79–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–920

CHILD SEX CRIMES WIRETAPPING ACT OF 1999

OCTOBER 2, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. MCCOLLUM, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 3484]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 3484) amending title 18, United States Code, to provide that

certain sexual crimes against children are predicate crimes for the

interception of communications, and for other purposes, having considered the same, reports favorably thereon without amendment

and recommends that the bill do pass.

TABLE OF CONTENTS

Page

Purpose and Summary .............................................................................. 2

Background and Need for the Legislation ................................................ 2

Hearings ...................................................................................................... 3

Committee Consideration .......................................................................... 3

Vote of the Committee ............................................................................... 3

Committee Oversight Findings ................................................................. 3

Committee on Government Reform Findings .......................................... 3

New Budget Authority and Tax Expenditures ........................................ 4

Congressional Budget Office Cost Estimate ............................................ 4

Constitutional Authority Statement ......................................................... 5

Section-by-Section Analysis and Discussion ............................................ 5

Changes in Existing Law Made by the Bill, as Reported ....................... 5

Dissenting Views ........................................................................................ 9

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PURPOSE AND SUMMARY

H.R. 3484 is designed to enable law enforcement officials to better protect children from sex predators by giving them an additional tool to use in child sex crime investigations. H.R. 3484 would

add three crimes as new wiretap predicates. The crimes added by

the bill are: 18 U.S.C. § 2252A, which deals with child pornography;

18 U.S.C. § 2422, which deals with coercion and enticement to engage in prostitution or other illegal sexual activity; and 18 U.S.C.

§ 2423, relating to transportation of minors to engage in prostitution or other illegal sexual activity.

BACKGROUND AND NEED FOR THE LEGISLATION

Under current law, law enforcement agencies may only seek

court authority to use a wiretap in investigations of a limited number of crimes. The crimes as to which a wiretap may be used to investigate, commonly called ‘‘wiretap predicates,’’ are set forth in 18

U.S.C. § 2516(1). In every case, law enforcement authorities must

seek a court order authorizing the use of the wiretap. Some crimes

involving the sexual exploitation of children are already wiretap

predicates, but several are not.

In recent years, due to the dramatic increase in the use of the

Internet by persons intent on luring children into sexual activities,

law enforcement agencies have been turning their attention with

greater frequency to statutes that involve enticing children. Predators often engage children in conversations in ‘‘chat rooms’’ in order

to entice them into sex. Some send child pornography to their potential victims in order to lower their natural defenses to the sexual advances of adults. After these contacts are made, predictors

will often travel to meet their prey, or encourage the child to travel

to meet them. Fortunately, acts that involve enticing a person to

travel in interstate or foreign commerce in order to engage in illegal sexual activities and traveling in interstate commerce for illegal

sexual purposes are already crimes under Federal law. The benefit

of these statutes in cases where the victim is a child is that the

government does not have to wait until the abuse of the child occurs to act. Catching and punishing predictors who are enticing

children to engage in sex, stops them before they can inflict greater

harm on the child.

The Federal crimes that punish the acts which sex predators

commonly use to entice children into engaging in sex with them are

not wiretap predicates. Yet many times, some aspect of the interaction between the predator and the child will occur over the telephone. If law enforcement is unable to monitor the predator’s conversation with the child they are put at a disadvantage in their effort to apprehend the predator before he meets with and physically

harms the child. H.R. 3484 would fill this gap in the investigative

resources available to law enforcement in these investigations.

The bill will add three crimes as new wiretap predicates. The

crimes added by the bill are: 18 U.S.C. § 2252A, which deals with

child pornography; 18 U.S.C. § 2422, which deals with coercion and

enticement to engage in prostitution or other illegal sexual activity;

and 18 U.S.C. § 2423, relating to transportation of minors to engage

in prostitution or other illegal sexual activity. The crimes of section

2423(b) and 2252A were only added to the Federal Criminal Code

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1Subsection (b) of section 2423 was added by the Violent Crime Control and Law Enforcement

Act of 1994, Public Law 103–322, title XVI, § 160001(g); Section 2252A was added by the Omnibus Consolidated Appropriations Act of 1997, Public Law 104–208, Div. A, Title I, § 101(a) [Title

