[Congressional Record (Bound Edition), Volume 148 (2002), Part 8]
[House]
[Pages 11212-11221]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  1345
         CHILD OBSCENITY AND PORNOGRAPHY PREVENTION ACT OF 2002

  Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 4623) to prevent trafficking in child pornography and 
obscenity, to proscribe pandering and solicitation relating to visual 
depictions of minors engaging in sexually explicit conduct, to prevent 
the use of child pornography and obscenity to facilitate crimes against 
children, and for other purposes, as amended.
  The Clerk read as follows:

                               H.R. 4623

       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 ``Child Obscenity and 
     Pornography Prevention Act of 2002''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Obscenity and child pornography are not entitled to 
     protection under the First Amendment under Miller v. 
     California, 413 U.S. 15 (1973) (obscenity), or New York v. 
     Ferber, 458 U.S. 747 (1982) (child pornography) and thus may 
     be prohibited.
       (2) The Government has a compelling state interest in 
     protecting children from those who sexually exploit them, 
     including both child molesters and child pornographers. ``The 
     prevention of sexual exploitation and abuse of children 
     constitutes a government objective of surpassing 
     importance,'' New York v. Ferber, 458 U.S. 747, 757 (1982) 
     (emphasis added), and this interest extends to stamping out 
     the vice of child pornography at all levels in the 
     distribution chain. Osborne v. Ohio, 495 U.S. 103, 110 
     (1990).
       (3) The Government thus has a compelling interest in 
     ensuring that the criminal prohibitions against child 
     pornography remain enforceable and effective. ``[T]he most 
     expeditious if not the only practical method of law 
     enforcement may be to dry up the market for this material by 
     imposing severe criminal penalties on persons selling, 
     advertising, or otherwise promoting the product.'' Ferber, 
     458 U.S. at 760.
       (4) In 1982, when the Supreme Court decided Ferber, the 
     technology did not exist to: (A) create depictions of virtual 
     children that are indistinguishable from depictions of real 
     children; (B) create depictions of virtual children using 
     compositions of real children to create an unidentifiable 
     child; or (C) disguise pictures of real children being abused 
     by making the image look computer generated.
       (5) Evidence submitted to the Congress, including from the 
     National Center for Missing and Exploited Children, 
     demonstrates that technology already exists to disguise 
     depictions of real children to make them unidentifiable and 
     to make depictions of real children appear computer 
     generated. The technology will soon exist, if it does not 
     already, to make depictions of virtual children look real.
       (6) The vast majority of child pornography prosecutions 
     today involve images contained on computer hard drives, 
     computer disks, and/or related media.
       (7) There is no substantial evidence that any of the child 
     pornography images being trafficked today were made other 
     than by the abuse

[[Page 11213]]

     of real children. Nevertheless, technological advances since 
     Ferber have led many criminal defendants to suggest that the 
     images of child pornography they possess are not those of 
     real children, insisting that the government prove beyond a 
     reasonable doubt that the images are not computer-generated. 
     Such challenges will likely increase after the Ashcroft v. 
     Free Speech Coalition decision.
       (8) Child pornography circulating on the Internet has, by 
     definition, been digitally uploaded or scanned into computers 
     and has been transferred over the Internet, often in 
     different file formats, from trafficker to trafficker. An 
     image seized from a collector of child pornography is rarely 
     a first-generation product, and the retransmission of images 
     can alter the image so as to make it difficult for even an 
     expert conclusively to opine that a particular image depicts 
     a real child. If the original image has been scanned from a 
     paper version into a digital format, this task can be even 
     harder since proper forensic delineation may depend on the 
     quality of the image scanned and the tools used to scan it.
       (9) The impact on the government's ability to prosecute 
     child pornography offenders is already evident. The Ninth 
     Circuit has seen a significant adverse effect on prosecutions 
     since the 1999 Ninth Circuit Court of Appeals decision in 
     Free Speech Coalition. After that decision, prosecutions 
     generally have been brought in the Ninth Circuit only in the 
     most clear-cut cases in which the government can specifically 
     identify the child in the depiction or otherwise identify the 
     origin of the image. This is a fraction of meritorious child 
     pornography cases. The National Center for Missing and 
     Exploited Children testified that, in light of the Supreme 
     Court's affirmation of the Ninth Circuit decision, 
     prosecutors in various parts of the country have expressed 
     concern about the continued viability of previously indicted 
     cases as well as declined potentially meritorious 
     prosecutions.
       (10) In the absence of congressional action, this problem 
     will continue to grow increasingly worse. The mere prospect 
     that the technology exists to create computer or computer-
     generated depictions that are indistinguishable from 
     depictions of real children will allow defendants who possess 
     images of real children to escape prosecution, for it 
     threatens to create a reasonable doubt in every case of 
     computer images even when a real child was abused. This 
     threatens to render child pornography laws that protect real 
     children unenforceable.
       (11) To avoid this grave threat to the Government's 
     unquestioned compelling interest in effective enforcement of 
     the child pornography laws that protect real children, a 
     statute must be adopted that prohibits a narrowly-defined 
     subcategory of images.
       (12) The Supreme Court's 1982 Ferber v. New York decision 
     holding that child pornography was not protected drove child 
     pornography off the shelves of adult bookstores. 
     Congressional action is necessary to ensure that open and 
     notorious trafficking in such materials does not reappear.

     SEC. 3. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD 
                   PORNOGRAPHY.

       (a) Section 2256(8)(B) of title 18, United States Code, is 
     amended to read as follows:
       ``(B) such visual depiction is a computer image or 
     computer-generated image that is, or is indistinguishable (as 
     defined in section 1466A) from, that of a minor engaging in 
     sexually explicit conduct; or''.
       (b) Section 2256(2) of title 18, United States Code, is 
     amended to read as follows:
       ``(2)(A) Except as provided in subparagraph (B), `sexually 
     explicit conduct' means actual or simulated--
       ``(i) sexual intercourse, including genital-genital, oral-
     genital, anal-genital, or oral-anal, whether between persons 
     of the same or opposite sex;
       ``(ii) bestiality;
       ``(iii) masturbation;
       ``(iv) sadistic or masochistic abuse; or
       ``(v) lascivious exhibition of the genitals or pubic area 
     of any person;
       ``(B) For purposes of subsection 8(B) of this section, 
     `sexually explicit conduct' means--
       ``(i) actual sexual intercourse, including genital-genital, 
     oral-genital, anal-genital, or oral-anal, whether between 
     persons of the same or opposite sex, or lascivious simulated 
     sexual intercourse where the genitals, breast, or pubic area 
     of any person is exhibited;
       ``(ii) actual or lascivious simulated;
       ``(I) bestiality;
       ``(II) masturbation; or
       ``(III) sadistic or masochistic abuse; or
       ``(iii) actual or simulated lascivious exhibition of the 
     genitals or pubic area of any person;''.
       (c) Section 2252A(c) of title 18, United States Code, is 
     amended to read as follows:
       ``(c)(1) Except as provided in paragraph (2), it shall be 
     an affirmative defense to a charge of violating this section 
     that the alleged offense did not involve the use of a minor 
     or an attempt or conspiracy to commit an offense under this 
     section involving such use.
       ``(2) A violation of, or an attempt or conspiracy to 
     violate, this section which involves child pornography as 
     defined in section 2256(8)(A) or (C) shall be punishable 
     without regard to the affirmative defense set forth in 
     paragraph (1).''.

     SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD 
                   PORNOGRAPHY.

