[Senate Report 104-358]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 545
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-358
_______________________________________________________________________


 
                CHILD PORNOGRAPHY PREVENTION ACT OF 1995
                                _______
                                

                August 27, 1996.--Ordered to be printed

   Filed under authority of the order of the Senate of August 2, 1996

_______________________________________________________________________


Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 1237]

    The Committee on the Judiciary, to which was referred the 
bill (S. 1237), having considered the same, reports favorably 
thereon with an amendment in the nature of a substitute and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................7
 II. Legislative history..............................................8
III. Section-by-section analysis......................................8
 IV. Discussion......................................................12
  V. Regulatory impact statement.....................................24
 VI. Cost estimate...................................................24
VII. Additional views of Senator Grassley............................26
VIII.Additional views of Senator Biden...............................28

 IX. Additional views of Senator Kennedy.............................33
  X. Minority views of Senator Simon.................................34
 XI. Minority views of Senator Feingold..............................36
XII. Changes in existing law.........................................39

    The amendment is as follows:
    Strike all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Child Pornography Prevention Act of 
1996''.

SEC. 2. FINDINGS.

    Congress finds that--
          (1) the use of children in the production of sexually 
        explicit material, including photographs, films, videos, 
        computer images, and other visual depictions, is a form of 
        sexual abuse which can result in physical or psychological 
        harm, or both, to the children involved;
          (2) where children are used in its production, child 
        pornography permanently records the victim's abuse, and its 
        continued existence causes the child victims of sexual abuse 
        continuing harm by haunting those children in future years;
          (3) child pornography is often used as part of a method of 
        seducing other children into sexual activity; a child who is 
        reluctant to engage in sexual activity with an adult, or to 
        pose for sexually explicit photographs, can sometimes be 
        convinced by viewing depictions of other children ``having 
        fun'' participating in such activity;
          (4) child pornography is often used by pedophiles and child 
        sexual abusers to stimulate and whet their own sexual 
        appetites, and as a model for sexual acting out with children; 
        such use of child pornography can desensitize the viewer to the 
        pathology of sexual abuse or exploitation of children, so that 
        it can become acceptable to and even preferred by the viewer;
          (5) new photographic and computer imaging technologies make 
        it possible to produce by electronic, mechanical, or other 
        means, visual depictions of what appear to be children engaging 
        in sexually explicit conduct that are virtually 
        indistinguishable to the unsuspecting viewer from unretouched 
        photographic images of actual children engaging in sexually 
        explicit conduct;
          (6) computers and computer imaging technology can be used 
        to--
                  (A) alter sexually explicit photographs, films, and 
                videos in such a way as to make it virtually impossible 
                for unsuspecting viewers to identify individuals, or to 
                determine if the offending material was produced using 
                children;
                  (B) produce visual depictions of child sexual 
                activity designed to satisfy the preferences of 
                individual child molesters, pedophiles, and pornography 
                collectors; and
                  (C) alter innocent pictures of children to create 
                visual depictions of those children engaging in sexual 
                conduct;
          (7) The creation or distribution of child pornography which 
        includes an image of a recognizable minor invades the child's 
        privacy and reputational interests, since images that are 
        created showing a child's face or other identifiable feature on 
        a body engaging in sexually explicit conduct can haunt the 
        minor for years to come;
          (8) the effect of visual depictions of child sexual activity 
        on a child molester or pedophile using that material to 
        stimulate or whet his own sexual appetites, or on a child where 
        the material is being used as a means of seducing or breaking 
        down the child's inhibitions to sexual abuse or exploitation, 
        is the same whether the child pornography consists of 
        photographic depictions of actual children or visual depictions 
        produced wholly or in part by electronic, mechanical, or other 
        means, including by computer, which are virtually 
        indistinguishable to the unsuspecting viewer from photographic 
        images of actual children;
          (9) the danger to children who are seduced and molested with 
        the aid of child sex pictures is just as great when the child 
        pornographer or child molester uses visual depictions of child 
        sexual activity produced wholly or in part by electronic, 
        mechanical, or other means, including by computer, as when the 
        material consists of unretouched photographic images of actual 
        children engaging in sexually explicit conduct;
          (10)(A) the existence of and traffic in child pornographic 
        images creates the potential for many types of harm in the 
        community and presents a clear and present danger to all 
        children; and
          (B) it inflames the desires of child molesters, pedophiles, 
        and child pornographers who prey on children, thereby 
        increasing the creation and distribution of child pornography 
        and the sexual abuse and exploitation of actual children who 
        are victimized as a result of the existence and use of these 
        materials;
          (11)(A) the sexualization and eroticization of minors through 
        any form of child pornographic images has a deleterious effect 
        on all children by encouraging a societal perception of 
        children as sexual objects and leading to further sexual abuse 
        and exploitation of them; and
          (B) this sexualization of minors creates an unwholesome 
        environment which affects the psychological, mental and 
        emotional development of children and undermines the efforts of 
        parents and families to encourage the sound mental, moral and 
        emotional development of children;
          (12) prohibiting the possession and viewing of child 
        pornography will encourage the possessors of such material to 
        rid themselves of or destroy the material, thereby helping to 
        protect the victims of child pornography and to eliminate the 
        market for the sexual exploitative use of children; and
          (13) the elimination of child pornography and the protection 
        of children from sexual exploitation provide a compelling 
        governmental interest for prohibiting the production, 
        distribution, possession, sale, or viewing of visual depictions 
        of children engaging in sexually explicit conduct, including 
        both photographic images of actual children engaging in such 
        conduct and depictions produced by computer or other means 
        which are virtually indistinguishable to the unsuspecting 
        viewer from photographic images of actual children engaging in 
        such conduct.

SEC. 3. DEFINITIONS.

    Section 2256 of title 18, United States Code, is amended--
          (1) in paragraph (5), by inserting before the semicolon the 
        following: ``, and data stored on computer disk or by 
        electronic means which is capable of conversion into a visual 
        image'';
          (2) in paragraph (6), by striking ``and'';
          (3) in paragraph (7), by striking the period and inserting 
        ``; and''; and
          (4) by adding at the end the following new paragraph:
          ``(8) `child pornography' means any visual depiction, 
        including any photograph, film, video, picture, or computer or 
        computer-generated image or picture, whether made or produced 
        by electronic, mechanical, or other means, of sexually explicit 
        conduct, where--
                  ``(A) the production of such visual depiction 
                involves the use of a minor engaging in sexually 
                explicit conduct;
                  ``(B) such visual depiction is, or appears to be, of 
                a minor engaging in sexually explicit conduct; or
                  ``(C) such visual depiction is advertised, promoted, 
                presented, described, or distributed in such a manner 
                that conveys the impression that the material is or 
                contains a visual depiction of a minor engaging in 
                sexually explicit conduct.''.

SEC. 4. PROHIBITED ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR 
                    CONTAINING CHILD PORNOGRAPHY.

    (a) In General.--Chapter 110 of title 18, United States Code, is 
amended by adding after section 2252 the following:

``Sec. 2252A. Certain activities relating to material constituting or 
                    containing child pornography

    ``(a) Any person who--
          ``(1) knowingly mails, or transports or ships in interstate 
        or foreign commerce by any means, including by computer, any 
        child pornography;
          ``(2) knowingly receives or distributes--
                  ``(A) any child pornography that has been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer; or
                  ``(B) any material that contains child pornography 
                that has been mailed, or shipped or transported in 
                interstate or foreign commerce by any means, including 
                by computer;
          ``(3) knowingly reproduces any child pornography for 
        distribution through the mails, or in interstate or foreign 
        commerce by any means, including by computer;
          ``(4) either--
                  ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly sells or possesses with the intent to sell 
                any child pornography; or
                  ``(B) knowingly sells or possesses with the intent to 
                sell any child pornography that has been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer, or that 
                was produced using materials that have been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer; or
          ``(5) either--
                  ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly possesses any book, magazine, periodical, 
                film, videotape, computer disk, or any other material 
                that contains 3 or more images of child pornography; or
                  ``(B) knowingly possesses any book, magazine, 
                periodical, film, videotape, computer disk, or any 
                other material that contains 3 or more images of child 
                pornography that has been mailed, or shipped or 
                transported in interstate or foreign commerce by any 
                means, including by computer, or that was produced 
                using materials that have been mailed, or shipped or 
                transported in interstate or foreign commerce by any 
                means, including by computer,
shall be punished as provided in subsection (b).
  ``(b)(1) Whoever violates, or attempts or conspires to violate, 
paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under 
this title or imprisoned not more than 15 years, or both, but, if such 
person has a prior conviction under this chapter or chapter 109A, or 
under the laws of any State relating to aggravated sexual abuse, sexual 
abuse, or abusive sexual conduct involving a minor or ward, or the 
production, possession, receipt, mailing, sale, distribution, shipment, 
or transportation of child pornography, such person shall be fined 
under this title and imprisoned for not less than 5 years nor more than 
30 years.
  ``(2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned not 
more than 5 years, or both, but, if such person has a prior conviction 
under this chapter or chapter 109A, or under the laws of any State 
relating to the possession of child pornography, such person shall be 
fined under this title and imprisoned for not less than 2 years nor 
more than 10 years.
    ``(c) It shall be an affirmative defense to a charge of violating 
paragraphs (1), (2), (3), or (4) of subsection (a) that--
          ``(1) the alleged child pornography was produced using an 
        actual person or persons engaging in sexually explicit conduct;
          ``(2) each such person was an adult at the time the material 
        was produced; and
          ``(3) the defendant did not advertise, promote, present, 
        describe, or distribute the material in such a manner as to 
        convey the impression that it is or contains a visual depiction 
        of a minor engaging in sexually explicit conduct.''.
  (b) Technical Amendment.--The table of sections for chapter 110 of 
title 18, United States Code, is amended by adding after the item 
relating to section 2252 the following:

``2252A. Certain activities relating to material constituting or 
containing child pornography.''.

SEC. 5. PENALTIES FOR SEXUAL EXPLOITATION OF CHILDREN.

    Section 2251(d) of title 18, United States Code, is amended to read 
as follows:
    ``(d) Any individual who violates, or attempts or conspires to 
violate, this section shall be fined under this title or imprisoned not 
less than 10 years nor more than 20 years, and both, but if such person 
has one prior conviction under this chapter or chapter 109A, or under 
the laws of any State relating to the sexual exploitation of children, 
such person shall be fined under this title and imprisoned for not less 
than 15 years nor more than 30 years, but if such person has 2 or more 
prior convictions under this chapter of chapter 109A, or under the laws 
of any State relating to the sexual exploitation of children, such 
person shall be fined under this title and imprisoned not less than 30 
years nor more than life. Any organization that violates, or attempts 
or conspires to violate, this section shall be fined under this title. 
Whoever, in the course of an offense under this section, engages in 
conduct that results in the death of a person, shall be punished by 
death or imprisoned for any term of years or for life.''.

SEC. 6. MATERIAL INVOLVING SEXUAL EXPLOITATION OF MINORS.

    Section 2252 of title 18, United States Code, is amended--
          (1) in subparagraphs (A) and (B) of subsection (a)(4), by 
        striking ``3 or more books, magazines, periodicals, films, 
        video tapes, or other material which contain any visual 
        depiction'' and inserting ``any book, magazine, periodical, 
        film, video tape, or other material which contains 3 or more 
        visual depictions''; and
          (2) by striking subsection (b) and inserting the following:
    ``(b)(1) Whoever violates, or attempts or conspires to violate, 
paragraphs (1), (2), or (3) of subsection (a) shall be fined under this 
title or imprisoned not more than 15 years, or both, but if such person 
has a prior conviction under this chapter or chapter 109A, or under the 
laws of any State relating to aggravated sexual abuse, sexual abuse, or 
abusive sexual conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, shipment, or 
transportation of child pornography, such person shall be fined under 
this title and imprisoned for not less than 5 years nor more than 30 
years.
    ``(2) Whoever violates, or attempts or conspires to violate, 
paragraph (4) of subsection (a) shall be fined under this title or 
imprisoned not more than 5 years, or both, but if such person has a 
prior conviction under this chapter or chapter 109A, or under the laws 
of any State relating to the possession of child pornography, such 
person shall be fined under this title and imprisoned for not less than 
2 years nor more than 10 years.''.

SEC. 7. PRIVACY PROTECTION ACT AMENDMENTS.

    Section 101 of the Privacy Protection Act of 1980 (42 U.S.C. 
2000aa) is amended--
          (1) in subsection (a)(1), by inserting before the parenthesis 
        at the end the following: ``, or if the offense involves the 
        production, possession, receipt, mailing, sale, distribution, 
        shipment, or transportation of child pornography, the sexual 
        exploitation of children, or the sale or purchase of children 
        under section 2251, 2251A, 2252, 2252A, or 2252B of title 18, 
        United States Code''; and
          (2) in subsection (b)(1), by inserting before the parenthesis 
        at the end the following: ``, or if the offense involves the 
        production, possession, receipt, mailing, sale, distribution, 
        shipment, or transportation of child pornography, the sexual 
        exploitation of children, or the sale or purchase of children 
        under section 2251, 2251A, 2252, 2252A, or 2252B of title 18, 
        United States Code''.

SEC. 8. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of such to any 
other person or circumstance shall not be affected thereby.

SEC. 9. PROHIBITED ACTIVITIES RELATING TO MATERIAL DEPICTING THE SEXUAL 
                    EXPLOITATION OF MINORS.