I, Sec. 121]. 2See 18 U.S.C. § 2516 (1)(c).

in the last 6 years and, at the time of their enactment, no corresponding amendments to section 2516 were made in order to add

these crimes as wiretap predicates. However, as both of these

crimes were enacted as part of much larger, omnibus bills,1 this

omission may have been simply an oversight. This is especially the

case in the instance of section 2252A, given that section 2252, a

crime very similar to the section 2252A offense, was a wiretap

predicate at the time section 2252A was enacted and remains one

today.2 And while the crimes in section 2422 and 2423(a) have

been part of the Federal criminal code for some time, the increasing use of the Internet has brought renewed use of these statutes

to punish criminals.

The committee believes that law enforcement officials should be

given every appropriate tool with which to protect children from

those who seek to harm them. Accordingly, the committee favorable

reports this bill.

HEARINGS

The committee’s Subcommittee on Crime held 1 day of hearings

on H.R. 3484 on July 13, 2000. Testimony was received from 3 witnesses, representing 3 organizations, with no additional material

submitted.

COMMITTEE CONSIDERATION

On July 20, 2000, the Subcommittee on Crime met in open session and ordered favorably reported the bill H.R. 3484, by a voice

vote, a quorum being present. On September 20, 2000, the committee met in open session and ordered favorably reported the bill

H.R. 3484 without amendment by voice vote, a quorum being

present.

VOTE OF THE COMMITTEE

No recorded votes were taken in the Full Committee.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the committee reports that the findings

and recommendations of the committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

COMMITTEE ON GOVERNMENT REFORM FINDINGS

No findings or recommendations of the Committee on Government Reform were received as referred to in clause 3(c)(4) of rule

XIII of the Rules of the House of Representatives.

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NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House Rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the committee sets forth, with respect to

the bill, H.R. 3484, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, September 27, 2000.

Hon. HENRY J. HYDE, Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3484, the Child Sex

Crimes Wiretapping Act of 1999.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Mark Grabowicz, who

can be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers Jr.

Ranking Democratic Member

H.R. 3484—Child Sex Crimes Wiretapping Act of 1999.

CBO estimates that implementing H.R. 3484 would not result in

any significant cost to the federal government. Enacting H.R. 3484

could affect direct spending and receipts; therefore, pay-as-you-go

procedures would apply to the bill, but CBO estimates that any

such effects would not be significant. H.R. 3484 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would not affect state, local, or

tribal governments.

H.R. 3484 would add certain sexual crimes against children to

the list of offenses for which wiretaps and other interceptions of

communications can be authorized. Implementing the bill could result in more successful investigations and prosecutions in cases involving such crimes. CBO expects that any increase in costs for law

enforcement, court proceedings, or prison operations would not be

significant because of the small number of cases likely to be affected. Any such additional costs would be subject to the availability of appropriated funds.

Because those prosecuted and convicted under H.R. 3484 could

be subject to criminal fines, the federal government might collect

additional fines if the bill is enacted. Collections of such fines are

recorded in the budget as governmental receipts (revenues), which

are deposited in the Crime Victims Fund and spent in subsequent

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years. CBO expects that any additional receipts and direct spending would be negligible because of the small number of cases involved.

The CBO staff contact for this estimate is Mark Grabowicz, who

can be reached at 226–2860. This estimate was approved by Peter

H. Fontaine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the committee finds the authority for this legislation in Article I, section 8, clause 3 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Sec. 1. Short Title.

Section 1 of the bill states the short title of the act as the Child

Sex Crimes Wiretapping Act of 1999.

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

Section 2 of the bill adds three crimes as new wiretap predicates

in section 2516 of title 18 of the United States Code. The title 18

crimes added by the bill are section 2252A, which deals with child

pornography; section 2422, which deals with coercion and enticement to engage in prostitution or other illegal sexual activity; and

section 2423, relating to transportation of minors to engage in prostitution or other illegal sexual activity.

