[House Report 107-468]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-468

======================================================================



 
                CHILD SEX CRIMES WIRETAPPING ACT OF 2002

                                _______
                                

  May 16, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 1877]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1877) to amend 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 with an amendment and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     6
Committee Consideration..........................................     6
Vote of the Committee............................................     6
Committee Oversight Findings.....................................     8
Performance Goals and Objectives.................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Constitutional Authority Statement...............................     9
Section-by-Section Analysis and Discussion.......................    10
Changes in Existing Law Made by the Bill, as Reported............    11
Markup Transcript................................................    13

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Child Sex Crimes Wiretapping Act of 
2002''.

SEC. 2. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE 
                    INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.

    (a) In General.--Section 2516(1)(c) of title 18, United States 
Code, is amended--
            (1) by striking ``2251 and 2252'' and inserting ``2251, 
        2251A, 2252, and 2252A''; and
            (2) by inserting ``section 2423(b) (relating to travel with 
        intent to engage in a sexual act with a juvenile),'' after 
        ``motor vehicle parts),''.
    (b) Transportation for Illegal Sexual Activity.--Section 2516(1) of 
title 18, United States Code, is amended--
            (1) by striking ``or'' at the end of paragraph (q);
            (2) by inserting after paragraph (q) the following:
            ``(r) a violation of section 2422 (relating to coercion and 
        enticement) and section 2423(a) (relating to transportation of 
        minors) of this title, if, in connection with that violation, 
        the intended sexual activity would constitute a felony 
        violation of chapter 109A or 110, including a felony violation 
        of chapter 109A or 110 if the sexual activity occurred, or was 
        intended to occur, within the special maritime and territorial 
        jurisdiction of the United States, regardless of where it 
        actually occurred or was intended to occur; or''; and
            (3) by redesignating paragraph (r) as paragraph (s).

                          Purpose and Summary

    H.R. 1877 will assist law enforcement officials in 
investigating certain sex crimes that may involve children. The 
bill will amend 18 U.S.C. Sec. 2516 to authorize the 
interception of wire, oral, or electronic communications in the 
investigation of: (1) the selling and buying of a child for 
sexual exploitation under 18 U.S.C. Sec. 2251A; (2) child 
pornography under 18 U.S.C. Sec. 2252A; (3) the coercion and 
enticement to engage in prostitution or other illegal sexual 
activity under 18 U.S.C. Sec. 2422; and (4) the transportation 
of minors to engage in prostitution or other illegal sexual 
activity and travel with intent to engage in a sexual act with 
a juvenile under 18 U.S.C. Sec. 2423.

                Background and Need for the Legislation

                   Wiretap Authority and Limitations

    Congress enacted title III of the Omnibus Crime Control and 
Safe Streets Act of 1968 \1\, as amended, that outlines what is 
and is not permissible with regard to wiretapping and 
electronic eavesdropping.\2\ Title III restrictions go beyond 
Fourth Amendment constitutional protections and include a 
statutory suppression rule to exclude evidence that was 
collected in violation of title III.\3\ Except under limited 
circumstances, it is unlawful to intercept oral, wire and 
electronic communications.\4\ Accordingly under the act, 
Federal and State law enforcement may use wiretaps and 
electronic surveillance under strict limitations.\5\ Congress 
created these procedures to allow limited law enforcement 
access to private communications and communication records for 
investigations while protecting Fourth Amendment rights. In 
addition to these restrictions, Congress has only provided 
authority to use a wiretap in investigations of specifically 
enumerated crimes, commonly called ``wiretap predicates.'' \6\
---------------------------------------------------------------------------
    \1\ 18 U.S.C. Sec. Sec. 2510-2520.
    \2\ Charles Doyle & Gina Stevens, Congressional Research Service, 
Library of Congress, Privacy: An Overview of Federal Statutes Governing 
Wiretapping and Electronic Eavesdropping, at 6 (2001).
    \3\ 18 U.S.C. Sec. 2510-2520.
    \4\ 18 U.S.C. Sec. 2511.
    \5\ 18 U.S.C. Sec. 2518.
    \6\ 18 U.S.C. Sec. 2516.
---------------------------------------------------------------------------

  H.R. 1877 Adds New Predicates But Does not Affect the Procedures on 
                              Wiretap Use

    H.R. 1877 would add four new wiretap predicates under 
section 2516 of title 18 that relate to sexual exploitation 
crimes against children. This bill in no way changes the strict 
limitations on how and when wiretaps may be used.
    18 U.S.C. Sec. 2516 requires that the Department of Justice 
authorize all applications for Federal wiretaps \7\ and the 
principal prosecuting attorney of any State or any political 
subdivision must apply for wiretaps to a State court judge of 
competent jurisdiction as defined in 18 U.S.C. Sec. 2510.\8\
---------------------------------------------------------------------------
    \7\ 18 U.S.C. 2516 (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. . . .'')
    \8\ 18 U.S.C. Sec. 2516(2).
---------------------------------------------------------------------------
    18 U.S.C. Sec. 2518 also sets strict procedures for the use 
of a wiretap. Section 2518(1) requires the application to be 
made under written oath or affirmation to a judge of competent 
jurisdiction. Section 2518(1)(b) requires that the application 
set forth, among other things, ``a full and complete statement 
of the facts and circumstances relied upon by the applicant, to 
justify his belief that an order should be issued . . .'' These 
facts should include, among other things, the ``details as to 
the particular offense that has been, is being, or is about to 
be committed'' and ``the identity of the person, if known, 
committing the offense and whose communications are to be 
intercepted.'' \9\
---------------------------------------------------------------------------
    \9\ 18 U.S.C. Sec. 2518(1)(b).
---------------------------------------------------------------------------
    Section 2518(3) also includes requirements that the Judge 
believe (1) ``there is probable cause for belief that an 
individual is committing, has committed, or is about to commit 
a particular offense enumerated in section 2516 of [title 
18];'' (2) there is probable cause for belief that particular 
communications concerning that offense will be obtained through 
such interception; and (3) normal investigative procedures have 
been tried and have failed or reasonably appear to be unlikely 
to succeed if tried or to be too dangerous.\10\ Additionally, 
law enforcement is required ``to minimize the interception of 
communications not otherwise subject to interception [that is 
non-criminal conversations] under this chapter, and must 
terminate upon attainment of the authorized objective.'' \11\
---------------------------------------------------------------------------
    \10\ 18 U.S.C. Sec. 2518 (emphasis added).
    \11\ 18 U.S.C. Sec. 2518(5).
---------------------------------------------------------------------------