    (a) In General.--Chapter 110 of title 18, United States Code, is 
amended by adding after section 2252A, as added by section 4 of this 
Act, the following:

``Sec. 2252B. Certain activities relating to material depicting the 
                    sexual exploitation of minors

    ``(a) Any person who--
          ``(1) knowingly mails, or transports or ships in interstate 
        or foreign commerce by any means, including by computer, any 
        visual depiction, if such visual depiction has been created, 
        adapted, or modified to appear that an identifiable minor is 
        engaged in sexually explicit conduct;
          ``(2) knowingly receives or distributes any visual depiction 
        or any material that contains a visual depiction that has been 
        mailed, or shipped or transported in interstate or foreign 
        commerce by any means, including by computer, if such visual 
        depiction has been created, adapted, or modified to appear that 
        an identifiable minor is engaged in sexually explicit conduct;
          ``(3) knowingly reproduces any visual depiction for 
        distribution through the mails, or in interstate or foreign 
        commerce by any means, including by computer, if such visual 
        depiction has been created, adapted, or modified to appear that 
        an identifiable minor is engaged in sexually explicit conduct;
          ``(4) either--
                  ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly sells or possesses with the intent to sell 
                any visual depiction; or
                  ``(B) knowingly sells or possesses with the intent to 
                sell any visual depiction that has been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including computer, or that was 
                produced using materials that have been mailed, or 
                shipped or transported in interstate commerce by any 
                means, including by computer;
        if such visual depiction has been created, adapted, or modified 
        to appear that an identifiable minor is engaged in sexually 
        explicit conduct; or
          ``(5) either--
                  ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly possesses any book, magazine, periodical, 
                film, videotape, computer disk, or any other material 
                that contains 3 or more visual depictions; or
                  ``(B) knowingly possesses any book, magazine, 
                periodical, film, videotape, computer disk, or any 
                other material that contains 3 or more visual 
                depictions that has been mailed, or shipped or 
                transported in interstate or foreign commerce by any 
                means, including by computer;
        if such visual depiction has been created, adapted, or modified 
        to appear that an identifiable minor is engaged in sexually 
        explicit conduct;
shall be punished as provided in subsection (b).
    ``(b)(1) Whoever violates, or attempts or conspires to violate, 
paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under 
this title or imprisoned not more than 15 years, or both, but, if such 
person has a prior conviction under this chapter or chapter 109A, or 
under the laws of any State relating to the production, possession, 
receipt, mailing, sale, distribution, shipment, or transportation of a 
visual depiction that would be prohibited under this chapter if it had 
occurred within the special maritime and territorial jurisdiction of 
the United States, such person shall be fined under this title and 
imprisoned for not less than 5 years nor more than 30 years.
    ``(2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned not 
more than 5 years, or both, but, if such person has a prior conviction 
under this chapter or chapter 109A, or under the laws of any State 
relating to the production, possession, receipt, mailing, sale, 
distribution, shipment, or transportation of a visual depiction that 
would be prohibited under this chapter if it had occurred within the 
special maritime and territorial jurisdiction of the United States, 
such person shall be fined under this title and imprisoned for not less 
than 2 years nor more than 10 years.''.
    (b) Clerical Amendment.--The table of sections for chapter 110 of 
title 18, United States Code, is amended by adding after the item for 
section 2252A the following:

``2252B. Certain activities relating to material depicting the sexual 
exploitation of minors.''.

    (c) Definition.--Section 2256 of title 18, United States Code, as 
amended by section 3 of this Act, is amended--
          (1) in paragraph (7), by striking ``and'';
          (2) in paragraph (8), by striking the period and inserting 
        ``; and''; and
          (3) by adding at the end the following new paragraph:
          ``(9) `identifiable minor'--
                  ``(A) means a person who--
                          ``(i) was a minor at the time the visual 
                        depiction was created or at the time the 
                        person's image was captured on the visual 
                        medium used in creating, modifying, or adapting 
                        such visual depiction; and
                          ``(ii) is recognizable in the visual 
                        depiction as an actual person by the person's 
                        likeness or other distinguishing physical 
                        characteristic, such as a unique birthmark or 
                        other recognizable feature; and
                  ``(B) shall not be construed to require proof of the 
                actual identity of the minor.''.

SEC. 10. AMBER HAGERMAN CHILD PROTECTION ACT OF 1996.

    (a) Short Title.--This section may be cited as the ``Amber Hagerman 
Child Protection Act of 1996''.
    (b) Aggravated Sexual Abuse of a Minor.--Section 2241(c) of title 
18, United States Code, is amended--
          (1) by inserting ``crosses a State line with intent to engage 
        in a sexual act with a person who has not attained the age of 
        12 years, or'' after ``Whoever''; and
          (2) by adding at the end the following: ``If the defendant 
        has previously been convicted of another Federal offense under 
        this subsection or under section 2243(a), or of a State offense 
        that would have been an offense under either such provision had 
        the offense occurred in a Federal prison, unless the death 
        penalty is imposed, the defendant shall be sentenced to life in 
        prison.''.
    (c) Sexual Abuse of a Minor.--Section 2243(a) of title 18, United 
States Code, is amended--
          (1) by inserting ``crosses a State line with intent to engage 
        in a sexual act with a person who, or'' after ``Whoever''; and
          (2) by adding at the end the following: ``If the defendant 
        has previously been convicted of another Federal offense under 
        this subsection or under section 2241(c), or of a State offense 
        that would have been an offense under either such provision had 
        the offense occurred in a Federal prison, unless the death 
        penalty is imposed, the defendant shall be sentenced to life in 
        prison.''.

                               I. Purpose

    The purpose of S. 1237 is to amend current Federal 
statutes, 18 U.S.C. 2251 et seq., which prohibit the sexual 
exploitation of children for the purpose of producing any 
visual depiction of a minor engaging in sexually explicit 
conduct, and the distribution, possession, receipt, 
reproduction, sale or transportation of material depicting 
children engaging in sexually explicit conduct.
    This legislation is needed due to technological advances in 
the recording, creation, alteration, production, reproduction, 
distribution and transmission of visual images and depictions, 
particularly through the use of computers. Such technology has 
made possible the production of visual depictions that appear 
to be of minors engaging in sexually explicit conduct which are 
virtually indistinguishable to unsuspecting viewers from 
unretouched photographs of actual children engaging in 
identical sexual conduct. Child pornography, both photographic 
and computer-generated depictions of minors engaging in 
sexually explicit conduct, poses a serious threat to the 
physical and mental health, safety and well-being of our 
children. In addition, the development of computer technology 
capable of producing child pornographic depictions virtually 
indistinguishable from photographic depictions of actual 
children threatens the Federal Government's ability to protect 
children from sexual exploitation and the production, 
distribution and possession of materials produced using minors 
engaging in sexually explicit conduct.
    S. 1237 addresses the problem of ``high-tech kiddie porn'' 
by creating a comprehensive statutory definition of the term 
``child pornography'' to include material produced using 
children engaging in sexually explicit conduct, computer-
generated depictions which are, or appear to be, of minors 
engaging in sexually explicit conduct, and materials 
advertised, described or otherwise presented as a visual 
depiction of a minor engaging in sexually explicit conduct. S. 
1237 would further amend Federal law to prohibit the 
distribution, possession, receipt, reproduction, sale or 
transportation of child pornography, or any visual depiction 
that has been created, adapted or modified to appear that an 
``identifiable minor,'' as that term is defined in this 
legislation, is engaged in sexually explicit conduct. S. 1237 
also increases the penalties for child sexual exploitation and 
child pornography offenses.
    S. 1237 enhances the ability of Federal, State and local 
authorities vigorously to enforce statutes prohibiting child 
pornography, the sexual exploitation of children and the 
selling of children by amending the Privacy Protection Act, 42 
U.S.C. 2000aa, to extend the Act's existing exemption for 
searches and seizures in cases where the alleged offense 
consists of the receipt, possession or communication of 
information relating to the national defense, classified 
information, or restricted data under the provisions of 
specified statutes, to include searches and seizures in child 
pornography, child sexual exploitation and child selling cases.
    S. 1237 also seeks to enhance the protection of minors 
against sexual abuse and aggravated sexual abuse by amending 
current Federal law, 18 U.S.C. 2241(c) and 2243(a), to increase 
the penalties for those offenses.

                        II. Legislative History

    S. 1237 was introduced in the 104th Congress by Senator 
Orrin Hatch on September 13, 1995. Three Senators joined 
Senator Hatch as original cosponsors: Senators Abraham, 
Grassley, and Thurmond. Subsequently, four Senators joined as 
cosponsors: Senators Simpson, Feinstein, Inhofe, and Coats. The 
bill was referred to the Committee on the Judiciary.
    The Judiciary Committee held a hearing on S. 1237 on June 
4, 1996. The Committee heard testimony from Kevin Di Gregory, 
Deputy Assistant Attorney General, Criminal Division, U.S. 
Department of Justice; Jeffrey Dupilka, Deputy Chief Inspector 
for Criminal Investigations, U.S. Postal Inspection Service; 
Mrs. Dee Jepsen, president, Enough Is Enough; Prof. Frederick 
Schauer, Frank Stanton, Professor of the First Amendment, 
Kennedy School of Government, Harvard University; Ms. Judith 
Krug, director of the Office for Intellectual Freedom of the 
American Library Association; Dr. Victor Cline, emeritus 
professor of psychology, University of Utah; and Bruce Taylor, 
president and chief counsel, the National Law Center for 
Children and Families.
    On July 25, 1996, a motion to favorably report S. 1237, as 
amended, was approved by the Judiciary Committee by a vote of 
16 to 2. Those voting in favor were: Senators Hatch, Thurmond, 
Simpson, Grassley, Specter, Brown, Thompson, Kyl, DeWine, 
Abraham, Biden, Kennedy, Leahy, Heflin, Kohl, and Feinstein. 
Those opposed were: Senators Simon and Feingold.

                    III. Section-by-Section Analysis

Section 1

    This section sets forth the short title for the 
legislation, the ``Child Pornography Prevention Act of 1996.''

Section 2

    This section sets forth a statement of congressional 
findings with respect to child pornography and computer-
generated depictions of, or which appear to be of, minors 
engaging in sexually explicit conduct. Child pornography is a 
form of sexual abuse and exploitation which can result in 
physical or psychological harm, or both, to children. Child 
pornography permanently records the victim's abuse, can cause 
continuing harm to the depicted individual for years to come, 
can be used to seduce minors into sexual activity, and is used 
by pedophiles and child sex abusers to stimulate and whet their 
own sexual appetites.
    New photographic and computer imaging technologies are 
capable of producing computer-generated visual depictions of 
children engaging in sexually explicit conduct which are 
virtually indistinguishable to an unsuspecting viewer from 
unretouched photographs of actual minors engaging in such 
conduct. The effect of such child pornography on a child 
molester or pedophile using the material to whet his sexual 
appetites, or on a child shown such material as a means of 
seducing the child into sexual activity, is the same whether 
the material is photographic or computer-generated depictions 
of child sexual activity. Computer-generated child pornography 
results in many of the same types of harm, and poses the same 
danger to the well-being of children, as photographic child 
pornography, and provide a compelling governmental interest for 
prohibiting the production, distribution, possessing, sale or 
viewing of all forms of child pornography, including computer-
generated depictions which are, or appear to be, of children 
engaging in sexually explicit conduct.

Section 3

    This section amends the definition of the term ``visual 
depiction'' at 18 U.S.C. 2256(5) to include stored computer 
data.
    This section further amends title 18 of the United States 
Code by adding a new subsection, as 18 U.S.C. 2256(8), 
establishing a definition of the term ``child pornography,'' 
which is defined as ``any visual depiction, including any 
photograph, film, video, picture, drawing or computer or 
computer-generated image or picture, which is produced by 
electronic, mechanical or other means, of sexually explicit 
conduct, where: (1) its production involved the use of a minor 
engaging in sexually explicit conduct, or; (2) such visual 
depiction is, or appears to be, of a minor engaging in sexually 
explicit conduct; or (3) it is advertised, distributed, 
promoted or presented in such a manner as to convey the 
impression that it is a visual depiction of a minor engaging in 
sexually explicit conduct.''

Section 4

    This section adds a new and distinct section to title 18 of 
the United States Code, as 18 U.S.C. 2252A. This section makes 
it unlawful for any person to knowingly mail, or ship, or 
transport child pornography in interstate or foreign commerce; 
to receive or distribute in interstate or foreign commerce 
child pornography, or material containing child pornography 
that has been mailed, or shipped, or transported in interstate 
or foreign commerce; or to reproduce child pornography for 
distribution through the mail. This section further makes it 
unlawful in the special maritime and territorial jurisdiction 
of the United States, or on any land or building owned or 
controlled by the United States, or in the Indian territory, to 
knowingly sell, or possess with intent to sell, any child 
pornography; or to possess any book, magazine, periodical, 
film, videotape, computer disk, or any other material that 
contains three or more images of child pornography.
    Section 2252A mirrors with respect to ``child pornography'' 
(as that term is defined under section 3 of this bill) the 
prohibitions on the distribution, possession, receipt, 
reproduction, sale or transportation of material produced using 
an actual minor engaging in sexually explicit conduct contained 
in 18 U.S.C. 2252. The penalties in sections 2252 and 2252A 
would be identical. Violation of paragraphs (1), (2), or (3) of 
section 2252A(a) pertaining to the distribution, reproduction, 
receipt, sale or transportation of child pornography would be 
fined or imprisoned for not less than 15 years, or both; a 
repeat offender with a prior conviction under chapter 109A or 
110 of title 18, or under any State child abuse law or law 
relating to the production, receipt or distribution of child 
pornography would be fined and imprisoned for not less than 5 
years nor more than 30 years. Any person who violates paragraph 
(4) of section 2252A(a) pertaining to the possession of child 
pornography would be fined or imprisoned for not more than 5 
years, or both; a repeat offender with a prior conviction under 
chapter 109A or 110 of title 18, or under any State law 
relating to the possession of child pornography would be fined 
and imprisoned for not less than 2 years nor more than 10 
years.
    This section also establishes an affirmative defense for 
material depicting sexually explicit conduct where the material 
was produced using actual persons engaging in sexually explicit 
conduct and each such person was an adult at the time the 
material was produced, provided the material has not been 
pandered as child pornography.

Section 5

    This section amends 18 U.S.C. 2251(d) to increase the 
penalties for sexual exploitation of children. An individual 
who violates section 2251 would be fined or imprisoned for not 
less than 10 years nor more than 20 years, or both. A repeat 
offender with one prior conviction under chapter 109A or 110 of 
title 18, or under any State law relating to the sexual 
exploitation of children would be fined and imprisoned for not 
less than 15 years nor more than 30 years; an individual with 
two or more prior such convictions would be fined and 
imprisoned for not less than 30 years nor more than life. If an 
offense under section 2251 resulted in the death of a person, 
the offender would be punished by death or imprisonment for any 
term of years or for life.

Section 6

    This section amends 18 U.S.C. 2252(a)(4)(A) and (B) to 
prohibit the possession of any book, magazine, periodical, 
film, videotape, computer disk, or any other material that 
contains three or more images of child pornography. Current law 
prohibits the possession of three or more books, magazines, 
periodicals, films, video tapes or other material which 
contains any visual depiction of a minor engaging in sexually 
explicit conduct. Since a single computer disk is capable of 
storing hundreds of child pornographic images, current law 
effectively permits the possession of substantial collections 
of child pornography, a loophole that will be closed under this 
section.
    This section also amends 18 U.S.C. 2252(d) to increase the 
penalties for offenses involving material produced using a 
minor engaging in sexually explicit conduct. As amended, 18 
U.S.C. 2252 will provide the identical penalties as 18 U.S.C. 
2252A for offenses relating to the distribution, possession, 
receipt, reproduction, sale or transportation of prohibited 
child pornographic material.