Sec. 3. Technical Amendment Eliminating Duplicative Provision

Section 3 of the bill makes a technical correction to section

2516(1) of title 18. Each of the wiretap predicates listed in paragraph (p) of that section are also listed as wiretap predicates in

other paragraphs of that section. In short, paragraph (p) is redundant and section 3 of the bill deletes it.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

SECTION 2516 OF TITLE 18, UNITED STATES CODE

§ 2516. Authorization for interception of wire, oral, or electronic communications

(1) The Attorney General, Deputy Attorney General, Associate

Attorney General, or any Assistant Attorney General, any acting

Assistant Attorney General, or any Deputy Assistant Attorney

General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction

for, and such judge may grant in conformity with section 2518 of

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this chapter an order authorizing or approving the interception of

wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation

of the offense as to which the application is made, when such interception may provide or has provided evidence of—

(a) * * ** * * *

(c) any offense which is punishable under the following

sections of this title: section 201 (bribery of public officials and

witnesses), section 215 (relating to bribery of bank officials),

section 224 (bribery in sporting contests), subsection (d), (e), (f),

(g), (h), or (i) of section 844 (unlawful use of explosives), section

1032 (relating to concealment of assets), section 1084 (transmission of wagering information), section 751 (relating to escape), section 1014 (relating to loans and credit applications

generally; renewals and discounts), sections 1503, 1512, and

1513 (influencing or injuring an officer, juror, or witness generally), section 1510 (obstruction of criminal investigations),

section 1511 (obstruction of State or local law enforcement),

section 1751 (Presidential and Presidential staff assassination,

kidnapping, and assault), section 1951 (interference with commerce by threats or violence), section 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises), section 1958 (relating to use of interstate commerce facilities in the commission of murder for hire), section 1959 (relating to violent crimes in aid of racketeering activity), section

1954 (offer, acceptance, or solicitation to influence operations of

employee benefit plan), section 1955 (prohibition of business

enterprises of gambling), section 1956 (laundering of monetary

instruments), section 1957 (relating to engaging in monetary

transactions in property derived from specified unlawful activity), section 659 (theft from interstate shipment), section 664

(embezzlement from pension and welfare funds), section 1343

(fraud by wire, radio, or television), section 1344 (relating to

bank fraud), sections 2251 and 2252 (sexual exploitation of

children), section 2252A (relating to material constituting or

containing child pornography), sections 2312, 2313, 2314, and

2315 (interstate transportation of stolen property), section 2321

(relating to trafficking in certain motor vehicles or motor vehicle parts), section 2422 (relating to coercion and enticement),

section 2423 (relating to transportation of minors) section 1203

(relating to hostage taking), section 1029 (relating to fraud and

related activity in connection with access devices), section 3146

(relating to penalty for failure to appear), section 3521(b)(3)

(relating to witness relocation and assistance), section 32 (relating to destruction of aircraft or aircraft facilities), section 38

(relating to aircraft parts fraud), section 1963 (violations with

respect to racketeer influenced and corrupt organizations), section 115 (relating to threatening or retaliating against a Federal official), and section 1341 (relating to mail fraud), section

351 (violations with respect to congressional, Cabinet, or Supreme Court assassinations, kidnapping, and assault), section

831 (relating to prohibited transactions involving nuclear materials), section 33 (relating to destruction of motor vehicles or

motor vehicle facilities), section 175 (relating to biological

weapons), section 1992 (relating to wrecking trains), a felony

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violation of section 1028 (relating to production of false identification documentation), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426

(relating to the reproduction of naturalization or citizenship

papers), section 1427 (relating to the sale of naturalization or

citizenship papers), section 1541 (relating to passport issuance

without authority), section 1542 (relating to false statements in

passport applications), section 1543 (relating to forgery or false

use of passports), section 1544 (relating to misuse of passports), or section 1546 (relating to fraud and misuse of visas,

permits, and other documents);

* * * * * * *

(o) any violation of section 5861 of the Internal Revenue

Code of 1986 (relating to firearms); or

ø(p) a felony violation of section 1028 (relating to production of false identification documents), section 1542 (relating to

false statements in passport applications), section 1546 (relating to fraud and misuse of visas, permits, and other documents) of this title or a violation of section 274, 277, or 278 of

the Immigration and Nationality Act (relating to the smuggling

of aliens); or¿

* * * * * * *

(9)

DISSENTING VIEWS

Wiretap authority is invasive and should be extended only when

absolutely necessary. It allows Federal employees to listen in on

private personal conversations, most of which will, undoubtedly,

have nothing to do with criminal activity.