            The Need for Adding Four New Wiretap Predicates

    While some crimes involving the sexual exploitation of 
children are already wiretap predicates, others are not. H.R. 
1877 would close the gap in this key investigative tool used to 
protect children. The interception of communications through 
the use of wiretaps significantly enhances law enforcement 
ability to prevent the sexual exploitation of children. The 
goal of H.R. 1877 is to provide law enforcement with the tools 
necessary to prevent the ultimate harm planned for the targeted 
children.
    Many of the witnesses who testified on cybercrime issues 
before the Subcommittee on Crime, which was recently renamed 
the Subcommittee on Crime, Terrorism, and Homeland Security, 
have also specifically warned the Subcommittee about the 
increasing threat of predators to children due to the increased 
use of computers and the Internet. Computer technology and 24 
million children using the Internet has afforded child 
molesters with easy access to potential victims and new 
opportunities to carry out their depraved crimes.
    The FBI has testified that computer technology is becoming 
the technique of choice for pedophiles and other sex predators 
and these unthinkable crimes are becoming more and more 
prevalent. Many of these crimes begin on the Internet--where 
predators engage children in conversations within ``chat 
rooms'' or send pornography to them to lower their natural 
defenses to the advances of adults. Through these acts, a 
predator attempts to entice the child to travel to meet them, 
or offer to travel themselves to meet the child, with the 
intent to engage in sexual activities with the child. Often 
such Internet conversations are continued on the telephone.
    On May 24, 2001, before the Subcommittee, the Deputy 
Attorney General for Criminal Justice of the State of Texas 
testified:

        Unfortunately, one of the biggest problems is that 
        computer criminals are targeting the most vulnerable of 
        our society--children. While the Internet has 
        revolutionized the ways in which the world 
        communicates, there is an equally awesome dark side. 
        According to the Federal Bureau of Investigation, child 
        pornography was virtually extinct prior to the advent 
        of the Internet. However, with increased Internet usage 
        in America and the world there has been an alarming 
        increase in child pornography cases. According to the 
        U.S. Postal Service, 40 percent of the offenders who 
        have been arrested with child pornography downloaded 
        from the Internet have sexually assaulted minors. The 
        National Center for Missing and Exploited Children and 
        the Crimes Against Children Research Center's June 2000 
        report entitled Online Victimization: A Report on the 
        Nation's Youth presents startling and disturbing 
        results. Based on interviews with a nationally 
        representative sample of 1,501 youths ages 10 to 17 who 
        use the Internet regularly, the report found:

         Approximately one in five children received a 
        sexual solicitation or approach over the Internet in 
        the last year.

         One in thirty-three received an aggressive 
        sexual solicitation--a solicitor who asked to meet them 
        somewhere; called them on the telephone; sent them 
        paper mail, money, or gifts.

         One in four children had an unwanted exposure 
        on the Internet to pictures of naked people or people 
        having sex in the last year.

         One in seventeen children was threatened or 
        harassed.

         Approximately one quarter of the children who 
        reported these incidents were distressed by them.

         The interviewed children reported less than 
        10 percent of the sexual solicitations and only 3 
        percent of the unwanted exposure episodes to law 
        enforcement, the Internet Service Provider, or a 
        hotline.

         Only about 25 percent of the youth sexually 
        solicited or approached told a parent and only 40 
        percent of those who experienced unwanted exposure to 
        sexual material told a parent.

         Only 17 percent of youth and approximately 10 
        percent of parents could name a specific authority 
        (such as the FBI CyberTipline, or an Internet service 
        provider) to which they could make a report, although 
        more said they had ``heard of'' such places.

         In households with Internet access, one third 
        of parents said they had filtering or blocking software 
        on their computer at the time they were 
        interviewed.\12\
---------------------------------------------------------------------------
    \12\ Fighting Cyber Crime--Hearing 1 of 3: Efforts by State and 
Local Officials, Subcommittee on Crime, Committee on the Judiciary (May 
24, 2001) statement of Deputy Attorney General McCaul, Criminal 
Justice, State of Texas citing (David Finklehor, Kimberly J. Mitchell, 
& Janis Wolak, Online Victimization: A Report on the Nation's Youth 
(The National Center For Missing and Exploited Children 2000) (June 
2000)).