Section 7

    This section amends the Privacy Protection Act, 42 U.S.C. 
2000aa, to extend the existing exemption for searches and 
seizures where the offense consists of the receipt, possession 
or communication of information pertaining to the national 
defense, classified information or restricted data, to include 
an exemption for searches and seizures where the offense 
involves the sexual exploitation of children, the sale or 
buying of children, or the production, possession, sale or 
distribution of child pornography under title 18 of the United 
States Code, sections 2251, 2251A, 2252, 2252A, or 2252B.

Section 8

    This section includes in the bill a severability clause 
providing that in the event any provision of the bill, 
amendment made by the bill, or application of the bill to any 
person or circumstance is held to be unconstitutional, the 
remainder of the bill shall not be affected.

Section 9

    This section prohibits the use of identifiable minors in 
visual depictions of sexually explicit conduct. Section 4 of 
the bill incorporates section 3's definition of child 
pornography and would prohibit all forms of ``child 
pornography,'' whether the material was produced using an 
actual minor or is entirely computer-generated. While the 
Committee believes that section 3's definition of ``child 
pornography'' is constitutional, 1 the Committee added a 
separate section 9 because of the concern that the definition, 
and its application via section 4, may be at risk of judicial 
invalidation insofar as it reaches images that do not depict 
actual minors. Section 9 prohibits only those visual depictions 
that have been created, adapted, or modified to make it appear 
that an identifiable minor was engaged in sexually explicit 
conduct. Thus, this section, which covers a subset of section 
4's prohibitions, aims to prevent the harm caused to minors 
only where identifiable images are used in pornographic 
depictions, even where the identifiable minor is not directly 
involved in sexually explicit activities, as required by 
current law. If, contrary to the Committee's expectation, 
courts invalidate section 4's prohibition of computer-generated 
depictions of minors engaging in sexually explicit conduct, 
section 9's free-standing prohibition of visual depictions of 
an identifiable minor created, altered or modified to make it 
appear the depicted minor is engaging in sexually explicit 
conduct will remain intact and enforceable.
---------------------------------------------------------------------------
    \1\ The Department of Justice has advised the Committee of its view 
that sections 3 and 4 are constitutional; testimony of Deputy Assistant 
Attorney General Kevin Di Gregory, June 4, 1996.
---------------------------------------------------------------------------
    Section 9 will be added as a new and distinct section to 
title 18 of the United States Code--section 2252B--just as the 
provisions of section 4 will be added as a new section of the 
Code--section 2252A. Although there is a severability provision 
in the bill, the exact scope of severability is sometimes a 
difficult question for courts to resolve--even in the case of 
statutes, such as S. 1237, that contain severability 
provisions. Therefore, given any possibility that section 4 
might be held to be unconstitutional as it applies to wholly 
computer-generated images, the Committee wanted to create a 
separate and distinct section of the Code to make absolutely 
clear that the new sections of title 18 created by this bill--
2252A and 2252B--are separate, distinct, and entirely 
severable.
    Subsection (c)(3) defines an ``identifiable minor'' to mean 
a minor who is capable of being recognized as an actual person 
in the visual depiction. The person may be recognizable by his 
face or another distinguishing feature, such as a birthmark or 
some other unique physical characteristic. Under this 
definition, the prosecution would not be required to prove the 
actual identity of the minor. Rather, the prosecution need only 
show, through either factual evidence or expert testimony, that 
the minor is capable of being identified from the visual 
depiction.
    In all other respects, section 9(a) mirrors the 
prohibitions in section 4(a), including prohibitions against 
mailing and transporting prohibited visual depictions; 
receiving and distributing prohibited visual depictions; 
reproduction of visual depictions with the intent to transport 
or distribute them; selling or possessing with the intent to 
sell prohibited visual depictions; and possessing books or 
other material containing three or more prohibited visual 
depictions on property within the jurisdiction of the United 
States or that has been transported in interstate commerce or 
the mails. The penalties in section 9 are also identical to 
those in section 4.

Section 10

    This section, the Amber Hagerman Child Protection Act of 
1996, amends 18 U.S.C. 2241(c) and 2243(a) to provide for a 
mandatory sentence of life in prison for repeat offenders 
convicted of sexual abuse of a minor or aggravated sexual abuse 
of a minor.

                             IV. Discussion

 A. Child Pornography threatens the physical and mental health and the 
                         well-being of children

    Child pornography is a particularly pernicious evil, 
something that no civilized society can or should tolerate. It 
abuses, degrades and exploits the weakest and most vulnerable 
members of our society, our children. It poisons the minds and 
spirits of our youth, robbing them of their innocence, and 
debases our society as a whole. It has been estimated that 
pornography, including child pornography, is an $8 to $10 
billion a year business, and is said to be organized crime's 
third biggest money maker, after drugs and gambling.
    Child pornography plays a critical role in the vicious 
cycle of child sexual abuse and exploitation. As Deputy 
Assistant Attorney General Kevin Di Gregory testified at the 
Committee's June 4, 1996, hearing on S. 1237, child pornography 
``represents a grave risk to children and is primarily designed 
to feed pedophile lusts.'' The elimination of child pornography 
and the protection of children from sexual exploitation provide 
a compelling governmental interest for prohibiting the 
production, distribution, possession or viewing of any and all 
forms of child pornography. As the Supreme Court stated in New 
York v. Ferber, 458 U.S. 747, 756-57 (1982), ``It is evident 
beyond the need for elaboration that a State's interest in 
`safeguarding the physical and psychological well-being of a 
minor' is `compelling'. * * * A democratic society rests, for 
its continuance, upon the healthy, well-rounded growth of young 
people into full maturity as citizens. * * * The prevention of 
the sexual exploitation and abuse of children constitutes a 
government objective of surpassing importance.''
    Child pornography stimulates the sexual appetites and 
encourages the activities of child molesters and pedophiles, 
who use it to feed their sexual fantasies. Law enforcement 
investigations have verified that pedophiles almost always 
collect child pornography or child erotica. While some only 
collect and fantasize about the material without acting upon 
those fantasizes, in many cases coming to the attention of law 
enforcement the arousal and fantasy fueled by child pornography 
is only a prelude to actual sexual activity with children. Mrs. 
Dee Jepsen, president of Enough is Enough, testified at the 
June 4, 1996, Committee hearing that pornography ``is an 
addiction that escalates, requiring more graphic or violent 
material for arousal, then leads to the persons in the 
materials being seen as objects, without personality, rights, 
dignity or feelings. The final stage is `acting out,' doing 
what has been viewed in the pornography. This leads to crimes 
of sexual exploitation and violence. * * * In the case of 
pedophiles * * * child pornography is actually `hard-copy' 
visualizations of their dangerous mental fantasies of having 
sex with children.'' Dr. Victor Cline testified at the June 4, 
1996, hearing:

          [t]he best evidence to date suggests that most or all 
        sexual deviations are learned behavior. * * * In the 
        case of pedophiles, the overwhelming majority * * * use 
        child pornography and/or create it to stimulate and 
        whet their sexual appetites which they masturbate to 
        then use later as a model for their own sexual acting 
        out with children. * * * [T]he use of child pornography 
        in time desensitizes the viewer to its pathology no 
        matter how aberrant or disturbing. It becomes 
        acceptable and preferred. The man always escalates to 
        more deviant material, and the acting out continues and 
        escalates despite very painful consequences such as 
        destruction of the family, loss of spouse, children, 
        job, health or incarceration after committing criminal 
        acts. * * * [A]ny kind of pornography, child or 
        adolescent * * * can act as an incitement to imitate it 
        in real life with someone they have access to and can 
        intimidate not to tell. * * * With a large majority of 
        them an underlying thread is the use of child, 
        adolescent, or adult pornography to stimulate appetite 
        and provide models of sexual abuse as well as be used 
        as tools to seduce new victims. In my experience, it's 
        the child pornography that is the most malignant.

    Child pornography is used by pedophiles and child molesters 
as a facilitator or ``training manual'' in acquiring their own 
deviation, and also as a device to break down the resistance 
and inhibitions of their victims or targets of molestation, 
especially when these are children. In her book ``Child 
Pornography,'' Dr. Shirley O'Brien states ``a direct 
relationship exists between pornographic literature and the 
sexual molestation of young children. Law-enforcement officers 
say they routinely find pornographic materials when they 
investigate sex crimes against children.'' A child who may be 
reluctant to engage in sexual activity with an adult, or to 
pose for sexually explicit photos, can sometimes be persuaded 
to do so by viewing depictions of other children participating 
in such activity. Child molesters and pedophiles use child 
pornography to convince potential victims that the depicted 
sexual activity is a normal practice; that other children 
regularly participate in sexual activities with adults or 
peers. Peer pressure can have a tremendous effect on children, 
helping to persuade a child that participating sexual activity 
such as that depicted in the material is ``all right.'' In her 
book, Dr. O'Brien describes what she described as the ``cycle'' 
of child pornography: (1) child pornographic material is shown 
to a child for ``educational purposes''; (2) an attempt is made 
to convince a child that explicit sex is acceptable, even 
desirable; (3) the child is convinced that other children are 
sexually active and that such conduct is okay; (4) child 
pornography desensitizes the child, lowering the child's 
inhibitions; (5) some of these sessions progress to sexual 
activity involving the child; (6) photographs or films are 
taken of the sexual activity; and (7) this new child 
pornographic material is used to attract and seduce yet more 
child victims.
    The sexual use of children is criminal. Pornographic 
material produced using a minor engaging in sexually explicit 
conduct is literally the photographic record of a crime in 
progress. ``The use of children as subjects of pornographic 
materials is harmful to the physiological, emotional and mental 
health of the child.'' New York v. Ferber, supra at 758. ``It 
has been found that sexually exploited children are unable to 
develop healthy affectionate relationships in later life, have 
sexual dysfunctions, and have a tendency to become sexual 
abusers as adults. * * * Sexually exploited children (are) 
predisposed to self-destructive behavior such as drug and 
alcohol abuse or prostitution.'' New York v. Ferber, supra, 
footnote 9.
    ``Children used in pornography are desensitized and 
conditioned to respond as sexual objects. * * * They must deal 
with the permanency, longevity, and circulation of such record 
of their sexual abuse.'' 2 ``Pornography poses an even 
greater threat to the child victim than does sexual abuse or 
prostitution. Because the child's actions are reduced to a 
recording, the pornography may haunt him in future years, long 
after the original misdeed took place. A child who has posed 
for a camera must go through life knowing that the recording is 
circulating within the mass distribution system for child 
pornography. * * * It is the fear of exposure and the tension 
of keeping the act secret that seems to have the most profound 
emotional repercussions.'' New York v. Ferber, supra at 760, 
footnote 10.
---------------------------------------------------------------------------
    \2\ Kenneth Lanning, National Center for Missing and Exploited 
Children, ``Child Molesters: A Behavioral Analysis,'' p. 25
---------------------------------------------------------------------------
    Child pornography can also be used to blackmail victims of 
sexual abuse. The existence of sexually explicit photographs or 
other materials, and the threat that they will be shown to 
family or friends, can effectively silence a victim into not 
revealing the abuse to parents or the authorities. 3 The 
child may also be required to recruit siblings or friends for 
the molester.
---------------------------------------------------------------------------
    \3\ Id., at p. 29.
---------------------------------------------------------------------------
    Current Federal law, U.S.C. title 18, sec. 2251 et seq., 
prohibits the sexual exploitation of children for the purpose 
of producing any visual depiction of a minor engaging in 
sexually explicit conduct, and the distribution, possession, 
receipt, reproduction, sale or transportation of material 
depicting children engaging in sexually explicit conduct. The 
term ``sexually explicit conduct'' is defined at 18 U.S.C. 
2256(2). These statutes apply, however, only to visual 
depictions of children engaging in sexually explicit conduct 
whose production involved the use of an actual minor engaging 
in such conduct. Under present law, the Government must prove 
that every piece of child pornography is of a real minor being 
sexually exploited. Regrettably, computers and computer imaging 
technology unheard of only a few short years ago have opened 
the door to an entirely new means of producing child 
pornography.

 b. computer-generated child pornography poses the same threat to the 
        well-being of children as photographic child pornography

    The ability of computer animation to create realistic-
appearing images and effects is, of course, well known to the 
tens of millions of moviegoers who have seen such recent hit 
films as Jurassic Park, Twister, and Independence Day. New and 
increasingly less complex and expensive photographic and 
computer imaging technologies make it possible for individuals 
to produce on home computers visual depictions of children 
engaging in sexually explicit conduct that are virtually 
indistinguishable from unretouched photographic images of 
actual children engaging in sexually explicit conduct--material 
that is outside the scope of current federal law. As Deputy 
Assistant Attorney General Di Gregory testified:

          [p]edophiles have created and used altered or 
        doctored images for a long time. In the past these 
        images have run the gamut from magazine cutouts crudely 
        assembled with photographs of children from the 
        pedophile's neighborhood, to artfully rendered collages 
        which have been painstakingly assembled and then 
        rephotographed so that only careful inspection reveals 
        the image as false. But what has always been the case 
        in the past--that the images were readily revealed as 
        false with careful inspection--may no longer be true, 
        as image-altering software and computer hardware are 
        used to create altered images which appear all too real 
        of children engaging in sexual activity. Soon it will 
        not be necessary to actually molest children to produce 
        child pornography which exploits and degrades them--and 
        which can be used to further actual abuse. All that 
        will be necessary will be an inexpensive computer, 
        readily available software, and a photograph of a 
        neighbor's child shot while the child walked to school 
        or waited for the bus.

