```

[House Report 115-137]
[From the U.S. Government Publishing Office]

115th Congress    }                                          {    Report
                         HOUSE OF REPRESENTATIVES
 1st Session      }                                          {   115-137

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

 
           PROTECTING AGAINST CHILD EXPLOITATION ACT OF 2017

                                _______
                                

  May 22, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1761]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1761) to amend title 18, United States Code, to 
criminalize the knowing consent of the visual depiction, or 
live transmission, of a minor engaged in sexually explicit 
conduct, and for other purposes, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     4
Hearings.........................................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Duplication of Federal Programs..................................    10
Disclosure of Directed Rule Makings..............................    10
Performance Goals and Objectives.................................    10
Advisory on Earmarks.............................................    10
Section-by-Section Analysis......................................    10
Changes in Existing Law Made by the Bill, as Reported............    11
Dissenting Views.................................................    15

                             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 ``Protecting Against Child Exploitation 
Act of 2017''.

SEC. 2. SEXUAL EXPLOITATION OF CHILDREN.

  Section 2251 of title 18, United States Code, is amended--
          (1) by amending subsections (a) and (b) to read as follows:
  ``(a) Any person who, in a circumstance described in subsection (f), 
knowingly--
          ``(1) employs, uses, persuades, induces, entices, or coerces 
        a minor to engage in any sexually explicit conduct for the 
        purpose of producing any visual depiction of such conduct, or 
        transmitting a live visual depiction of such conduct;
          ``(2) produces or causes to be produced a visual depiction of 
        a minor engaged in any sexually explicit conduct where the 
        production of such visual depiction involves the use of a minor 
        engaging in sexually explicit conduct and such visual depiction 
        is of such conduct;
          ``(3) transmits or causes to be transmitted a live visual 
        depiction of a minor engaged in any sexually explicit conduct;
          ``(4) has a minor assist any other person to engage in any 
        sexually explicit conduct during the commission of an offense 
        set forth in paragraphs (1) through (3) of this subsection; or
          ``(5) transports any minor in or affecting interstate or 
        foreign commerce with the intent that such minor be used in the 
        production or live transmission of a visual depiction of a 
        minor engaged in any sexually explicit conduct,
shall be punished as provided under subsection (e).
  ``(b) Any parent, legal guardian, or person having custody or control 
of a minor who, in a circumstance described in subsection (f), 
knowingly permits such minor to engage in, or to assist any other 
person to engage in, sexually explicit conduct knowing that a visual 
depiction of such conduct will be produced or transmitted shall be 
punished as provided under subsection (e).'';
          (2) in subsection (c)--
                  (A) in paragraph (1)--
                          (i) by striking ``employs, uses, persuades, 
                        induces, entices, or coerces any minor to 
                        engage in, or who has a minor assist any other 
                        person to engage in, any sexually explicit 
                        conduct'' and inserting ``engages in any 
                        conduct described in paragraphs (1) through (5) 
                        of subsection (a)''; and
                          (ii) by striking ``, for the purpose of 
                        producing any visual depiction of such 
                        conduct,'';
                  (B) in paragraph (2)(A), by inserting after 
                ``transported'' the following: ``or transmitted''; and
                  (C) in paragraph (2)(B), by inserting after 
                ``transports'' the following; ``or transmits'';
          (3) by adding at the end the following:
  ``(f) The circumstances referred to in subsections (a) and (b) are--
          ``(1) that the person knows or has reason to know that such 
        visual depiction will be--
                  ``(A) transported or transmitted using any means or 
                facility of interstate or foreign commerce;
                  ``(B) transported or transmitted in or affecting 
                interstate or foreign commerce; or
                  ``(C) mailed;
          ``(2) the visual depiction was produced or transmitted using 
        materials that have been mailed, or shipped or transported in 
        or affecting interstate or foreign commerce by any means, 
        including by computer;
          ``(3) such visual depiction has actually been--
                  ``(A) transported or transmitted using any means or 
                facility of interstate or foreign commerce;
                  ``(B) transported or transmitted in or affecting 
                interstate or foreign commerce; or
                  ``(C) mailed; or
          ``(4) any part of the offense occurred in a territory or 
        possession of the United States or within the special maritime 
        and territorial jurisdiction of the United States.
  ``(g) Notwithstanding any other provision of this section, no 
criminal charge under subsection (a)(3) may be brought against an 
electronic communication service provider or remote computing service 
provider unless such provider has intentionally transmitted or caused 
to be transmitted a visual depiction with actual knowledge that such 
depiction is of a minor engaged in sexually explicit conduct, nor may 
any such criminal charge be brought if barred by the provisions of 
section 2258B.''.

SEC. 3. LIMITED LIABILITY FOR CERTAIN PERSONS WHEN RESPONDING TO SEARCH 
                    WARRANTS OR OTHER LEGAL PROCESS.