       (a) Section 2256(8) of title 18, United States Code, is 
     amended--
       (1) in subparagraph (C), by striking ``or'' at the end and 
     inserting ``and''; and
       (2) by striking subparagraph (D).
       (b) Chapter 110 of title 18, United States Code, is 
     amended--
       (1) by inserting after section 2252A the following:

     ``Sec. 2252B. Pandering and solicitation

       ``(a) Whoever, in a circumstance described in subsection 
     (d), offers, agrees, attempts, or conspires to provide or 
     sell a visual depiction to another, and who in connection 
     therewith knowingly advertises, promotes, presents, or 
     describes the visual depiction with the intent to cause any 
     person to believe that the material is, or contains, a visual 
     depiction of a minor engaging in sexually explicit conduct 
     shall be subject to the penalties set forth in section 
     2252A(b)(1), including the penalties provided for cases 
     involving a prior conviction.
       ``(b) Whoever, in a circumstance described in subsection 
     (d), offers, agrees, attempts, or conspires to receive or 
     purchase from another a visual depiction that he believes to 
     be, or to contain, a visual depiction of a minor engaging in 
     sexually explicit conduct shall be subject to the penalties 
     set forth in section 2252A(b)(1), including the penalties 
     provided for cases involving a prior conviction.
       ``(c) It is not a required element of any offense under 
     this section that any person actually provide, sell, receive, 
     purchase, possess, or produce any visual depiction.
       ``(d) The circumstance referred to in subsection (a) and 
     (b) is that--
       ``(1) any communication involved in or made in furtherance 
     of the offense is communicated or transported by the mail, or 
     in interstate or foreign commerce by any means, including by 
     computer, or any means or instrumentality of interstate or 
     foreign commerce is otherwise used in committing or in 
     furtherance of the commission of the offense;
       ``(2) any communication involved in or made in furtherance 
     of the offense contemplates the transmission or 
     transportation of a visual depiction by the mail, or in 
     interstate or foreign commerce by any means, including by 
     computer;
       ``(3) any person travels or is transported in interstate or 
     foreign commerce in the course of the commission or in 
     furtherance of the commission of the offense;
       ``(4) any visual depiction involved in the offense has been 
     mailed, or has been shipped or transported in interstate or 
     foreign commerce by any means, including by computer, or was 
     produced using materials that have been mailed, or that have 
     been shipped or transported in interstate or foreign commerce 
     by any means, including by computer; or
       ``(5) the offense is committed in the special maritime and 
     territorial jurisdiction of the United States or in any 
     territory or possession of the United States.'';
       (2) in the analysis for the chapter, by inserting after the 
     item relating to section 2252A the following:

``2252B. Pandering and solicitation.''.

     SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.

       (a) Chapter 71 of title 18, United States Code, is 
     amended--
       (1) by inserting after section 1466 the following:

     ``Sec. 1466A. Obscene visual depictions of young children

       ``(a) Whoever, in a circumstance described in subsection 
     (d), knowingly produces, distributes, receives, or possesses 
     with intent to distribute a visual depiction that is, or is 
     indistinguishable from, that of a pre-pubescent child 
     engaging in sexually explicit conduct, or attempts or 
     conspires to do so, shall be subject to the penalties set 
     forth in section 2252A(b)(1), including the penalties 
     provided for cases involving a prior conviction.
       ``(b) Whoever, in a circumstance described in subsection 
     (d), knowingly possesses a visual depiction that is, or is 
     indistinguishable from, that of a pre-pubescent child 
     engaging in sexually explicit conduct, or attempts or 
     conspires to do so, shall be subject to the penalties set 
     forth in section 2252A(b)(2), including the penalties 
     provided for cases involving a prior conviction.
       ``(c) For purposes of this section--
       ``(1) the term `visual depiction' includes undeveloped film 
     and videotape, and data stored on computer disk or by 
     electronic means which is capable of conversion into a visual 
     image, and also includes any photograph, film, video, 
     picture, or computer or computer-generated image or picture, 
     whether made or produced by electronic, mechanical, or other 
     means;
       ``(2) the term `pre-pubescent child' means that (A) the 
     child, as depicted, is one whose physical development 
     indicates the child is 12 years of age or younger; or (B) the 
     child, as depicted, does not exhibit significant pubescent 
     physical or sexual maturation. Factors that may be considered 
     in determining significant pubescent physical maturation 
     include body habitus and musculature, height and weight 
     proportion, degree of hair distribution over the body, 
     extremity proportion with respect to the torso, and 
     dentition. Factors that may be considered in determining 
     significant pubescent sexual maturation include breast 
     development, presence of axillary hair, pubic hair 
     distribution, and visible growth of the sexual organs;
       ``(3) the term `sexually explicit conduct' has the meaning 
     set forth in section 2256(2); and
       ``(4) the term `indistinguishable' used with respect to a 
     depiction, means virtually indistinguishable, in that the 
     depiction is such that an ordinary person viewing the 
     depiction would conclude that the depiction is of an actual 
     minor engaged in sexually explicit conduct. This definition 
     does not apply to depictions that are drawings, cartoons, 
     sculptures, or paintings depicting minors or adults.

[[Page 11214]]

       ``(d) The circumstance referred to in subsections (a) and 
     (b) is that--
       ``(1) any communication involved in or made in furtherance 
     of the offense is communicated or transported by the mail, or 
     in interstate or foreign commerce by any means, including by 
     computer, or any means or instrumentality of interstate or 
     foreign commerce is otherwise used in committing or in 
     furtherance of the commission of the offense;
       ``(2) any communication involved in or made in furtherance 
     of the offense contemplates the transmission or 
     transportation of a visual depiction by the mail, or in 
     interstate or foreign commerce by any means, including by 
     computer;
       ``(3) any person travels or is transported in interstate or 
     foreign commerce in the course of the commission or in 
     furtherance of the commission of the offense;
       ``(4) any visual depiction involved in the offense has been 
     mailed, or has been shipped or transported in interstate or 
     foreign commerce by any means, including by computer, or was 
     produced using materials that have been mailed, or that have 
     been shipped or transported in interstate or foreign commerce 
     by any means, including by computer; or
       ``(5) the offense is committed in the special maritime and 
     territorial jurisdiction of the United States or in any 
     territory or possession of the United States.
       ``(e) In a case under subsection (b), it is an affirmative 
     defense that the defendant--
       ``(1) possessed less than three such images; and
       ``(2) promptly and in good faith, and without retaining or 
     allowing any person, other than a law enforcement agency, to 
     access any image or copy thereof--
       ``(A) took reasonable steps to destroy each such image; or
       ``(B) reported the matter to a law enforcement agency and 
     afforded that agency access to each such image.

     ``Sec. 1466B. Obscene visual representations of pre-pubescent 
       sexual abuse