    At that hearing, the Chairman for the National District 
Attorneys' Association testified that ``[n]othing is as truly 
revolting and heartbreaking as to get into hidden files on a 
computer disk only to find movies and still photos of a small 
child being brutalized, degraded and scarred for life. The 
demand for these images is an international scandal, which 
starts each time with one child who needs the protection of 
local police and prosecutors.'' \13\
---------------------------------------------------------------------------
    \13\ Fighting Cyber Crime--Hearing 1 of 3: Efforts by State and 
Local Officials, Subcommittee on Crime, Committee on the Judiciary (May 
24, 2001).
---------------------------------------------------------------------------
    At the second cybercrime hearing on June 12, 2001, the 
Assistant Attorney General of the Criminal Division of the U.S. 
Department of Justice testified that ``one of the most 
disturbing facets of cybercrime is the exploitation and abuse 
of children, whether through distribution of child pornography 
over the Internet or through the horrific conduct of sexual 
predators who operate online.'' \14\
---------------------------------------------------------------------------
    \14\ Fighting Cyber Crime--Hearing 2 of 3: Efforts by Federal Law 
Enforcement Officials, Subcommittee on Crime, Committee on the 
Judiciary (June 12, 2001).
---------------------------------------------------------------------------
    In 2000, a U.S. Customs Service representative testified 
before the Subcommittee that the U.S. Customs Service has seen 
a dramatic rise in child exploitation investigations. During 
fiscal year 1999, its investigations increased 36 percent and 
in 2000 it rose an alarming 81 percent. The U.S. Customs 
Service also found a growing trend that those who download 
child pornography tend to molest children. Often those who 
trade in child pornography also arrange and travel to meet 
minors.
    Additionally, the growth in international travel has helped 
to exploit children throughout the world. The ``[t]rafficking 
in people, especially women and children, for prostitution and 
forced labor is one of the fastest growing areas of 
international criminal activity.'' \15\ Conservative estimates 
hold the scope of the problem to involve more than 700,000 
victims per year world-wide.\16\ The children and women are 
forced into prostitution, the sex tourism industry and other 
sexually exploitative criminal markets.
---------------------------------------------------------------------------
    \15\ Francis T. Miko & Grace Parks, Congressional Research Service, 
Library of Congress, Trafficking in Women and Children: The U.S. and 
International Response at 3 (2002).
    \16\ Francis T. Miko & Grace Parks, Congressional Research Service, 
Library of Congress, Trafficking in Women and Children: The U.S. and 
International Response at 3 (2002).
---------------------------------------------------------------------------
    The Federal crimes that punish the acts which sex predators 
commonly use to entice children into engaging in sex with them 
are not currently 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. 1877 
would fill this gap in the investigative resources available to 
law enforcement during these investigations.
    Under current law, law enforcement officials are authorized 
to seek court-authorized wiretaps when the investigation 
indicates a violation of certain limited statutory provisions 
dealing with the exploitation of children. Current law, 
however, does not authorize the use of court-authorized 
wiretaps to investigate cases involving the selling and buying 
of a child for sexual exploitation under 18 U.S.C. Sec. 2251A; 
``child pornography'' under 18 U.S.C. Sec. 2252A; coercion or 
enticement into prostitution or other illegal sexual activities 
under 18 U.S.C. Sec. 2422; and the transportation of minors to 
engage in prostitution or other illegal activities and travel 
with intent to engage in a sexual act with a juvenile under 18 
U.S.C. Sec. 2423. Law enforcement is therefore at a 
disadvantage in gathering evidence leading to the apprehension 
of these predators before they physically harm their victims. 
The bill will add these four crimes as new wiretap predicates.
    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 favorably reports this bill.

                                Hearings

    The Committee's Subcommittee on Crime held one hearing on 
H.R. 1877, the ``Child Sex Crimes Wiretapping Act of 2001,'' on 
June 21, 2001. Testimony was received from three witnesses: the 
Honorable Nancy Johnson (R-Conn.); Deputy Assistant Director 
Francis A. Gallagher of Criminal Investigative Division of the 
Federal Bureau of Investigation; and James Wardwell, Detective 
Bureau of the New Britain Police Department, New Britain, 
Connecticut.

                        Committee Consideration

    On June 21, 2001, the Subcommittee on Crime met in open 
session and ordered favorably reported the bill H.R. 1877, as 
amended, by a voice vote, a quorum being present. On April 24, 
2002, the Committee met in open session and ordered favorably 
reported the bill H.R. 1877 without amendment by 20-4 vote, a 
quorum being present.

                         Vote of the Committee

    1. An amendment was offered by Mr. Scott on the addition of 
wiretap authority for law enforcement officials investigating 
violations of 18 U.S.C. Sec. 2422. Mr. Scott's amendment would 
have required that wiretap authority for section 2422 would 
only be allowed in cases involving a minor. The amendment 
failed by voice vote.
    2. An amendment was offered by Mr. Scott to require law 
enforcement to prove that the child pornography contained 
visual depictions that were of an identifiable child. The 
amendment failed by a rollcall vote of 6-15.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Bryant......................................................
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Graham......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Ms. Hart........................................................
Mr. Flake.......................................................                              X
Mr. Pence.......................................................
Mr. Conyers.....................................................
Mr. Frank.......................................................
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              6              15
----------------------------------------------------------------------------------------------------------------

    3. Final passage. The motion to report favorably the bill 
H.R. 1877 was adopted. The motion was agreed to by a rollcall 
vote of 20-4.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Bryant......................................................
Mr. Chabot......................................................              X
Mr. Barr........................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Graham......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Ms. Hart........................................................
Mr. Flake.......................................................              X
Mr. Pence.......................................................
Mr. Conyers.....................................................                              X
Mr. Frank.......................................................
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             20               4
----------------------------------------------------------------------------------------------------------------

                      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.

                    Performance Goals and Objectives

    The bill is intended to fill the gap in the investigative 
resources available to law enforcement and to assist law 
enforcement in preventing sex predators who target children 
from inflicting additional harm on children.

               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. 1877, 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, April 30, 2002.
Hon. F. James Sensenbrenner, Jr., 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. 1877, the Child 
Sex Crimes Wiretapping Act of 2001.
    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 Member
H.R. 1877--Child Sex Crimes Wiretapping Act of 2001.
    CBO estimates that implementing H.R. 1877 would not result 
in any significant cost to the Federal Government. Enacting 
H.R. 1877 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. 
1877 contains no intergovernmental or private-sector mandates 
as defined in the Unfunded Mandates Reform Act and would not 
affect the budgets of State, local, or tribal governments.
    H.R. 1877 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. 1877 
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 later spent. 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, 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 2002.''

