[House Report 112-638]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-638

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



 
                      CHILD PROTECTION ACT OF 2012
                                _______
                                

 July 31, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 6063]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 6063) to amend title 18, United States Code, with 
respect to child pornography and child exploitation offenses, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page

The Amendment....................................................     2

Purpose and Summary..............................................     4

Background and Need for the Legislation..........................     4

Hearings.........................................................    11

Committee Consideration..........................................    11

Committee Votes..................................................    11

Committee Oversight Findings.....................................    13

New Budget Authority and Tax Expenditures........................    13

Congressional Budget Office Cost Estimate........................    14

Performance Goals and Objectives.................................    16

Advisory on Earmarks.............................................    16

Section-by-Section Analysis......................................    16

Changes in Existing Law Made by the Bill, as Reported............    18

Dissenting Views.................................................    24

                             The Amendment

    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 Protection Act of 2012''.

SEC. 2. ENHANCED PENALTIES FOR POSSESSION OF CHILD PORNOGRAPHY.

  (a) Certain Activities Relating to Material Involving the Sexual 
Exploitation of Minors.--Section 2252(b)(2) of title 18, United States 
Code, is amended by inserting after ``but if'' the following: ``any 
visual depiction involved in the offense involved a prepubescent minor 
or a minor who had not attained 12 years of age, such person shall be 
fined under this title and imprisoned for not more than 20 years, or 
if''.
  (b) Certain Activities Relating to Material Constituting or 
Containing Child Pornography.--Section 2252A(b)(2) of title 18, United 
States Code, is amended by inserting after ``but, if'' the following: 
``any image of child pornography involved in the offense involved a 
prepubescent minor or a minor who had not attained 12 years of age, 
such person shall be fined under this title and imprisoned for not more 
than 20 years, or if''.

SEC. 3. PROTECTION OF CHILD WITNESSES.

  (a) Civil Action To Restrain Harassment of a Victim or Witness.--
Section 1514 of title 18, United States Code, is amended--
          (1) in subsection (b)--
                  (A) in paragraph (1)--
                          (i) by inserting ``or its own motion,'' after 
                        ``attorney for the Government,''; and
                          (ii) by inserting ``or investigation'' after 
                        ``Federal criminal case'' each place it 
                        appears;
                  (B) by redesignating paragraphs (2), (3), and (4) as 
                paragraphs (3), (4), and (5), respectively;
                  (C) by inserting after paragraph (1) the following:
  ``(2) In the case of a minor witness or victim, the court shall issue 
a protective order prohibiting harassment or intimidation of the minor 
victim or witness if the court finds evidence that the conduct at issue 
is reasonably likely to adversely affect the willingness of the minor 
witness or victim to testify or otherwise participate in the Federal 
criminal case or investigation. Any hearing regarding a protective 
order under this paragraph shall be conducted in accordance with 
paragraphs (1) and (3), except that the court may issue an ex parte 
emergency protective order in advance of a hearing if exigent 
circumstances are present. If such an ex parte order is applied for or 
issued, the court shall hold a hearing not later than 14 days after the 
date such order was applied for or is issued.'';
                  (D) in paragraph (4), as so redesignated, by striking 
                ``(and not by reference to the complaint or other 
                document)''; and
                  (E) in paragraph (5), as so redesignated, in the 
                second sentence, by inserting before the period at the 
                end the following: ``, except that in the case of a 
                minor victim or witness, the court may order that such 
                protective order expires on the later of 3 years after 
                the date of issuance or the date of the eighteenth 
                birthday of that minor victim or witness''; and
          (2) by striking subsection (c) and inserting the following:
  ``(c) Whoever knowingly and intentionally violates or attempts to 
violate an order issued under this section shall be fined under this 
title, imprisoned not more than 5 years, or both.
  ``(d)(1) As used in this section--
          ``(A) the term `course of conduct' means a series of acts 
        over a period of time, however short, indicating a continuity 
        of purpose;
          ``(B) the term `harassment' means a serious act or course of 
        conduct directed at a specific person that--
                  ``(i) causes substantial emotional distress in such 
                person; and
                  ``(ii) serves no legitimate purpose;
          ``(C) the term `immediate family member' has the meaning 
        given that term in section 115 and includes grandchildren;
          ``(D) the term `intimidation' means a serious act or course 
        of conduct directed at a specific person that--
                  ``(i) causes fear or apprehension in such person; and
                  ``(ii) serves no legitimate purpose;
          ``(E) the term `restricted personal information' has the 
        meaning give that term in section 119;
          ``(F) the term `serious act' means a single act of 
        threatening, retaliatory, harassing, or violent conduct that is 
        reasonably likely to influence the willingness of a victim or 
        witness to testify or participate in a Federal criminal case or 
        investigation; and
          ``(G) the term `specific person' means a victim or witness in 
        a Federal criminal case or investigation, and includes an 
        immediate family member of such a victim or witness.
  ``(2) For purposes of subparagraphs (B)(ii) and (D)(ii) of paragraph 
(1), a court shall presume, subject to rebuttal by the person, that the 
distribution or publication using the Internet of a photograph of, or 
restricted personal information regarding, a specific person serves no 
legitimate purpose, unless that use is authorized by that specific 
person, is for news reporting purposes, is designed to locate that 
specific person (who has been reported to law enforcement as a missing 
person), or is part of a government-authorized effort to locate a 
fugitive or person of interest in a criminal, antiterrorism, or 
national security investigation.''.
  (b) Sentencing Guidelines.--Pursuant to its authority under section 
994 of title 28, United States Code, and in accordance with this 
section, the United States Sentencing Commission shall review and, if 
appropriate, amend the Federal sentencing guidelines and policy 
statements to ensure--
          (1) that the guidelines provide an additional penalty 
        increase above the sentence otherwise applicable in Part J of 
        Chapter 2 of the Guidelines Manual if the defendant was 
        convicted of a violation of section 1591 of title 18, United 
        States Code, or chapters 109A, 109B, 110, or 117 of title 18, 
        United States Code; and
          (2) if the offense described in paragraph (1) involved 
        causing or threatening to cause physical injury to a person 
        under 18 years of age, in order to obstruct the administration 
        of justice, an additional penalty increase above the sentence 
        otherwise applicable in Part J of Chapter 2 of the Guidelines 
        Manual.

SEC. 4. SUBPOENAS TO FACILITATE THE ARREST OF FUGITIVE SEX OFFENDERS.

  (a) Administrative Subpoenas.--
          (1) In general.--Section 3486(a)(1) of title 18, United 
        States Code, is amended--
                  (A) in subparagraph (A)--
                          (i) in clause (i), by striking ``or'' at the 
                        end;
                          (ii) by redesignating clause (ii) as clause 
                        (iii); and
                          (iii) by inserting after clause (i) the 
                        following:
          ``(ii) an unregistered sex offender conducted by the United 
        States Marshals Service, the Director of the United States 
        Marshals Service; or''; and
                  (B) in subparagraph (D)--
                          (i) by striking ``paragraph, the term'' and 
                        inserting the following: ``paragraph--
          ``(i) the term'';
                          (ii) by striking the period at the end and 
                        inserting ``; and''; and
                          (iii) by adding at the end the following:
          ``(ii) the term `sex offender' means an individual required 
        to register under the Sex Offender Registration and 
        Notification Act (42 U.S.C. 16901 et seq.).''.
          (2) Technical and conforming amendments.--Section 3486(a) of 
        title 18, United States Code, is amended--
                  (A) in paragraph (6)(A), by striking ``United State'' 
                and inserting ``United States'';
                  (B) in paragraph (9), by striking ``(1)(A)(ii)'' and 
                inserting ``(1)(A)(iii)''; and
                  (C) in paragraph (10), by striking ``paragraph 
                (1)(A)(ii)'' and inserting ``paragraph (1)(A)(iii)''.
  (b) Subpoena Authority for the United States Marshals Service.--
Section 566(e)(1) of title 28, United States Code, is amended--
          (1) in subparagraph (A), by striking ``and'' at the end;
          (2) in subparagraph (B), by striking the period at the end 
        and inserting ``; and''; and
          (3) by adding at the end the following:
          ``(C) issue administrative subpoenas in accordance with 
        section 3486 of title 18, solely for the purpose of 
        investigating unregistered sex offenders (as defined in such 
        section 3486).''.

SEC. 5. INCREASE IN FUNDING LIMITATION FOR TRAINING COURSES FOR ICAC 
                    TASK FORCES.

  Section 102(b)(4)(B) of the PROTECT Our Children Act of 2008 (42 
U.S.C. 17612(b)(4)(B)) is amended by striking ``$2,000,000'' and 
inserting ``$4,000,000''.

SEC. 6. NATIONAL COORDINATOR FOR CHILD EXPLOITATION PREVENTION AND 
                    INTERDICTION .

  Section 101(d)(1) of the PROTECT Our Children Act of 2008 (42 U.S.C. 
17611(d)(1)) is amended--
          (1) by striking ``to be responsible'' and inserting the 
        following: ``with experience in investigating or prosecuting 
        child exploitation cases as the National Coordinator for Child 
        Exploitation Prevention and Interdiction who shall be 
        responsible''; and
          (2) by adding at the end the following: ``The National 
        Coordinator for Child Exploitation Prevention and Interdiction 
        shall be a position in the Senior Executive Service.''

SEC. 7. REAUTHORIZATION OF ICAC TASK FORCES.

  Section 107(a) of the PROTECT Our Children Act of 2008 (42 U.S.C. 
17617(a)) is amended--
          (1) in paragraph (4), by striking ``and'';
          (2) in paragraph (5), by striking the period at the end and 
        inserting a semicolon; and
          (3) by inserting after paragraph (5) the following:
          ``(6) $60,000,000 for fiscal year 2014;
          ``(7) $60,000,000 for fiscal year 2015;
          ``(8) $60,000,000 for fiscal year 2016;
          ``(9) $60,000,000 for fiscal year 2017; and
          ``(10) $60,000,000 for fiscal year 2018.''.

SEC. 8. CLARIFICATION OF ``HIGH-PRIORITY SUSPECT''.

