[House Report 106-920]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-920
======================================================================
CHILD SEX CRIMES WIRETAPPING ACT OF 1999
_______
October 2, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. McCollum, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3484]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3484) amending title 18, United States Code, to
provide that certain sexual crimes against children are
predicate crimes for the interception of communications, and
for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
TABLE OF CONTENTS
Page
Purpose and Summary........................................ 2
Background and Need for the Legislation.................... 2
Hearings................................................... 3
Committee Consideration.................................... 3
Vote of the Committee...................................... 3
Committee Oversight Findings............................... 3
Committee on Government Reform Findings.................... 3
New Budget Authority and Tax Expenditures.................. 4
Congressional Budget Office Cost Estimate.................. 4
Constitutional Authority Statement......................... 5
Section-by-Section Analysis and Discussion................. 5
Changes in Existing Law Made by the Bill, as Reported...... 5
Dissenting Views........................................... 9
Purpose and Summary
H.R. 3484 is designed to enable law enforcement officials
to better protect children from sex predators by giving them an
additional tool to use in child sex crime investigations. H.R.
3484 would add three crimes as new wiretap predicates. The
crimes added by the bill are: 18 U.S.C. Sec. 2252A, which deals
with child pornography; 18 U.S.C. Sec. 2422, which deals with
coercion and enticement to engage in prostitution or other
illegal sexual activity; and 18 U.S.C. Sec. 2423, relating to
transportation of minors to engage in prostitution or other
illegal sexual activity.
Background and Need for the Legislation
Under current law, law enforcement agencies may only seek
court authority to use a wiretap in investigations of a limited
number of crimes. The crimes as to which a wiretap may be used
to investigate, commonly called ``wiretap predicates,'' are set
forth in 18 U.S.C. Sec. 2516(1). In every case, law enforcement
authorities must seek a court order authorizing the use of the
wiretap. Some crimes involving the sexual exploitation of
children are already wiretap predicates, but several are not.
In recent years, due to the dramatic increase in the use of
the Internet by persons intent on luring children into sexual
activities, law enforcement agencies have been turning their
attention with greater frequency to statutes that involve
enticing children. Predators often engage children in
conversations in ``chat rooms'' in order to entice them into
sex. Some send child pornography to their potential victims in
order to lower their natural defenses to the sexual advances of
adults. After these contacts are made, predictors will often
travel to meet their prey, or encourage the child to travel to
meet them. Fortunately, acts that involve enticing a person to
travel in interstate or foreign commerce in order to engage in
illegal sexual activities and traveling in interstate commerce
for illegal sexual purposes are already crimes under Federal
law. The benefit of these statutes in cases where the victim is
a child is that the government does not have to wait until the
abuse of the child occurs to act. Catching and punishing
predictors who are enticing children to engage in sex, stops
them before they can inflict greater harm on the child.
The Federal crimes that punish the acts which sex predators
commonly use to entice children into engaging in sex with them
are not wiretap predicates. Yet many times, some aspect of the
interaction between the predator and the child will occur over
the telephone. If law enforcement is unable to monitor the
predator's conversation with the child they are put at a
disadvantage in their effort to apprehend the predator before
he meets with and physically harms the child. H.R. 3484 would
fill this gap in the investigative resources available to law
enforcement in these investigations.
The bill will add three crimes as new wiretap predicates.
The crimes added by the bill are: 18 U.S.C. Sec. 2252A, which
deals with child pornography; 18 U.S.C. Sec. 2422, which deals
with coercion and enticement to engage in prostitution or other
illegal sexual activity; and 18 U.S.C. Sec. 2423, relating to
transportation of minors to engage in prostitution or other
illegal sexual activity. The crimes of section 2423(b) and
2252A were only added to the Federal Criminal Code in the last
6 years and, at the time of their enactment, no corresponding
amendments to section 2516 were made in order to add these
crimes as wiretap predicates. However, as both of these crimes
were enacted as part of much larger, omnibus bills,\1\ this
omission may have been simply an oversight. This is especially
the case in the instance of section 2252A, given that section
2252, a crime very similar to the section 2252A offense, was a
wiretap predicate at the time section 2252A was enacted and
remains one today.\2\ And while the crimes in section 2422 and
2423(a) have been part of the Federal criminal code for some
time, the increasing use of the Internet has brought renewed
use of these statutes to punish criminals.