    Sec. 2. Authorization of Interception of Communications in the 
             Investigation of Sex Crimes Against Children.

    Section 2 of the bill adds four sections of title 18 to the 
list of wiretap predicates in section 2516 of title 18 of the 
United States Code. While some crimes involving the sexual 
exploitation of children are already wiretap predicates, the 
Committee recognizes that the few that are not should be 
included as wiretap predicates. The bill would authorize the 
interception of wire, oral, or electronic communications in the 
investigation of the selling and buying of a child for sexual 
exploitation under title 18 U.S.C. Sec. 2251A, ``child 
pornography'' under 18 U.S.C. Sec. 2252A, coercion and 
enticement to engage in prostitution or other illegal sexual 
activity under 18 U.S.C. Sec. 2422, and transportation of 
minors to engage in prostitution or other illegal sexual 
activity and travel with intent to engage in a sexual act with 
a juvenile under 18 U.S.C. Sec. 2423.
    The Committee believes that these crimes against children 
are just as serious as the crimes that are already wiretap 
predicates and that law enforcement must have adequate 
investigative tools in these cases as well. Law enforcement 
need this important tool to counter the proliferation of sexual 
exploitation crimes against children.
    The Committee is aware of the United States Supreme Court's 
April 16, 2002 Ashcroft v. Free Speech Coalition \17\ decision 
regarding the definition of child pornography in 18 U.S.C. 
2256(8). In that decision, the Supreme Court held that the 
portions of the definition of child pornography that prohibited 
completely computer generated visual depictions of children or 
visual depictions of young adults that were advertised to be 
children engaging in sexually explicit activity were overbroad 
and unconstitutional. The Supreme Court did not rule that 
section 2252A, which covers computer generated pictures that 
contain real children was unconstitutional. That provision of 
the law was not challenged or considered by the Court.
---------------------------------------------------------------------------
    \17\ 535 U.S.__, 122 S. Ct. 1389 (2002).
---------------------------------------------------------------------------
    As it currently stands after the Ashcroft decision, a 
pedofile or child pornographer cannot be charged with violating 
the child pornography laws if the child pornography was wholly 
generated from a computer. This means that the prosecutor will 
have to prove that the material is a real child. It will be the 
job of law enforcement to determine whether child pornography 
contains real children or computer generated children to 
prosecute child pornographers and child molesters. Wiretaps 
will assist law enforcement in making this determination. 
Accordingly, the Supreme Court decision makes the need for 
court authorized wiretaps for these crimes all the more 
necessary.
    It is the Committee's view that the law should not make it 
more difficult for police to fight child pornography and sexual 
exploitation crimes against children than to fight other 
crimes. After the Ashcroft decision, it is even more important 
that Congress enact this legislation.
    Section 2 also limits the wiretap predicates for 18 U.S.C. 
Sec. Sec. 2422 and 2423(a) to activities that constitute 
felonies and Federal crimes.

         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):

                      TITLE 18, UNITED STATES CODE



           *       *       *       *       *       *       *
                            PART I--CRIMES

           *       *       *       *       *       *       *


   CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND 
                 INTERCEPTION OF ORAL COMMUNICATIONS

           *       *       *       *       *       *       *


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] 2251, 2251A, 2252, and 2252A 
        (sexual exploitation of children), 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 
        2423(b) (relating to travel with intent to engage in a 
        sexual act with a juvenile), 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), 
        section 1341 (relating to mail fraud), a felony 
        violation of section 1030 (relating to computer fraud 
        and abuse), 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);

           *       *       *       *       *       *       *

    (q) any criminal violation of section 229 (relating to 
chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 
2339A, or 2339B of this title (relating to terrorism); [or]
            (r) a violation of section 2422 (relating to 
        coercion and enticement) and section 2423(a) (relating 
        to transportation of minors) of this title, if, in 
        connection with that violation, the intended sexual 
        activity would constitute a felony violation of chapter 
        109A or 110, including a felony violation of chapter 
        109A or 110 if the sexual activity occurred, or was 
        intended to occur, within the special maritime and 
        territorial jurisdiction of the United States, 
        regardless of where it actually occurred or was 
        intended to occur; or
            [(r)] (s) any conspiracy to commit any offense 
        described in any subparagraph of this paragraph.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, APRIL 24, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. [Presiding.] The Committee will be 
in order.
    [Intervening business.]
    The next item on the agenda is H.R. 1877, the ``Child Sex 
Crimes Wiretapping Act of 2001.''
    [The bill, H.R. 1877, follows:]
      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Texas, Mr. Smith, Chairman of the Subcommittee on Crime, 
Terrorism, and Homeland Security, for a motion.
    Mr. Smith. Mr. Chairman, the Subcommittee on Crime, 
Terrorism, and Homeland Security reports favorably the bill 
H.R. 1877 with the single amendment in the nature of a 
substitute and moves its favorable recommendation to the full 
House.
    [The amendment follows:]
      
      

  


      
      

  