  Section 105(e)(1)(B)(i) of the PROTECT Our Children Act of 2008 (42 
U.S.C. 17615(e)(1)(B)(i)) is amended by striking ``the volume'' and all 
that follows through ``or other''.

SEC. 9. REPORT TO CONGRESS.

  Not later than 90 days after the date of enactment of this Act, the 
Attorney General shall submit to the Committee on the Judiciary of the 
House of Representatives and the Committee on the Judiciary of the 
Senate a report on the status of the Attorney General's establishment 
of the National Internet Crimes Against Children Data System required 
to be established under section 105 of the PROTECT Our Children Act of 
2008 (42 U.S.C. 17615).

                          Purpose and Summary

    H.R. 6063 provides additional investigative and 
prosecutorial tools and enhanced penalties to combat the 
proliferation of Internet child pornography and child 
exploitation offenses.

                Background and Need for the Legislation

I. THE PROLIFERATION OF CHILD PORNOGRAPHY AND CHILD EXPLOITATION ON THE 
                                INTERNET

    According to the Justice Department, trafficking of child 
pornography images was almost completely eradicated in America 
by the mid-1980's. Purchasing or trading child pornography 
images was risky and almost impossible to undertake 
anonymously.
    The advent of the Internet reversed this accomplishment. 
Internet child pornography is among one of the fastest growing 
crimes in America, increasing at an average of 150% per year. 
These disturbing images litter the Internet and pedophiles can 
purchase, view, or exchange this material with virtual 
anonymity.
    The Department reports that ``the expansion of the Internet 
has led to an explosion in the market for child pornography, 
making it easier to create, access, and distribute these images 
of abuse. . . . The child victims are first sexually assaulted 
in order to produce the vile, and often violent, images. They 
are then victimized again when these images of their sexual 
assault are traded over the Internet in massive numbers by 
like-minded people across the globe.''\1\
---------------------------------------------------------------------------
    \1\The National Strategy for Child Exploitation Prevention and 
Interdiction, A Report to Congress, U.S. Dept. of Justice, Aug. 2010, 
available at http://www.projectsafechildhood.gov/docs/
natstrategyreport.pdf (hereinafter National Strategy).
---------------------------------------------------------------------------
    The National Center for Missing and Exploited Children 
(NCMEC) created the CyberTipline 14 years ago. To date, more 
than 51 million child pornography images and videos have been 
reviewed by the analysts in NCMEC's Child Victim Identification 
Program.\2\ As NCMEC's former President and CEO, Ernie Allen, 
explained at a hearing before the Crime, Terrorism and Homeland 
Security Subcommittee on July 12, 2011, ``these images are 
crime scene photos. According to law enforcement data, 19% of 
identified offenders in a survey had images of children younger 
than 3 years old; 39% had images of children younger than 6 
years old; and 83% had images of children younger than 12 years 
old. Reports to the CyberTipline include images of sexual 
assault of toddlers and even infants.''\3\
---------------------------------------------------------------------------
    \2\Testimony of Mr. Ernie Allen, President and CEO of the National 
Center for Missing and Exploited Children, Hearing on H.R. 6063 before 
the Subcommittee on Crime, Terrorism, and Homeland Security, Committee 
on the Judiciary, U.S. House of Representatives, 112th Congress, July 
12, 2011, at 2.
    \3\Id. at 3.
---------------------------------------------------------------------------
    A 2011 Federal investigation demonstrates the ease with 
which pedophiles can exchange pornography via the Internet and 
the horrific nature of this crime. Operation Delego, initiated 
by Immigration and Customs Enforcement (ICE) agents, uncovered 
an international child pornography ring that operated an 
Internet forum known as ``Dreamboard.''\4\ The forum was based 
in the United States, but had nearly 600 participants who 
spanned across five continents.
---------------------------------------------------------------------------
    \4\Terry Frieden, 72 charged in online global child porn ring, CNN, 
Aug. 3, 2011, available 
at  http://articles.cnn.com/2011-08-03/justice/
us.child.porn.ring_1_sexual-abuse-bulletin-board-images-and-
videos?_s=PM:CRIME.
---------------------------------------------------------------------------
    U.S. Attorney General Eric Holder described that ``[i]n 
order to become part of the Dreamboard community, prospective 
members were required to upload pornography portraying children 
under 12 years of age or younger . . . Once given access, the 
participants had to continually upload images of child sexual 
abuse in order to maintain membership. The more content they 
provided, the more content they were allowed to access. Members 
who created and shared images and videos of themselves 
molesting children received elevated status and greater access. 
. . . Some of the children featured in these images and videos 
were just infants and in many cases, the children being 
victimized were in obvious and also intentional pain, even in 
distress and crying, just as the rules for one area of the 
bulletin board mandated. They had to be in distress and 
crying.''\5\
---------------------------------------------------------------------------
    \5\Id.
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           II. PENALTIES FOR POSSESSION OF CHILD PORNOGRAPHY

    Current law imposes a maximum 10-year penalty for child 
pornography possession offenses. Since the Supreme Court's 2005 
United States v. Booker\6\ decision, which made the Federal 
Sentencing Guidelines advisory, the Federal courts have begun 
to issue increasingly low sentences for child pornography 
offenses. From 2006 to 2010, the rate of within-Guideline range 
sentences for child pornography possession dropped from 62.6% 
to 39.6%. During that same time period, the number of 
possession cases receiving sentencing departures jumped from 61 
(25.6%) to 394 (44.9%).\7\
---------------------------------------------------------------------------
    \6\543 U.S. 220 (2005).
    \7\Average Sentence and Position Relative to the Guideline Range 
for Child Pornography Possession Offenses, Fiscal Years 2005 through 
Preliminary 2010, U.S. Sent. Comm'n (2010).
---------------------------------------------------------------------------
    The decline in penalties stems, in part, from the false 
belief that possession of child pornography is not a serious 
crime, or at least is not as serious as other child 
exploitation offenses. This belief is dangerously flawed. As 
the Justice Department noted in its August 2010 National 
Strategy, ``many experts in the field believe that use of [the] 
term [child pornography] contributes to a fundamental 
misunderstanding of the crime--one that focuses on the 
possession or trading of a picture and leaves the impression 
that what is depicted in the photograph is pornography. Child 
pornography is unrelated to adult pornography; it clearly 
involves the criminal depiction and memorializing of the sexual 
assault of children and the criminal sharing, collecting, and 
marketing of the images.''\8\
---------------------------------------------------------------------------
    \8\The National Strategy for Child Exploitation Prevention and 
Interdiction, A Report to Congress, U.S. Dept. of Justice, Aug. 2010, 
available at http://www.projectsafechildhood.gov/docs/
natstrategyreport.pdf.
---------------------------------------------------------------------------
    The people who consume child pornography create the market 
for it, and thereby encourage the victimization of children. 
According to the Justice Department, 67 percent of reported 
sexual assault victims are children. There is a growing link 
between the possession of child pornography and the actual 
molestation of children. A 2005 study found that ``40% of the 
cases involving [child pornography] possession in the [National 
Juvenile Online Victimization] Study involved dual offenses of 
[child pornography] possession and child sexual victimization 
detected in the course of the same investigation.''\9\ There is 
also evidence that pedophiles are increasingly only sharing 
their illegal images with ``select'' groups of people who are 
also able to share homemade images of child exploitation. This 
trend encourages further harm to children.
---------------------------------------------------------------------------
    \9\Janis Wolak et al., Child-Pornography Possessors Arrested in 
Internet-Related Crimes: Findings From the National Juvenile Online 
Victimization Study, Nat'l Ctr. Missing & Exploited Children, at 16.
---------------------------------------------------------------------------
    In 2009, a symposium of experts who studied child 
pornography met to share their findings and develop an 
international consensus on the risks to children from child 
pornography. The symposium recognized the general sense that 
there is a connection between child pornography and other sex 
related crimes.

        Symposium participants . . . agreed that there is 
        sufficient evidence of a relationship between 
        possession of child pornography and the commission of 
        contact offenses against children to make this a cause 
        of acute concern. Participants did not see this 
        necessarily as a linear relationship, but considered it 
        a relationship that must be assessed in determining 
        treatment and criminal justice options because, based 
        on research using samples of individuals convicted of 
        child pornography offenses, a significant portion of 
        those who possess child pornography have committed a 
        contact sexual offense against a child.\10\
---------------------------------------------------------------------------
    \10\Andrew G. Oosterbaan, Global Symposium for Examining the 
Relationship Between Online and Offline Offenses and Preventing the 
Sexual Exploitation of Children, U.S. Dept. of Justice 10 (2009), 
available at http://www.governo.it/GovernoInforma/Dossier/
G8_interno_giustizia/LEPSG_Child_Exploitation_Symposium.pdf.