  Section 2258B of title 18, United States Code, is amended--
          (1) in subsection (a), by inserting ``from the response to a 
        search warrant or other legal process or'' before ``from the 
        performance''; and
          (2) in subsection (b)(2)(C), by inserting ``the response to a 
        search warrant or other legal process or to'' before ``the 
        performance of any responsibility''.

                          Purpose and Summary

    H.R. 1761, the Protecting Against Child Exploitation Act, 
amends 18 U.S.C. Sec. 2251(c) to address the Palomino decision 
by adding additional bases of liability to the crime of 
production of child pornography. Current law already 
criminalizes employing, using, persuading, inducing, enticing, 
or coercing a minor to engage in sexually explicit conduct 
``for the purpose of'' producing a visual depiction of such 
conduct. However, to respond to the adverse result in Palomino, 
H.R. 1761 adds new criminal provisions, to specifically 
prohibit the production of, or causing the production of, a 
visual depiction of a real minor engaged in sexually explicit 
conduct. H.R. 1761 also amends the law to prohibit the 
transmission of, or causing the transmission of, a live visual 
depiction of a minor engaged in sexually explicit conduct 
(newly created Sections 2251(a)(2) and (3)), and to criminalize 
the knowing creation of the visual depiction or the live 
transmission of a minor engaged in sexually explicit conduct.
    H.R. 1761 further modifies the language that currently 
prohibits individuals from having ``a minor assist any other 
person to engage in'' sexually explicit conduct for the purpose 
of producing or transmitting any visual depiction of such 
conduct to account for the new structure of Section 2251(a) and 
prohibit having a minor assist any other person in engaging in 
sexually explicit conduct.
    Moreover, H.R. 1761 modifies the jurisdictional elements of 
the offense. The statute currently criminalizes transporting 
``any minor in or affecting interstate or foreign commerce, or 
in any Territory or Possession of the United States, with the 
intent that such minor engage in'' sexually explicit conduct 
for the purpose of producing any visual depiction of such 
conduct or for the purpose of transmitting a live visual 
depiction of such conduct. This language is modified to account 
for the new structure of Section 2251(a). The reference to 
``any Territory or Possession of the United States'' is deleted 
from the substantive criminal provision and is replaced with 
language that provides for jurisdiction if any part of the 
offense took place in the special maritime and territorial 
jurisdiction of the United States.
    The bill clarifies that it does not aim to capture 
accidental or unintentional conduct of internet service 
providers with respect to criminalizing the knowing 
transmission of an illicit visual depiction of a minor. Thus, 
it provides that an internet service provider can only be 
charged under subsection (c) of the new statute, which 
prohibits the knowing transmission of child pornography, where 
the internet service provider has actual knowledge that the 
content of the transmission is child pornography and where it 
intentionally transmits the visual depictions.
    Finally, the bill explicitly provides limited criminal and 
civil liability for internet service providers to send child 
pornography to law enforcement in response to legal process in 
child exploitation cases.

                Background and Need for the Legislation

    H.R. 1761 addresses an issue created by the U.S. Court of 
Appeals for the Fourth Circuit in United States v. Palomino-
Coronado,\1\ which allowed a defendant to walk free despite 
photographic evidence he had engaged in sexual abuse of a 
seven-year-old child. On May 3, 2012, Prince George's County 
police officers responded to a home in Laurel, Maryland based 
on a report of a missing seven-year-old child, known as 
``B.H.'' Officers found B.H. at the fence that separated her 
house and her neighbor's house. Upon investigation, it was 
uncovered that the neighbor, Anthony Palomino-Coronado, a 
nineteen-year-old male, had sexually molested the child.
---------------------------------------------------------------------------
    \1\805 F.3d 127 (4th Cir. 2015).
---------------------------------------------------------------------------
    At trial, the jury found the defendant guilty of knowingly 
employing, using, persuading, inducing, enticing, or coercing a 
minor in sexually explicit conduct, for the purpose of 
producing a visual depiction of that conduct in violation of 18 
U.S.C. Sec. 2251(a). This statute is commonly referred to as 
the ``Production of Child Pornography'' statute. The court 
sentenced the defendant to thirty years' imprisonment.
    The defendant appealed his conviction based on a 
sufficiency of the evidence challenge. The Fourth Circuit 
vacated the defendant's conviction, finding insufficient 
evidence to support it. In so holding, the Fourth Circuit 
focused on the elements required for conviction under 18 U.S.C. 
Sec. 2251(a), specifically the ``purpose'' element. To be 
convicted under the statute, a defendant must coerce a minor to 
engage in sexually explicit conduct ``for the purpose of 
producing any visual depiction of such conduct.'' The Fourth 
Circuit found there was insufficient evidence the defendant's 
sexual abuse of the seven-year-old girl was ``for the purpose 
of'' creating an image of such conduct. The Court found that, 
though the defendant engaged in sexual conduct with a child, 
``the fact that only one image was produced militates against 
finding that his intent in doing so was to take a picture. The 
single photo is not evidence that Palomino- Coronado engaged in 
sexual activity with [the child] to take a picture, only that 
he engaged in sexual activity with [the child] and took a 
picture.''\2\
---------------------------------------------------------------------------
    \2\805 F.3d at 132 (emphasis added).
