr. Speaker, I thank the ranking member very much,
and I thank him for his work.
I think the work that we are doing in Judiciary certainly has far-
reaching impact. It is important to try to make more efficient the way
that we address these very heinous acts against our children.
As a strong advocate for children throughout my career, I agree that
we in Congress must do everything within our power and authority to
prevent child sexual exploitation and abuse. The Targeting Child
Predators Act of 2017 is intended to assist investigators in their
pursuit of online predators.
[[Page H4408]]
I fully support efforts to locate and prosecute individuals who
commit such heinous crimes. However, I believe we should discuss the
proposal before us with more information from all who would be impacted
prior to approving the changes to the law this bill proposes.
This has a lot of moving parts and participants, particularly in
relation to online internet and the variety of providers that are
stakeholders in all of this.
This bill would modify a powerful yet historically controversial
investigatory tool: the administrative subpoena. Administrative
subpoenas allow certain investigators investigating specified crimes to
obtain private records without judicial approval. I can account for the
fact, Mr. Speaker, that there are many instances where this may be a
vital approach.
We know that we live in a very difficult time, and a number of
incidents dealing with national security and others may certainly be
impacted by such; but, obviously, there are other subpoenas that are
attendant to those particular acts. But the administrative subpoenas,
as indicated, allow Federal investigators investigating specified
crimes to obtain private records, as indicated, without judicial
approval.
Although investigators do not need sign-off from a judge before
issuing such a subpoena, there is one layer of judicial review that
prevents them from abusing their subpoena power. That is the judicial
consideration of nondisclosure orders prior to the issuance of
subpoenas.
At present, a district court judge must determine if circumstances
exist to justify issuance of a 90-day nondisclosure order in connection
with administrative subpoenas. Under the terms that I understand are in
this proposed bill, investigators could require nondisclosure by
subpoena recipients for a longer period--180 days--and without first
receiving the approval of a district judge, effectively eliminating
judicial consideration of nondisclosure orders prior to the issuance of
subpoenas. Subpoena recipients would have the ability to seek judicial
review of the nondisclosure requirement only after receiving the
subpoena. I believe that this provision raises concerns that remove the
wisdom of district judges from this process at the time the gag orders
are imposed.
Congress authorized the use of these subpoenas to allow investigators
to obtain information quickly and expeditiously, and I think they work
that way. The intervention of judicial review has not proven to be an
obstruction so much so that you might remove it and the wisdom of the
court. Congress also expressly required that investigators seek the
approval of a district judge for nondisclosure orders connected to
these subpoenas.
I share my colleagues' desire to locate and prosecute those who
commit child exploitation and abuse crimes, and, in essence, let's get
them, but I do think that the willingness to remove judicial review is
one of question.
Those individuals who hide behind computer screens committing
abhorrent acts against children on the internet must be apprehended and
made to answer for their crimes. I would think that the judge would be
well aware of how sensitive this is and use their best impression to
get moving and to allow the process to proceed.
I think this Nation is a land of laws. We abide by the rule of law,
and Congress has a right to draft laws. But I do think, in this
instance, the rule of law, abiding by the rule of law, allowing for the
active participation of the court and the wisdom of the court is not
too much to ask in a nation that believes in democracy, believes in the
rights of the offenders and, as well, the victims.
So I am very concerned about this bill, and I would hope that we
would have the opportunity to have this addressed or the issues
addressed, or addressed in the Senate; and I look forward to those
issues being addressed in the Senate so that we can, together, handle
the concerns that are being expressed and have a bill that does not
remove judicial oversight and the wisdom of the court.
Mr. Speaker, I rise today to discuss H.R. 883, the ``Targeting Child
Predators Act of 2017.'' As a strong advocate for children throughout
my career, I agree that we in Congress must do everything within our
power and authority to prevent child sexual exploitation and abuse.
The ``Targeting Child Predators Act of 2017'' is intended to assist
investigators in their pursuit of online child predators.
I fully support efforts to locate and prosecute individuals who
commit such heinous crimes. However, I believe we should discuss the
proposal before us--with more information from all who would be
impacted--prior to approving the changes to the law this bill proposes.
This bill would modify a powerful, yet historically controversial,
investigatory tool--the administrative subpoena.
Administrative subpoenas allow certain Federal investigators,
investigating specified crimes, to obtain private records without
judicial approval.
Although investigators do not need sign-off from a judge before
issuing such a subpoena, there is one layer of judicial review that
prevents them from abusing their subpoena power.
That is the judicial consideration of nondisclosure orders prior to
the issuance of subpoenas.
At present, a district court judge must determine if circumstances
exist to justify issuance of a 90-day nondisclosure order in connection
with administrative subpoenas.
Under the terms proposed in this bill, investigators could require
nondisclosure by subpoena recipients for a longer period--180 days--and
without first receiving the approval of a district judge, effectively
eliminating judicial consideration of nondisclosure orders prior to the
issuance of subpoenas.
Subpoena recipients would have the ability to seek judicial review of
the nondisclosure requirement only after receiving the subpoena.
I am deeply concerned with the provision that would remove the wisdom
of district judges from this process at the time the gag orders are
imposed.
Congress authorized the use of these subpoenas to allow investigators
to obtain information quickly and expeditiously.
But, Congress also expressly required that investigators seek the
approval of a district judge for nondisclosure orders connected to
these subpoenas.
I share my colleagues' desire to locate and prosecute those who
commit child exploitation and abuse crimes.
Those individuals, who hide behind computer screens, committing
abhorrent acts against children on the internet, must be apprehended
and made to answer for their crimes.
I am not convinced that this bill is the best way to go about doing
so.
I hope we can find a way to address this issue, with more information
from all concerned.
Mr. GOODLATTE. Mr. Speaker, I have no additional speakers, and I
reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, the most problematic aspect of H.R. 883 is that it would
eliminate prior judicial approval of nondisclosure orders. I am firmly
opposed to that. And while I fully support efforts to investigate
crime, particularly those perpetrated against children, I cannot
support this bill without knowing more about how it will affect an
already extraordinary investigative power.
Let's have a hearing. That is what our committee is for. The
Judiciary Committee should inquire into this very carefully, and, in
the absence of such evidence, I must urge, at this time, our colleagues
join me in opposing H.R. 883.
Mr. Speaker, I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield myself the balance of my time to
urge my colleagues to support this very important, very targeted
legislation.
This is not some broad authority. This is very targeted under
circumstances where the sexual predator has the child and the
authorities need to get information from third parties now so they can
find that child and they need those third parties to not disclose
information that they are yielding to the government about their
whereabouts and other information about them because of the emergency
circumstances that are at play here, or you are dealing with someone
who has a child and needs to be found so that child can be saved. That
is the purpose of this legislation.
{time} 1745
It is a good purpose. This legislation should be supported by all the
Members of the House. I urge them to do so.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by
[[Page H4409]]
the gentleman from Virginia (Mr. Goodlatte) that the House suspend the
rules and pass the bill, H.R. 883.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
____________________