    The belief that mere possession of child pornography images 
is not a serious crime also ignores the ongoing victimization 
that the children experience, often well into adulthood, 
knowing that their images continue to be shared on the 
Internet. As one psychologist recently testified in a child 
pornography possession case, ``victims are constantly anxious, 
they walk around anxious. . . . when they go into the street 
they look at everyone they pass and say, `Did you see the 
pictures?'. . . . They are constantly ruminating about who have 
seen those pictures.''\11\ These children's lives are thrown 
into permanent disarray to feed the appetites of the ``mere'' 
possessors.
---------------------------------------------------------------------------
    \11\United States v. C.R., --F.Supp.2d---, 2011 WL 1901645, at *33 
(E.D.N.Y. 2011).
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             III. PROTECTION OF CHILD WITNESSES AND VICTIMS

    Child pornography and exploitation prosecutions hinge often 
on the testimony of the child victim. Unfortunately, many 
children are abused by an acquaintance or even a family member 
and are often intimidated from telling their stories with 
threats that they will be punished or get in trouble if they 
tell.
    Intimidation of minor witnesses is a persistent problem in 
criminal prosecutions. The most notable example was the case of 
DeAndre Whitehead, a Baltimore man who was sentenced to 6 years 
in Federal prison in 2005 for ordering the killing of an 11-
year-old girl who testified in his murder trial. The U.S. 
Attorney for the District of Maryland had to take over the case 
after the state prosecutor failed to secure a conviction in the 
state's intimidation case. Maryland received criticism at the 
time for its ineffective witness intimidation laws. The same 
problem has been seen elsewhere. In 2006, at Burlington 
Township, Pennsylvania, Truman High School class president 
Tyrone Lewis was prohibited from walking at his graduation or 
delivering his address except via video feed after the school 
received threats against Lewis, intended to intimidate his 
sister, Rachel, a witness in a murder case.
    Surprisingly, the intimidation does not always come from 
the original perpetrators of the horrific act. In October 2007, 
a defense attorney in a child sexual-abuse case was arrested 
for intimidating the sixteen year old victim.\12\ In February 
2010, the father of a teen who forced a 5-year-old boy to 
perform sexual acts was charged with intimidating the victim's 
family.\13\ In March 2011, a man charged with abusing two girls 
over a span of 9 years was accused of witness intimidation on 
three different occasions.\14\
---------------------------------------------------------------------------
    \12\Denver Attorney Arrested In Witness Intimidation Case, The 
Denver News Channel (October 4, 2007), http://www.thedenverchannel.com/
news/14269922/detail.html.
    \13\Father of Rape Suspect Charged with Witness Intimidation, 
Wicked Local (February 19, 2010), http://www.wickedlocal.com/milford/
news/x1650244989/Father-of-rape-suspect-charged-with-witness-
intimidation#axzz1RoFC05we.
    \14\Whitman Man Indicted on Child Sex-Abuse Charges, Enterprise 
News (March 09, 2011), http://www.enterprisenews.com/news/
cops_and_courts/x13264467/Whitman-man-indicted-on-child-sex-abuse-
charges.
---------------------------------------------------------------------------
    Current fines and contempt citations are inadequate to 
protect minor witnesses and victims, especially in child sex 
abuse cases. For example, in a case in Dublin, Ohio, a high 
school lacrosse coach was fined only $1,000 after he was 
convicted of intimidating a player who accused the man's son, 
an assistant coach on the team, of sexual assault. Although 
Federal law provides criminal penalties for physical violence, 
threats, and other egregious forms of witness intimidation, 
more subtle forms of intimidation directed to a child remain 
unaddressed. This section provides Federal courts with the 
means to control such intimidation through effective protection 
orders, and the felony penalty would add needed teeth to the 
law to strengthen the deterrent effect of a restraining order 
to prevent repeat intimidation.
    There is also an increase in evidence demonstrating a link 
between child sex trafficking and child pornography. The 
Justice Department's 2010 National Strategy for Child 
Exploitation Prevention and Interdiction makes references to 
the connection between sex trafficking and child pornography:

        Sex tourists are increasingly creating child 
        pornography by recording their acts of child sexual 
        abuse to bring home as souvenirs. After returning home, 
        child sex tourists may share or sell their images and 
        videos with other child predators. Images of the 
        child's abuse are permanently memorialized and 
        impossible to remove from circulation once they enter 
        the Internet stream.\15\
---------------------------------------------------------------------------
    \15\National strategy for Child Exploitation Prevention and 
Interdiction, U.S. Department of Justice 37 (2010), http://
www.projectsafechildhood.gov/docs/natstrategyreport.pdf.

        Ultimately, many predators coerce victims into sexual 
        abuse, and many digitally memorialize their crimes for 
        trading purposes and to ensure silence, essentially 
        producing child pornography that will victimize 
        children beyond the moment of sexual abuse.\16\
---------------------------------------------------------------------------
    \16\National strategy for Child Exploitation Prevention and 
Interdiction, U.S. Department of Justice 31 (2010), http://
www.projectsafechildhood.gov/docs/natstrategyreport.pdf.
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IV. ADMINISTRATIVE SUBPOENA AUTHORITY FOR APPREHENSION OF FUGITIVE SEX 
                               OFFENDERS

    The U.S. Marshals Service serves a unique function among 
Federal law enforcement agencies. As authorized by 28 U.S.C. 
Sec. 566, the Marshals' primary mission is ``to provide for the 
security and to obey, execute, and enforce all orders of the 
United States District Courts, the United States Courts of 
Appeals, the Court of International Trade, and the United 
States Tax Court, as provided by law.'' The Marshals Service 
also executes all writs, process, and orders issued under the 
authority of the United States, and provides personal 
protection of Federal judges, court officers, witnesses, and 
others.\17\
---------------------------------------------------------------------------
    \17\28 U.S.C. Sec. Sec. 566(c), (e)(1)(A).
---------------------------------------------------------------------------
    The Marshals Service is also the Federal Government's 
primary agency for fugitive apprehension.\18\ The agency holds 
all Federal arrest warrants until they are executed or 
dismissed. In fiscal year 2011, the Marshals apprehended more 
than 36,200 Federal fugitives, clearing approximately 39,400 
felony warrants. U.S. Marshals-led fugitive task forces 
arrested more than 86,400 state and local fugitives, clearing 
113,000 state and local felony warrants.\19\
---------------------------------------------------------------------------
    \18\28 U.S.C. Sec. 566(e)(1)(B).
    \19\Fact Sheets: Sex Offender Operations, U.S. Marshals Service, 
Dec. 7, 2011, available at http://www.usmarshals.gov/duties/factsheets/
fugitive_ops-2012.html.
---------------------------------------------------------------------------
    The Adam Walsh Child Protection and Safety Act of 2006\20\ 
requires the Attorney General to use the Justice Department law 
enforcement resources to assist jurisdictions in locating and 
apprehending sex offenders who fail to comply with registration 
requirements. The Marshals is the primary agency charged with 
this responsibility.
---------------------------------------------------------------------------
    \20\Pub. L. No. 109-248, 111 Stat. 2466 (2006).
---------------------------------------------------------------------------
    Under the Adam Walsh Act, the Marshals Service assists 
state, local, tribal and territorial authorities in the 
location and apprehension of non-compliant sex offenders. It 
also investigates violations of the criminal provisions of the 
Adam Walsh Act, and identifies and locates sex offenders 
displaced as a result of a major disaster. In fiscal year 2011, 
the Marshals apprehended 12,144 sex offenders, initiated 2,720 
investigations, issued 730 warrants for registration 
violations, and arrested 586 fugitives for other violations of 
the Adam Walsh Act.\21\
---------------------------------------------------------------------------
    \21\Supra note 11.
---------------------------------------------------------------------------
    The Marshals' duties under the Adam Walsh Act require it to 
respond immediately to a tip regarding an absconded sex 
offender. However, to obtain records relevant to fugitive 
apprehension, the Marshals must make a request to a United 
States Attorney's Office to seek an ``All Writs Act'' order 
under 28 U.S.C. Sec. 1651. This process is burdensome and time-
consuming.
    Administrative subpoena authority will allow the Marshals 
to access hotel, rental car, or airline records quickly, before 
the trail goes cold on a fugitive sex offender. Administrative 
subpoenas can only be used to obtain these types of records--
they cannot be used to obtain the content of an email or 
wiretap a telephone.
    There are over 300 instances where Congress has granted 
other Federal agencies administrative subpoena power in one 
form or another. In 1996, this Committee approved 18 U.S.C. 
Sec. 3486 to authorize the use of administrative subpoenas to 
investigate Federal sexual exploitation or child abuse offenses 
and threats to the President and other protectees. This statute 
has been expanded by Congress several times since then--
including as part of the PROTECT Act of 2003.\22\
---------------------------------------------------------------------------
    \22\Pub. L. 108-21, 117 Stat. 650, S. 151 (Apr. 30, 2003).
---------------------------------------------------------------------------
    The administrative subpoena statute currently gives 
authority to use such subpoenas to the Attorney General and the 
Secretary of the Treasury for cases involving health care, 
child sexual exploitation, or threats against the President or 
other persons protected by the Secret Service. This is narrow 
authority is provided to the law enforcement agencies that 
investigate these areas of crime--the FBI and the Secret 
Service.
    Although the Marshals Service is under the authority of the 
Attorney General, their unique role of providing Federal court 
security and fugitive apprehension does not include criminal 
investigations involving the sexual exploitation or abuse of 
children. As such, the authority granted under Sec. 3486 does 
not automatically extend to the Marshals.

         V. INTERNET CRIMES AGAINST CHILDREN (ICAC) TASK FORCES

    The Internet Crimes Against Children (ICAC) Task Forces 
help state and local law enforcement agencies develop an 
effective response to cyber enticement and child pornography 
cases. The ICAC program was developed in 1998, in response to 
the increasing number of children and teenagers using the 
Internet, the proliferation of child pornography, and 
heightened online activity by predators seeking unsupervised 
contact with potential underage victims.
    The ICAC program is a national network of 61 coordinated 
task forces representing over 3,000 Federal, state, and local 
law enforcement and prosecutorial agencies. The program has 
been a demonstrable success. Since the ICAC program's inception 
in 1998, more than 338,000 law enforcement officers, 
prosecutors, and other professionals have been trained in the 
United States and in 17 countries on techniques to 
investigative and prosecute ICAC related cases. Since 1998, 
ICAC Task Forces have reviewed more than 280,000 complaints of 
alleged child sexual victimization resulting in the arrest of 
more than 30,000 individuals.
    The PROTECT our Children Act of 2008 codified the 
authorization of the ICAC program. The Act authorized the task 
forces at $60 million a year for fiscal years 2008 through 
2013. The Act also authorized funding for technical training 
programs for ICAC investigators. The Act capped the training 
funding at $2 million annually. This cap has had the unintended 
consequence of stifling training of ICAC investigators through 
these programs. The rapid change in Internet and 
telecommunications technology that can be used by pedophiles to 
hide from law enforcement requires constant upgrades in 
investigative tools and constant training to use these new 
tools.
    The PROTECT Act also established the National Coordinator 
for Child Exploitation and Prevention and Interdiction position 
within the Justice Department. The Coordinator is charged with 
formulating and implementing a national strategy to combat 
child exploitation, and with submitting the strategy and 
relevant reports to Congress.