    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and open for amendment at any point. The 
Subcommittee amendment in the nature of a substitute which the 
Members have before them will be considered as read and open 
for amendment at any point and be considered as the original 
text for purposes of amendment.
    The Chair recognizes the gentleman from Texas for 5 
minutes.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, H.R. 1877, the ``Child Sex Crimes Wiretapping 
Act of 2001,'' protects our Nation's most vulnerable children. 
It was introduced by our colleague from Connecticut, Nancy 
Johnson. While the Supreme Court's recent decision affects the 
underlying definition of child pornography, it does not alter 
the necessity for this legislation. If anything, it strengthens 
the need for this bill.
    Wiretapping may be the only way for law enforcement 
officials to determine whether an actual child is depicted in 
the materials before they take their case to court.
    Last year, the Subcommittee on Crime heard testimony on the 
need for H.R. 1877. This bill will assist law enforcement 
officials in investigating certain sex crimes that usually 
involve children. Because of advances in computer technology, 
as well as 24 million children who regularly use the Internet, 
child molesters have easy access to potential victims and new 
opportunities to ply their trade.
    The FBI has testified that computer technology is becoming 
the technique of choice and that those types of crimes are 
increasing.
    In 2000, the U.S. Customs Service testified before the 
Subcommittee on Crime that it has seen a dramatic rise in child 
exploitation investigations. During fiscal year 1999, its 
investigations increased 36 percent, and in 2000 they rose an 
alarming 81 percent.
    The American Medical Association released a study last 
summer on children who regularly use the Internet. The study 
found that nearly 1 in 5 children surveyed received an unwanted 
sexual solicitation online in the last year, yet few reported 
the action to police. We cannot ignore this growing problem.
    Law enforcement officials must have the tools necessary to 
deal with these crimes. Often, child molesters use the Internet 
to make initial contact with a child. They then convince the 
child to go offline and use a telephone to set up meetings with 
the children.
    Current Federal criminal law authorizes law enforcement 
officials to wiretap some child sexual exploitation crimes but 
not others. The interception of oral communications through 
wiretaps significantly enhances investigations. H.R. 1877 will 
eliminate this gap in our criminal law. This bill will provide 
Federal law enforcement officials with a consistent application 
of the laws regarding its investigations.
    The bill adds four crimes that deal with child pornography: 
the enticement of children to engage in illicit sex; the 
transportation of children to engage in sex; and selling and 
purchasing children for sexual exploitation.
    I urge my colleagues to support this bill and yield back 
the balance of my time.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott?
    Mr. Scott. Thank you, Mr. Chairman. I am pleased to join 
you in this markup of H.R. 1877, the ``Child Sex Crimes 
Wiretapping Act.'' While I'm pleased that some of the 
limitations we developed when the bill was considered in the 
last Congress were retained in the bill, I believe that the 
present bill still represents an unnecessary expansion of 
Federal wiretap authority, a procedure so invasive of the 
rights of citizens in a free society that it can only be made 
available for use under circumstances specifically approved by 
Congress.
    Current congressionally approved wiretap authority dates 
back to the 1968 crime bill. The primary intent of the law was 
to permit a limited use of electronic surveillance of organized 
syndicates, but as a tool--but only as a tool of last resort 
even under those circumstances. Since that time, the act has 
been amended over a dozen times to meet the demand by law 
enforcement for more power over citizens--over private 
activities of citizens. Now we have over 50 predicate crimes 
for which wiretap authority may be obtained.
    Once a wiretap or bug is in place, it captures all 
conversations, innocent as well as criminal. Estimates I've 
seen indicate that more than 80 percent of the information 
obtained by wiretaps is innocent information, often involving 
family members and others who are not even the target of the 
investigation.
    In 1980, when the crime rate was substantially higher than 
it has been in recent years, 81 Federal wiretaps were issued. 
In 1999, 601 Federal wiretaps were issued. Moreover, all the 
activities covered by the current bill would involve activities 
which are State crimes where there is State wiretap authority. 
The fact that a few States have chosen not to authorize 
wiretaps and the limited number of State wiretaps that are 
authorized compared to the number of Federal wiretaps attests 
to the level of concern citizens have in giving law enforcement 
such power over their private conversations.
    Approximately 98 percent of all criminal prosecutions are 
conducted at the State level. Moreover, the total annual number 
of all State wiretaps is approximately the same as the Federal 
wiretaps, 749 State wiretaps, 601 Federal in 1999.
    So, Mr. Chairman it's clear that much of the more serious 
activity for which the proponents of the legislation are 
seeking to justify wiretap extensions are already covered by 
wiretap authority under State laws.
    Mr. Chairman, there is one specific problem with the 
legislation that has occurred just in the last couple of days, 
and that is, with the recent Supreme Court decision regarding 
computer-generated images of children not being the same as 
real children, that part of the wiretap authority needs to be 
revisited.
    So, Mr. Chairman, while we want to vigorously enforce laws 
against child abuse and exploitation, I do not believe the case 
is made for the level of extension of wiretap authority sought 
in H.R. 1877. If we're going to extend it to the provisions 
listed in the bill, we should do so only to the extent 
necessary to get to the purported objects of the bill, 
prosecuting sex crimes against children, so I've prepared 
several amendments that I'll offer during the markup to make 
sure we limit it to authority involving actual crimes.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Chairman Sensenbrenner. Without objection, all Members may 
insert opening statements in the record at this point.
    Are there amendments? The gentleman from New York.
    Mr. Nadler. I don't have an amendment. I have a question.
    Chairman Sensenbrenner. The gentleman strikes the last word 
and recognized for 5 minutes.
    Mr. Nadler. I just have a simple question. The bill, I 
think, would enable--would grant wiretap authority to 
determine--to investigate alleged crimes in the nature of 
electronic portrayals of child sex, and that underlying 
predicate felony was declared unconstitutional by the Supreme 
Court. Has the bill been changed to reflect that?