    Computers can be used to alter perfectly innocent pictures 
of children, taken from books, magazines, catalogs, or videos, 
to create visual depictions of those children engaging in any 
imaginable form of sexual conduct. A child pornographer in 
Canada was convicted of copying innocuous pictures of children 
from books and catalogs onto a computer, then using the 
computer to alter the images to remove the childrens' clothing 
and arrange the children into sexual positions involving 
children, adults and even animals. 4 According to computer 
graphics specialists with the United States Postal Inspection 
Service, all that is required to produce child pornography is 
an IBM-compatible personal computer with Windows 3.1 or Windows 
95, or an Apple MacIntosh computer. Images can be loaded onto 
the computer in any of several ways (existing images can be 
loaded onto the computer from a disk or CD; images taken by a 
digital camera can be loaded from a disk; a scanner can be used 
to load photographs, book and magazines pictures, etc.; a video 
card, either internal or in an external device, can capture and 
load frames from video tapes or directly from a television; or 
a modem can download images from the Internet or other online 
computer service) and then visual depictions of children 
engaging in sexually explicit conduct can be produced using 
readily available, off-the-shelf image-editing and ``morphing'' 
computer software costing as little as $50.
---------------------------------------------------------------------------
    \4\ The Washington Times, July 23, 1995.
---------------------------------------------------------------------------
    Computer-imaging technology permits creation of 
pornographic depictions designed to satisfy the preferences of 
individual sexual predators. As Dr. Cline testified at the June 
4, 1996 hearing, most pedophiles and child molesters have 
special preferences with respect to child pornography, in terms 
of age, physical appearance and sexual acts or poses of 
depicted minors. The ability to alter or ``morph'' images via 
computer to produce any desired child pornographic depiction 
enables pedophiles and pornographers to create ``custom-
tailored'' pornography which will heighten the material's 
effect on the viewer and thus increase the threat this material 
poses to children. A child molester or pedophile can create, 
alter or modify a perfectly innocuous image or picture of a 
child he finds sexually attractive or desirable and produce any 
manner and number of pornographic depictions featuring that 
child, which he can use to stimulate his own sexual appetite 
for that particular child, with potentially tragic consequences 
for the child. The computer-produced depictions could be shown 
to the child in an effort to seduce or blackmail the child into 
submitting to sexual abuse or exploitation, or to other 
children who know the depicted child in order to seduce them. 
Dr. Cline testified that seeing such a computer-created 
depiction would be extremely traumatic for the depicted child.
    Computers can also be used to alter sexually explicit 
photographs, films and videos in such a way as to make it 
virtually impossible for prosecutors to identify individuals, 
or to prove that the offending material was produced using 
children. ``Technology may have made it possible for criminals 
to escape responsibility for violating the existing law, even 
when the pictures are of real minor children being sexually 
abused or exploited. The day will soon arise, if not here 
already, that our inability to distinguish the real from the 
apparent * * * child pornography will raise a reasonable doubt 
that a picture is really * * * of a real child being molested 
and exploited. * * * If the government must continue to prove 
beyond a reasonable doubt that mailed photos, smuggled 
magazines or videos, traded pictures, and computer images being 
transmitted on the Internet, are indeed actual depictions of an 
actual minor engaging the sex portrayed, then there could be a 
built-in reasonable doubt argument in every child exploitation/
pornography prosecution.'' 5 This threat is already a 
reality for Federal law enforcement. Deputy Assistant Attorney 
General Di Gregory testified:

    \5\ Written testimony of Bruce A. Taylor, June 4, 1996.
---------------------------------------------------------------------------
          In addition to our expectation that this material 
        (computer-generated child pornography) will pose 
        serious problems in the future, we have already been 
        confronted with cases in which child pornographers 
        attempted to use the gap in existing law as a legal 
        defense. For example, in the first-ever federal trial 
        involving charges of importation of child pornography 
        by computer, United States v. Kimbrough, 69 F.3d 723 
        (5th Cir. 1995), the defendant offered evidence that 
        currently available computer programs could be used to 
        alter a photograph of an adult so that it looked like a 
        photograph of a child. From that evidence, the defense 
        then argued that the Government had the burden of 
        proving that each item of alleged child pornography 
        did, in fact, depict an actual minor rather than an 
        adult made to look like one, and that the defendant 
        should be acquitted if the government did not meet that 
        burden.
          In that case, the defense was overcome through a 
        carefully executed cross-examination and production, in 
        court, of some of the original magazines from which the 
        computer-generated images were scanned. But it is also 
        true that in 1993, when the Kimbrough case was tried, 
        the technology was still at an early stage of 
        development and as such, the defense was not as potent 
        as it might become in the future. Moreover, magazine 
        archives will be of less value to prosecutors since 
        child pornography produced today will no longer predate 
        the availability of graphic imaging software. Thus, the 
        Government will no longer be able to produce the 
        original child pornography magazine against which a 
        comparison may be made.

Thus the enforcement of existing laws against the sexual 
exploitation of children with respect to the production, 
distribution or possession of child pornography requires 
Federal law to be updated to keep pace with the technology of 
pornography.
    Some may argue that because the computerized production of 
child pornography does not directly involve, or law enforcement 
officials may not be able to prove the use of, actual children 
engaging in sexually explicit conduct, such material somehow 
does not harm or threaten our children, and we should therefore 
turn a blind legal eye to its existence. This view ignores the 
reality of child sexual abuse and exploitation, and the 
critical role child pornography plays in such criminal conduct.
     As discussed above, a major part of the threat to children 
posed by child pornography is its effect on the viewers of such 
material, including child molesters or pedophiles who use such 
material to stimulate or whet their own sexual appetites. To 
such sexual predators, the effect is the same whether the child 
pornography consists of photographic depictions of actual 
children or visual depictions produced wholly or in part by 
computer. To such a viewer of child pornographic images the 
difference ``is irrelevant because they are perceived as minors 
by the psyche.'' 6
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    \6\ Written testimony of Dr. Victor Cline, June 4, 1996.
---------------------------------------------------------------------------
    As shown by the testimony received at the Committee's June 
4, 1996, hearing from Deputy Assistant Attorney General Di 
Gregory, Mrs. Jepsen, Dr. Cline, and Mr. Taylor, with respect 
to child sexual abuse and exploitation, the danger to actual 
children who are seduced and molested with the aid of child sex 
pictures is as great when the child pornographer or child 
molester uses visual depictions of child sexual activity 
produced wholly or in part by electronic, mechanical or other 
means, including by computer, as when the material consists of 
unretouched photographic images of actual children engaging in 
sexually explicit conduct.
    S. 1237 will close this computer-generated loophole in 
Federal child exploitation laws and give our law enforcement 
authorities the tools they need to protect our children by 
stemming the increasing flow of high-tech child pornography. It 
would establish, for the first time, a Federal statutory 
definition of child pornography. Any visual depiction of 
sexually explicit conduct, however produced, would be 
classified as ``child pornography'' if: (a) its production 
involved the use of a minor engaging in sexually explicit 
conduct, or; (b) it depicts, or appears to depict, a minor 
engaging in sexually explicit conduct, or; (c) it is promoted 
or advertised as depicting a minor engaging in sexually 
explicit conduct. Under S. 1237, computer-generated child 
pornographic images, which in real life are increasingly 
indistinguishable in the eyes of viewers from unretouched 
photographs of actual children engaging in sexually explicit 
conduct, and can result in many of the same types of harm to 
children and society, would now also be indistinguishable in 
the eyes of the law from pornographic material produced using 
actual children.
    Pornographic depictions which appear to be those of 
children engaging in sexually explicit conduct, including 
computer-generated images, deserve no first amendment 
protection because the State's compelling interest in 
protecting children is directly advanced by prohibiting the 
possession or distribution of such material, for many of the 
same reasons applicable to the child pornographic material at 
issue in Ferber. In that case, the Court dispensed with the 
obscenity test of Miller v. California, 413 U.S. 15 (1973), and 
upheld a State law banning the production and promotion of any 
picture of a child engaging in sexual conduct or lewd 
exhibition of the genitals. The Court held that child 
pornography is not entitled to first amendment protection, and 
that ``the States are entitled to greater leeway in the 
regulation of pornographic depictions of children'' for the 
following reasons:

          First. * * * [A] state's interest in ``safeguarding 
        the physical and psychological well-being of a minor'' 
        is ``compelling''. * * * The prevention of sexual 
        exploitation and abuse of children constitutes a 
        governmental objective of surpassing importance. * * *
          Second. The distribution of photographs and films 
        depicting sexual activity is intrinsically related to 
        the sexual abuse of children in at least two ways. 
        First, the materials * * * are a permanent record of 
        the children's participation and the harm to the child 
        is exacerbated by their circulation. Second, the 
        distribution network for child pornography must be 
        closed if the production of material which requires the 
        sexual exploitation of children is to be effectively 
        controlled. Indeed. * * * It is difficult, if not 
        impossible, to halt the exploitation of children by 
        pursuing only those who produce the photographs and 
        movies. * * * The 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 * * *.
          Third. The advertising and selling of child 
        pornography provide an economic motive for and are thus 
        an integral part of the production of such materials. * 
        * *
          Fourth. The value of permitting live performances and 
        photographic reproductions of children engaged in lewd 
        sexual conduct is exceedingly modest, if not de 
        minimis. * * *
          Fifth. Recognizing and classifying child pornography 
        as a category of material outside the protection of the 
        First Amendment is not incompatible with our earlier 
        decisions. ``The question whether speech is, or is not, 
        protected by the First Amendment often depends on the 
        content of the speech.'' New York v. Ferber, supra, at 
        756-764.

    Prohibiting the possession of computer-generated child 
pornography will prevent pedophiles from using these images to 
seduce children into sexual activity, and will prevent sex 
crimes against children. Child pornography is not only ``crime 
scene photos'' of child sexual abuse and exploitation, but also 
a criminal tool for such abuse and exploitation. It is a tool 
of incitement for pedophiles and child molesters, and a tool of 
seduction for child victims. Its relationship and involvement 
with physical criminal conduct directed at children is 
inseparable. As the Court quoted a New York lawmaker in Ferber, 
at 761, ``It is irrelevant to the child (who has been abused) 
whether or not the material * * * has a literary, artistic, 
political or social value.'' It is equally irrelevant to a 
molested child shown child pornographic material to seduce or 
entice him into engaging in sexual activity, or to persuade or 
blackmail the child into recruiting other child victims, or 
into remaining silent about the abuse, whether the material was 
produced by camera or computer, or a combination of the two. It 
is also irrelevant to the child molester or pedophile who uses 
depictions of children engaging in sexually explicit conduct to 
stimulate or whet his own sexual appetites. The molester or 
pedophile may not even know the difference, nor would he care. 
Computer-generated images which appear to depict minors 
engaging in sexually explicit conduct are just as dangerous to 
the well-being of our children as material produced using 
actual children.
    The conduct depicted in the material made criminal under 
this bill is a lewd depiction or representation of a child 
engaging in sexually explicit conduct. There is no difference 
between the content of photographs or films depicting such 
conduct produced using actual children and the content of the 
computer-generated depictions made contraband under this bill. 
Constitutional immunity is not extended to materials that are 
``used as an integral part of conduct in violation of a valid 
criminal statute.'' Id., at 762. This legislation is aimed at 
child pornographic material that is, and will continue to be, 
used to incite pedophiles to molest real children, to seduce 
real children into being molested, and to convince real 
children into making more child pornography. Like material 
produced using actual children engaging in sexually explicit 
conduct, pornographic images of persons who appear to be 
minors, depictions indistinguishable from photographs of real 
children but which are produced by computer, bear heavily on 
the welfare of the next generation of children who will be 
sexually abused and exploited by the harmful effects that any 
form of child pornography has on pedophile molesters and their 
child victims. It is therefore permissible to consider 
computer-generated pornographic materials which appear to be 
depictions of actual minors engaging in sexually explicit 
conduct as without the protection of the first amendment.
    The State's compelling interest in protecting children is 
also advanced by prohibiting the possession or distribution of 
computer-generated child pornography because the enforcement of 
child pornography and child sexual exploitation laws will be 
severely hampered if the ``distribution network for child 
pornography'' is flooded with computer-generated material. As 
the technology of computer-imaging progresses, it will become 
increasingly difficult, if not impossible, to distinguish 
computer-generated from photographic depictions of child sexual 
activity. It will therefore become almost impossible for the 
Government to meet its burden of proving that a pornographic 
image is of a real child. Statutes prohibiting the possession 
of child pornography produced using actual children would be 
rendered unenforceable and pedophiles who possess pornographic 
depictions of actual children will go free from punishment. The 
Government's inability to detect or prove the use of real 
children in the production of child pornography, and thus the 
reduced risk of punishment for such criminal conduct, could 
have the effect of increasing the sexually abusive and 
exploitative use of children to produce child pornography.

            C. S. 1237 is not unconstitutionally overbroad.

    To ensure that the statute, and in particular the 
classification of a visual depiction which ``appears to be'' of 
a minor engaging in sexually explicit conduct as child 
pornography, is not unconstitutionally overbroad, S. 1237 does 
not change or expand the existing statutory definition (at 18 
U.S.C. 2256(2)) of the term ``sexually explicit conduct.'' This 
definition, including the use of the term ``lascivious,'' has 
been judicially reviewed and upheld. United States v. Knox, 32 
F.3d 733 (3rd Cir. 1994); cert denied, 115 S. Ct. 897 (1995); 
United States v. Wiegand, 812 F.2d 1239, 1243 (9th Cir.); cert 
denied, 484 U.S. 856 (1987).\7\ See also, United States v. X-
Citement Video, Inc., 982 F.2d 1285 (9th Cir. 1992); 115 S. Ct. 
464, 472 (1995). S. 1237 does not, and is not intended to, 
criminalize or prohibit any innocuous depiction of a minor--
photograph, film, video, or computer image--however that 
depiction is produced. Using two oft-cited examples, Coppertone 
suntan lotion advertisements featuring a young girl in a 
bathing suit are not now, and will not become under S.1237, 
child pornography; neither would the proverbial parental 
picture of a child in the bathtub or lying on a bearskin rug.
---------------------------------------------------------------------------
    \7\ ``Lascivious is no different than the term `lewd,' a 
commonsensical term whose constitutionality was specifically upheld in 
Miller v. California, 413 U.S. 15, 25 (1973), and in Ferber, 458 U.S. 
at 765.'' U.S v. Wiegand, supra, at 1243-44.
---------------------------------------------------------------------------
    S. 1237 also does not, and is not intended to, apply to a 
depiction produced using adults engaging is sexually explicit 
conduct, even where a depicted individual may appear to be a 
minor. Accordingly, the bill includes in the proposed 18 U.S.C. 
2252A an affirmative defense provision for material produced 
using adults. Under that provision, it is an affirmative 
defense to a charge under section 2252A that the material in 
question was produced using an actual person or persons 
engaging in sexually explicit conduct, each of whom was an 
adult at the time the material was produced, provided the 
defendant did not intentionally pander the material as being 
child pornography.
    S. 1237's prohibition against a visual depiction which 
``appears to be'' of a minor engaging in sexually explicit 
conduct applies to the same type of photographic images already 
prohibited, but which does not require the use of an actual 
minor in its production. Under this bill, the prohibition 
against child pornography is extended from photographic 
depictions of actual minors engaging in sexually explicit 
conduct to the identical type of depiction, one which is 
virtually indistinguishable from the banned photographic 
depiction, which can and is now being produced using technology 
which was not contemplated or in existence when current Federal 
child sexual exploitation and child pornography laws were 
adopted. A bill that does not criminalize an intolerable range 
of constitutionally protected conduct or speech is not 
unconstitutionally overbroad. Osborne v. Ohio, 495 U.S. 103 
(1990).
    It has been suggested, including by Prof. Frederick Schauer 
in his June 4, 1996 written testimony, that language in the 
Ferber decision that ``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, retain First 
Amendment protection'' (supra at 764-65) suggests that Congress 
cannot prohibit visual depictions which ``appear to be'' of 
minors engaging in sexually explicit conduct but were produced 
without using actual children. The Committee disagrees. At the 
time of Ferber, in 1982, the technology to produce visual 
depictions of child sexual activity indistinguishable from 
unretouched photographs of actual children engaging in ``live 
performances'' did not exist. Further, the cited language from 
the Ferber decision, on its face, distinguishes between 
photographic reproductions of live performances of sexual 
conduct and other visual depictions of such conduct, while 
making it clear that both are outside the protection of the 
first amendment. As the Committee heard from witnesses before 
it and as it has found, the effect on children exposed to 
computer-generated child pornographic material, and on child 
molesters and pedophiles who create and use such material, is 
the same as that from visually indistinguishable photographic 
depictions of actual children engaging in such conduct. 
Computer-generated child pornographic material therefore poses 
a threat to the well-being of children comparable to that posed 
by photographic child pornography. The Government therefore has 
an interest in prohibiting computer-generated child 
pornographic depictions equally compelling as its interest in 
prohibiting child pornography produced using actual children. 
8
---------------------------------------------------------------------------
    \8\ Because of the possibility, however, that despite the 
Committee's considered view, some courts might find the application of 
S. 1237's section 4 to be an infringement of the first amendment 
insofar as it applies to computer-generated images not produced using 
an actual minor, the Committee, out of an abundance of caution, added 
section 9 to S. 1237. Section 9 covers only instances where a depiction 
of an ``identifiable minor'' is created, altered or modified to appear 
that the minor is engaging in sexually explicit conduct. If a court 
rules that section 4's coverage of a computer-generated depiction which 
``appears to be'' of a minor engaging in sexually explicit conduct is 
constitutionally impermissible, there is concern that section 4's 
additional coverage of depictions of identifiable minors may not be 
severable therefrom. Section 9 is clearly severable from section 4, and 
its prohibition on computer-generated depictions of identifiable minors 
engaging in sexually explicit conduct will survive a ruling striking 
down section 4's ``appears to be'' language with respect to child 
pornographic material.
---------------------------------------------------------------------------