             VI. NATIONAL INTERNET CRIMES AGAINST CHILDREN 
                           DATA SYSTEM (NIDS)

    Section 105 of the PROTECT our Children Act of 2008 
directed the Justice Department to establish a National 
Internet Crimes Against Children Data System (NIDS). NIDS is a 
law enforcement system that is intended to be a dynamic online 
platform for undercover investigations. This single system is 
envisioned to create a one-stop shop for investigators to 
access all available investigative software, to de-conflict 
overlapping investigations, and to refer suspects or ``leads'' 
to the appropriate investigative agency.
    To date, the NIDS system has yet to be fully implemented by 
the Department. In 2009, the Office of Juvenile Justice and 
Delinquency Prevention (OJJDP) made $900,000 of Recovery Act 
funds available for grants to develop NIDS; however this 
solicitation was eventually withdrawn. In 2010, OJJDP awarded a 
grant for ``needs assessment and developmental activities'' for 
NIDS. In 2011, OJJDP awarded $500,000 ``for the construction, 
maintenance, and housing of an Internet Crimes Against Children 
Data System (IDS),'' compliant with the PROTECT Our Children 
Act of 2008. A preliminary demonstration of this ``IDS'' system 
shows that it can perform the basic deconfliction functions. 
There remains a question as to whether this system can perform 
the more advanced capabilities mandated by the Act.
    Section 105 of the PROTECT Act prescribes how investigative 
software included in the NIDS system defines and handles 
``high-priority suspects,'' and therefore guides not only how 
high-priority referrals are made to state and local law 
enforcement agencies, but also governs software development 
(i.e., how high-priority referrals are viewed and flagged 
automatically). Section 105 instructs that high-priority 
suspects are determined ``by the volume of suspected criminal 
activity or other indicators of seriousness of offense or 
dangerousness to the community or a potential local victim.''
    Although the NIDS system is not yet fully implemented, the 
``volume'' criteria has already influenced the development of 
software used for online child exploitation investigations, 
which directs users towards high-volume traders of child 
pornography. This can cause dangerous offenders that don't 
trigger the high volume criteria to go undetected.
    H.R. 6063 is supported by the National Center for Missing 
and Exploited Children; the Major City Chiefs of Police; 
Futures Without Violence; the Fraternal Order of Police; the 
International Association of Chiefs of Police; the National 
Alliance to End Sexual Violence; the National District 
Attorneys Association; the National White Collar Crime Center 
(NWC3); the National Sheriffs' Association; the Surviving 
Parents Coalition; the Rape Abuse Incest National Network 
(RAINN); PROTECT; the Florida Council Against Sexual Violence; 
Jewish Women International; Men Can Stop Rape; the National 
Criminal Justice Training Center at Fox Valley Technical 
College; the Texas Association Against Sexual Assault; and the 
California Protective Parents Association.

                                Hearings

    No hearings were held on H.R. 6063.

                        Committee Consideration

    On July 10, 2012, the Committee met in open session and 
ordered the bill H.R. 6063 favorably reported without amendment 
by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 6063.
    1. An amendment by Mr. Scott to delete language from 
Section 3 that modifies the definitions of ``harassment'' and 
``intimidation'' under 18 U.S.C. Sec. 1514 as amended by 
Section 3. Defeated 12-13.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................                X
Mr. Gallegly.................................
Mr. Goodlatte................................                X
Mr. Lungren..................................                X
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................                X
Mr. Poe......................................       X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino...................................                X
Mr. Gowdy....................................
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................       X
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................       X
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................
Mr. Quigley..................................
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................       X
Mr. Polis....................................       X
                                              --------------------------
    Total....................................      12       13
------------------------------------------------------------------------


    2. An amendment by Mr. Scott to require Attorney General 
approval of an administrative subpoena sought to apprehend an 
unregistered sex offender pursuant to the amendments made by 
Section 4 of the bill to 18 U.S.C. Sec. 3486 and to limit such 
subpoena authority to the apprehension of fugitive sex 
offenders who have been convicted of certain offenses against a 
minor. Defeated 10-18.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................                X
Mr. Gallegly.................................
Mr. Goodlatte................................
Mr. Lungren..................................                X
Mr. Chabot...................................                X
Mr. Issa.....................................                X
Mr. Pence....................................
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................                X
Mr. Jordan...................................                X
Mr. Poe......................................
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................       X
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................                X
Ms. Waters...................................                X
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................
Mr. Quigley..................................                X
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................       X
Mr. Polis....................................       X
                                              --------------------------
    Total....................................      10       18
------------------------------------------------------------------------


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises 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.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives 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. 6063 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, July 30, 2012.
Hon. Lamar Smith, 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. 6063, the ``Child 
Protection Act of 2012.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




                H.R. 6063--Child Protection Act of 2012.

      As ordered reported by the House Committee on the Judiciary 
                           on July 10, 2012.




                                SUMMARY

    H.R. 6063 would amend certain laws that establish Federal 
crimes related to child pornography and would reauthorize 
funding through 2018 for the Internet Crimes Against Children 
(ICAC) Task Force Program. CBO estimates that implementing the 
bill would cost $121 million over the 2013-2017 period, 
assuming appropriation of the authorized amounts. Enacting H.R. 
6063 could affect direct spending and revenues; therefore, pay-
as-you-go procedures apply. However, CBO estimates that any net 
effects would be insignificant in any year.
    H.R. 6063 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on State, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 6063 is shown in the 
following table. The costs of this legislation fall within 
budget function 750 (administration of justice).

----------------------------------------------------------------------------------------------------------------
                                    By Fiscal Year, in Millions of Dollars--
-----------------------------------------------------------------------------------------------------------------
                                                                     2013   2014   2015   2016   2017  2013-2017
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level                                           *     60     60     60     60       240

Estimated Outlays                                                       *      7     24     39     51       121
----------------------------------------------------------------------------------------------------------------
Notes: Current law authorizes $60 million annually through fiscal year 2013 for the Internet Crimes Against
  Children Task Force Program.
* = less than $500,000.

                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that H.R. 6063 will be 
enacted near the start of 2013 and that the authorized amounts 
will be appropriated each year beginning with fiscal year 2014.
    Current law authorizes appropriations of $60 million a year 
through fiscal year 2013 for grants and technical assistance to 
ICAC task forces. (Funding for the ICAC Task Force Program in 
2012 totals about $30 million, CBO estimates.) H.R. 6063 would 
extend the $60 million authorization level through 2018. The 
legislation also would raise the cap on grant funding for ICAC 
training programs from $2 million to $4 million annually for 
each organization. Based on historical patterns for ICAC and 
similar programs, CBO estimates that fully funding grants to 
ICAC task forces would cost $121 million over the 2014-2017 
period.
    CBO estimates that implementing other provisions of H.R. 
6063 would have an insignificant impact on Federal spending. 
Those provisions would:

         LIncrease the maximum prison sentence from 10 
        years to 20 years for child pornography offenses 
        involving children under the age of 12;

         LDirect the U.S. Sentencing Commission to 
        review Federal sentencing guidelines related to certain 
        child abuse crimes;

         LAllow the U.S. Marshals Service to issue 
        administrative subpoenas to investigate unregistered 
        sex offenders; and

         LRequire the Department of Justice to submit a 
        report to the Congress on the National Internet Crimes 
        Agaist Children Data System within 90 days after 
        enactment.

                      PAY-AS-YOU-GO CONSIDERATIONS

    Enacting H.R. 6063 could affect direct spending and 
revenues; however, CBO estimates that any net effects would be 
insignificant for each year. Under the legislation, district 
courts would be required to issue protective orders to prevent 
harassment or intimidation of a minor victim or witness. The 
bill could increase direct spending by extending witness 
protective services, which are funded through a mandatory 
appropriation, to those individuals. Any such increases would 
be insignificant because of the small number of witnesses and 
victims likely to be affected.
    In addition, because those prosecuted and convicted under 
H.R. 6063 would be subject to increased criminal fines, the 
Federal Government might collect additional fines if the bill 
is enacted. Criminal fines are recorded as revenues, deposited 
in the Crime Victims Fund, and later spent. CBO expects that 
any additional revenues and direct spending would not be 
significant because of the small number of cases likely to be 
affected.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 6063 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would impose no costs on State, 
local, or tribal governments.

                         PREVIOUS CBO ESTIMATE

    On October 12, 2011, CBO transmitted a cost estimate for 
H.R. 1981, the Protecting Children from Internet Pornographers 
Act, as ordered reported by the House Committee on the 
Judiciary on July 27, 2011. Provisions of both bills related to 
administrative subpoenas, protection of child witnesses, and 
review of sentencing guidelines are similar, and the estimated 
costs for those provisions are the same.

                         ESTIMATE PREPARED BY:

Federal Costs: Martin von Gnechten
Impact on State, Local, and Tribal Governments: Sandra Trevino
Impact on the Private Sector: Marin Randall

                         ESTIMATE APPROVED BY:

Theresa Gullo
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
6063 provides additional investigative and prosecutorial tools 
and enhanced penalties to combat the proliferation of Internet 
child pornography and child exploitation offenses.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 6063 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title.
    This section cites the short title of the bill as the 
``Child Protection Act of 2012.''
Section 2. Enhanced Penalties for Possession of Child Pornography.
    This section increases the maximum penalty from 10 to 20 
years for offenses under sections 2252(b)(2) and 2252A(b)(2) of 
Title 18 involving prepubescent minors or minors under the age 
of 12.
Section 3. Protection of Child Witnesses.
    This section amends section 1514 of title 18 (providing for 
protection of victims or witnesses) to expand protection of 
minor victims and witnesses from harassment or intimidation. 
This section allows a Federal court to issue a protective order 
if it determines that harassment or intimidation exists 
specifically in the case of a minor witness and that the 
intimidation would affect the willingness of the witness to 
testify in an ongoing investigation or Federal criminal matter. 
Protective orders for minor witnesses can be issued for 3 years 
or until the witnesses' 18th birthday, whichever is longer 
(protective orders for adults are capped at 3 years in length).
    This section also permits courts to issue protection orders 
to restrict the harassing or intimidating distribution of a 
witness's restricted personal information on the Internet.
    This section also fills a gap in current law by creating 
criminal penalties of a fine, imprisonment up to 5 years, or 
both, for knowing and intentional violations of any protective 
order issued under Section 1514. Under the statute as currently 
written, there is no criminal enforcement capability for 
protective orders issued, and violators likely face nothing 
more than a contempt citation.
    This section also instructs the U.S. Sentencing Commission 
to review, and increase if appropriate, the Sentencing 
Guidelines contained in Part J of Chapter 2, relating to 
penalties for witness intimidation in certain crimes against 
children offenses.
Section 4. Subpoenas to Facilitate the Arrest of Fugitive Sex 
        Offenders.
    This section amends section 556 of title 28 (governing the 
powers and duties of the U.S. Marshals Service) to authorize 
the U.S. Marshals Service to issue administrative subpoenas in 
investigations of unregistered sex offenders. This section also 
makes a conforming amendment to section 3486 of title 18 
(governing administrative subpoena authority) to authorize such 
authority for the USMS in apprehending unregistered sex 
offenders.
    Unlike the administrative subpoena authority exercised by 
the U.S. Secret Service and the FBI under 18 U.S.C. Sec. 3486, 
which is used at the beginning of a criminal investigation, the 
administrative subpoena authority authorized by this section 
for the Marshals Service will only be used after the conclusion 
of a criminal investigation--i.e., after a guilty verdict for a 
sex offense that carries with it a registration requirement and 
after the sex offender has absconded or violated his 
registration requirements and an arrest warrant has been issued 
by a judge.
Section 5. Increase in Funding Limitation for Training Courses for ICAC 
        Task Forces.
    This section increases the cap in training funding grants 
from $2 million to $4 million to ensure sufficient funding for 
the organizations that provide critical training to the ICAC 
Task Forces.
Section 6. National Coordinator for Child Exploitation Prevention and 
        Interdiction.
    This section clarifies Congress' original intent from the 
PROTECT our Children Act of 2008 that the National Coordinator 
should be a high-ranking official within the Justice Department 
with expertise in child exploitation investigations or 
prosecutions.
Section 7. Reauthorization of ICAC Task Forces.
    This section extends the current authorization level of $60 
million a year for the Task Forces for an additional 5 years 
through fiscal year 2018.
Section 8. Clarification of ``High-Priority Suspect.''
    This section amends Section 105 of the PROTECT Our Children 
Act of 2008 to omit ``volume'' as a specifically enumerated 
indicator that must be established to identify a person as a 
high-priority suspect for purposes of the NIDS system.
Section 9. Report to Congress.
    This section directs the Attorney General to submit a 
report to the House and Senate Judiciary Committees on the 
status of the Department's implementation of the NIDS system 
within 90 days of enactment of this Act.

         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 73--OBSTRUCTION OF JUSTICE

           *       *       *       *       *       *       *


Sec. 1514. Civil action to restrain harassment of a victim or witness

  (a) * * *
  (b)(1) A United States district court, upon motion of the 
attorney for the Government, or its own motion, shall issue a 
protective order prohibiting harassment of a victim or witness 
in a Federal criminal case or investigation if the court, after 
a hearing, finds by a preponderance of the evidence that 
harassment of an identified victim or witness in a Federal 
criminal case or investigation exists or that such order is 
necessary to prevent and restrain an offense under section 1512 
of this title, other than an offense consisting of misleading 
conduct, or under section 1513 of this title.
  (2) In the case of a minor witness or victim, the court shall 
issue a protective order prohibiting harassment or intimidation 
of the minor victim or witness if the court finds evidence that 
the conduct at issue is reasonably likely to adversely affect 
the willingness of the minor witness or victim to testify or 
otherwise participate in the Federal criminal case or 
investigation. Any hearing regarding a protective order under 
this paragraph shall be conducted in accordance with paragraphs 
(1) and (3), except that the court may issue an ex parte 
emergency protective order in advance of a hearing if exigent 
circumstances are present. If such an ex parte order is applied 
for or issued, the court shall hold a hearing not later than 14 
days after the date such order was applied for or is issued.
  [(2)] (3) At the hearing referred to in paragraph (1) of this 
subsection, any adverse party named in the complaint shall have 
the right to present evidence and cross-examine witnesses.
  [(3)] (4) A protective order shall set forth the reasons for 
the issuance of such order, be specific in terms, describe in 
reasonable detail [(and not by reference to the complaint or 
other document)] the act or acts being restrained.
  [(4)] (5) The court shall set the duration of effect of the 
protective order for such period as the court determines 
necessary to prevent harassment of the victim or witness but in 
no case for a period in excess of three years from the date of 
such order's issuance. The attorney for the Government may, at 
any time within ninety days before the expiration of such 
order, apply for a new protective order under this section, 
except that in the case of a minor victim or witness, the court 
may order that such protective order expires on the later of 3 
years after the date of issuance or the date of the eighteenth 
birthday of that minor victim or witness.
  [(c) As used in this section--
          [(1) the term ``harassment'' means a course of 
        conduct directed at a specific person that--
                  [(A) causes substantial emotional distress in 
                such person; and
                  [(B) serves no legitimate purpose; and
          [(2) the term ``course of conduct'' means a series of 
        acts over a period of time, however short, indicating a 
        continuity of purpose.]
  (c) Whoever knowingly and intentionally violates or attempts 
to violate an order issued under this section shall be fined 
under this title, imprisoned not more than 5 years, or both.
  (d)(1) As used in this section--
          (A) the term ``course of conduct'' means a series of 
        acts over a period of time, however short, indicating a 
        continuity of purpose;
          (B) the term ``harassment'' means a serious act or 
        course of conduct directed at a specific person that--
                  (i) causes substantial emotional distress in 
                such person; and
                  (ii) serves no legitimate purpose;
          (C) the term ``immediate family member'' has the 
        meaning given that term in section 115 and includes 
        grandchildren;
          (D) the term ``intimidation'' means a serious act or 
        course of conduct directed at a specific person that--
                  (i) causes fear or apprehension in such 
                person; and
                  (ii) serves no legitimate purpose;
          (E) the term ``restricted personal information'' has 
        the meaning give that term in section 119;
          (F) the term ``serious act'' means a single act of 
        threatening, retaliatory, harassing, or violent conduct 
        that is reasonably likely to influence the willingness 
        of a victim or witness to testify or participate in a 
        Federal criminal case or investigation; and
          (G) the term ``specific person'' means a victim or 
        witness in a Federal criminal case or investigation, 
        and includes an immediate family member of such a 
        victim or witness.
  (2) For purposes of subparagraphs (B)(ii) and (D)(ii) of 
paragraph (1), a court shall presume, subject to rebuttal by 
the person, that the distribution or publication using the 
Internet of a photograph of, or restricted personal information 
regarding, a specific person serves no legitimate purpose, 
unless that use is authorized by that specific person, is for 
news reporting purposes, is designed to locate that specific 
person (who has been reported to law enforcement as a missing 
person), or is part of a government-authorized effort to locate 
a fugitive or person of interest in a criminal, antiterrorism, 
or national security investigation.

           *       *       *       *       *       *       *


CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

           *       *       *       *       *       *       *


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

  (a) * * *
  (b)(1) * * *
  (2) Whoever violates, or attempts or conspires to violate, 
paragraph (4) of subsection (a) shall be fined under this title 
or imprisoned not more than 10 years, or both, but if any 
visual depiction involved in the offense involved a 
prepubescent minor or a minor who had not attained 12 years of 
age, such person shall be fined under this title and imprisoned 
for not more than 20 years, or if such person has a prior 
conviction under this chapter, chapter 71, chapter 109A, or 
under section 920 of title 10 (article 120 of the Uniform Code 
of Military Justice), or chapter 117, or under the laws of any 
State relating to aggravated sexual abuse, sexual abuse, or 
abusive sexual conduct involving a minor or ward, or the 
production, possession, receipt, mailing, sale, distribution, 
shipment, or transportation of child pornography, such person 
shall be fined under this title and imprisoned for not less 
than 10 years nor more than 20 years.

           *       *       *       *       *       *       *


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

  (a) * * *
  (b)(1) * * *
  (2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned 
not more than 10 years, or both, but, if any image of child 
pornography involved in the offense involved a prepubescent 
minor or a minor who had not attained 12 years of age, such 
person shall be fined under this title and imprisoned for not 
more than 20 years, or if such person has a prior conviction 
under this chapter, chapter 71, chapter 109A, or chapter 117, 
or under section 920 of title 10 (article 120 of the Uniform 
Code of Military Justice), or under the laws of any State 
relating to aggravated sexual abuse, sexual abuse, or abusive 
sexual conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, shipment, or 
transportation of child pornography, such person shall be fined 
under this title and imprisoned for not less than 10 years nor 
more than 20 years.

           *       *       *       *       *       *       *


PART II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *


CHAPTER 223--WITNESSES AND EVIDENCE

           *       *       *       *       *       *       *


Sec. 3486. Administrative subpoenas

  (a) Authorization.--(1)(A) In any investigation of--
          (i)(I) a Federal health care offense; or (II) a 
        Federal offense involving the sexual exploitation or 
        abuse of children, the Attorney General; [or]
          (ii) an unregistered sex offender conducted by the 
        United States Marshals Service, the Director of the 
        United States Marshals Service; or
          [(ii)] (iii) an offense under section 871 or 879, or 
        a threat against a person protected by the United 
        States Secret Service under paragraph (5) or (6) of 
        section 3056, if the Director of the Secret Service 
        determines that the threat constituting the offense or 
        the threat against the person protected is imminent, 
        the Secretary of the Treasury,
may issue in writing and cause to be served a subpoena 
requiring the production and testimony described in 
subparagraph (B).

           *       *       *       *       *       *       *

  (D) As used in this [paragraph, the term] paragraph--
          (i) the term ``Federal offense involving the sexual 
        exploitation or abuse of children'' means an offense 
        under section 1201, 1591, 2241(c), 2242, 2243, 2251, 
        2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, in which 
        the victim is an individual who has not attained the 
        age of 18 years[.]; and
          (ii) the term ``sex offender'' means an individual 
        required to register under the Sex Offender 
        Registration and Notification Act (42 U.S.C. 16901 et 
        seq.).