    Chairman Sensenbrenner. The gentleman from Texas?
    Mr. Smith. Mr. Chairman, let me consult with staff here for 
a second.
    [Pause.]
    Mr. Smith. Mr. Chairman, to respond to the gentleman from 
New York, it's our understanding that Section 2252A----
    Mr. Nadler. I can't hear the gentleman.
    Mr. Smith. I'm sorry?
    Mr. Nadler. I said I couldn't hear you.
    Mr. Smith. Okay. To respond to the gentleman from New York, 
it's our understanding that Section 2252A covers morphed images 
that might include partially computer-generated but partial use 
of an actual child and, therefore, is still constitutional.
    Mr. Nadler. But it would not cover----
    Mr. Smith. In other words, as long as a real child's 
involved, it's going to be constitutional. The Supreme Court, 
as the gentle-
man----
    Mr. Nadler. It would not cover a purely computer-
generated--investigation of a purely computer-generated image?
    Mr. Smith. That's correct.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. Does the gentleman from Virginia 
have an amendment? The clerk will report the amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 1877 offered by Mr. Scott. Page 2, line 4, 
after the parentheses, insert ``against a minor.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, this limits the wiretap authority 
to the title of the bill that it would be to help assist 
prosecutions of those who commit crimes against minors. Not all 
offenses under those sections include a minor, even attempted 
acts such as attempted to--attempting to entice someone to 
travel by bus to engage in an illegal sexual act would be 
covered. No basis has been suggested for why a wiretap is 
necessary in these cases, so I would urge my colleagues to 
support the amendment which would limit the use of wiretap 
authority to those involving minors.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Texas?
    Mr. Smith. Mr. Chairman, I oppose the amendment.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, while this amendment does not 
adversely affect investigations for sexual exploitation of a 
minor, it could inhibit investigations of such crimes as a sex 
slave trade, and the gentleman from Virginia may not be aware 
of that.
    According to a March 2002 Congressional Research Service 
report, ``The trafficking in people for prostitution and forced 
labor is one of the fastest growing areas of international 
criminal activity and one that is of increasing concern to the 
U.S. and the international community. The overwhelming majority 
of those trafficks are women and children. More than 700,000 
people are believed to be trafficked each year worldwide, some 
50,000 to the United States. Trafficking is now considered the 
third largest source of profits for organized crime behind only 
drugs and weapons, generating billions of dollars annually.''
    Mr. Chairman, trafficking victims are raped, starved, 
forced into drug use, and denied medical care. Law enforcement 
officials must be given every tool available, including 
wiretapping, to investigate and stop this trafficking. In 
addition, the current list of crimes that law enforcement is 
allowed to investigate with wiretaps do not have qualifiers. 
Under this amendment, some crimes in Section 2422 qualify and 
others do not. We need to have some consistency.
    If the underlying law is too broad, then we should examine 
that, but we should not hamper law enforcement officials by 
narrowing the criminal code.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Waters. Strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. I would like to speak in support of the 
gentleman from Virginia's amendment. It's easy to expand 
wiretapping authority, and certainly since 9/11 we've been 
doing a considerable amount of that.
    This is the kind of legislation that would try and, I 
suppose, signal to the public that we're getting tough on 
people who would exploit children and that we're going to do 
something about a certain kind of computer imaging that could 
be harmful to children at the same time that we go through 
these lightweight attempts to prove how we're protecting 
children. We have the greatest scandal in this country going on 
right now in the Catholic Church. Everybody is mute. I haven't 
heard anybody say one word. Have you found a way to expand 
wiretapping into an area where thousands of children have been 
harmed and the numbers are rising each day, and they are over 
at the Vatican trying to decide whether or not they should be 
reporting what they know and when they know it? The Pope and 
the cardinals are in a big discussion, the moral authorities of 
the world are in a big discussion about whether or not they 
should support sex crimes that are being committed by people of 
the cloth.
    Give me a break. This is not real. This is absolutely not 
real.
    Mr. Smith. Would the gentlewoman yield for a minute?
    Ms. Waters. No, I don't think so. This is my day to just 
kind of let it all out. No, I will not yield. I simply want to 
draw to the attention of those who come in with these kinds of 
bills that you're just taking up everybody's time. The Supreme 
Court has ruled on this. And I don't know how much more 
wiretapping you can do, but let's get real and get at what we 
can do to make a Federal crime molestation of children who 
place their--the parents and the children place their trust in 
people that are supposed to be of high moral authority. If you 
want to get real about protecting children, let's do something 
real, and let's not continue to come in with this kind of 
legislation that causes us to sit here for hours pretending 
that we are in some kind of serious debate about protecting 
children again. You don't even give recognition to the fact 
that the Supreme Court just said this is silly, don't do this, 
it's unconstitutional.
    Again, I guess this is election year, and this kind of 
stuff plays well in Timbuktu somewhere. But----
    Mr. Scott. Will the gentlelady yield?
    Ms. Waters.--let's not do this--no, I don't want to yield. 
Let me just finish, even to my colleague.
    I am profoundly disturbed about what is happening to 
children and what we have learned about what is happening in 
the Catholic Church. Those of us who are strict 
constructionists of law, et cetera, can say but those are not 
Federal crimes, it's up to the States to decide about 
reporting.
    Well, no. When we want to, we forget about States' rights. 
We find ways to federalize everything that we want to 
federalize. If the gentleman wants to withdraw this namby-pamby 
little piece of nothing legislation and talk about some real 
federalizing of crimes against children, I want to work with 
you. I want to be law and order on this. I want to be as 
conservative as you can get. Who would want to take me up on 
that offer? If you don't, let's just stop this farce.
    Now I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amend-
ment----
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt?
    Mr. Watt. I move to strike the last word and yield to Mr. 
Scott.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Scott. I thank the gentleman for yielding. I just want 