             D. Pandering of material as child pornography

    The definition of child pornography established under S. 
1237 would classify as child pornography a visual depiction of 
sexually explicit conduct which ``is advertised, promoted, 
presented, described, or distributed in such a manner that 
conveys the impression that the material is or contains a 
visual depiction of a minor engaging in sexually explicit 
conduct.'' Child sexual exploitation and child pornography 
statutes such as S. 1237 are intended by Congress, as evidenced 
by the plain meaning of the statutes read as a whole, to 
prohibit and thus prevent the exploitation of minors for sexual 
purposes. This provision prevents child pornographers and 
pedophiles from exploiting prurient interests in child 
sexuality and sexual activity through the production or 
distribution of pornographic material which is intentionally 
pandered as child pornography, and then evading prosecution 
under the child pornography statute. The concept of 
``pandering'' 9 is a long-recognized evidentiary rule, 
which holds that evidence of pandering is relevant in 
determining whether at-issue material is within the legitimate 
reach of the child pornography statute. Ginzburg v. United 
States, 383 U.S. 463, 467-8 (1966). In addition, evidence of a 
defendant's deliberate pandering of material as child 
pornography helps narrow the statute's application by 
eliminating any claims of innocent or serious value or purposes 
for the at-issue material.
---------------------------------------------------------------------------
    \9\ The Supreme Court in Ginzburg v. United States, supra, at 467-
468, citing the concurring opinion of Chief Justice Warren in Roth v. 
United States, 354 U.S. 476, defined pandering as ``the business of 
purveying textual matter openly advertised to appeal to the erotic 
interest of their customers.''
---------------------------------------------------------------------------

   E. Penalties for sexual exploitation of children to produce child 
                              pornography

    Section 5 of S. 1237 reflects an amendment offered by 
Senator Grassley, amending 18 U.S.C. 2251 to increase the 
penalties under Federal law for the production of child 
pornography using actual minors. Currently, Federal penalties 
for such an offense are lower than many state penalties for 
similar conduct. Specifically, 41 States (82 percent) have 
penalties which are potentially greater than the existing 
Federal penalty for the first offense. Seven States (14 
percent) have first offense penalties roughly equal to the 
Federal penalty. Only 4 percent (two States) have penalties 
which are less harsh than Federal penalties. The purpose of 
Senator Grassley's amendment is to toughen Federal penalties 
for the sexual exploitation of children to produce child 
pornography, in part to counteract the current practice among 
some Federal prosecutors and investigators of bringing Federal 
child pornography charges to State and local authorities.
    Under section 5, an individual who violates section 2251 
would be fined or imprisoned for not less than 10 years nor 
more than 20 years, or both. A repeat offender with one prior 
conviction would be fined and imprisoned for not less than 15 
years nor more than 30 years; an individual with two or more 
prior such convictions would be fined and imprisoned for not 
less than 30 years nor more than life. With these new tougher 
penalties, the Federal Government will be leading by example 
and sending a clear message that child pornography is 
unacceptable, as well as bringing Federal penalties for sexual 
exploitation of children in line with the penalties for such 
conduct established by most States.10
---------------------------------------------------------------------------
    \10\ State-by-State breakdown of penalties for the production of 
child pornography: Life Imprisonment: Alabama, Montana, Nevada; Up to 
30 years: Tennessee; Up to 20 years: Connecticut, Delaware, Georgia, 
Kentucky, Massachusetts, Michigan, Mississippi, Nebraska, Oklahoma, 
Oregon; Up to 17 years: Arizona; Up to 15 years: Florida, Idaho, 
Illinois, Missouri, Ohio, Utah; Up to 12 years: Colorado; Up to 10 
years: Arkansas, District of Columbia, Iowa, Louisiana, Maine, 
Maryland, New Jersey, Pennsylvania, Rhode Island, South Dakota, Texas, 
Vermont, Virginia, West Virginia, Wisconsin; Less than 10 years: 
Alaska, California, Hawaii, Indiana, Kansas, Minnesota, New Hampshire, 
New Mexico, New York, North Carolina, North Dakota, South Carolina, and 
Washington.
---------------------------------------------------------------------------

               F. Amendment of the Privacy Protection Act

    S. 1237 also addresses another problem which has arisen in 
our new electronic environment, one which can impede or even 
deter investigations into the production of or trafficking in 
child pornography. The Privacy Protection Act (42 U.S.C. 
2000aa) makes it unlawful for Federal, State or local law 
enforcement authorities, in connection with the investigation 
or prosecution of a criminal offense, to search for or seize 
work product (defined as ``materials possessed by a person 
reasonably believed to have a purpose to disseminate to the 
public a newspaper, book, broadcast, or other similar form of 
public communication'') or connected documentary materials. An 
aggrieved person may bring a civil suit and recover damages not 
only against the United States, a State or a government agency, 
but also against individual State officers and employees. Law 
enforcement officials have expressed concern regarding the 
possibility of lawsuits being brought under this statute in 
child pornography or child sexual exploitation cases; even the 
mere threat of potentially costly lawsuits may have a chilling 
effect on some U.S. attorneys and local officials, particularly 
in smaller jurisdictions, thus deterring them from pursuing 
these types of cases.
    A more difficult problem increasing faced by law 
enforcement officials is ``commingling.'' While the Act does 
allow for the seizure of evidence where there is probable cause 
to believe the person possessing such materials has committed 
or is committing the criminal offense to which the materials 
relate, it restricts searches for evidence of crime held by 
innocent third parties engaged in first amendment-protected 
activities. The problem is that people often store contraband--
and targets of criminal investigations store evidence--on a 
computer which also contains material protected under the 
Privacy Protection Act. In such situations, the legal search or 
seizure of the computer for contraband or evidence results in 
the incidental search or seizure of protected materials, 
arguably violating the Act. This is a growing problem, due both 
to the increasingly widespread use of computers by individuals, 
organizations and companies, and the use of computers for 
storage and distribution via the Internet of child pornographic 
materials by pedophiles, child molesters, and pornographers.
    The Privacy Protection Act currently contains an exemption 
for searches and seizures in cases where the alleged offense 
consists of the receipt, possession or communication of 
information relating to the national defense, classified 
information, or restricted data under the provisions of 
specified statutes. Consistent with the existing statutory 
framework, S. 1237, at section 7, addresses the problem of 
commingling, and protects governments and law enforcement 
officials seeking to protect children against criminal sexual 
abuse and exploitation from the threat of civil lawsuits and 
the awarding of damages, by extending the existing Privacy Act 
exemptions to include searches and seizures in child 
pornography, child sexual exploitation, and child selling 
cases. This position is supported by the Department of Justice.

                     V. Regulatory Impact Statement

    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the Committee, after due consideration, 
concludes that S. 1237 will not have direct regulatory impact.

                           VI. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 9, 1996.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 1237, the Child Pornography Prevention Act of 1996, 
as ordered reported by the Senate Committee on the Judiciary on 
July 25, 1996. CBO estimates that implementing S. 1237 would 
result in no significant costs to the federal government. 
Enacting the bill could affect direct spending and receipts, so 
pay-as-you-go procedures would apply. However, we estimate that 
any increases in direct spending and receipts would be less 
than $500,000 annually.
    S. 1237 would provide for new and enhanced penalties for 
crimes relating to child pornography, including mandatory 
minimum prison sentences and criminal fines. Therefore, 
enacting the bill could increase governmental receipts through 
greater collections of criminal fines, but we estimate that any 
such increase would be less than $500,000 annually. Criminal 
fines would be deposited in the Crime Victims Fund and would be 
available for spending in the following year. Thus, direct 
spending from the fund would match the increase in receipts 
with a one-year lag.
    Enacting S. 1237 would result in minor additional costs to 
the federal government to accommodate more prisoners in federal 
prisons. Based on information from the U.S. Sentencing 
Commission, we expect very few federal cases to be affected. 
Thus, enacting the bill would not have any significant impact 
on discretionary spending.
    S. 1237 contains no private-sector or intergovernmental 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) and would not impose costs on state, local, 
or tribal governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              James T. Blum
                                   (For June E. O'Neill, Director).
               VII. ADDITIONAL VIEWS OF SENATOR GRASSLEY

    The history of efforts to eliminate the scourge of child 
pornography is replete with examples of child pornographers 
finding ways around legislation intended to eliminate child 
pornography. Osborne v. Ohio, 495 U.S. 103, 109-110 (1990). 
When the Supreme Court first ruled that making or selling child 
pornography was not protected by the first amendment (New York 
v. Ferber, 458 U.S. 747 (1982)), Congress and many States 
passed laws to prohibit these activities. Child pornographers 
responded by going underground and forming clandestine networks 
to produce and trade in child pornography. Clearly new 
legislation was required to criminalize the simple possession 
of child pornography so that law enforcement could reach into 
the seamy underground of American society and catch child 
pornographers. Fortunately, the Supreme Court recognized the 
fluid nature of child pornography production and distribution. 
Osborne, 495 U.S. at 110.
    Additionally, commercial pornography distributors began 
selling videotapes of young girls scantily-clad in bathing 
suits and underwear. These pornography merchants found what 
they believed was a loophole in Federal child pornography laws. 
For a time, the Clinton administration agreed. Fortunately, 
after Congress intervened, the Clinton administration changed 
its position and the courts closed the loophole. United States 
v. Knox, 32 F.3d 733 (3d Cir. 1994), cert. denied, 115 S. Ct. 
897 (1995).
    S. 1237 is simply a replay of this drama. Computer imaging 
technology has given child pornographers a new way to create 
``synthetic'' child pornography which is virtually 
indistinguishable from ``traditional'' child pornography. 
Moreover, there is evidence that pedophiles are aware of these 
technological developments and are using computer technology to 
transform images into child pornography. In California, for 
instance, a pornographer posed as a social service worker and 
photographed young girls in the nude and ``electronically 
manipulat[ed] the photos on his home computer to switch faces 
and body parts of little girls.'' Janet Gilmore, ``Man who 
Posed As Investigator Convicted of Child Molestations,'' The 
Daily Breeze, May 23, 1996.
    As the Committee Report makes plain, when the Committee 
considered this legislation, witnesses with considerable 
experience in combating child pornography and treating sexual 
pathologies testified that ``synthetic'' child pornography 
which looks real to the naked eye will have the same effect 
upon viewers as ``traditional'' child pornography. S. 1237 
simply responds to this new reality, and I am confident that 
courts will rise to the occasion and sustain this bill against 
the inevitable court challenge.
    The Supreme Court's precedents in this area establish two 
reasons why child pornography is not protected by the first 
amendment. First, when child pornography is created a child is 
sexually abused in the process. Ferber, 458 U.S., at 756-58. 
Since the Government can absolutely prohibit the sexual abuse 
of a child, the Government may therefore prohibit recording 
that sexual abuse on camera.
    The second reason directly supports S. 1237: child 
pornography poses an unreasonable risk of harm to other 
children because pedophiles use child pornography to induce 
children into illicit sexual activity. Osborne, 495 U.S., at 
111 & n. 7. That is, child pornography harms children because 
child pornography is intrinsically a part of the molestation 
process. Thus, contrary to the assertions made by the opponents 
of this legislation, the societal interest in preventing the 
harm to a child depicted in child pornography is not the only 
governmental interest that the Supreme Court has recognized in 
justifying criminal prohibitions of the possession and 
distribution of child pornographic materials. See David B. 
Johnson, ``Comments: Why the Possession of Computer-Generated 
Child Pornography Can Be Constitutionally-Prohibited,'' 4 Alb. 
L.J. Sci. & Tech. 311 (1994).
    Additionally, when the Committee considered this 
legislation, Dr. Victor Cline, a noted expert in sexual 
pathologies, testified that pedophiles crave sexually explicit 
depictions of children. In other words, child pornography 
reinforces deviant sexual impulses and can precipitate deviant, 
illegal sexual behavior. Surely, ``synthetic'' child 
pornography, which the viewer believes to be real, can 
stimulate the same anti-social responses as ``traditional'' 
child pornography. Thus, in my view, the Government's interest 
in protecting children from predatory child molesters requires 
Congress to outlaw ``synthetic'' child pornography.
    In conclusion, S. 1237 is a narrow, targeted response to a 
growing child pornography problem. We know that child 
pornography is used to entice children into sexual activity and 
to lower their natural inhibitions and it is very likely that 
there are more individuals like the child pornographer in 
California who have learned to use computer technology to 
create child pornography. There is every reason to believe that 
computer-generated ``synthetic'' child pornography poses the 
same risk to America's children that ``traditional'' child 
pornography does. I have every confidence that those misguided 
elements of our society which have defended child pornography 
at every turn in the courts will lose again.