The current Congressionally approved wiretap authority dates

back to the 1968 crime bill. The primary intent of the provision

was to permit a limited use of electronic surveillance of organized

crime and gambling groups, although it was envisioned as a tool

of last resort even under those circumstances. Since that time, the

Act has been amended over a dozen times with now over 50 predicate crimes to which wiretap authority may be obtained. Regrettably, a number of those predicates involve relatively minor criminal activity such as lying on a passport application. So, now the argument goes ‘‘if we amended the wiretap authority to add ‘x’, we

certainly should amend it to add ‘y’, a much more serious offense.’’

As a result, wiretaps are becoming routine, rather than an extraordinary procedure to be used only as a last resort. And given the

level of effectiveness of today’s technology, wiretaps have the potential for being much more invasive. While we are prepared to support some extension of Federal wiretap authority, we believe the

present bill goes too far in putting in the hands of law enforcement

a procedure recognized to be so evasive of the rights of citizens in

a free society that it can only be made available for use under circumstances specifically approved by Congress.

The original bill added as wiretap predicates three sections

under Title 18 of the Federal criminal code relating to sex crimes

against children—sections 2252(A), 2422, and 2423. Section

2252(A), among other things, includes computer generated depictions of child pornography. It’s a provision which is too broad to

merit expanding the already too intrusive wiretapping authority.

Section 2422 prohibits coercion and enticement to travel in interstate or foreign commerce to engage in any illegal sexual activity,

and 2423 prohibits a broad range of misconduct (i.e., transportation

of a minor to engage in sexual activity which constitutes any criminal offense).

Mr. Scott offered an amendment at Full Committee Markup

which would have eliminated section 2252(A) as wiretap predicate.

That amendment was defeated. While the Majority agreed, at Mr.

Scott’s suggestion, to limit the extension of wiretap authority under

2422, and 2423 to situations which involve offenses which constitute a Federal felony if committed on Federal lands, we continue

to believe that 2423(b), which makes it an offense to travel with

the intent, or thought, of committing any sex crime, is too remote

to warrant making it a predicate offense for wiretap authority.

We recognize that supporters of this bill would argue that given

the types of crimes for which wiretap authority can now be sought,

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adding any sex crime against children as wiretap predicate would

seem to be more than justified. However, in our view, further extension of this extraordinary power should not be justified by unjustified, or less justified, extensions in the past. Just because we

did it wrong before, doesn’t mean we have to do it wrong again.

We also dissent from the bill because sexual exploitation of children is already a crime that is a wiretap predicate. Much of the

activity which would be covered by the current bill would involve

State misdemeanor activity or activity which may not be illegal in

the country in which it is pursued. Given the four year age differential in statutory rape cases, this legislation would authorize

Federal wiretap authority in a case where an 19 year old makes

arrangements through email to travel from DC to Virginia to engage in sex with a 15 year old and show her dirty pictures. Ironically, being caught in bed with the 15 year old would not be a Federal offense, but showing her the dirty pictures would be.

Similarly, if the girl lived in Scandinavia, where, like the drug

laws, the sex laws may be much different than in the U.S., and the

19 year old boyfriend traveled there to have sex with her, this

would constitute a wiretap predicate under the bill. While it is one

thing to make illegal such otherwise not illegal activity for anyone

leaving the U.S., it is another thing to let ‘‘big brother’’ eavesdrop

on it through wiretap.

Moreover, it is clear from the list of already existing sex crime

offenses that much of the more serious activity for which proponents of the legislation are seeking to justify wiretap extension

(e.g., ‘‘sexual exploitation of children’’) are already covered by wiretap authority. And all of it is already covered by email confiscation

authority and other investigatory techniques. So, it is not clear to

me what is missing in current investigations of the crimes listed

in the bill, including some very minor crimes, which would require

the extraordinary procedure of wiretap. Wiretap is an intrusive

procedure which was designed to be authorized only as a last resort

to prevent very serious crimes. Since there are other effective ways

to prosecute the crimes in this bill, we believe this extension of

wiretap authority is not warranted.

ROBERT C. SCOTT.

MAXINE WATERS.

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