to say that the gentleman from Texas talked about some very 
serious offenses, but the sections we're talking about also 
include illegal but consensual acts of prostitution. That is 
not the kind of offense for which you ought to authorize a 
Federal wiretap. If States want to get into that, that would be 
a State decision, but not Federal, making a Federal case. We 
want to limit Federal wiretapping to serious cases, and this 
amendment would at least limit it to those against a minor 
which would focus on serious offenses and not on things that 
the Federal Government ought not be using wiretap authority and 
Federal investigations for.
    I thank the gentleman for yielding.
    Mr. Watt. Reclaiming my time, I certainly agree with Mr. 
Scott and think we should pass his amendment, and I yield back 
the balance of my----
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. Let me 
acknowledge the concern, I think the legitimate concern, of 
many of the groups who have stood in the doorway of protecting 
the privacy and civil liberties of the people of this Nation 
and that we should pride ourselves and the underlying purpose 
and instructions of the Fourth Amendment, the right to 
reasonable search and seizure.
    I think the amendment of the gentleman, for those who may 
be supportive of this legislation--I happen to be one of those. 
I am completely cognizant of sometimes the hypocrisy of what we 
do here and the difficulty of balancing the rights of 
individuals to try to make sense out of some kind of 
legislation. I believe there should be a Federal statement on 
the heinousness of sex crimes with children and as it relates 
to the new electronic tool.
    But what his legislation does, for those who are serious 
about only referring this to children, it qualifies the 
language to ensure that it deals with a minor because that's 
who we're trying to protect, minors that may be solicited, 
minors who get on Greyhound buses, minors who are picked up by 
people like one of the constituents of mine who was picked up 
by a lady that drove in from Detroit and got him halfway out of 
the State on the basis of electronic communication and other 
type activity.
    So I think that a reasonable attempt by Mr. Scott--I know 
his opposition, and I respect him for it. This is a very good 
amendment that confines us to what many of us would like to be 
confined to, and that is protecting children.
    I yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott. Those in 
favor will say aye? Opposed, no?
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments? The gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 1877 offered by Mr. Scott. Page 1, line 10, 
after ``2252A,'' insert ``violations involving an identifiable 
minor.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes in support of his amendment.
    Mr. Scott. Mr. Chairman, this amendment is fairly 
straightforward. We're trying to limit the wiretap--Federal 
wiretap authority to very serious crimes for which you need 
probable cause of a very serious crime to get a wiretap. Last 
week, the Supreme Court said that one of the code sections as a 
predicate to getting a wiretap isn't even a crime. This would 
limit the wiretap authority to at least those violations which 
constitute a crime. Otherwise, without this amendment, you will 
be allowing wiretap authority not only on frivolous crimes--not 
serious crimes, but you've got wiretap authority when it isn't 
even a crime. I would hope that this amendment would be 
adopted.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Texas?
    Mr. Smith. Mr. Chairman, I oppose the amendment.
    Chairman Sensenbrenner. The gentleman is recognize.
    Mr. Smith. Mr. Chairman, this amendment would require law 
enforcement officials to prove that the image is a real child 
and not computer-generated prior to using the investigative 
tool of a wiretap to help make that very determination.
    This amendment would change Section 2252A covering the 
transporting, transmission, mailing, receiving, and 
distribution of child pornography. A wiretap is an 
investigative tool that requires law enforcement officials to 
demonstrate probable cause that a crime is being or is about to 
be committed. Under the law, law enforcement officials are 
authorized to use a wiretap to intercept wire, oral, or 
electronic communications that may provide evidence of a crime 
under 18 U.S.C.
    After the Supreme Court case last week, a child 
pornographer cannot be charged with violating the child 
pornography laws if the child pornography was wholly generated 
by a computer. This means that the prosecutor will have to 
prove a real child is involved. Law enforcement officials must 
prove that there is probable cause to suspect that an ongoing 
crime or that the suspect is about to commit a crime. A wiretap 
is authorized when an interception of a wire, oral, or 
electronic communication may provide or has provided evidence 
of a predicate crime. A wiretap is an investigative tool used 
by law enforcement to collect evidence and prevent future 
crimes.
    Why would we want to make it more difficult for police to 
fight child pornography than to fight other crimes? We cannot 
expect law enforcement personnel to prove the case before 
gathering the evidence. If law enforcement has a wiretap on a 
suspected child pornographer and that pornographer states that 
he is only using computer-generated images, the police would 
have to shut down the wiretap.
    After the Supreme Court case, it is even more important 
that we do not pass this amendment. Law enforcement officials 
must determine whether child pornography uses real children or 
computer-generated children before prosecuting child 
pornographers. Wiretaps will assist law enforcement in making 
this very determination.
    Mr. Chairman, I yield back.
    Chairman Sensenbrenner. The question is on the----
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Watt. Just briefly, it seems to me that we are treading 
in an area that the Supreme Court just recently gave us some 
guidance, and it seems to me that Mr. Scott's amendment seeks 
to make the underlying bill comply with the recent Supreme 
Court decision. So perhaps I could give Mr. Scott--yield to Mr. 
Scott to comment on implications of this in light of the recent 
Supreme Court decision in this area.
    Mr. Scott. Thank you. I thank the gentleman for yielding. 
The gentleman from Texas I think has indicated that you can't 
even allege probable cause that a crime is being committed 
before you want to go on a fishing expedition. You're using a 
section that has been found not to even be a crime, and you're 
going to use that section to authorize a Federal wiretap to go 
searching around to see if you can see whether crimes are being 
committed.
    The predicate that we usually require is that you've got 
probable cause that a crime is being committed. This--without 
this amendment, you're getting a wiretap because you think 
people are doing something you don't like them to do that isn't 
even a crime. And so we wanted--we are trying to limit Federal 