                                                    Chuck Grassley.
                VIII. ADDITIONAL VIEWS OF SENATOR BIDEN

    I share the goals of the majority of the Committee: to 
close loopholes in our Federal child pornography laws caused by 
advances in computer technology. Child pornography is a heinous 
crime that preys on the most vulnerable and innocent in our 
society. It is a devastating act, damaging a child's trust in 
others and their own sense of self-respect and self-esteem. 
Moreover, the harmful repercussions to child participants lasts 
long after the pornography is made, because the pornographic 
material provides a permanent record of the act, prolonging the 
victimization as long as the material exists. Child pornography 
has no redeeming value, and, because of the harm it causes to 
the minors depicted, it deserves no first amendment protection. 
For these reasons, I have worked with many of my colleagues to 
strengthen Federal criminal laws prohibiting child pornography, 
and I believe we should act quickly to address new forms of 
child pornography as soon as they appear. Thus, I support this 
legislation, which expands current Federal criminal law to 
prohibit the use of computer ``morphing'' to create child 
pornography. I write separately to explain my rationale in 
offering an amendment, adopted by the Committee, which was 
incorporated into the bill as section 9.
    When the Congress acts to address a problem, it is 
imperative that we act not only quickly, but also effectively. 
Empty promises are meaningless and can even be 
counterproductive. In this context, where we are operating in 
an area close to the first amendment to the Constitution, we 
must work to carefully draft our laws to meet relevant 
constitutional standards. Only a constitutional law, which will 
be upheld by the courts, offers any real protection to our 
children. We will have less child pornography, and fewer child 
victims, only if we pass a bill that will be enforced, and 
enforced immediately, not one that is subject to lengthy 
litigation and which could very well be struck down as 
unconstitutional. Based on testimony and other evidence 
presented to the Committee, I am concerned that the bill as 
originally drafted would certainly be subject to challenges and 
may not be upheld by the courts for the reasons discussed 
below.
    The Supreme Court first addressed the question of child 
pornography in New York v. Ferber, 458 U.S. 747 (1982). In 
Ferber the Court held that child pornography--even child 
pornography that is not legally obscene--is not entitled to any 
first amendment protection.1 The Court found a number of 
compelling reasons to justify a total ban: child pornography 
causes psychological and physical harm to children used as 
subjects; it creates a permanent record of sexual abuse; it 
fuels the child pornography trade; and its artistic and social 
value is limited. Id. at 756-64. Recognizing that restrictions 
on child pornography are content-based, the Court weighed the 
competing interests carefully but found the interest of 
protecting children from being involved in the production of 
child pornography to be paramount. Id. at 763-64. Thus, 
although the Court considered a number of factors in exempting 
child pornography from first amendment protection, the focus of 
the Supreme Court's reasoning has always been on the harm 
making the pornography does to children--not on the effect such 
material has on the viewer.
---------------------------------------------------------------------------
    \1\ In fact, the Court found that the three-prong test for 
obscenity involving adults established in Miller v. California, 413 
U.S. 15 (1973) (to be found obscene material must appeal to prurient 
interests; lack artistic, scientific, or other merit; and violate 
community standards), does not apply to child pornography. Rather, all 
child pornography--regardless of its value--could be banned so long as 
the conduct prohibited was adequately limited and defined. Ferber, 458 
U.S. at 764.
---------------------------------------------------------------------------
    In fact, the Court explicitly recognized that, where there 
is artistic or political value to the speech, substitutes for 
minors may be used, and such material may not be outlawed. Id. 
at 762-63. For example, a movie about child sexual abuse that 
uses an adult who looks like a child to play the victim would 
retain first amendment protection. Id. at 763. Indeed, the 
Supreme Court has repeatedly held--in unmistakably clear 
language--that non-obscene pornography depicting adults is 
constitutionally protected, even where adults are used who look 
like minors. See, e.g., Alexander v. United States, 113 S. Ct. 
2766 (1993). Writing for the majority in Ferber, Justice White 
stated unequivocally that non-obscene simulations of child 
pornography that do not involve children in making the images 
``retains first amendment protection.'' Id. at 764-65.
    I am concerned that S.1237 is inconsistent with current law 
in one respect. By criminalizing all visual depictions that 
``appear to be'' child pornography--even if no child is ever 
used or harmed in its production--section 4 prohibits the very 
type of depictions that the Supreme Court has explicitly held 
protected.
    Prof. Frederick Schauer's testimony before the Committee is 
particularly instructive in this regard. Professor Schauer, who 
is the Frank Stanton Professor of the First Amendment at 
Harvard University's Kennedy School of Government and a 
visiting professor of law at Harvard Law School, was the 
Commissioner of the Attorney General's Commission on 
Pornography--commonly known as the Meese Commission--and was 
the primary author of its report. Professor Schauer, as well as 
at least 14 other constitutional scholars who wrote to the 
committee, believe that the ``appears to be'' standard in the 
definition of ``child pornography'' incorporated in section 4 
is constitutionally suspect. As Professor Schauer noted, the 
Ferber Court held that:

          ``We note that the distribution of description or 
        other depictions of sexual conduct, not otherwise 
        obscene, which do not involve live performances or 
        photographs or other visual depictions of live 
        performances, retains First Amendment protection.'' 458 
        U.S. at 764-65. Thus it is not that Ferber did not 
        address the possibility of simulations of non-
        recognizable minors. It is that Ferber did address this 
        possibility, and explicitly held such simulations to be 
        constitutionally protected.''
Written testimony of Frederick Schauer, at 4.

    Of course, the Supreme Court has the power to expand its 
current child pornography exemptions in light of technological 
developments. But Professor Schauer testified that even in 
recent cases the Court has been unwilling to expand the scope 
the Ferber exception. See, e.g., Jacobson v. United States, 503 
U.S. 540 (1992) (invalidating a Federal child pornography 
conviction and holding that even the compelling interest in 
protecting children from sexual exploitation does not justify 
modifications in otherwise applicable rules of criminal 
procedure); United States v. X-Citement Video, 115 S. Ct. 464 
(1994) (interpreting section 2252 of title 18 to require the 
prosecution to prove the defendant knew the material was 
produced with the use of a minor, in part because to find 
otherwise would be constitutionally problematic). Therefore, 
Professor Schauer concluded that ``the proposed expansion to 
include drawings or computer-generated images of non-
recognizable children, which is keyed to no justification that 
is recognized in existing law, is unconstitutional on the 
existing state of the law.'' 2 Should Professor Schauer 
and the other scholars be right, S. 1237 would be invalid and 
provide zero protection to our children.
---------------------------------------------------------------------------
    \2\ Some States have statutes that, if read on their face, seem to 
prohibit all material that ``appears'' to depict a minor. But each of 
the State high courts that have interpreted their own States' statutes 
have read into them a requirement that the prosecution show that a 
minor was actually used in the production of the material (even where 
it is characterized as a ``drawing''). See, e.g., Iowa v. Gilmour, 522 
N.W.2d 595 (Iowa 1994); (conduct prohibited by the State statute is 
that of enticing minors into sexually explicit conduct, not 
distributing the material); Cinema I Video, Inc. v. Thornburg, 351 
S.E.2d 305 (N.C. App. 1986) (use of live minor in drawings and 
representations of sexually explicit conduct is an essential element of 
the crime).
---------------------------------------------------------------------------
    Even if the expansion of current law created by section 4 
is ultimately upheld by the Supreme Court, litigation over the 
question of its constitutionality will hinder enforcement of 
the new law until that ultimate decision is issued. Enacting a 
statute of questionable constitutionality is counterproductive 
to the strict enforcement of laws against pedophiles and child 
molesters. Resources that would otherwise be used in 
prosecutions must be diverted to years of litigation on the 
constitutionality of the statute as it works its way through 
the lower courts. And during that time the statute's 
enforcement might be completely blocked by injunctions or other 
motions. In the meantime, the promise of protection is empty 
and the public understandably becomes disillusioned by the 
solutions offered by the Congress.
    In contrast to the questions raised about section 4, there 
is wide agreement that expanding current law to prohibit visual 
depictions of sexually explicit conduct in which an 
identifiable minor's likeness is recognizable meets current 
constitutional requirements, even where the minor was not 
actually engaged in sexual conduct. This would be the case, for 
example, when an innocent image of a minor is ``morphed'' or 
collaged to make it appear that he was engaged in sexual 
conduct, either by putting his face on the picture of someone 
else's body engaged in that type of conduct or by otherwise 
manipulating the image. These kinds of images cause significant 
harm to real children because, although the minor depicted may 
not have actually engaged in sexual conduct, the image creates 
an apparent record of sexual abuse and thus causes the same 
psychological harm to children (in fact, using a minor's 
likeness in such a depiction could reasonably be considered a 
form of abuse). This is one of the concerns that led the Ferber 
court to find child pornography involving actual children in 
sexual conduct exempt from first amendment protection. See, 
e.g., testimony of Bruce Taylor at 14, n.4. ``Morphed'' images 
may also be used to blackmail the child depicted into sexual 
activity by intimidating him or by threatening to show the 
pictures to others if he does not cooperate. Attorney General's 
Commission on Pornography, Final Report, July 1986, at 650. 
Child pornography has a life of its own and may be distributed 
throughout the world for years after it is initially created, 
thus victimizing a child involved in this type of ``morphed'' 
image again and again. Id. at 650-51. For these reasons, this 
prohibition is consistent with the existing constitutional 
standard and its underlying rationale of protecting the well-
being of actual children.
    Because of the significant constitutional concerns that 
section 4 may be struck down--or at the very least litigated 
for several years--and because of the importance of moving 
quickly to ensure prohibition of morphing and other computer-
generated pornographic images using identifiable minors, the 
Committee adopted my amendment adding section 9 to the bill. 
The purpose of section 9 is to prohibit this specific type of 
child pornography--visual depictions that have been created, 
adapted, or modified to appear that an identifiable minor was 
engaged in sexually explicit conduct. Section 9 does not 
require the prosecution to prove the actual identity of the 
minor in the picture, only that the minor is depicted clearly 
enough to be identified as an actual person who is a minor. The 
prosecution could meet this burden either through factual 
evidence or through expert testimony, similar to what 
prosecutors use now to establish the elements of the current 
statute to show that the depiction of a face is of an actual 
person and not different features from different people; and to 
show that the bone structure or other facial features are 
indeed of a minor.
    In all other respects, section 9 mirrors section 4, 
including the penalty provisions and the mandatory minimum 
sentences for certain repeat offenders. I do not support the 
creation of new mandatory minimum sentences. A number of us on 
the Committee worked to create the United States Sentencing 
Commission so that experts would work out the complicated and 
time-consuming issues involved in setting specific penalties 
within the larger sentencing scheme. Creating mandatory minimum 
sentences--rather than providing instructions to the Commission 
regarding the severity of the criminal activity and allowing 
the Commission to set specific guidelines--strips the 
Commission of the very role it was created to serve. In my 
view, this is counterproductive. Nonetheless, because section 9 
is a single section in a larger bill, it was drafted to be 
consistent with the rest of the provisions in that bill.
    I want to briefly address two other issues. First, the 
Supreme Court has found that the scienter requirement in the 
current Federal child pornography statute applies to each 
element of the offense. United States v. X-Citement Video, 
Inc., 115 S. Ct. 464 (1994). In X-Citement, Chief Justice 
Rehnquist, writing for the majority, interpreted the language 
of section 2252 of title 18 to require that the prosecution 
prove that the defendant know both the sexually explicit nature 
of the material and that the age of the performers was below 
minority. Id. at 472. The Supreme Court found that ``a [child 
pornography] statute completely bereft of a scienter 
requirement as to the age of the performers would raise serious 
constitutional doubts.'' In order to uphold the 
constitutionality of the Federal statute in that case, the 
court interpreted the law--which it found to be unclear on its 
face--to in fact require that the defendant know that the 
participants were minors. Presumably a similar standard would 
apply to the provisions of S. 1237. Because scienter of each 
element must be established by the prosecution, the affirmative 
defense set forth in section 4 should not be interpreted to 
require the defendant to disprove any element of the offense 
that the prosecution is required to prove beyond a reasonable 
doubt in its case-in-chief. Shifting the burden of proof on any 
of those elements to the defendant would clearly be 
impermissible under the bill of rights.
    Finally, section 9 is structured as a separate section of 
title 18 of the United States Code--section 2252B--to make 
absolutely clear that it is entirely independent and severable 
from the definitions in section 3. Although there is a 
severability provision in section 8 of the bill, the exact 
scope of severability is often a difficult question for courts 
to resolve. This is true even in the case of statutes with 
clear severability provisions.3 Moreover, clarity is 
especially important where, as here, experts in the field 
anticipate there will be extensive litigation which might block 
enforcement of one or more of the sections. It will be cold 
comfort that one sentence is ultimately severable from another 
if enforcement of both is enjoined for years pending that 
decision and countless children are emotionally or physically 
harmed in the meantime.
---------------------------------------------------------------------------
    \3\ See, e.g., Leavitt v. Jane L.,__U.S.__, 64 U.S.L.W. 3834 (1996) 
(reversing a 10th Circuit Court of Appeals finding that a provision in 
a Utah statute was not severable even where statute had explicit 
severability clause); United States v. National Treasury Employees 
Union, __U.S. __, 115 S. Ct. 1003 (1995) (refusing to limit an 
overbroad honoraria ban on Federal employees to certain types of 
speech, because the Court could not be certain its limitation would 
have been the severance adopted by Congress).
---------------------------------------------------------------------------
    Quick and effective enforcement is especially important in 
this case, because the welfare of our children is at stake. 
Creating a separate section will ensure that any constitutional 
challenge to the ``appears to be a minor'' provision will not 
delay enforcement against child pornography involving actual 
minors created by new technologies and not covered under 
current law. At the same time, it does not diminish in any way 
the protections afforded by section 4 should that section 
survive a constitutional challenge. Our purpose in enacting 
this bill must be to focus on how best to protect our children 
from an emerging threat to their personal safety and to assure 
the piece of mind of their parents.