       ``(a) Whoever, in a circumstance described in subsection 
     (e), knowingly produces, distributes, receives, or possesses 
     with intent to distribute a visual depiction of any kind, 
     including a drawing, cartoon, sculpture, or painting, that--
       ``(1) depicts a pre-pubescent child engaging in sexually 
     explicit conduct, and
       ``(2) is obscene, or who attempts or conspires to do so, 
     shall be subject to the penalties set forth in section 
     2252A(b)(1), including the penalties provided for cases 
     involving a prior conviction.
       ``(b) Whoever, in a circumstance described in subsection 
     (e), knowingly possesses a visual depiction of any kind, 
     including a drawing, cartoon, sculpture, or painting, that--
       ``(1) depicts a pre-pubescent child engaging in sexually 
     explicit conduct, and
       ``(2) is obscene,
       ``or who attempts or conspires to do so, shall be subject 
     to the penalties set forth in section 2252A(b)(2), including 
     the penalties provided for cases involving a prior 
     conviction.
       ``(c) It is not a required element of any offense under 
     this section that the pre-pubescent child depicted actually 
     exist.
       ``(d) For purposes of this section, the terms `visual 
     depiction' and `pre-pubescent child' have respectively the 
     meanings given those terms in seciton 1466A, and the term 
     `sexually explicit conduct' has the meaning given that term 
     in section 2256(2)(B).
       ``(e) The circumstance referred to in subsection (a) and 
     (b) is that--
       ``(1) any communication involved in or made in furtherance 
     of the offense is communicated or transported by the mail, or 
     in interstate or foreign commerce by any means, including by 
     computer, or any means or instrumentality of interstate or 
     foreign commerce is otherwise used in committing or in 
     furtherance of the commission of the offense;
       ``(2) any communication involved in or made in furtherance 
     of the offense contemplates the transmission or 
     transportation of a visual depiction by the mail, or in 
     interstate or foreign commerce by any means, including by 
     computer;
       ``(3) any person travels or is transported in interstate or 
     foreign commerce in the course of the commission or in 
     furtherance of the commission of the offense;
       ``(4) any visual depiction involved in the offense has been 
     mailed, or has been shipped or transported in interstate or 
     foreign commerce by any means, including by computer, or was 
     produced using materials that have been mailed, or that have 
     been shipped or transported in interstate or foreign commerce 
     by any means, including by computer; or
       ``(5) the offense is committed in the special maritime and 
     territorial jurisdiction of the United States or in any 
     territory or possession of the United States.
       ``(f) In a case under subsection (b), it is an affirmative 
     defense that the defendant--
       ``(1) possessed less than three such images; and
       ``(2) promptly and in good faith, and without retaining or 
     allowing any person, other than a law enforcement agency, to 
     access any image or copy thereof--
       ``(A) took reasonable steps to destroy each such image; or
       ``(B) reported the matter to a law enforcement agency and 
     afforded that agency access to each such image.''; and
       (2) in the analysis for the chapter, by inserting after the 
     item relating to section 1466 the following:

``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual 
              abuse.''.
       (b)(1) Except as provided in paragraph (2), the applicable 
     category of offense to be used in determining the sentencing 
     range referred to in section 3553(a)(4) of title 18, United 
     States Code, with respect to any person convicted under 
     section 1466A or 1466B of such title, shall be the category 
     of offenses described in section 2G2.2 of the Sentencing 
     Guidelines.
       (2) The Sentencing Commission may promulgate guidelines 
     specifically governing offenses under section 1466A of title 
     18, United States Code, provided that such guidelines shall 
     not result in sentencing ranges that are lower than those 
     that would have applied under paragraph (1).

     SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE 
                   OFFENSES AGAINST MINORS.

       Chapter 71 of title 18, United States Code, is amended--
       (1) by inserting at the end the following:

     ``Sec. 1471. Use of obscene material or child pornography to 
       facilitate offenses against minors

       ``(a) Whoever, in any circumstance described in subsection 
     (c), knowingly--
       ``(1) provides or shows to a person below the age of 16 
     years any visual depiction that is, or is indistinguishable 
     from, that of a pre-pubescent child engaging in sexually 
     explicit conduct, any obscene matter, or any child 
     pornography; or
       ``(2) provides or shows any obscene matter or child 
     pornography, or any visual depiction that is, or is 
     indistinguishable from, that of a pre-pubescent child 
     engaging in sexually explicit conduct, or any other material 
     assistance to any person in connection with any conduct, or 
     any attempt, incitement, solicitation, or conspiracy to 
     engage in any conduct, that involves a minor and that 
     violates chapter 109A, 110, or 117, or that would violate 
     chapter 109A if the conduct occurred in the special maritime 
     and territorial jurisdiction of the United States,

     shall be subject to the penalties set forth in section 
     2252A(b)(1), including the penalties provided for cases 
     involving a prior conviction.
       ``(b) For purposes of this section--
       ``(1) the term `child pornography' has the meaning set 
     forth in section 2256(8);
       ``(2) the terms `visual depiction', `pre-pubescent child', 
     and `indistinguishable' have the meanings respectively set 
     forth for those terms in section 1466A(c); and
       ``(3) the term `sexually explicit conduct' has the meaning 
     set forth in section 2256(2).
       ``(c) The circumstance referred to in subsection (a) is 
     that--
       ``(1) any communication involved in or made in furtherance 
     of the offense is communicated or transported by the mail, or 
     in interstate or foreign commerce by any means, including by 
     computer, or any means or instrumentality of interstate or 
     foreign commerce is otherwise used in committing or in 
     furtherance of the commission of the offense;
       ``(2) any communication involved in or made in furtherance 
     of the offense contemplates the transmission or 
     transportation of a visual depiction or obscene matter by the 
     mail, or in interstate or foreign commerce by any means, 
     including by computer;
       ``(3) any person travels or is transported in interstate or 
     foreign commerce in the course of the commission or in 
     furtherance of the commission of the offense;
       ``(4) any visual depiction or obscene matter involved in 
     the offense has been mailed, or has been shipped or 
     transported in interstate or foreign commerce by any means, 
     including by computer, or was produced using materials that 
     have been mailed, or that have been shipped or transported in 
     interstate or foreign commerce by any means, including by 
     computer; or
       ``(5) the offense is committed in the special maritime and 
     territorial jurisdiction of the United States or in any 
     territory or possession of the United States.'';
       (2) in the analysis for the chapter, by inserting at the 
     end the following:

``1471. Use of obscene material or child pornography to facilitate 
              offenses against minors.''.

     SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR 
                   DISTRIBUTION IN THE UNITED STATES.

       Section 2251 is amended--
       (1) by striking ``subsection (d)'' each place it appears in 
     subsections (a), (b), and (c) and inserting ``subsection 
     (e)'';
       (2) by redesignating subsections (c) and (d), respectively, 
     as subsections (d) and (e); and
       (3) by inserting after subsection (b) a new subsection (c) 
     as follows:
       ``(c)(1) Any person who, in a circumstance described in 
     paragraph (2), employs, uses, persuades, induces, entices, or 
     coerces any minor to engage in, or who has a minor assist any 
     other person to engage in, any sexually explicit conduct 
     outside of the United States, its possessions and 
     Territories, for the purpose of producing any visual 
     depiction of such conduct, shall be punished as provided 
     under subsection (e).
       ``(2) The circumstance referred to in paragraph (1) is 
     that--
       ``(A) the person intends such visual depiction to be 
     transported to the United States, its possessions, or 
     territories, by any means including by computer or mail;
       ``(B) the person transports such visual depiction to, or 
     otherwise makes it available within, the United States, its 
     possessions, or territories, by any means including by 
     computer or mail.''

[[Page 11215]]

     SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT 
                   OFFENDERS.

       Sections 2251(e) (as redesignated by section 7(2)), 
     2252(b), and 2252A(b) of title 18, United States Code, are 
     each amended by inserting ``chapter 71,'' immediately before 
     each occurrence of ``chapter 109A,''.

     SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND 
                   RELATED INFORMATION.

       (a) Section 227 of the Victims of Child Abuse Act of 1990 
     (42 U.S.C. 13032) is amended--
       (1) in subsection (b)(1)--
       (A) by inserting ``2252B,'' after ``2252A,''; and
       (B) by inserting ``or a violation of section 1466A or 1466B 
     of that title,'' after ``of that title),'';
       (2) in subsection (c), by inserting ``or pursuant to'' 
     after ``to comply with'';
       (3) by amending subsection (f)(1)(D) to read as follows:
       ``(D) where the report discloses a violation of State 
     criminal law, to an appropriate official of a State or 
     subdivision of a State for the purpose of enforcing such 
     State law.'';
       (4) by redesignating paragraph (3) of subsection (b) as 
     paragraph (4); and
       (5) by inserting after paragraph (2) of subsection (b) the 
     following new paragraph:
       ``(3) In addition to forwarding such reports to those 
     agencies designated in subsection (b)(2), the National Center 
     for Missing and Exploited Children is authorized to forward 
     any such report to an appropriate official of a state or 
     subdivision of a state for the purpose of enforcing state 
     criminal law.''.
       (b) Section 2702 of title 18, United States Code is 
     amended--
       (1) in subsection (b)--
       (A) in paragraph (6)--
       (i) by inserting ``or'' at the end of subparagraph (A)(ii);
       (ii) by striking subparagraph (B); and
       (iii) by redesignating subparagraph (C) as subparagraph 
     (B);
       (B) by redesignating paragraph (6) as paragraph (7);
       (C) by striking ``or'' at the end of paragraph (5); and
       (D) by inserting after paragraph (5) the following new 
     paragraph:
       ``(6) to the National Center for Missing and Exploited 
     Children, in connection with a report submitted thereto under 
     section 227 of the Victims of Child Abuse Act of 1990 (42 
     U.S.C. 13032); or''; and
       (2) in subsection (c)--
       (A) by striking ``or'' at the end of paragraph (4);
       (B) by redesignating paragraph (5) as paragraph (6); and
       (C) by adding after paragraph (4) the following new 
     paragraph:
       ``(5) to the National Center for Missing and Exploited 
     Children, in connection with a report submitted thereto under 
     section 227 of the Victims of Child Abuse Act of 1990 (42 
     U.S.C. 13032); or''.