           *       *       *       *       *       *       *

  (6)(A) A [United State] United States district court for the 
district in which the summons is or will be served, upon 
application of the United States, may issue an ex parte order 
that no person or entity disclose to any other person or entity 
(other than to an attorney in order to obtain legal advice) the 
existence of such summons for a period of up to 90 days.

           *       *       *       *       *       *       *

  (9) A subpoena issued under paragraph (1)(A)(i)(II) or 
[(1)(A)(ii)] (1)(A)(iii) may require production as soon as 
possible, but in no event less than 24 hours after service of 
the subpoena.
  (10) As soon as practicable following the issuance of a 
subpoena under [paragraph (1)(A)(ii)] paragraph (1)(A)(iii), 
the Secretary of the Treasury shall notify the Attorney General 
of its issuance.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 566 OF TITLE 28, UNITED STATES CODE

Sec. 566 Powers and duties

  (a) * * *

           *       *       *       *       *       *       *

  (e)(1) The United States Marshals Service is authorized to--
          (A) provide for the personal protection of Federal 
        jurists, court officers, witnesses, and other 
        threatened persons in the interests of justice where 
        criminal intimidation impedes on the functioning of the 
        judicial process or any other official proceeding; 
        [and]
          (B) investigate such fugitive matters, both within 
        and outside the United States, as directed by the 
        Attorney General[.]; and
          (C) issue administrative subpoenas inaccordance with 
        section 3486 of title 18, solely for the purpose 
        ofinvestigating unregistered sex offenders (as defined 
        in such section3486).

           *       *       *       *       *       *       *

                              ----------                              


                    PROTECT OUR CHILDREN ACT OF 2008



           *       *       *       *       *       *       *
   TITLE I--NATIONAL STRATEGY FOR CHILD EXPLOITATION PREVENTION AND 
                              INTERDICTION

SEC. 101. ESTABLISHMENT OF NATIONAL STRATEGY FOR CHILD EXPLOITATION 
                    PREVENTION AND INTERDICTION.

  (a) * * *

           *       *       *       *       *       *       *

  (d) Appointment of High-Level Official.--
          (1) In general.--The Attorney General shall designate 
        a senior official at the Department of Justice [to be 
        responsible] with experience in investigating or 
        prosecuting child exploitation cases as the National 
        Coordinator for Child Exploitation Prevention and 
        Interdiction who shall be responsible for coordinating 
        the development of the National Strategy established 
        under subsection (a). The National Coordinator for 
        Child Exploitation Prevention and Interdiction shall be 
        a position in the Senior Executive Service.

           *       *       *       *       *       *       *


SEC. 102. ESTABLISHMENT OF NATIONAL ICAC TASK FORCE PROGRAM.

  (a) * * *
  (b) National Program.--
          (1) * * *

           *       *       *       *       *       *       *

          (4) Training.--
                  (A) * * *
                  (B) Limitation.--In establishing training 
                courses under this paragraph, the Attorney 
                General may not award any one entity other than 
                a law enforcement agency more than [$2,000,000] 
                $4,000,000 annually to establish and conduct 
                training courses for ICAC task force members 
                and other law enforcement officials.

           *       *       *       *       *       *       *


SEC. 105. NATIONAL INTERNET CRIMES AGAINST CHILDREN DATA SYSTEM.

  (a) * * *

           *       *       *       *       *       *       *

  (e) Collection and Reporting of Data.--
          (1) In general.--The National Internet Crimes Against 
        Children Data System established under subsection (a) 
        shall ensure the following:
                  (A) * * *
                  (B) High-priority suspects.--Every 30 days, 
                at minimum, the National Internet Crimes 
                Against Children Data System shall--
                          (i) identify high-priority suspects, 
                        as such suspects are determined by [the 
                        volume of suspected criminal activity 
                        or other] indicators of seriousness of 
                        offense or dangerousness to the 
                        community or a potential local victim; 
                        and

           *       *       *       *       *       *       *


SEC. 107. AUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--There are authorized to be appropriated to 
carry out this title--
          (1) * * *

           *       *       *       *       *       *       *

          (4) $60,000,000 for fiscal year 2012; [and]
          (5) $60,000,000 for fiscal year 2013[.];
          (6) $60,000,000 for fiscal year 2014;
          (7) $60,000,000 for fiscal year 2015;
          (8) $60,000,000 for fiscal year 2016;
          (9) $60,000,000 for fiscal year 2017; and
          (10) $60,000,000 for fiscal year 2018.

           *       *       *       *       *       *       *


                            Dissenting Views

                            I. INTRODUCTION

    H.R. 6063, the ``Child Protection Act of 2012,'' seeks to 
protect children from pornography and other forms of 
exploitation, but unfortunately falls short of this goal and 
presents several serious concerns. By creating a rebuttable 
presumption that shifts the burden of proof from the 
prosecution to the accused, the bill raises constitutional 
concerns. H.R. 6063 also establishes a new criminal offense 
that enhances penalties for both juveniles and adults for 
simple possession of child pornography, which will have 
significant negative consequences. In addition, the bill 
authorizes judges to issue protective orders in order to 
protect child victims and witnesses even though such 
authorization is unnecessary as current law effectively 
provides these protections and remedies for violations. 
Finally, the bill empowers the U.S. Marshals Service to issue 
administrative subpoenas and, as a result, removes crucial 
oversight by the Attorney General and presents the potential 
for abuse and misuse of such authority.
    For these reasons, and those described below, we 
respectfully dissent and urge our colleagues to oppose this 
legislation.

               II. DESCRIPTION OF THE BILL AND BACKGROUND

    H.R. 6063 amends several provisions of the PROTECT Our 
Children Act of 2008,\1\ which directs the United States 
Department of Justice to establish several critical initiatives 
to address juvenile pornography. The bill also amends title 18 
of the United States Code. H.R. 6063 is a revised version of 
H.R. 1981, the ``Protecting Children From Internet 
Pornographers Act of 2011,'' which was ordered reported by the 
Judiciary Committee earlier this Congress.\2\ H.R. 1981 failed 
to move to the House floor after significant concerns were 
raised about that legislation.\3\ While H.R. 6063 omits some of 
the more controversial aspects of H.R. 1981, it still contains 
several problematic provisions. This explains why organizations 
such as the American Civil Liberties Union, the Federal Public 
Defenders Association, the National Association of Criminal 
Defense Lawyers, and Human Rights Watch oppose this 
legislation.\4\
---------------------------------------------------------------------------
    \1\Pub. L. No. 110-401 (2008).
    \2\H.R. Rep. No. 112-281, pt. 1 (2011).
    \3\See, e.g., Doak Jantzen, House Panel Approves ISP Snooping Bill 
H.R. 1981, N.Y. Daily News, July 29, 2011.
    \4\Email from Jesselyn McCurdy, American Civil Liberties Union, to 
Nicole Pittman et al. (July 9, 2012, 5:50 PM) (on file with Committee 
on the Judiciary, Democratic staff).
---------------------------------------------------------------------------
    The following is a detailed summary of the bill's 
substantive provisions. Section 2 of the bill doubles the 
maximum penalty from ten to 20 years for simple possession of 
any visual depiction or image of child pornography involving a 
prepubescent minor or a minor under 12 years old. This new 
increased penalty would also apply to attempts and conspiracies 
to commit such crimes.
    The arguments for increasing penalties for these types of 
offenses are: (1) the perception that criminal possession of 
child pornography should be treated more seriously, and (2) 
some Federal courts have issued lesser sentences for child 
pornography offenses than what appeared to be warranted. It 
should be noted, however, that the current maximum penalty, 
with enhancements applied under the Sentencing Guidelines, may 
already may result in a prison term in excess of 20 years. In 
addition, there is simply no evidence that an individual 
possessing child pornography, when the maximum penalty is 10 
years, would be deterred should the penalty be increased to 20 
years. Similarly, there is no evidence that increased penalties 
deter recidivism. Thus, this increase serves no productive 
criminal justice purpose.
    Section 3(a) of the bill aims to increase protections for 
child victims and witnesses by requiring a court to issue 
protective orders when it finds evidence of harassment or 
intimidation that may adversely affect the willingness of a 
minor to testify or assist in the investigation of a case. 
Nevertheless, Federal law already allows courts to issue 
protection orders as a means of controlling witness harassment 
or intimidation,\5\ although some believe that these laws do 
not adequately address more subtle forms of harassment or 
intimidation directed at children.\6\ Section 3(b) directs the 
United States Sentencing Commission to review and increase, if 
appropriate, the current Federal Sentencing Guidelines and 
policy statements for certain specified crimes.
---------------------------------------------------------------------------
    \5\18 U.S.C. Sec. 1512.
    \6\See Unofficial Tr. of Markup of H.R. 6063, the ``Child 
Protection Act of 2012,'' by the H. Comm. on the Judiciary, 112th Cong. 
34 (2012) (statement of Rep. Lamar Smith (R-TX)) [hereinafter Markup 
Transcript], available at http://judiciary.house.gov/hearings/
Markups%202012/
PDF/Mark%2007102012/
7%2010%2012%20HR%203796%20HR%204362%20HR%206063%20HR
%206029% 20HR%206062%20HR%201950%20HR%206080%20HR%203803.pdf.
---------------------------------------------------------------------------
    Section 4 grants the United States Marshals Service (USMS) 
administrative subpoena power in cases involving unregistered 
sex offenders.\7\ This provision is not only problematic, but 
unnecessary. First, it would effectively allow the USMS to 
circumvent the normal, judicially-supervised subpoena protocol. 
The direct impact of section 4 is that it would remove crucial 
oversight by the Attorney General and thereby present the 
possibility for abuse and misuse of such authority. Second, 
section 4 is not needed because the Attorney General already 
has the authority to issue administrative subpoenas in 
investigations of Federal offenses involving the sexual 
exploitation of children. We can see no reason to authorize the 
Marshals Service to circumvent the existing protocol.
---------------------------------------------------------------------------
    \7\Persons convicted of certain sex-related Federal crimes are 
required to register with the Federal Gqovernment. See Adam Walsh Child 
Protection and Safety Act of 2006, Title I, Pub. L. No. 109-248, 120 
Stat. 587 (codified at 42 U.S.C. 16901 et seq.).
---------------------------------------------------------------------------
    Section 5 increases the funding limitation for training 
courses for Internet Crimes Against Children (ICAC) Task 
Forces, which help state and local law enforcement agencies 
develop effective responses to cyber enticement and child 
pornography cases. Developed in 1998, the ICAC program, in 
conjunction with Fox Valley College, the University of 
Massachusetts, Georgetown University, and the University of New 
Hampshire, developed online tools, including RoundUp, that 
identify offenders through their use of peer2peer file sharing 
networks to download or trade child pornography. RoundUp has 
access to a digital library of 400,000 images collected by the 
National Center for Missing and Exploited Children, 
Immigrations and Customs Enforcement (ICE), the Federal Bureau 
of Investigation (FBI), and other law enforcement agencies. To 
date, approximately 1,500 law enforcement officers have been 
trained to use RoundUp and other systems of online tools.
    The PROTECT Our Children Act of 2008 established a national 
ICAC Task Force Program and authorized funding for technical 
training programs for ICAC investigators. Unfortunately, the 
Act imposed a $2 million annual cap for training expenditures, 
which has stifled the Program's ability to adequately train 
ICAC investigators at a time when rapid technological changes 
in the Internet and communications have increasingly enabled 
pedophiles to hide from law enforcement. Continual training of 
ICAC investigators and upgrades in investigative tools are 
necessary. The removal of the funding cap would allow the 
Department of Justice to award funding based on the training 
needs of the ICAC task forces. There are currently 68 
coordinated task forces representing more than 2,000 Federal, 
state and local law enforcement and prosecutorial agencies.
    Section 6 amends section 101(d)(1) of the PROTECT Our 
Children Act of 2008\8\ to strengthen the qualification 
requirements for the individual who serves as the National 
Coordinator for Child Exploitation Prevention and Interdiction. 
It also specifies that this position would be in the Senior 
Executive Service. Section 7 amends section 107(a) of the Act 
to authorize funding in the amount of $60 million for each of 
fiscal years 2014 through 2018. Section 8 makes a clarifying 
amendment to section 105(e)(1)(B)(I) of the Act.
---------------------------------------------------------------------------
    \8\42 U.S.C. Sec. 17611(d)(1).
---------------------------------------------------------------------------
    Section 9 directs the Attorney General, not later than 90 
days after the date of enactment of H.R. 6063 to submit to the 
House and Senate Committees on the Judiciary a report on the 
status of the Attorney General's establishment of the National 
Internet Crimes Against Children Data System required under 
section 105 of the PROTECT Our Children Act of 2008.