                                                   Joe R. Biden Jr.
                IX. ADDITIONAL VIEWS OF SENATOR KENNEDY

    I am in general agreement with the concerns expressed in 
the minority views of Senators Simon and Feingold. Despite the 
gravity of these concerns, I voted to report S. 1237 favorably 
to the full Senate because the bill seeks to address a serious 
problem and I wanted the legislative process to move forward. 
But it is my hope and expectation that the bill's 
constitutional and sentencing-related flaws will be remedied 
prior to consideration of the bill by the full Senate.
    With respect to the constitutional issues, I am pleased 
that the Committee adopted the Biden amendment to provide focus 
on conduct involving the display of actual children. There is 
substantial reason to believe that the underlying bill is 
unconstitutional as applied to the depiction of adults, or as 
applied to computer-generated images of fictitious children.
    With respect to the sentencing issues, I wish to be fully 
associated with the minority views of Senator Simon. As the 
author of the Sentencing Reform Act of 1984, it is deeply 
distressing for me to see the Judiciary Committee turn its back 
on the sentencing system it fought so hard to create.
    Mandatory minimum sentencing statutes are outmoded, 
unnecessary and counterproductive. Sentencing guidelines 
provide tough, certain punishment while maintaining an 
appropriate and necessary degree of judicial discretion. 
Mandatory minimums don't eliminate sentencing discretion--they 
merely serve to take the discretion away from older, wiser, 
Senate-confirmed Article III judges and place it in the hands 
of young assistant U.S. attorneys engaged in the ``often 
competitive enterprise'' of fighting crime, to paraphrase 
Justice Cardozo. When judges depart from the guidelines they 
are subject to appellate review; when prosecutors dismiss the 
count of an indictment that carries a mandatory minimum 
sentence, their decision is unreviewable and undertaken without 
the benefit of public scrutiny.
    If the members of the Senate Judiciary Committee will not 
remain true to the principles of sentencing reform they first 
articulated, who will?

                                                       Ted Kennedy.
                   X. MINORITY VIEWS OF SENATOR SIMON

    I share the concerns of all the members of this Committee 
about child pornography. Children must be protected from the 
bodily and psychological harm associated with child 
pornography. Any effort to exploit and sexually abuse children 
is reprehensible, and the law should deal swiftly and surely 
with these offenders.
    Nonetheless, I voted to oppose S. 1237 because of two major 
concerns. First, as eloquently stated by Senator Feingold, the 
bill fails to pass constitutional muster. I join in his views. 
Second, I oppose S. 1237 because of the mandatory minimum 
provisions.
    Members of the Judiciary Committee should be well aware of 
the history of Federal sentencing reform. For over 10 years, we 
fought the House of Representatives to pass the Sentencing 
Reform Act of 1984. That Act abolished parole, created truth-
in-sentencing at the Federal level, and established the United 
States Sentencing Commission to write binding sentencing 
guidelines for the Federal courts.
    Both mandatories and guidelines limit the discretion of 
judges. However, guidelines do so in a more sophisticated and 
sensible way. They take account of all relevant offense and 
offender factors. They permit judges to depart upward or 
downward from the range, subject to appellate review. This 
system makes sense for experienced Federal judges. As Plato 
wrote, ``We should exhibit to the judges * * * the outline and 
form of the punishment to be inflicted. * * * But when a state 
has good courts, and the judges are well trained and 
scrupulously tested, the determination of the penalties or 
punishments which shall be inflicted on the guilty may fairly 
and with advantage be left to them.''
    By undermining the coherent system of penalties established 
by the Commission, mandatory minimums are unnecessary and 
counterproductive. Studies of State and Federal courts have 
shown that mandatory minimums are applied unevenly and create 
anomalies in sentencing law. Judges and lawyers in all States 
have reported that the system is becoming a mess because of 
continued congressional reliance on mandatory minimums. Chief 
Justice Rehnquist has noted that mandatory minimums ``frustrate 
the careful calibration of sentences, from one end of the 
spectrum to the other, that the guidelines were intended to 
accomplish.'' The parallel and inconsistent sentencing systems 
in this country are having disastrous effects on the 
administration of justice.
    For some time, the Judiciary Committee had made progress 
toward recognizing that mandatories are not the right way to 
set sentences. Senators Kennedy, Simon, Thurmond, Simpson, and 
Leahy proposed the safety valve approach in the 1994 crime 
bill. During the markup of the immigration bill, the Committee 
accepted a Kennedy-Simon amendment to strike mandatory 
penalties and replace them with directions to the Commission. 
Chairman Hatch has even written a law review article 
questioning the wisdom of mandatory sentences.
    Unfortunately, this bill represents a step back from that 
progress. The original version of the bill included five 
mandatory minimum penalties. The Judiciary Committee adopted 
one amendment that included two additional mandatory minimums 
and increased the punishment for a mandatory minimum in the 
original version of the bill.
    The Judiciary Committee also adopted another amendment that 
included a ``two-strikes-and-you're-out'' life sentence 
provision. The provision imposes a mandatory life sentence on 
anyone convicted for the second time for the sexual abuse of 
children, where the first conviction is for a Federal or State 
offense. The provision permits the life imprisonment of a 19-
year-old who has been twice convicted of having unconsenting 
sex with a 15-year-old.
    Some will say ``child pornography is a serious crime.'' I 
agree completely. But so are all the crimes we deal with--from 
drug and gun-related offenses to the most heinous acts of 
violence. In all of these areas, we should recognize that the 
move from mandatory minimums to the guideline system is not a 
matter of being ``weak'' on child pornography or any other 
horrible crime. It is just a smarter way to make sentencing 
policy.
    The type of defendants prosecuted under child pornography 
laws varies widely--some turn out to be professionals, and 
others are deviants suffering from mental illness. Two years in 
Federal prison may be too short a sentence for the former type 
of defendant, but too long a sentence for the latter type. The 
lack of precision highlights what is wrong with mandatories, 
and precisely why this Committee fought for 10 years to create 
a Sentencing Commission--to sort out the bad offenders from the 
worse offenders in a sophisticated, rational, empirical way.
    During the Judiciary Committee's consideration of this 
legislation, I supported an amendment offered by Senator 
Kennedy to strike the mandatory minimum provisions newly 
created by this bill and replace them with a directive to the 
Sentencing Commission to provide a ``significant enhancement'' 
under the guidelines. The Commission is ready, willing and able 
to respond to congressional direction.
    As described in a report sent to Congress last month, the 
Sentencing Commission has already increased child pornography 
guidelines dramatically in recent years. The report describes 
additional amendments submitted to Congress that take effect 
automatically on November 1, 1996, without any congressional 
action. These changes include increases for sentences for all 
pornography guidelines by approximately 25 percent, increases 
for sentences for the promotion of prostitution and prohibited 
sexual conduct by one-third, a further 25-percent increase for 
the use of computers in child pornography offenses, and a 25-
percent increase for pornography sentences if computers were 
used to solicit participation in sexually explicit conduct by 
or with a minor for the production of child pornography.
    If the sentencing guidelines system is to succeed, Congress 
must stop enacting new mandatory minimum sentencing laws.

                                                        Paul Simon.
                 XI. MINORITY VIEWS OF SENATOR FEINGOLD

    I join my colleagues in expressing grave concern over the 
need to protect those children forced to participate in acts of 
child pornography. We must do all within our power to rid our 
society of those individuals who prey upon our young people for 
gratification and profit. Of this fact there can be no doubt. 
However, the failure of S. 1237 to abide by Supreme Court 
precedent in this area undermines the goal of protecting 
children and risks that this legislation will likely be struck 
down as unconstitutional. I fully support efforts to 
criminalize the creation and distribution of material deemed to 
be child pornography. For such efforts to be of any value, 
however, they must remain within the permissible bounds of our 
Constitution. Unfortunately, as currently drafted, the 
underlying legislation, in my opinion, fails to meet this 
standard and therefore I am compelled to oppose its adoption.
    It is important to note that this legislation deals with 
material which is not deemed to be obscene. If the material in 
question were of such a nature as to be obscene, it would be 
well within the constitutional power of the State to regulate 
it fully. Miller v. California, 413 U.S. 15 (1973). When 
sexually oriented material fails to satisfy the Miller 
standard, it may not be regulated based solely upon the 
indecency, offensiveness or harmful nature of the material. 
However, this generally applicable rule gives way, in certain 
prescribed circumstances, to an exception--an exception for the 
regulation of child pornography. Certain kinds of child 
pornography, in essence, constitute a subset of nonobscene 
expression which the Supreme Court has held may in fact be 
prohibited.
    However, this prohibition is limited in scope by the 
Supreme Court holding in New York v. Ferber, 458 U.S. 747 
(1982). In Ferber, the Court upheld a New York statute which 
criminalized the knowing promotion of sexual performances by 
children under the age of 16 although the materials depicting 
such performances were not necessarily obscene. The New York 
law focused upon the protection of the juveniles involved, an 
important distinction from the regulation of obscenity which is 
aimed at protecting those who view the material in question. 
The purpose of the statute in Ferber was, ``not to protect the 
consumers who watch a child's sexual performance; it is to 
protect the young children from being used and abused in a 
sexual performance.'' (Constitutional Law, Nowak and Rotunda, 
fifth edition, at 1207). A primary justification utilized by 
the Court in upholding the New York regulation was the need to 
prevent the harm suffered by the child when a permanent record 
of his or her participation in the conduct is created and 
circulated.
    However, S. 1237 goes beyond the permissible bounds 
established in Ferber and extends the definition of child 
pornography to drawings or images which ``appear'' to be minors 
or visual depictions which ``convey'' the impression of a minor 
engaging in sexually explicit conduct, whether an actual minor 
is involved or not. According to Harvard Law School Professor 
and former Commissioner on the Attorney General's Commission on 
Pornography, Frederick Schauer, who testified before the 
Judiciary Committee, the definitional expansion sought by S. 
1237 is not supported by present case law;

          It is thus clear that the exclusive focus of Ferber 
        and the constitutional permissibility of regulating the 
        category of child pornography as a separate class is 
        not on the effects of the images on others, even though 
        those effects plainly exist, but instead on the harm to 
        the children actually used in the production of the 
        materials. Nothing in Ferber suggests that a 
        justification other than the protection of the actual 
        children used in the actual production of child 
        pornography will be constitutionally permissible to 
        warrant the criminalization of non-obscene material.

The language of S. 1237 would allow the government to regulate 
even those materials which in fact do not involve a 
recognizable minor. This is a clear departure from precedent 
and is a point addressed directly by the Ferber Court. Justice 
White, writing for the Court, held that while government is 
given ``greater leeway'' in regulating child pornography, 
materials or depictions of sexual conduct, ``which do not 
involve live performance or photographic or other visual 
reproduction of live performances, retains First Amendment 
protection.'' 458 U.S. at 764-65, [emphasis added]. In the 
words of Professor Schauer, ``* * * it is not that Ferber did 
not address the possibility of simulations of non-recognizable 
minors. It is that Ferber did address this possibility, and 
explicitly held such simulations to be constitutionally 
protected.'' S. 1237, in essence, asks the Supreme Court to 
adopt a definition of child pornography for materials which do 
not involve children--materials previously held to be protected 
by the Constitution.
     In order for S. 1237 to be upheld, the Supreme Court would 
have to depart from its unanimous holding in Ferber and allow 
the prohibition of materials which do not involve minors, a 
departure the very text of Ferber seems to deem unlikely. While 
no one can predict with certainty how the Supreme Court will 
rule upon the language of S. 1237, there is no evidence that 
the dramatic expansion in the scope of prescribable expression 
sought by this legislation will be sustained. The Supreme Court 
has repeatedly held, in a number of different areas, that 
expression may not be regulated solely for its effect upon 
others. In the area of child pornography, regulation has been 
sustained in order to protect minors involved in the creation 
of these materials.
    While I agree with my colleagues that we must be vigilant 
in trying to protect young people from those individuals who 
would prey upon them, we must do so in a manner consistent with 
the United States Constitution. The passage of laws directed at 
this type of behavior may provide short term satisfaction, but 
the long term consequences are undeniable, time consuming and 
costly. As Professor Schauer noted;

          * * * enacting laws that are unconstitutional on the 
        existing state of law, and which are extremely unlikely 
        to produce a change in existing constitutional law, is 
        hardly cost-free. Time is expended during which court 
        challenges may put more of existing child pornography 
        law than is intended into constitutional limbo, and 
        resources are expended in litigating constitutional 
        challenges that might be better spent in prosecuting 
        child pornographers.

This legislation marks the second occasion that this Congress 
has embarked upon an unconstitutional course in seeking to 
address activity which is being conducted via modern 
technology. Unfortunately, just as the Communications Decency 
Act sought to alter our constitutional framework, S. 1237 
departs from precedent as well. There can be no doubt that the 
advent of emerging computer technology poses challenges to our 
society on many fronts, some challenges are positive and some 
are not. However, we should not abandon the Constitution in 
seeking to resolve those challenges. Rather than devoting 
resources to litigating the fate of a seemingly 
unconstitutional bill, we should devote those resources to 
adapting constitutionally acceptable child pornography laws to 
emerging technologies. The passage of legislation which will 
ultimately be struck down by the Supreme Court will provide no 
safety for the very children it seeks to protect. I fear this 
will be the result of S. 1237.
    In conclusion, I share the concern of this bill's 
proponents in preventing the exploitation of children through 
child pornography. I have supported such measures in the past 
and will continue to do so in the future. We have an 
affirmative obligation to do all we can to end this type of 
conduct. However, we also have an obligation to ensure that our 
efforts comport, at all times, with the Constitution of the 
United States. As S. 1237 fails to abide by either of these 
standards, I must respectfully oppose its adoption.

                                                     Russ Feingold.
                      XII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the changes in existing law made 
by the bill as reported by the Committee, are shown as follows 
(existing law proposed to be omitted is enclosed in bold 
brackets, new matter is printed in italic, and existing law 
with no changes is printed in roman):

                           UNITED STATES CODE

          * * * * * * *

                TITLE 18--CRIMES AND CRIMINAL PROCEDURE

          * * * * * * *

      CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

Sec.
2251. Sexual exploitation of children.
2251A. Selling or buying of children.
2252. Certain activities relating to material involving the sexual 
          exploitation of minors.
2252A. Certain activities relating to material constituting or 
          containing child pornography.
2252B. Certain activities relating to material depicting the sexual 
          exploitation of minors.
          * * * * * * *

Sec. 2241. Aggravated sexual abuse

    (a) By Force or Threat.--Whoever, in the special maritime 
and territorial jurisdiction of the United States or in a 
Federal prison, knowingly causes another person to engage in a 
sexual act--
          * * * * * * *
    (c) With Children.--Whoever, crosses a State line with 
intent to engage in a sexual act with a person who has not 
attained the age of 12 years, or in the special maritime and 
territorial jurisdiction of the United States or in a Federal 
prison, knowingly engages in a sexual act with another person 
who has not attained the age of 12 years, or attempts to do so, 
shall be fined under this title, imprisoned for any term of 
years, or life, or both. If the defendant has previously been 
convicted of another Federal offense under this subsection or 
under section 2243(a), or of a State offense that would have 
been an offense under either such provision had the offense 
occurred in a Federal prison, unless the death penalty is 
imposed, the defendant shall be sentenced to life in prison.
          * * * * * * *

Sec. 2243. Sexual abuse of a minor or ward

    (a) Of a Minor.--Whoever, crosses a State line with intent 
to engage in a sexual act with a person who, or in the special 
maritime and territorial jurisdiction of the United States or 
in a Federal prison, knowingly engages in a sexual act with 
another person who--
          (1) has attained the age of 12 years but has not 
        attained the age of 16 years; and
          (2) is at least four years younger then the person so 
        engaging;
or attempts to do so, shall be fined under this title, 
imprisoned not more than 15 years, or both. If the defendant 
has previously been convicted of another Federal offense under 
this subsection or under section 2241(c), or of a State offense 
that would have been an offense under either such provision had 
the offense occurred in a Federal prison, unless the death 
penalty is imposed, the defendant shall be sentenced to life in 
prison.
          * * * * * * *

Sec. 2251. Sexual exploitation of children

    (a) * * *
          * * * * * * *
    (d) Any individual who violates, or attempts or conspires 
to violate, this section shall be fined under this title[,] or 
imprisoned [not more than 10 years, or] not less than 10 years 
not more than 20 years, and both, but if such [individual] 
person has [a] one prior conviction under this chapter or 
chapter 109A, or under the laws of any State relating to the 
sexual exploitation of children, such [individual] person shall 
be fined under this title[,] and imprisoned for not less than 
[five] 15 years nor more than [15] 30 years, [or both.] but if 
such person has 2 or more prior convictions under this chapter 
of chapter 109A, or under the laws of any State relating to the 
sexual exploitation of children, such person shall be fined 
under this title and imprisoned not less than 30 years nor more 
than life. Any organization [which] that violates, or attempts 
or conspires to violate, this section shall be fined under this 
title. Whoever, in the course of an offense under this section, 
engages in conduct that results in the death of a person, shall 
be punished by death or imprisoned for any term of years or for 
life.

