[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.
---------------------------------------------------------------------------
    \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.

                                  
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