                 III. PRINCIPAL CONCERNS WITH H.R. 6063

A. LH.R. 6063 Includes an Unconstitutional Provision That Shifts the 
        Burden of Proof to the Defendant
    Section 3(d)(2) of the bill provides for a rebuttable 
presumption that ``the distribution or publication, using the 
Internet, of a photograph of, or restricted personal 
information regarding, a specific person serves no legitimate 
purpose.'' This provision would shift the burden of proof from 
the accuser to the accused in a criminal charge of violating a 
protective order by harassment or intimidation, thereby 
requiring that the defendant prove that such distribution or 
publication is for a legitimate purpose. Under current law, the 
burden is on the accuser to establish this element of the 
charge of harassment or intimidation. It is not the defendant's 
burden to do so.\9\
---------------------------------------------------------------------------
    \9\Coffin v. United States, 165 U.S. 432 (1895) (``the presumption 
of innocence is evidence in favor of the accused introduced by law in 
[their] behalf'').
---------------------------------------------------------------------------
    The Due Process Clauses of the Fifth and Fourteenth 
Amendments ``protect the accused against conviction except upon 
proof beyond a reasonable doubt of every fact necessary to 
constitute the crime with which he is charged.''\10\ This 
``bedrock `axiomatic and elementary' [constitutional] 
principle''\11\ bars the prosecution from using evidentiary 
presumptions in a jury charge that have the effect of relieving 
the government of its burden of persuasion beyond a reasonable 
doubt of every essential element of a crime.\12\
---------------------------------------------------------------------------
    \10\In re Winship, 397 U.S. 358, 364 (1979).
    \11\Id. at 363.
    \12\Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979).
---------------------------------------------------------------------------
    The seminal cases with regard to the creation of mandatory 
presumptions are Sandstrom v. Montana,\13\ and Francis v. 
Franklin.\14\ In Francis, for example, the presumption at issue 
provided that the ``acts of a person of sound mind and 
discretion are presumed to be the product of the person's will, 
but the presumption may be rebutted. A person of sound mind and 
discretion is presumed to intend the natural and probable 
consequences of his acts but the presumption may be 
rebutted.''\15\ The government argued in Francis that the 
constitutional issue was vitiated by the defendant's ability to 
rebut the presumption. The Supreme Court, however, found this 
argument unavailing.\16\ As Justice Brennan explained, ``A 
mandatory presumption instructs the jury that it must infer the 
presumed fact if the State proves certain predicate 
facts.''\17\ Such a presumption can be conclusive or 
rebuttable.\18\ The key is whether it is mandatory, i.e., 
whether the jury must make such a presumption (possibly subject 
to rebuttal) if the state proves certain facts. In light of the 
fact that section 3(d)(2) of the bill explicitly mandates that 
the court ``shall presume'' that there was ``no legitimate 
purpose,'' this provision appears to be the kind of 
``mandatory, rebuttable''\19\ presumption that the Court 
repudiated in Sandstrom and Francis.\20\
---------------------------------------------------------------------------
    \13\442 U.S. 510 (1979).
    \14\471 U.S. 307 (1985).
    \15\Francis, 471 U.S. at 315.
    \16\Francis, 471 U.S. at 315-316.
    \17\Id. at 314.
    \18\Id. at 314 n. 2.
    \19\See Sandstrom, 442 U.S. 520-524; Francis, 471 U.S. at 317.
    \20\Id.
---------------------------------------------------------------------------
    An irrebuttable or conclusive presumption relieves the 
government of its burden of persuasion by removing the presumed 
element from the case entirely if the government proves the 
predicate facts.\21\ A mandatory rebuttable presumption does 
not remove the presumed element from the case if the government 
proves the predicate facts, but it nonetheless relieves the 
government of the affirmative burden of persuasion on the 
presumed element by instructing the jury that it must find the 
presumed element unless the defendant persuades the jury not to 
make such a finding.\22\ A mandatory rebuttable presumption is 
perhaps less onerous from the defendant's perspective, but it 
is no less unconstitutional. The cases make clear that ``[s]uch 
shifting of the burden of persuasion with respect to a fact 
which the State deems so important that it must be either 
proved or presumed is impermissible under the Due Process 
Clause.''\23\
---------------------------------------------------------------------------
    \21\Id. at 317.
    \22\Id.
    \23\Francis, 471 U.S. at 317 (quoting Patterson v. New York, 432 
U.S. 197, 215 (1977)).
---------------------------------------------------------------------------
    Representative Robert C. ``Bobby'' Scott (D-VA) offered an 
amendment to remove the rebuttable presumption provision from 
the bill,\24\ but it was defeated by a vote of 12 to 13, with 
one Majority member voting in favor.\25\
---------------------------------------------------------------------------
    \24\See Markup Transcript at 37.
    \25\Id. at 69.
---------------------------------------------------------------------------
B. LH.R. 6063 Unnecessarily Increases Penalties for Simple Possession 
        of Child Pornography
    H.R. 6063 substantially increases penalties for simple 
possession of child pornography based on the misunderstanding 
that Federal courts are increasingly issuing lower sentences 
for child pornography offenses. The bill's proponents, for 
example, claim that the rate of within-Guideline range 
sentences for child pornography possession dropped from 62.6% 
to 39.6% from 2006 to 2010. In reality, however, average 
sentence lengths in these cases substantially increased from 
96.7 months in 2006 to 117.8 months in 2009.\26\ In 2010, the 
U.S. Sentencing Commission changed its reporting categories to 
break out the average sentence length for defendants convicted 
of ``child pornography'' offenses, which includes only 
possession, receipt, and distribution of child pornography. 
Average sentence length for this new category was 118 months in 
2010 and is 141 months in the first quarter of 2012.\27\ During 
that same period, the number of possession cases receiving 
sentencing departures jumped from 61 (25.6%) to 394 (44%).
---------------------------------------------------------------------------
    \26\See U.S. Sentencing Commission, 1996-2009 Sourcebook of Federal 
Sentencing Statistics, table 13.
    \27\Before 2010, the Commission reported average sentence length 
for defendants convicted of ``Pornography/Prostitution'' offenses, 
which included not only possession, receipt and distribution of child 
pornography, but direct exploitation of minors. Average sentence length 
in these cases skyrocketed from 29.1 months in 1996 to 117.8 months in 
2009.
---------------------------------------------------------------------------
    The bill's proponents also fail to realize that judges 
depart downward from current sentencing guideline levels to 
determine a just and appropriate sentence pursuant to the 1984 
Sentencing Reform Act's directive to consider all of the facts 
and circumstances in a case.
    The question is whether such departures reflect rational 
sentencing in the face of irrational sentencing policies, or a 
tendency of Federal judges to be lenient on the sexual 
exploitation of children. The evidence suggests the former. In 
its haste to simply increase punishments through statutory and 
mandated sentencing guideline schemes, Congress has created 
irrationalities that judges are required under law to 
reconcile. Under the current scheme for punishing child 
pornography offenses, mere possession of child pornography 
through a file sharing arrangement of unsolicited and even 
unintended receipt of child pornography images can, based on 
the number of such images and the ages of the children 
depicted, result in as much time as intentional distribution or 
production of such images. In determining the appropriate 
sentence, a judge must consider actual culpability and the 
impact of a defendant's actions. It is with respect to these 
mere possession cases where there have been downward 
departures. Even with such departures, however, sentences for 
child pornography cases have increased an average of over 500% 
in the past 15 years.\28\ Accordingly, we believe such 
departures reflect rational sentencing in the face of 
irrational sentencing policies, not a tendency of Federal 
judges to be lenient on the sexual exploitation of children.
---------------------------------------------------------------------------
    \28\See U.S. Sentencing Commission, 1996-2009 Sourcebook of Federal 
Sentencing Statistics, table 13.
---------------------------------------------------------------------------
C. LExisting Federal Laws Provide Adequate Protection for All 
        Witnesses, Including Children
    For several reasons, we question the necessity of the 
provision that seeks to protect child victims and witnesses, 
not only in child exploitation cases but in any criminal 
investigation or prosecution, by making it a crime to violate a 
civil protective order. First, Federal laws already provide 
judges with the power to protect witnesses, including child 
witnesses, with harsh penalties to address witness harassment 
or intimidation.\29\ Moreover, judges have contempt powers to 
enforce their orders. In fact, one provision in this bill 
authorizes judges to issue protective orders sua sponte, while 
another provision (establishing the new criminal offense for 
violating such an order) is left up to the prosecutor. Thus, 
even if a judge does not find that a violation of the court 
order has occurred, the prosecutor can charge and prosecute an 
alleged violation. At best, such a provision is redundant, and 
is certainly unnecessary for the court or the prosecutor to 
protect victims or witnesses from harassment or intimidation.
---------------------------------------------------------------------------