     SEC. 10. SEVERABILITY.

       If any provision of this Act, or the application of such 
     provision to any person or circumstance, is held invalid, the 
     remainder of this Act, and the application of such provision 
     to other persons not similarly situated or to other 
     circumstances, shall not be affected by such invalidation.

     SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD 
                   PORNOGRAPHY.

       Section 3486(a)(1)(C)(i) of title 18, United States Code, 
     is amended by striking ``the name, address'' and all that 
     follows through ``subscriber or customer'' and inserting 
     ``the information specified in section 2703(c)(2)''.

  The SPEAKER pro tempore (Mr. Latham). Pursuant to the rule, the 
gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from 
Virginia (Mr. Scott) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).


                             General Leave

  Mr. SENSENBRENNER. 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 material on the bill, H.R. 4623, 
currently under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, on April 16, 2002, the Supreme Court of the United 
States in the case of Ashcroft v. the Free Speech Coalition held that 
the current definition of child pornography as enacted by the Child 
Pornography Protection Act of 1996 is overbroad and, thus, 
unconstitutional.
  In response to that decision, Ernest Allen, the president and CEO of 
the National Center for Missing and Exploited Children, testified that 
he believes that the Court's decision will result in the proliferation 
of child pornography in America unlike anything we have seen in more 
than 20 years. He concluded that, as a result of the Court's decision, 
thousands of children will be sexually victimized, most of whom will 
not report the offense.
  Technology will exist, or may exist today, to create depictions of 
virtual children that are indistinguishable from depictions of real 
children. Just the mere possibility that such technology exists will 
make it impossible for law enforcement and prosecutors to enforce the 
child pornography laws in cases where computers are involved.
  A vast majority of child pornography prosecutions today involve 
images contained on computer hard drives, computer disks or related 
media. A computer image seized from a child pornographer is rarely a 
first-generation product. These pictures are e-mailed over and over 
again or scanned in from photographs of real children being abused and 
exploited. The transmission of images over an e-mail system can alter 
the image and make it impossible for even an expert to know whether or 
not a particular image depicts a real child. If the original image has 
been scanned from a paper version into a digital format, accurate 
analysis can be even more difficult because proper forensic delineation 
may depend upon the quality of the image scanned and the tools used to 
scan it. As a result, the prosecution of child pornography cases that 
involve a computer in any form are threatened.
  Convicted child pornographers are appealing their cases with claims 
that the government must prove that the child in the picture is real. 
This can be an insurmountable burden on the prosecution. In fact, on 
May 1, the committee received testimony that while there are estimates 
that hundreds of thousands of child pornography files are in existence 
and available on the Internet, law enforcement has established the 
identity of less than 100 children to date.
  The government has an obligation to respond to the Supreme Court's 
decision, as it has an unquestionable compelling interest to protect 
children from those who would sexually exploit them. The Supreme Court 
recognized this compelling interest in its 1982 New York v. Ferber 
decision, holding that child pornography is not protected by the first 
amendment. The government will not be able to protect real children 
unless it can effectively prosecute and enforce child pornography laws. 
In order to do that, a statute must be adopted that narrows the 
definition of child pornography to withstand constitutional muster.
  H.R. 4623, the Child Obscenity and Pornography Prevention Act of 
2002, does that. In response to the Court's decision, this bill narrows 
the definition of child pornography, strengthens the existing 
affirmative defense, amends the obscenity laws to address virtual and 
real child pornography that involve visual depictions of pre-pubescent 
children, creates new offenses against pandering visual depictions as 
child pornography, and creates new offenses against providing children 
obscene or pornographic material.
  Mr. Speaker, this is carefully crafted legislation that will help to 
protect our children from the worst predators in our society. I urge my 
colleagues to support it.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SCOTT. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, H.R. 4623 is a hasty attempt to override the United 
States Supreme Court decision of just 2 months ago, Ashcroft v. Free 
Speech Coalition. Unfortunately, it tries to do exactly what the 
Supreme Court said could not be done. H.R. 4623 seeks to ban virtual 
child pornography. It not only defines child pornography to include 
virtual child pornography that is indistinguishable from real child 
pornography, but makes even possession of an image that is 
indistinguishable a crime. Child pornography may be banned and 
prosecuted. However, pornography that does not involve a real child is 
just that, pornography which, if not obscene, has been ruled by the 
Supreme Court to be not illegal. To constitute child pornography, a 
real child must be involved. The Supreme

[[Page 11216]]