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\1\ Subsection (b) of section 2423 was added by the Violent Crime
Control and Law Enforcement Act of 1994, Public Law 103-322, title XVI,
Sec. 160001(g); Section 2252A was added by the Omnibus Consolidated
Appropriations Act of 1997, Public Law 104-208, Div. A, Title I,
Sec. 101(a) [Title I, Sec. 121].
\2\ See 18 U.S.C. Sec. 2516 (1)(c).
---------------------------------------------------------------------------
The committee believes that law enforcement officials
should be given every appropriate tool with which to protect
children from those who seek to harm them. Accordingly, the
committee favorable reports this bill.
Hearings
The committee's Subcommittee on Crime held 1 day of
hearings on H.R. 3484 on July 13, 2000. Testimony was received
from 3 witnesses, representing 3 organizations, with no
additional material submitted.
Committee Consideration
On July 20, 2000, the Subcommittee on Crime met in open
session and ordered favorably reported the bill H.R. 3484, by a
voice vote, a quorum being present. On September 20, 2000, the
committee met in open session and ordered favorably reported
the bill H.R. 3484 without amendment by voice vote, a quorum
being present.
Vote of the Committee
No recorded votes were taken in the Full Committee.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 3484, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 27, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3484, the Child
Sex Crimes Wiretapping Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Democratic Member
H.R. 3484--Child Sex Crimes Wiretapping Act of 1999.
CBO estimates that implementing H.R. 3484 would not result
in any significant cost to the federal government. Enacting
H.R. 3484 could affect direct spending and receipts; therefore,
pay-as-you-go procedures would apply to the bill, but CBO
estimates that any such effects would not be significant. H.R.
3484 contains no intergovernmental or private-sector mandates
as defined in the Unfunded Mandates Reform Act and would not
affect state, local, or tribal governments.
H.R. 3484 would add certain sexual crimes against children
to the list of offenses for which wiretaps and other
interceptions of communications can be authorized. Implementing
the bill could result in more successful investigations and
prosecutions in cases involving such crimes. CBO expects that
any increase in costs for law enforcement, court proceedings,
or prison operations would not be significant because of the
small number of cases likely to be affected. Any such
additional costs would be subject to the availability of
appropriated funds.
Because those prosecuted and convicted under H.R. 3484
could be subject to criminal fines, the federal government
might collect additional fines if the bill is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and spent in subsequent years. CBO expects
that any additional receipts and direct spending would be
negligible because of the small number of cases involved.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, clause 3 of the
Constitution.
Section-by-Section Analysis and Discussion
Sec. 1. Short Title.
Section 1 of the bill states the short title of the act as
the Child Sex Crimes Wiretapping Act of 1999.
Sec. 2. Authorization of Interception of Communications in the
Investigation of Sex Crimes Against Children.
Section 2 of the bill adds three crimes as new wiretap
predicates in section 2516 of title 18 of the United States
Code. The title 18 crimes added by the bill are section 2252A,
which deals with child pornography; section 2422, which deals
with coercion and enticement to engage in prostitution or other
illegal sexual activity; and section 2423, relating to
transportation of minors to engage in prostitution or other
illegal sexual activity.