    \29\18 U.S.C. Sec. Sec. 1512, 1513 and 1514.
---------------------------------------------------------------------------
    Second, this provision is yet another example of the 
general problem of over-criminalization and over-federalization 
of crime. In recent years, there has been bipartisan concern 
regarding the over-criminalization of activities and over-
federalization of crime.\30\ There are now more than 4,000 
Federal criminal offenses together with an estimated 300,000 
Federal regulations that impose criminal penalties, often 
without clearly setting out what will subject a person to 
criminal liability.\31\ Accordingly, we should avoid adding 
more crimes and penalties to the Federal law that are 
unjustifiably punitive, ambiguous, or superfluous.
---------------------------------------------------------------------------
    \30\See Over-Criminalization of Conduct/Over-Federalization of 
Criminal Law: Hearing Before the Subcomm. on Crime, Terrorism, and 
Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2009) 
(statements of Crime Subcomm. Chairman Robert C. ``Bobby'' Scott, Crime 
Subcomm. Ranking Member Louie Gohmert (R-TX), Representative Sheila 
Jackson Lee (D-TX) and Representative Ted Poe (R-TX)); see also Reining 
in Overcriminalization: Assessing the Problem, Proposing Solutions: 
Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security 
of the H. Comm. on the Judiciary, 111th Cong. (2010) (statements of 
Crime Subcomm. Chairman Robert C. Bobby Scott, Crime Subcomm. Ranking 
Member Louie Gohmert, Committee Chair John Conyers, Jr. (D-MI), and 
Representative Ted Poe).
    \31\Id.
---------------------------------------------------------------------------
    Third, our resources would be better spent ensuring that 
children do not become victims and that victims will receive 
justice. A recent Government Accountability Office (GAO) study 
identified the difficulties that law enforcement agencies 
encounter in developing the evidence as they investigate sexual 
exploitation cases.\32\ For example, computer forensics is a 
painstaking and tedious undertaking, particularly given the 
vast number of computers and data systems. As a result, a great 
backlog due to manpower shortages has evolved. Moreover, 
research indicates that there is a direct correlation between 
reducing crime and prosecuting more cases, but not with 
increasing punishments in the few cases that are 
prosecuted.\33\
---------------------------------------------------------------------------
    \32\U.S. Government Accountability Office, Combating Child 
Pornography: Steps Are Needed To Ensure That Tips To Law Enforcement 
Are Useful and Forensic Examinations Are Cost Effective, GAO-11-334 
(2011).
    \33\See, e.g., Ryan S. King et al., Incarceration and Crime: A 
Complex Relationship, The Sentencing Project (2005); Alfred Blumstein & 
James Q. Wilson, Expert Q & A, The Pew Center on the States (Apr. 
2008).
---------------------------------------------------------------------------
    This bill was introduced on June 29, 2012, and pushed 
through Committee markup just 12 days later on July 10, 2012. 
The better approach would have been to hold a hearing and 
obtain evidence of existing funding levels and other gaps in 
our efforts to protect children. It is yet another attempt to 
address a serious problem by enhancing criminal penalties on 
both juveniles and adults without any evidence justifying their 
need and effectiveness.
    Representative Scott offered an amendment to strike the 
language establishing a new criminal offense for violations or 
attempts to violate a civil protective order.\34\ In offering 
this amendment, Representative Scott cited provisions of 
current law that effectively provide these protections as well 
as remedies for violations. He also voiced concerns that the 
authority to enforce these protection orders adds nothing to 
the court's power to protect victims or witnesses, as the 
discretion to apply the statute is given to prosecutors. 
Finally, Representative Scott raised concerns about the 
possibility of a violation being triggered by a minor or 
harmless and unintentional act, such as a phone call or a 
posting of a family photo album that includes a victim's or 
witness' picture, which, while a violation of the court order, 
does not involve an attempt to intimidate or harass a witness. 
Unfortunately, this amendment failed on a voice vote.
---------------------------------------------------------------------------
    \34\See Markup Transcript at 32.
---------------------------------------------------------------------------
D. LAuthorizing the Use of Administrative Subpoenas by the U.S. 
        Marshals Service Is Unwarranted
    We oppose section 4(a) of the bill, which would authorize 
the USMS to issue administrative subpoenas in cases involving 
unregistered sex offenders. This unprecedented expansion of 
administrative subpoena power circumvents the normal, 
judicially-supervised subpoena process and grants the USMS 
unfettered authority to investigate cases in which child 
pornography is not an issue.
    Under current law, the Attorney General already has the 
authority to issue administrative subpoenas in investigations 
of ``a Federal offense involving the sexual exploitation or 
abuse of children.''\35\ Section 4(a), however, would allow the 
USMS to issue administrative subpoenas, not to investigate 
actual offenses against children, but to investigate 
nonregistration of former offenders ``even if [the 
nonregistered offender] is not suspected of any new sex 
crime,''\36\ and even though research shows that there is no 
difference in recidivism rates between former offenders who 
comply with registration requirements and former offenders who 
do not.\37\
---------------------------------------------------------------------------
    \35\18 U.S.C. Sec. 3486(a)(1)(A)(i)(II).
    \36\Letter from Laura W. Murphy, Dir., American Civil Liberties 
Union, Washington Legislative Office to Chairman Lamar Smith and 
Ranking Member John Conyers, Jr., H. Comm. on the Judiciary (July 20, 
2011) (conveying the ACLU's opposition to H.R. 1981).
    \37\Reauthorization of the Adam Walsh Act: Hearing Before the H. 
Comm. on the Judiciary, 112th Cong. 63 (2011) (statement of Dawn Dorna, 
Deputy Dir., Sex Offender Sentencing, Monitoring, Apprehending, 
Registering, and Tracking Office, U.S. Dep't of Justice).
---------------------------------------------------------------------------
    Further, this provision would allow the USMS itself to 
issue subpoenas without oversight from either the Attorney 
General or the courts. This broad delegation of unsupervised 
power to lower-level executive officials is without precedent. 
As a result of this provision, the USMS would have more 
authority than the Secret Service has when confronted with an 
imminent threat against a President. There is simply no 
exigency warranting giving such extraordinary power to the 
USMS. As former Assistant Attorney General Robert Raben 
explained about the authority given the Attorney General to 
issue administrative subpoenas in health care fraud cases:

        The administrative subpoena power . . . reflects a 
        delicate balancing of law enforcement, oversight, and 
        privacy needs and issues, all within the limited 
        context of health care fraud investigations. This 
        [provision] . . . was part of a special health care 
        fraud and abuse initiative. . . . [It] was not 
        anticipated to serve as a vehicle by which to expand 
        administrative subpoena authority to other Cabinet 
        officers for special types of investigations unrelated 
        to health care fraud.\38\
---------------------------------------------------------------------------
    \38\Letter from Robert Raben, Ass't Att'y Gen., to Rep Henry Hyde 
(R-IL), Chairman, H. Comm on the Judiciary (June 9, 2000), quoted in 
H.R. Rep. 106-669, at 14-15 (2000).

    Even if it could be demonstrated that the USMS needs this 
extraordinary power, the appropriate way to grant this 
authority would be to have the cabinet-level Attorney General--
not the lower-level director of the USMS--issue these 
administrative subpoenas, as is done with the Secret Service. 
Although Representative Scott offered an amendment to 
effectuate this safeguard, the Committee defeated it. 
Representative Scott also offered an amendment to strike the 
administrative subpoena provisions from the legislation. That 
amendment was also defeated.

                             IV. CONCLUSION

    While we appreciate the legislative intent of H.R. 6063, 
which is to provide greater protections to children who are 
victims of sexual abuse, the bill not only fails to obtain that 
objective, but presents serious constitutional concerns and 
includes problematic provisions. In its haste to rush this 
legislation through the deliberative process, the Majority has 
ended up with a bill that is unconstitutional, unnecessary, and 
duplicative of existing Federal law. As reported, the bill 
includes an unconstitutional rebuttable presumption. H.R. 6063 
is also unnecessary as a comprehensive statutory scheme already 
exists to assist judges and law enforcement officials in 
protecting witnesses in Federal criminal proceedings. In 
addition, existing Federal criminal laws carry heavy penalties 
and provide all of the necessary authority judges need to enter 
and enforce protective orders for the protection of all 
witnesses, including children. Finally, current law, for good 
reason, limits administrative subpoena authority to both the 
Attorney General and the Secretary of the Treasury. We do not 
see the need to extend that authority to the U.S. Marshals 
Service in cases of child exploitation, and we prefer to adhere 
to the current policy of ensuring adequate oversight by having 
the Director of the Marshals Service certify the need to the 
Attorney General. The subpoena authorized in this bill provides 
none of the oversight protections against abuse or misuse.
    For these reasons, we respectfully dissent and urge our 
colleagues to oppose this bill.

                                   John Conyers, Jr.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.

                                  