Court has ruled that computer-generated images depicting childlike 
characters which do not involve real children do not constitute child 
pornography any more than a movie with a 22-year-old actor who plays 
and looks like a 15-year-old engaging in sex would be illegal.
  The Supreme Court has ruled that pornography, computer-generated or 
not, which is not produced using real children, and is not otherwise 
obscene, is protected under the first amendment. H.R. 4623, like the 
CPPA struck down in Ashcroft v. Free Speech, attempts to ban this 
protected material and therefore is likely to meet the same fate. The 
fatal flaw in the CPPA was its criminalization of speech that was 
neither obscene under Supreme Court guidelines nor child pornography 
involving the abuse of real children under New York v. Ferber.
  H.R. 4623 repeats that mistake. Like the CPPA, this bill would not 
only criminalize speech that is not obscene but also speech that has 
redeeming literary, artistic, political or other social value. For 
example, the bill would punish therapists and academic researchers who 
used computer-generated images in their research and filmmakers who 
create explicit anti-child abuse documentaries.
  The bill creates a strict liability offense. Under the bill, 
prohibited images may not be possessed for any reason, however 
legitimate. Therefore, any scholarly research that may be used to 
verify or refute the underlying assumptions in the bill is rendered 
impossible. Proponents of the bill believe the Court left open the 
question of whether the government can criminalize computer-generated 
images that are not obscene and do not involve real children. Obscene 
images can always be prosecuted, but the Court clearly said that the 
government cannot criminalize images which are not obscene unless the 
product involved actual children.
  In striking down the bill and upholding its decision in Ferber, the 
Supreme Court stated: ``In contrast to the speech in Ferber, speech 
that itself is the record of sexual abuse, the CPPA prohibits speech 
that records no crime and creates no victims by its production. Virtual 
child pornography is not intrinsically related to the sexual abuse of 
children as were the materials in Ferber. Ferber, then, not only 
referred to the distinction between actual and virtual child 
pornography, it relied on it as a reason for supporting its holding. 
Ferber provides no support for a statute that eliminates the 
distinction and makes the alternative mode criminal as well.''
  In interpreting the Osborne case of 1990, the Court said: ``Osborne 
also noted the State's interest in preventing child pornography from 
being used as an aid in the solicitation of minors. The Court, however, 
anchored its holding in the concern for the participants, those whom it 
called the victims of child pornography. It did not suggest that, 
absent this concern, other governmental interests would suffice. The 
case reaffirmed that where the speech is neither obscene nor the 
product of sexual abuse, it does not fall outside the protection of the 
first amendment. The distribution of descriptions or other depictions 
of sexual conduct, not otherwise obscene, which do not involve live 
performance or photographic or other visual reproduction of live 
performances, retains first amendment protection.''
  Proponents also argue that the Court did not consider the harm to 
real children that will occur when, through technological advances, it 
may become impossible to tell whether it is real children or virtual 
children, thereby allowing harm to real children because the government 
cannot tell the difference for purposes of bringing prosecution. The 
Court did consider that and said: ``The government next argues that its 
objective of eliminating the market for pornography produced using real 
children necessitates a prohibition on virtual images as well. Virtual 
images, the government contends, are indistinguishable from real ones; 
they are part of the same market and are often exchanged. In this way, 
it is said, virtual images promote the trafficking in works produced 
through the exploitation of real children. The hypothesis is somewhat 
implausible. If virtual images were identical to illegal child 
pornography, the illegal images would be driven from the market by the 
indistinguishable substitutes. Few pornographers would risk prosecution 
by abusing real children if fictional, computerized images would 
suffice.''
  Nor was the Court persuaded, Mr. Speaker, by the argument that 
virtual images will make it very difficult for the government to 
prosecute cases. As to that concern, the Court stated: ``Finally, the 
government says that the possibility of producing images by using 
computer imaging makes it very difficult for it to prosecute those who 
produce pornography by using real children. Experts, we are told, may 
have difficulty in saying whether the pictures were made by using real 
children or by using computer imaging. The necessary solution, the 
argument runs, is to prohibit both kinds of images. The argument, in 
essence, is that protected speech may be banned as a means to ban 
unprotected speech. This analysis turns the first amendment upside 
down. The government may not suppress lawful speech as the means to 
suppress unlawful speech.''
  It also talked about the affirmative defense and said: ``To avoid 
this objection, the government would have us read the CPPA not as a 
measure suppressing speech but as a law shifting the burden to the 
accused to prove the speech is lawful. In this connection, the 
government relies on an affirmative defense under the statute, which 
allows a defendant to avoid conviction for nonpossession offenses by 
showing that the materials were produced using only adults and were not 
otherwise distributed in a manner conveying the impression that they 
depicted real children. The government raises serious constitutional 
difficulties by seeking to impose on the defendant the burden of 
proving his speech is not unlawful. An affirmative defense applies only 
after prosecution has begun, and the speaker must himself prove, on 
pain of a felony conviction, that his conduct falls within the 
affirmative defense. In cases under the CPPA, the evidentiary burden is 
not trivial. Where the defendant is not the producer of the work, he 
may have no way of establishing the identity, or even the existence, of 
the actors. If the evidentiary issue is a serious problem for the 
government, as it asserts, it will be at least as difficult for the 
innocent possessor.''
  The Ashcroft decision in essence reiterates the principles of Ferber 
regarding the boundaries for fighting child pornography, like, number 
one, nonobscene descriptions or depictions of sexual conduct that do 
not involve real children are a form of speech which, even if 
despicable, is protected by the first amendment. The Court said that 
the government should focus its efforts on education and on punishment 
for violations of the law by those who actually harm children in the 
creation of child pornography rather than abridging the rights of free 
speech of those who would create something from their imagination.

                              {time}  1400

  Again, the Court said that the fact that the speech may be used to 
perpetrate a crime is insufficient reason to ban the speech. ``The 
government may not prohibit speech because it increases the chance an 
unlawful act will be committed `at some indefinite future time.''' 
Further, the Government said, ``The Government may not suppress lawful 
speech as the means to suppress unlawful speech.''
  So, therefore, Mr. Speaker, this bill just reiterates the mistakes in 
the original legislation. It is unlikely that the bill will ever be 
upheld and, therefore, ought to be defeated.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume 
to the gentleman from Texas (Mr. Smith), the subcommittee chairman.
  Mr. SMITH of Texas. Mr. Speaker, first of all, I thank the chairman 
of the Committee on the Judiciary for yielding me this time.
  Mr. Speaker, H.R. 4623, the Child Obscenity and Pornography 
Prevention

[[Page 11217]]

Act of 2002, is a bipartisan piece of legislation that was passed by 
the Committee on the Judiciary 22 to 3. Because I see him on the floor, 
I would especially like to thank the gentleman from California (Mr. 
Schiff) for his contributions to this bill as well.
  Mr. Speaker, H.R. 2623 responds to the Ashcroft v. Free Speech 
Coalition Supreme Court decision. This decision will have a devastating 
effect on the prosecution of child pornographers who are so often child 
molesters as well.
  Just this month, a doctor in San Antonio appealed his conviction for 
possessing child pornography. The appeal came after the Free Speech 
Coalition decision and challenged the conviction because the government 
was not required to prove that the children depicted in his 
pornographic images obtained on-line were real. The San Antonio 
Express-News reported that these appeals are occurring nationwide.
  Mr. Speaker, this legislation addresses the concerns of the Supreme 
Court. Specifically, this bill narrows the definition of child 
pornography and amends the obscenity laws to address virtual and real 
child pornography that involves visual depictions of pre-pubescent 
children. It also creates new offenses against providing children 
obscene or pornographic material.
  The Court was concerned in Free Speech Coalition that the breadth of 
the language would prohibit legitimate movies like ``Traffic'' or plays 
like ``Romeo and Juliet.'' Limiting the definition to computer images 
or computer-generated images will help exclude ordinary motion pictures 
from the coverage of ``virtual child pornography.''
  Next, the bill narrows the definition by replacing the phrase 
``appears to be'' with the phrase ``is indistinguishable from'' and 
clarifies that this definition does not apply to depictions that are 
drawings, cartoons, sculptures, or paintings depicting minors or 
adults.
  At the request of the National Center for Missing and Exploited 
Children, this bill allows the Federally-funded Internet Crimes Against 
Children Task Forces to receive reports from the Cyber Tipline. These 
task forces are State and local police agencies that have been 
identified by the National Center as competent to investigate and 
prosecute computer-facilitated crimes against children.
  Mr. Speaker, finally, in response to a new website that displays 
pictures of children being raped and sodomized by adults, where the 
pictures are clearly virtual, but obscene, this bill includes a 
provision that would enhance the penalties for such obscenity.
  Mr. Speaker, children are the most innocent and vulnerable among us. 
We should do everything we possibly can to protect them, and that is 
why I hope my colleagues will support this piece of legislation.
  Mr. SCOTT. Mr. Speaker, I yield 3 minutes to the gentleman from North 
Dakota (Mr. Pomeroy).
  Mr. POMEROY. Mr. Speaker, I thank the ranking member for yielding me 
this time.
  These are dangerous times when it comes to child pornography. The 
Internet has allowed distribution in ways never imagined before, making 
it much more prevalent throughout our society, at the very time we have 
a Supreme Court ruling knocking out the prohibition on computer-
generated child pornography. We need to respond, and we need to respond 
immediately. That is why I commend the gentleman from Texas (Mr. 
Smith), the chairman of the subcommittee, and others who have worked on 
this legislation, including the gentleman from Florida (Mr. Foley) and 
the gentleman from Texas (Mr. Lampson). This has been a truly 
bipartisan effort to forge immediately a response that will withstand 
constitutional review and put back into the code strong protections for 
our children against child pornography.
  In the end, make no bones about it. This is about protecting our 
children. Meetings I have held with prosecutors, with child protection 
advocates, have made it very clear to me that the use of child 
pornography is damaging to children, sets them up as targets for 
ultimate exploitation, and whets the appetite of the exploiters, making 
them more likely to commit acts against our children.
  The Attorney General and the Justice Department were very involved in 
assembling a panel of constitutional experts reviewing the court ruling 
and fashioning a legislative response that will withstand court review. 
This is not about some immediate, knee-jerk response to a Supreme Court 
ruling that causes us concern. This is a carefully calibrated effort to 
put back into the code constitutional standards and prohibitions now 
needed to be restored against virtual child pornography. There are new 
constitutionally compliant definitions about the virtual imagery that 
we are condemning, a tighter and stronger affirmative defense for those 
prosecuted under this, required, as my prosecutors tell me, to allow 
them to be able to continue to prosecute these matters.
  I had a prosecutor in North Dakota tell me he took two cases right 
off his desk and put them right back into the file, being unable to 
prosecute them under the court ruling. This will put him back into 
business in bringing these needed actions.
  It stops commercial trade in child pornography: the trading, the 
selling, the buying. This is not constitutionally protected free 
speech, and the prohibition is restored with this legislation. It 
clarifies the definition of obscenity by defining, whether real or 
virtual, explicit sex involving young children as per se obscene. 
Clearly, I believe we are on very strong ground that will withstand 
constitutional muster and make an important contribution to prosecutors 
trying to bring actions against this kind of material.
  There is a severability clause in this legislation, thus raising the 
very sincere arguments that they have about whether or not this is 
constitutional. Clearly, the several clauses of this bill are not all 
constitutional. I absolutely believe they are all constitutional, but, 
in any event, we should pass the law, have the Justices review it, and 
I believe ultimately strengthen significantly the protections of our 
children against child pornography.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Utah (Mr. Cannon).
  Mr. CANNON. Mr. Speaker, I would like to associate myself with the 
comments of the gentleman from Wisconsin (Mr. Sensenbrenner) and those 
of the gentleman from Texas (Mr. Smith). I believe that in light of the 
Supreme Court decision of Free Speech Coalition against Ashcroft, 
Congress must act again and immediately to give law enforcement the 
ability to fight the scourge of child pornography, whether real or 
virtual.
  The Supreme Court struck down provisions of the law passed by this 
Congress in 1996 because some were poorly defined and too broadly 
targeted. We have heard some criticism today that this bill is still in 
conflict with the recent decision by the Supreme Court. I think that 
criticism is unfounded, and I want to speak for a moment about some of 
the specific changes we have made to focus and narrow and improve the 
bill.
  In response to the Free Speech Coalition decision, section 3(a) of 
this bill narrows the definition of child pornography so that it is a 
computer image or computer-generated image that is, or is 
indistinguishable from, that of a minor engaging in sexually explicit 
conduct. This provision narrows the definition in several ways. First, 
it limits the definition to computer images or computer-generated 
images; second, it limits the definition by requiring the virtual 
images be indistinguishable from real images; and, third, it uses the 
newly defined definition for ``sexually explicit conduct.''
  The bill also strengthens the affirmative defense for those charged 
under the law to address another criticism of the Supreme Court. 
Finally, the bill also narrows the definition for the offense of 
pandering material as child pornography.
  It is clear from these provisions and others in the bill that the 
drafting was done very carefully to address the issues raised by the 
Supreme Court decision and improved the law as the court suggested. I 
urge my colleagues