Sec. 2252. Certain activities relating to material involving the sexual 
                    exploitation of minors

    (a) Any person who--
          (1) * * *
          * * * * * * *
          (4) either--
                  (A) in the special maritime and territorial 
                jurisdiction of the United States, or on any 
                land or building owned by, leased to, or 
                otherwise used by or under the control of the 
                Government of the United States, or in the 
                Indian country as defined in section 1151 of 
                this title, knowingly possesses [3 or more 
                books, magazines, periodicals, films, video 
                tapes, or other matter which contain any visual 
                depiction] any book, magazine, periodical, 
                film, video tape, or other material which 
                contains 3 or more visual depictions; or
                  (B) knowingly possesses [3 or more books, 
                magazines, periodicals, films, video tapes, or 
                other matter which contain any visual 
                depiction] any book, magazine, periodical, 
                film, video tape, or other material which 
                contains 3 or more visual depictions; or that 
                has been mailed, or has been shipped or 
                transported in interstate or foreign commerce, 
                or which was produced using materials which 
                have been mailed or so shipped or transported, 
                by any means including by computer, if--
                          (I) the producing of such visual 
                        depiction involves the use of a minor 
                        engaging in sexually explicit conduct; 
                        and
                                  (ii) such visual depiction is 
                                of such conduct; shall be 
                                punished as provided in 
                                subsection (b) of this section.
    [(b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs (1), (2), or (3) of subsection (a) shall be 
fined under this title or imprisoned not more than ten years, 
or both, but, if such person has a prior conviction under this 
chapter or chapter 109A, such person shall be fined under this 
title and imprisoned for not less than five years nor more than 
fifteen years.
    [(2) Whoever violates, or attempts or conspires to violate, 
paragraph (4) of subsection (a) shall be fined under this title 
or imprisoned not more than 5 years, or both.]
    (b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs (1), (2), or (3) of subsection (a) shall be 
fined under this title or imprisoned not more than 15 years, or 
both, but, if such person has a prior conviction under this 
chapter or chapter 109A, or under the laws of any State 
relating to aggravated sexual abuse, sexual abuse, or abusive 
sexual conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, shipment, or 
transportation of child pornography, such person shall be fined 
under this title and imprisoned for not less than 5 years nor 
more than 30 years.
    (2) Whoever violates, or attempts or conspires to violate, 
paragraph (4) of subsection (a) shall be fined under this title 
or imprisoned not more than 5 years, or both, but, if such 
person has a prior conviction under this chapter or chapter 
109A, or under the laws of any State relating to the possession 
of child pornography, such person shall be fined under this 
title and imprisoned for not less than 2 years nor more than 10 
years.

Sec. 2252A. Certain activities relating to material constituting or 
                    containing child pornography

    (a) Any person who--
          (1) knowingly mails, or transports or ships in 
        interstate or foreign commerce by any means, including 
        by computer, any child pornography;
          (2) knowingly receives or distributes--
                  (A) any child pornography that has been 
                mailed, or shipped or transported in interstate 
                or foreign commerce by any means, including by 
                computer; or
                  (B) any material that contains child 
                pornography that has been mailed, or shipped or 
                transported in interstate or foreign commerce 
                by any means, including by computer;
          (3) knowingly reproduces any child pornography for 
        distribution through the mails, or in interstate or 
        foreign commerce by any means, including by computer;
          (4) either--
                  (A) in the special maritime and territorial 
                jurisdiction of the United States, or on any 
                land or building owned by, leased to, or 
                otherwise used by or under the control of the 
                United States Government, or in the Indian 
                country (as defined in section 1151), knowingly 
                sells or possesses with the intent to sell any 
                child pornography; or
                  (B) knowingly sells or possesses with the 
                intent to sell any child pornography that has 
                been mailed, or shipped or transported in 
                interstate or foreign commerce by any means, 
                including by computer, or that was produced 
                using materials that have been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer; 
                or
          (5) either--
                  (A) in the special maritime and territorial 
                jurisdiction of the United States, or on any 
                land or building owned by, leased to, or 
                otherwise used by or under the control of the 
                United States Government, or in the Indian 
                country (as defined in section 1151), knowingly 
                possesses any book, magazine, periodical, film, 
                videotape, computer disk, or any other material 
                that contains 3 or more images of child 
                pornography; or
                  (B) knowingly possesses any book, magazine, 
                periodical, film, videotape, computer disk, or 
                any other material that contains 3 or more 
                images of child pornography that has been 
                mailed, or shipped or transported in interstate 
                or foreign commerce by any means, including by 
                computer, or that was produced using materials 
                that have been mailed, or shipped or 
                transported in interstate or foreign commerce 
                by any means, including by computer,
shall be punished as provided in subsection (b).
    (b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs (1), (2), (3), or (4) of subsection (a) 
shall be fined under this title or imprisoned not more than 15 
years, or both, but, if such person has a prior conviction 
under this chapter or chapter 109A, or under the laws of any 
State relating to aggravated sexual abuse, sexual abuse, or 
abusive sexual conduct involving a minor or ward, or the 
production, possession, receipt, mailing, sale, distribution, 
shipment, or transportation of child pornography, such person 
shall be fined under this title and imprisoned for not less 
than 5 years nor more than 30 years.
    (2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned 
not more than 5 years, or both, but, if such person has a prior 
conviction under this chapter or chapter 109A, or under the 
laws of any State relating to the possession of child 
pornography, such person shall be fined under this title and 
imprisoned for not less than 2 years nor more than 10 years.
    (c) It shall be an affirmative defense to a charge of 
violating paragraphs (1), (2), (3), or (4) of subsection (a) 
that--
          (1) the alleged child pornography was produced using 
        an actual person or persons engaging in sexually 
        explicit conduct;
          (2) each such person was an adult at the time the 
        material was produced; and
          (3) the defendant did not advertise, promote, 
        present, describe, or distribute the material in such a 
        manner as to convey the impression that it is or 
        contains a visual depiction of a minor engaging in 
        sexually explicit conduct.

Sec. 2252B Certain activities relating to material depicting the sexual 
                    exploitation of minors

    (a) Any person who--
          (1) knowingly mails, or transports or ships in 
        interstate or foreign commerce by any means, including 
        by computer, any visual depiction, if such visual 
        depiction has been created, adapted, or modified to 
        appear that an identifiable minor is engaged in 
        sexually explicit conduct;
          (2) knowingly receives or distributes any visual 
        depiction or any material that contains a visual 
        depiction that has been mailed, or shipped or 
        transported in interstate or foreign commerce by any 
        means, including by computer, if such visual depiction 
        has been created, adapted, or modified to appear that 
        an identifiable minor is engaged in sexually explicit 
        conduct;
          (3) knowingly reproduces any visual depiction for 
        distribution through the mails, or in interstate or 
        foreign commerce by any means, including by computer, 
        if such visual depiction has been created, adapted, or 
        modified to appear that an identifiable minor is 
        engaged in sexually explicit conduct;
          (4) either--
                  (A) in the special maritime and territorial 
                jurisdiction of the United States, or on any 
                land or building owned by, leased to, or 
                otherwise used by or under the control of the 
                United States Government, or in the Indian 
                country (as defined in section 1151), knowingly 
                sells or possesses with the intent to sell any 
                visual depiction; or
                  (B) knowingly sells or possesses with the 
                intent to sell any visual depiction that has 
                been mailed, or shipped or transported in 
                interstate or foreign commerce by any means, 
                including computer, or that was produced using 
                materials that have been mailed, or shipped or 
                transported in interstate commerce by any 
                means, including by computer;
if such visual depiction has been created, adapted, or modified 
to appear that an identifiable minor is engaged in sexually 
explicit conduct; or
          (5) either--
                  (A) in the special maritime and territorial 
                jurisdiction of the United States, or on any 
                land or building owned by, leased to, or 
                otherwise used by or under the control of the 
                United States Government, or in the Indian 
                country (as defined in section 1151), knowingly 
                possesses any book, magazine, periodical, film, 
                videotape, computer disk, or any other material 
                that contains 3 or more visual depictions; or
                  (B) knowingly possesses any book, magazine, 
                periodical, film, videotape, computer disk, or 
                any other material that contains 3 or more 
                visual depictions that has been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer;
        if such visual depiction has been created, adapted, or 
        modified to appear that an identifiable minor is 
        engaged in sexually explicit conduct;
shall be punished as provided in subsection (b).
    (b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs (1), (2), (3), or (4) of subsection (a) 
shall be fined under this title or imprisoned not more than 15 
years, or both, but, if such person has a prior conviction 
under this chapter or chapter 109A, or under the laws of any 
State relating to the production, possession, receipt, mailing, 
sale, distribution, shipment, or transportation of a visual 
depiction that would be prohibited under this chapter if it had 
occurred within the special maritime and territorial 
jurisdiction of the United States, such person shall be fined 
under this title and imprisoned for not less than 5 years nor 
more than 30 years.
    (2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned 
not more than 5 years, or both, but, if such person has a prior 
conviction under this chapter or chapter 109A, or under the 
laws of any State relating to the production, possession, 
receipt, mailing, sale, distribution, shipment, or 
transportation of a visual depiction that would be prohibited 
under this chapter if it had occurred within the special 
maritime and territorial jurisdiction of the United States, 
such person shall be fined under this title and imprisoned for 
not less than 2 years nor more than 10 years.
          * * * * * * *

Sec. 2256. Definitions for chapter

    For the purposes of this chapter, the term--
          (1) ``minor'' means any person under the age of 
        eighteen years;
          * * * * * * *
    (5) ``visual depiction'' includes undeveloped film and 
video tape, and data stored on computer disk or by electronic 
means which is capable of conversion into a visual image;
    (6) ``computer'' has the meaning given to that term in 
section 1030 of this title; [and]
    (7) ``custody or control'' includes temporary supervision 
over or responsibility for a minor whether legally or illegally 
obtained[.]; and
    (8) ``child pornography'' means any visual depiction, 
including any photograph, film, video, picture, or computer or 
computer-generated image or picture, whether made or produced 
by electronic, mechanical, or other means, of sexually explicit 
conduct, where--
          (A) the production of such visual depiction involves 
        the use of a minor engaging in sexually explicit 
        conduct;
          (B) such visual depiction is, or appears to be, of a 
        minor engaging in sexually explicit conduct; or
          (C) such visual depiction is advertised, promoted, 
        presented, described, or distributed in such a manner 
        that conveys the impression that the material is or 
        contains a visual depiction of a minor engaging in 
        sexually explicit conduct; and
          (9) ``identifiable minor''--
          (A) means a person who--
                  (i) was a minor at the time the visual 
                depiction was created or at the time the 
                person's image was captured on the visual 
                medium used in creating, modifying, or adapting 
                such visual depiction; and
                  (ii) is recognizable in the visual depiction 
                as an actual person by the person's likeness or 
                other distinguishing physical characteristic, 
                such as a unique birthmark or other 
                recognizable feature; and
                  (B) shall not be construed to require proof 
                of the actual identity of the minor.
          * * * * * * *

              TITLE 42--THEN THE PUBLIC HEALTH AND WELFARE

          * * * * * * *

Sec. 2000aa. Searches and seizures by government officers and employees 
                    in connection with investigation or prosecution of 
                    criminal offenses

    (a) Work product materials--
          * * * * * * *
          (1) there is probable cause to believe that the 
        person possessing such materials has committed or is 
        committing the criminal offense to which the materials 
        relate: Provided, however, That a government officer or 
        employee may not search for or seize such materials 
        under the provisions of this paragraph if the offense 
        to which the materials relate consists of the receipt, 
        possession, communication, or withholding of such 
        materials or the information contained therein (but 
        such a search or seizure may be conducted under the 
        provisions of this paragraph if the offense consists of 
        the receipt, possession, or communication of 
        information relating to the national defense, 
        classified information, or restricted data under the 
        provisions of section 793, 794, 797, or 798 of Title 
        18, or section 2274, 2275, or 2277 of this title, or 
        section 783 of Title 50, or if the offense involves the 
        production, possession, receipt, mailing, sale, 
        distribution, shipment or transportation of child 
        pornography, the sexual exploitation of children, or 
        the sale or purchase of children, under section 2251, 
        2251A, 2252, 2252A or 2252B of title 18, United States 
        Code); or
    (b) * * *
          (1) there is probable cause to believe that the 
        person possessing such materials has committed or is 
        committing the criminal offense to which the materials 
        relate: Provided, however, That a government officer or 
        employee may not search for or seize such materials 
        under the provisions of this paragraph if the offense 
        to which the materials relate consists of the receipt, 
        possession, communication, or withholding of such 
        materials or the information contained therein (but 
        such a search or seizure may be conducted under the 
        provisions of this paragraph if the offense consists of 
        the receipt, possession, or communication of 
        information relating to the national defense, 
        classified information, or restricted data under the 
        provisions of section 793, 794, 797, or 798 of Title 
        18, or section 2274, 2275, or 2277 of this title, or 
        section 783 of Title 50, or if the offense involves the 
        production, possession, receipt, mailing, sale, 
        distribution, shipment or transportation of child 
        pornography, the sexual exploitation of children, or 
        the sale or purchase of children, under section 2251, 
        2251A, 2252, 2252A or 2252B of title 18, United States 
        Code); or