Sec. 3. Technical Amendment Eliminating Duplicative Provision
Section 3 of the bill makes a technical correction to
section 2516(1) of title 18. Each of the wiretap predicates
listed in paragraph (p) of that section are also listed as
wiretap predicates in other paragraphs of that section. In
short, paragraph (p) is redundant and section 3 of the bill
deletes it.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 2516 OF TITLE 18, UNITED STATES CODE
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General,
Associate Attorney General, or any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General or acting Deputy Assistant Attorney General in
the Criminal Division specially designated by the Attorney
General, may authorize an application to a Federal judge of
competent jurisdiction for, and such judge may grant in
conformity with section 2518 of this chapter an order
authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a
Federal agency having responsibility for the investigation of
the offense as to which the application is made, when such
interception may provide or has provided evidence of--
(a) * * ** * * *
(c) any offense which is punishable under the
following sections of this title: section 201 (bribery
of public officials and witnesses), section 215
(relating to bribery of bank officials), section 224
(bribery in sporting contests), subsection (d), (e),
(f), (g), (h), or (i) of section 844 (unlawful use of
explosives), section 1032 (relating to concealment of
assets), section 1084 (transmission of wagering
information), section 751 (relating to escape), section
1014 (relating to loans and credit applications
generally; renewals and discounts), sections 1503,
1512, and 1513 (influencing or injuring an officer,
juror, or witness generally), section 1510 (obstruction
of criminal investigations), section 1511 (obstruction
of State or local law enforcement), section 1751
(Presidential and Presidential staff assassination,
kidnapping, and assault), section 1951 (interference
with commerce by threats or violence), section 1952
(interstate and foreign travel or transportation in aid
of racketeering enterprises), section 1958 (relating to
use of interstate commerce facilities in the commission
of murder for hire), section 1959 (relating to violent
crimes in aid of racketeering activity), section 1954
(offer, acceptance, or solicitation to influence
operations of employee benefit plan), section 1955
(prohibition of business enterprises of gambling),
section 1956 (laundering of monetary instruments),
section 1957 (relating to engaging in monetary
transactions in property derived from specified
unlawful activity), section 659 (theft from interstate
shipment), section 664 (embezzlement from pension and
welfare funds), section 1343 (fraud by wire, radio, or
television), section 1344 (relating to bank fraud),
sections 2251 and 2252 (sexual exploitation of
children), section 2252A (relating to material
constituting or containing child pornography), sections
2312, 2313, 2314, and 2315 (interstate transportation
of stolen property), section 2321 (relating to
trafficking in certain motor vehicles or motor vehicle
parts), section 2422 (relating to coercion and
enticement), section 2423 (relating to transportation
of minors) section 1203 (relating to hostage taking),
section 1029 (relating to fraud and related activity in
connection with access devices), section 3146 (relating
to penalty for failure to appear), section 3521(b)(3)
(relating to witness relocation and assistance),
section 32 (relating to destruction of aircraft or
aircraft facilities), section 38 (relating to aircraft
parts fraud), section 1963 (violations with respect to
racketeer influenced and corrupt organizations),
section 115 (relating to threatening or retaliating
against a Federal official), and section 1341 (relating
to mail fraud), section 351 (violations with respect to
congressional, Cabinet, or Supreme Court
assassinations, kidnapping, and assault), section 831
(relating to prohibited transactions involving nuclear
materials), section 33 (relating to destruction of
motor vehicles or motor vehicle facilities), section
175 (relating to biological weapons), section 1992
(relating to wrecking trains), a felony violation of
section 1028 (relating to production of false
identification documentation), section 1425 (relating
to the procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction
of naturalization or citizenship papers), section 1427
(relating to the sale of naturalization or citizenship
papers), section 1541 (relating to passport issuance
without authority), section 1542 (relating to false
statements in passport applications), section 1543
(relating to forgery or false use of passports),
section 1544 (relating to misuse of passports), or
section 1546 (relating to fraud and misuse of visas,
permits, and other documents);
* * * * * * *
(o) any violation of section 5861 of the Internal
Revenue Code of 1986 (relating to firearms); or
[(p) a felony violation of section 1028 (relating
to production of false identification documents),
section 1542 (relating to false statements in passport
applications), section 1546 (relating to fraud and
misuse of visas, permits, and other documents) of this
title or a violation of section 274, 277, or 278 of the
Immigration and Nationality Act (relating to the
smuggling of aliens); or]
* * * * * * *
Dissenting Views
Wiretap authority is invasive and should be extended only
when absolutely necessary. It allows Federal employees to
listen in on private personal conversations, most of which
will, undoubtedly, have nothing to do with criminal activity.