[[Page 11218]]

to support the bill and once again make it clear that some material is 
so universally offensive that it does not deserve unlimited protect of 
the first amendment.
  Mr. SCOTT. Mr. Speaker, I yield 3 minutes to the gentleman from 
California (Mr. Schiff).
  Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. Speaker, I rise in support of the bill, and I want to commend the 
gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the 
committee, and the gentleman from Texas (Mr. Smith), the chairman of 
the subcommittee, for their work on this issue.
  In the Ashcroft decision, the Supreme Court struck down the existing 
child pornography laws on the basis that they, in addition to 
prohibiting child pornography that was made by using, by molesting real 
children, that it also prohibited the use of adults who looked youthful 
looking, looked like children, and also prohibited virtual pornography, 
virtual child pornography produced using computers and computer 
graphics. But effectively, by striking down this law and by stating 
that only real child pornography could be prosecuted, the court struck 
the heart out of efforts to prosecute the real thing.
  Computer technology has advanced to the point now where it is simply 
not possible for the government to meet a burden of demonstrating 
whether images were created using computer technology or the images are 
real. So the committee and the subcommittee worked together to try to 
address the concerns that the court raised and, at the same time, 
restore the ability of prosecutors to bring these cases against those 
who would victimize and molest children to produce child pornography.
  In the Ashcroft decision, it recognized this dilemma, this problem, 
the need to go after these cases and yet the need to draft the law 
narrowly, and the court specifically said, we leave open, we leave open 
the question of whether there could be an affirmative defense; in other 
words, whether the burden could be shifted on this particular element 
to the defense to demonstrate that they only used adult actors who 
looked like children or they only used computer technology. That 
question was left open.
  That is a difficult constitutional question, but if we are to restore 
the prosecution's ability to prosecute child pornography using real 
children, we must embrace this affirmative defense as the method to do 
so. And the law is very narrowly crafted. It prohibits the use, the 
sales, the pandering of child pornography that is virtually 
indistinguishable from real, that is generated by computers, but 
virtually indistinguishable from real, and then it allows the defense 
to affirmatively defend by saying, no, this was solely developed using 
computers, or, no, this was developed only by using youthful-looking 
adults, facts which are much more likely to be in the sole possession 
of the defense than in the possession of the prosecution.
  So what we have is a bill that restores the prosecution's ability to 
bring these cases, that frames it as narrowly as possible to survive 
constitutional scrutiny, that indeed makes use of the vehicle the 
Supreme Court itself identified, that of an affirmative defense.
  Will this statute survive against scrutiny by the Supreme Court? I 
believe it will. It will be a tough decision, but the fact of the 
matter is, in the absence of this legislative action, we will simply be 
incapable of prosecuting child pornography. I urge Members to support 
the bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from Alabama (Mr. Bachus).
  Mr. BACHUS. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. Speaker, many of us serve on the Committee on the Judiciary 
because we have a legal degree from a good law school, we have a great 
legal education, but let me tell my colleagues, a legal education 
sometimes is a terrible thing to inflict on society. I think that the 
Supreme Court must have had too much legal education when they made the 
decision they made, because we know when our children go on line, when 
they get on their computers and they see child pornography, we know 
they can be exploited, we know they can be molested, and we know as 
parents that it does not make a bit of difference whether it is 
computer-generated, actual or real.
  The Supreme Court said this despicable junk can go on; it is not 
illegal if it is computer-generated. If a prosecutor cannot play the 
impossible game of picking out an actual, identifiable child, then the 
molester goes off, he is free to molest, free to continue to abuse our 
children.
  If there is anything as a society we ought to do, it is protect our 
young people. If there is anything we ought to do, it is stop playing 
legal games with our fine legal educations and start doing what ought 
to be done, and that is protecting our children from these sexual 
predators no matter whether they use computer-driven images or actual 
images. It is time to stop it. It is time to stop drawing legal 
distinctions.
  Mr. SCOTT. Mr. Speaker, I yield 3 minutes to the gentleman from New 
York (Mr. Nadler).