wiretap authority to serious crimes. Here you have a situation 
where the Supreme Court just told you this week that what is 
alleged in that section isn't even a crime, and you're still 
trying to use it to get a Federal wiretap, and I think that 
violates the----
    Mr. Smith. Would the gentleman yield?
    Mr. Scott.--entire principle of limiting wiretap authority 
to serious crimes.
    Mr. Watt. I'll yield if you can explain to me how you can 
authorize a wiretap using as a predicate for the--for the 
wiretap a law which the Supreme Court has now said is 
unconstitutional. How can you do that?
    Mr. Smith. Let me make two points, and I'll----
    Mr. Watt. I'll yield to the gentleman.
    Mr. Smith.--directly to your question. The first point is 
that I know the gentleman from Virginia used the word, I think, 
``fishing'' and ``searching.'' But we're not changing probable 
cause. You still have to have probable cause before you can get 
a----
    Mr. Watt. For what, though? If you don't have an 
underlying----
    Mr. Smith. Right, and in this case----
    Mr. Watt. If you don't have an underlying criminal 
violation and the Supreme Court has said this is not a criminal 
violation, how can you be on anything other than a fishing 
expedition?
    Mr. Smith. A couple of responses, if the gentleman will 
continue to yield.
    Mr. Watt. I'll yield.
    Mr. Smith. First of all, I'm sure you're familiar with the 
Supreme Court decision. It did not declare 2252A 
unconstitutional. If anything, it clarified for us the need for 
us to make sure that a real child, an actual child is involved 
in the crime.
    Mr. Watt. But isn't that exactly what Mr. Scott's amendment 
does?
    Mr. Smith. What it does----
    Mr. Watt. Isn't that exactly what his amendment does? It 
says ``involving an identifiable minor.''
    Mr. Smith. I'd like to respond if the gentleman would let 
me. What Mr. Scott's amendment does is to prevent us from 
finding out--because we can't use the wiretap after probable 
cause, it prevents us from finding out whether a real child has 
been used or not. It makes it much difficult to prosecute child 
pornography as defined by the Supreme Court. I don't understand 
why we would want to make it more difficult to determine 
whether a child pornographer is using a real child or not. 
That's all we're----
    Mr. Watt. It's not--I don't----
    Mr. Smith.--talking about using the wiretap for.
    Mr. Watt.--think it's a question of whether we want to make 
it more or less. We must act within the confines of the law. We 
can't just sit here in the Judiciary Committee, of all places, 
and say we would like for it to be less difficult for police. 
It's our responsibility to act within the confines of the law, 
and this amendment seems to me to make us act within those 
confines.
    Now, we may not like that. I'd be the first to grant you, 
you may not think that that's--you probably don't like the 
Supreme Court's decision, but the Supreme Court has ruled on 
this----
    Mr. Smith. This isn't----
    Mr. Watt.--there is no other court above the United States 
Supreme Court in this country----
    Mr. Smith. If the gentleman will yield, this is not an 
attempt to get around the Supreme Court decision by any means 
at all. It's actually an attempt to live within the Supreme 
Court decision and be able to determine whether or not the 
image generated has used a real child or has been computer-
generated. We're also not trying to change probable cause. All 
we're doing is expanding the number of crimes that can be 
detected by using a wiretap.
    Chairman Sensenbrenner. The gentleman's time----
    Mr. Smith. We're not changing the probable cause itself.
    Chairman Sensenbrenner.--has expired. The question is on 
the second amendment offered by the gentleman from Virginia, 
Mr. Scott. Those in favor will say aye? Opposed, no.
    The noes appear to have it----
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia?
    Mr. Scott. I'd ask for a recorded vote.
    Chairman Sensenbrenner. A recorded vote is ordered. Those 
in favor of the Scott amendment will, as your names are called, 
answer aye, those opposed no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Bryant?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Barr?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    [No response.]
    The Clerk. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    Mr. Berman. Pass.
    The Clerk. Mr. Berman, pass. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there Members who wish to cast 
and change their votes? The gentleman from Florida, Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Chairman Sensenbrenner. The gentleman from Tennessee, Mr. 
Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will----
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Mr. Chairman, there are 6 ayes and 15 nays.
    Chairman Sensenbrenner. The amendment is not agreed to.
    Are there further amendments? If not, the question is on 
the Subcommittee amendment in the nature of a substitute. All 
those in favor will say aye? Opposed, no?
    The ayes appear to have it. The ayes have it, and the 
amendment in the nature of a substitute is agreed to. The Chair 
notes the presence of a reporting quorum.
    The question occurs on the motion to report the bill H.R. 
1877 favorably----
    Mr. Smith. I'd like a recorded vote, Mr. Chairman.
    Chairman Sensenbrenner.--as amended by the nature of a 
substitute. Those in favor will say aye? Opposed, no?
    The aye appears to have it. The aye has----
    Mr. Smith. Mr. Chairman, I'd like a recorded vote.
    Chairman Sensenbrenner. And a recorded vote is ordered. 
Those in favor of reporting H.R. 1877 favorably will, as your 
names are called, answer aye, those opposed no, and the clerk 
will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Bryant?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Barr?
    Mr. Barr. Aye.
    The Clerk. Mr. Barr, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Ms. Hart?
    [No response.]
    The Clerk. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there Members in the room who 
wish to cast or change their votes? The gentleman from Florida, 
Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will report--Mr. 
Goodlatte? Mr. Goodlatte just walked into the room. The 
gentleman from Virginia?
    Mr. Goodlatte. Aye.
    Mr. Issa. Mr. Chairman, how am I recorded?
    Chairman Sensenbrenner. How is the gentleman from 
California, Mr. Issa, recorded?
    The Clerk. Mr. Issa, you're recorded as an aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? The clerk will try again.
    The Clerk. Mr. Chairman, there are 20 ayes and 4 nays.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the Chairman is authorized to 
move to go to conference pursuant to House rules. Without 
objection, the staff is directed to make any technical and 
conforming changes. All Members will be given 2 days, as 
provided by House rules, in which to submit additional 
dissenting, supplemental, or minority views.

                                  
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