The current Congressionally approved wiretap authority
dates back to the 1968 crime bill. The primary intent of the
provision was to permit a limited use of electronic
surveillance of organized crime and gambling groups, although
it was envisioned as a tool of last resort even under those
circumstances. Since that time, the Act has been amended over a
dozen times with now over 50 predicate crimes to which wiretap
authority may be obtained. Regrettably, a number of those
predicates involve relatively minor criminal activity such as
lying on a passport application. So, now the argument goes ``if
we amended the wiretap authority to add `x', we certainly
should amend it to add `y', a much more serious offense.'' As a
result, wiretaps are becoming routine, rather than an
extraordinary procedure to be used only as a last resort. And
given the level of effectiveness of today's technology,
wiretaps have the potential for being much more invasive. While
we are prepared to support some extension of Federal wiretap
authority, we believe the present bill goes too far in putting
in the hands of law enforcement a procedure recognized to be so
evasive of the rights of citizens in a free society that it can
only be made available for use under circumstances specifically
approved by Congress.
The original bill added as wiretap predicates three
sections under Title 18 of the Federal criminal code relating
to sex crimes against children--sections 2252(A), 2422, and
2423. Section 2252(A), among other things, includes computer
generated depictions of child pornography. It's a provision
which is too broad to merit expanding the already too intrusive
wiretapping authority. Section 2422 prohibits coercion and
enticement to travel in interstate or foreign commerce to
engage in any illegal sexual activity, and 2423 prohibits a
broad range of misconduct (i.e., transportation of a minor to
engage in sexual activity which constitutes any criminal
offense).
Mr. Scott offered an amendment at Full Committee Markup
which would have eliminated section 2252(A) as wiretap
predicate. That amendment was defeated. While the Majority
agreed, at Mr. Scott's suggestion, to limit the extension of
wiretap authority under 2422, and 2423 to situations which
involve offenses which constitute a Federal felony if committed
on Federal lands, we continue to believe that 2423(b), which
makes it an offense to travel with the intent, or thought, of
committing any sex crime, is too remote to warrant making it a
predicate offense for wiretap authority.
We recognize that supporters of this bill would argue that
given the types of crimes for which wiretap authority can now
be sought, adding any sex crime against children as wiretap
predicate would seem to be more than justified. However, in our
view, further extension of this extraordinary power should not
be justified by unjustified, or less justified, extensions in
the past. Just because we did it wrong before, doesn't mean we
have to do it wrong again.
We also dissent from the bill because sexual exploitation
of children is already a crime that is a wiretap predicate.
Much of the activity which would be covered by the current bill
would involve State misdemeanor activity or activity which may
not be illegal in the country in which it is pursued. Given the
four year age differential in statutory rape cases, this
legislation would authorize Federal wiretap authority in a case
where an 19 year old makes arrangements through email to travel
from DC to Virginia to engage in sex with a 15 year old and
show her dirty pictures. Ironically, being caught in bed with
the 15 year old would not be a Federal offense, but showing her
the dirty pictures would be.
Similarly, if the girl lived in Scandinavia, where, like
the drug laws, the sex laws may be much different than in the
U.S., and the 19 year old boyfriend traveled there to have sex
with her, this would constitute a wiretap predicate under the
bill. While it is one thing to make illegal such otherwise not
illegal activity for anyone leaving the U.S., it is another
thing to let ``big brother'' eavesdrop on it through wiretap.
Moreover, it is clear from the list of already existing sex
crime offenses that much of the more serious activity for which
proponents of the legislation are seeking to justify wiretap
extension (e.g., ``sexual exploitation of children'') are
already covered by wiretap authority. And all of it is already
covered by email confiscation authority and other investigatory
techniques. So, it is not clear to me what is missing in
current investigations of the crimes listed in the bill,
including some very minor crimes, which would require the
extraordinary procedure of wiretap. Wiretap is an intrusive
procedure which was designed to be authorized only as a last
resort to prevent very serious crimes. Since there are other
effective ways to prosecute the crimes in this bill, we believe
this extension of wiretap authority is not warranted.
Robert C. Scott.
Maxine Waters.