                              {time}  1415

  Mr. NADLER. Mr. Speaker, this debate is an exercise in surrealism. 
The Supreme Court recently handed down a decision directly on point. 
What the sponsors of this bill are trying to do is to overturn a 
Supreme Court decision that they do not like by statute. We know we 
cannot do that. Congress cannot overturn a Supreme Court decision.
  Now, it is elementary that the first amendment says that one can say, 
write, draw, or photograph and distribute whatever one wants. The 
Supreme Court has made one exception to that, or a number of 
exceptions. One exception is obscenity. If it is obscene, one cannot 
ban it.
  There is another exception: where, to protect children from 
exploitation, we can stop the distribution of child pornography, 
defined as pornography that shows children. Why? To protect the 
children who are exploited in making it.
  Now, if the material is itself obscene, we can ban it anyway; but if 
it is not in itself obscene, it has to be real children, because those 
are the people we are protecting. The Court clearly said the government 
cannot criminalize images which are not obscene unless the product 
involved actual children, because if it does not, the images do not 
fall outside the protection of the first amendment.
  Now we are told by the gentleman from Alabama (Mr. Bachus) and by the 
government that the possibility of producing images by using computer 
imaging, and I am quoting directly from the Supreme Court decision, 
``makes it very difficult to prosecute those who produce pornography by 
using real children. Experts, we are told, may have difficulty in 
saying whether the pictures were made by using real children or by 
using computer imaging.
  ``The necessary solution, the argument runs,'' and the Court may just 
as well have been quoting the gentleman from Alabama, ``is to prohibit 
both kinds of images. In order to enable prosecution of the real thing, 
you should be able to prosecute the virtual images.'' The Court 
continues, the Supreme Court of the United States, ``The argument, in 
essence, is that protected speech may be banned as a means to ban 
unprotected speech. This analysis turns the first amendment upside 
down. The government may not suppress lawful speech as a means to 
suppress unlawful speech.''
  So it is very clear. This bill is clearly unconstitutional. It is an 
exercise in pure politics. It is simply going to get the Supreme Court 
to rule again, when it has already told us on exactly the same point. 
The attempt by the bill to slightly narrow the definition does not 
matter. Either it is obscene or it is not. If it is not obscene, it is 
protected, unless real children were used in the production of it; and 
if they were not, it is still protected speech, period.
  That is the Court's analysis. If we want to change that, we cannot do 
it

[[Page 11219]]

by a law passed here, so we are wasting our time and misleading the 
public, who think that we are doing something, because we cannot 
overturn a Supreme Court decision, one I happen to think is correct, 
but that is beside the point. We cannot overturn a Supreme Court 
interpretation of the Constitution of the United States by a bill in 
Congress.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Pennsylvania (Mr. Gekas).
  Mr. GEKAS. Mr. Speaker, I thank the gentleman for yielding time to 
me.
  Mr. Speaker, the public demands that we do something about child 
pornography, and the type that now has beset us across the Internet 
world is even worse than some of the expected child pornography that we 
have contemplated over the years.
  What we are doing here is not trying to overturn the constitutional 
questions that the Supreme Court used in its rejection of the last 
case, but rather, to conform to the standards that the Supreme Court 
has set forth in its very rejection of the first statute.
  So it uses words like ``indistinguishable'' and ``broad'' or ``less 
broad'' than the language that was contained in the first bill that was 
knocked down by the Supreme Court.
  It comes down to this: we want to protect everyone from sex 
pornography of all sorts, but particularly that involving infants and 
youngsters. So we have to do everything we can, and the authors of this 
legislation did everything that they could to make it conform to 
constitutional standards.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Florida (Mr. Foley).
  Mr. FOLEY. Mr. Speaker, I thank the gentleman for yielding time to 
me, and I thank the chairman for his hard work on this issue, as well 
the gentleman from Texas (Mr. Smith).
  I have heard terms described today that this has been rushed to the 
floor of the House. Maybe those who claim it has been rushed have not 
had a chance to see the virtual pornography that has been created since 
the Supreme Court's ruling, endangering our children, virtually 
created; horrible portrayals of our young and most fragile citizens on 
the Internet.
  Today's passage of this legislation is a pedophile's worst nightmare. 
Congress is one step closer to helping the High Court side with 
children over pedophiles.
  Mr. Speaker, I ask Members to make no mistake about it. We are not 
talking about Scooby Doo or Lilo & Stitch, American Beauty, or any of 
the other characterizations that have been lobbed against the passage 
of this legislation. The images of exploited children are indeed 
virtually indistinguishable from the real thing. Our legislation 
unshackles prosecutors so they can start protecting the children once 
again.
  In the past, prosecution was swift and severe, for good reason, when 
sexual images of exploited minors were found in someone's possession. 
Now, after the Supreme Court ruling, unless the prosecutors can find 
the child in the photo, even if the photo is 10 or 20 years old, the 
pedophiles walk free. Prosecutors never needed to match the photos with 
the child, since that is nearly impossible with the laundering system 
that has been developed from State to State and country to country.
  I urge the High Court to reconsider the consequences of its actions 
the next time they rule on legislation dealing with the protection of 
our children.
  Lastly, we need to get this ban through the Senate and onto the 
President's desk immediately. With every passing day, another pedophile 
escapes prosecution because of this flawed ruling of the Supreme Court. 
Let us stop wasting time and start focusing on protecting our children.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from Nebraska (Mr. Osborne).
  Mr. OSBORNE. Mr. Speaker, I thank the gentleman from Texas (Mr. 
Smith) and the gentleman from Florida (Mr. Foley) for bringing this 
legislation forward.
  Many times, defenders of the first amendment claim that what we hear 
and see has no bearing on our behavior; hence, pornography is harmless. 
If this is true, why is it that advertisers spend billions of dollars 
annually? Obviously, there is a strong connection between what we see 
and what we hear and what we do.
  A recent study indicates that 80 percent of molesters of boys 
regularly use hard-core pornography, and 90 percent of molesters of 
girls use hard-core pornography.
  The important thing to realize here is that these people, these 
perpetrators, are incited by an image. It does not make any difference 
whether that image is real or virtual. They are incited by that image, 
and real children are hurt. That is the whole issue, that real children 
are being hurt by this practice.
  Pornography is a $15 billion business or industry in our Nation. 
There were 1 million porn sites on the Internet. This has become a real 
threat to our young people, and it has become a national disgrace. The 
courts have consistently allowed more and more obscene material under 
first amendment protection.
  The Supreme Court recently overturned a law similar to H.R. 4623. The 
courts have overturned three other laws in the past 6 years intended to 
control the spread of pornography. This has inflicted great damage on 
our young people and on our culture.
  Hopefully, H.R. 4623 is written tightly enough that it will withstand 
a court challenge. I believe it is. The stakes are too high not to try. 
I urge adoption of H.R. 4623.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Tennessee (Mr. Wamp).
  Mr. WAMP. Mr. Speaker, I thank the distinguished chairman for 
yielding time to me, and I appreciate his willingness to stand in the 
gap for something that is right, and also the authors of the bill.
  Mr. Speaker, I come as a father. I have a 15-year-old son and a 13-
year-old daughter. Like most teenagers in America today, they spend 
more time on the Internet than I would personally care for. However, 
that is the reality that we live in.
  I think we have an obligation as legislators to try to keep up with 
the incredible growth of technology through the Internet and the 
Internet communication, because if we just buried our heads in the sand 
and took the position of one of the speakers a moment ago and said that 
the Congress cannot do anything, basically, about a Supreme Court 
ruling, I think that is nonsense. We have an obligation to come with 
new legislation so we can find the right cure that is acceptable before 
the Supreme Court, and that is what I think this is.
  We should persevere, here. This is a world that changes day by day. 
We are in the Information Age, the third great wave of change in our 
country. In the Information Age, we are going to see more and more 
virtual everything, where if one has a headset on, one might not know 
where they are at times. As a result, we have an obligation to protect 
our children.
  One of my greatest fears as a parent is a pedophile preying on my 
children. There are child lures through the Internet now that are so 
dangerous and so manipulative that we have to have protections for our 
children who are in this cyberworld and they are unprotected. That is a 
reality.
  We have an obligation as Federal legislators to work within our 
constitutional law to find a remedy. That is what this bill represents. 
Frankly, if the Supreme Court rejects this, we need to come back with 
another bill and continue to persevere until we find something that is 
acceptable before the Court so our children are protected. This is 
fundamental to our job and our responsibility as Federal legislators.
  I commend the authors and the committee for taking it up; and if we 
have to come back to the well again and again and again, we should.
  Mr. SCOTT. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, I just wanted to make two different points. First, the 
question has been raised about how difficult it is for the government 
to actually prosecute the cases.
  The Supreme Court dealt with that when they said, in throwing out the

[[Page 11220]]

previous language: ``The government raises serious constitutional 
difficulties by seeking to impose on the defendant the burden of 
proving that his speech is not unlawful. That affirmative defense 
applies only after the prosecution has begun, and the speaker must 
himself prove on the pain of felony conviction that his conduct falls 
within the affirmative defense.''
  It goes on to say: ``Where the defendant is not the producer of the 
work, he may have no way of establishing the identity or even the 
existence of actors. If the evidentiary issue is a serious problem for 
the government, as it asserts, it will be at least as difficult for the 
innocent possessor.'' It dealt with the issue of prosecution and said 
that is not something that can be used.
  Also, let me cite another part of the case. It says: ``The government 
says that indirect harms are sufficient because, as Ferber 
acknowledged, child pornography rarely can be valuable speech . . . 
This argument, however, suffers from two flaws. First, Ferber's 
judgment about child pornography was based on how it was made, not on 
what it communicated. The case reaffirmed that where speech is neither 
obscene nor the product of sexual abuse, it does not fall outside the 
protection of the first amendment.''
  And second: ``Ferber did not hold that child pornography is by 
definition without value. On the contrary, the Court recognized that 
some works in the category might have significant value, but relied on 
virtual images, the very images prohibited by the CPPA, as an 
alternative and permissible means of expression.''
  Finally, Mr. Speaker, let me just say that the word 
``indistinguishable'' has been used. The only thing indistinguishable 
in this debate is that this bill is indistinguishable from the law the 
Supreme Court threw out just 2 months ago, and this bill should 
therefore be defeated.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, this bill is necessary for two reasons: first, the 
technology has gotten so good that it is very hard to determine whether 
the picture that is being transmitted and retransmitted on the Internet 
is a real child or a computer-created child. That means that if the 
government cannot prove that a real child was used, then the person who 
is the defendant will be able to walk out of the courtroom scot-free.
  Secondly, as has been stated previously, every conviction of child 
pornographers as a result of the Ashcroft v. Free Speech Coalition 
decision is placed in jeopardy because at the time the prosecution took 
place, it was not a requirement that the government prove beyond a 
reasonable doubt that it was a real child that was being used for this 
purpose.
  So the Ashcroft decision virtually guts our child pornography laws. 
That is why the Supreme Court has to be given an opportunity to reflect 
on the consequences of its decision. What this bill does is it attempts 
to respond to Ashcroft v. Free Speech Coalition in a way that we can 
have constitutional and effective anti-child pornography laws in this 
age of computers, the Internet, and e-mails.
  Mr. Speaker, I urge every Member who is concerned about having that 
type of a law to vote ``aye'' on the motion to suspend the rules.
  Mr. GOODLATTE. Mr. Speaker, new technologies offer a wide variety of 
resources for research and communication; however, we must face the 
reality that technology can also be used or harm. For example, 
computers may be used to generate pornographic depictions of children. 
In addition, the Internet offers predators unparalleled access to our 
children and can provide an avenue for abuse and exploitation. The 
Internet has become a attractive arena for child sex abusers, child 
pornographers and pedophiles because it is easy for them to share 
images and information about children and to make contact with 
children.
  As advances in technology began to threaten the protection of 
children by interfering with the effective prosecution of the child 
pornography laws that cover the visual depictions of real children, 
Congress in 1996 attempted to address this concern with the ``Child 
Pornography Prevention Act.'' The 1996 language included a prohibition 
of any virtual depictions as well as pictures of youthful-looking 
adults. However, in a disturbing decision on April 16, 2002, the 
Supreme Court ruled in Ashcroft v. the Free Speech Coalition that this 
language was overbroad and unconstitutional, paving the way for child 
molesters to hide their abuse behind technology; for example, with 
altered photographs of their victims.
  Computer technology exists today to disguise depictions of real 
children to make them unidentifiable and to make depictions of real 
children appear compute generated. Furthermore, future technology will 
have the capability to make depictions of virtual children look real 
and completely indistinguishable.
  Congress has a compelling interest to protect children from sexual 
exploitation. Sexually explicit computer images that are virtually 
indistinguishable from images of real minors engaged in sexually 
explicit conduct poses a serious danger to future prosecutions 
involving child pornography. The April 16 Supreme Court decision gives 
protection to child molesters who may claim that the images they 
possess are not those of real children, insisting that the government 
prove beyond a reasonable doubt that the images are not computer-
generated. To prove a child is real will require identifying the actual 
child. This is usually impossible since many of the victimized children 
are from third world countries. The impossible task of identifying the 
child will allow child molesters and pornographers to escape 
prosecution for their crimes against children.
  Child pornography, virtual or otherwise, is detrimental to our 
nation's children. Regardless of the method of its production, child 
pornography is used to promote and incite deviant and dangerous 
behavior in our society.
  I urge each of my colleagues to join me in support H.R. 4623, which 
will address the April 16 Supreme Court decision in Ashcroft v. the 
Free Speech Coalition to ensure the continued protection of children 
from sexual exploitation.
  Mr. PAUL. Mr. Speaker, as a parent, grandparent and OB-GYN who has 
had the privilege of delivering over 4,000 babies, I share the 
revulsion of all decent people at child pornography. Those who would 
destroy the innocence of children by using them in sexually-explicit 
material deserve the harshest punishment. However, the Child Obscenity 
and Pornography Prevention Act (H.R. 4623) exceeds Congress' 
constitutional power and does nothing to protect any child from being 
abused and exploited by pornographers. Instead, H.R. 4623 redirects law 
enforcement resources to investigations and prosecutions of ``virtual'' 
pornography which, by definition, do not involve the abuse or 
exploitation of children. Therefore, H.R. 4623 may reduce law 
enforcement's ability to investigate and prosecute legitimate cases of 
child pornography.
  H.R. 4623 furthers one of the most disturbing trends in modern 
politics, the federalization of crimes. We have been reminded by both 
Chief Justice William H. Rehnquist and former U.S. Attorney General Ed 
Meese that more federal crimes, while they make politicians feel good, 
are neither constitutionally sound nor prudent. Rehnquist has stated 
that ``The trend to federalize crimes that traditionally have been 
handled in state courts . . . threatens to change entirely the nature 
of our federal system.'' Meese stated that Congress' tendency in recent 
decades to make federal crimes out of offenses that have historically 
been state matters has dangerous implications both for the fair 
administration of justice and for the principle that states are 
something more than mere administrative districts of a nation governed 
mainly from Washington.
  Legislation outlawing virtual pornography is, to say the least, of 
dubious constitutionality. The constitution grants the federal 
government jurisdiction over only three crimes: treason, 
counterfeiting, and piracy. It is hard to stretch the definition of 
treason, counterfeiting, or piracy to cover sending obscene or 
pornographic materials over the internet. Therefore, Congress should 
leave the issue of whether or not to regulate or outlaw virtual 
pornography to states and local governments.
  In conclusion, Mr. Speaker, while I share my colleagues' revulsion at 
child pornography, I do not believe that this justifies expanding the 
federal police state to outlaw distribution of pornographic images not 
containing actual children. I am further concerned by the possibility 
that passage of H.R. 4623 will divert law enforcement resources away 
from the prosecution of actual child pornography. H.R. 4623 also 
represents another step toward the nationalization of all police 
functions, a dangerous trend that will undermine both effective law 
enforcement an constitutional government. It is for these reasons that 
I must oppose this well-intentioned but fundamentally flawed bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

                              {time}  1430

  The SPEAKER pro tempore (Mr. Gutknecht). The question is on the

[[Page 11221]]

motion offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that 
the House suspend the rules and pass the bill, H.R. 4623, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of 
those present have voted in the affirmative.
  Mr. SENSENBRENNER. 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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