---------------------------------------------------------------------------
    Under Palomino, therefore, a defendant could admit to 
sexually abusing a child, and memorializing the conduct, but 
could argue he should nonetheless escape federal conviction 
because he lacked the requisite ``purpose,'' or specific 
intent, prior to initiating the sexual abuse. That seems 
clearly contrary to Congress's objective of protecting children 
and criminalizing the production of images of child sexual 
abuse.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
1761, but held a hearing on the subject of child exploitation 
generally on March 16, 2017.

                        Committee Consideration

    On April 27, 2017, the Committee met in open session and 
ordered the bill, H.R. 1761, favorably reported, with an 
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 roll call votes occurred during the Committee's 
consideration of H.R. 1761.
    1. An Amendment, offered by Ms. Jackson Lee to exclude 
certain offenders aged 19 and under from the mandatory minimum 
penalties for production of child pornography offenses under 
current law. The amendment was defeated by a roll call vote of 
11 to 18.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     11      18   .......
------------------------------------------------------------------------

    2. An Amendment by Ms. Jackson Lee to exclude certain 
offenders aged 19 and under from registration on the sex 
offender registry after federal conviction for production of 
child pornography. The amendment was defeated by a roll call 
vote of 9 to 18.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................
Ms. Jayapal (WA)...............................
Mr. Schneider (IL).............................              X
                                                ------------------------
    Total......................................      9      18
------------------------------------------------------------------------

    3. An Amendment, offered by Mr. Conyers to repeal mandatory 
minimum sentences under 22 U.S.C. 2251, the production of child 
pornography statute. The amendment was defeated by a roll call 
vote of 9 to 17.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................      9      17   .......
------------------------------------------------------------------------

                      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. 1761, 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, May 19, 2017.
Hon. Bob Goodlatte, 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. 1761, the 
Protecting Against Child Exploitation Act of 2017.
    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,
                                                        Keith Hall.
Enclosure.

        cc: Honorable John Conyers, Jr.
           Ranking Member

      H.R. 1761--Protecting Against Child Exploitation Act of 2017

 As ordered reported by the House Committee on the Judiciary on May 3, 
                                  2017

    H.R. 1761 would broaden the coverage of current laws 
related to sexual exploitation of minors. As a result, the 
government might be able to pursue cases that it otherwise 
would not be able to prosecute. CBO expects that the bill would 
apply to a relatively small number of offenders, however, so 
any increase in costs for law enforcement, court proceedings, 
or prison operations would not be significant. Any such 
spending would be subject to the availability of appropriated 
funds.
    Enacting the bill could affect direct spending and 
revenues; therefore, pay-as-you-go procedures apply. Because 
those prosecuted and convicted under H.R. 1761 could be subject 
to criminal fines, the federal government might collect 
additional fines if the legislation is enacted. Criminal fines 
are recorded as revenues, deposited in the Crime Victims Fund, 
and later spent without further appropriation action. CBO 
expects that any additional revenues and associated direct 
spending would not be significant because the legislation would 
probably affect only a small number of cases.
    CBO also estimates that enacting H.R. 1761 would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2028.
    H.R. 1761 would preempt state laws and exempt providers of 
electronic communications or remote computer services from 
state criminal charges if such providers unintentionally 
transmit certain images. Electronic communication providers, 
remote computer providers, and domain registers also would be 
exempt from state criminal charges for such transmissions if 
done in response to a search warrant or other legal proceeding. 
Preemptions are mandates as defined in the Unfunded Mandate 
Reform Act (UMRA) because they limit the application of state 
laws. However, CBO estimates that this preemption would not 
affect the budgets of state governments because it would impose 
no duty on states that would result in additional spending or a 
loss of revenue.
    H.R. 1761 contains no private-sector mandates as defined in 
UMRA.
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for federal costs) and Rachel Austin (for intergovernmental 
mandates). The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 1761 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1761 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    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. 
1761 strengthens 18 U.S.C. 2251 by adding a provision 
criminalizing the ``knowing'' production of child pornography.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1761 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

    Section 1. Short Title. This section cites the short title 
of the legislation as the ``Protecting Against Child 
Exploitation Act of 2017.''
    Section 2. Sexual Exploitation of Children. This section 
amends 18 U.S.C. 2251(c) to:
           Prohibit the production of, or causing the 
        production of, a visual depiction of a real minor 
        engaged in sexually explicit conduct;
           Prohibit the transmission of, or causing the 
        transmission of, a live visual depiction of a minor 
        engaged in sexually explicit conduct;
           Criminalize the knowing creation of the 
        visual depiction or the live transmission of a minor 
        engaged in sexually explicit conduct;
           Prohibit having a minor assist any other 
        person in engaging in sexually explicit conduct; and
           Clarify that an internet service provider 
        can only be charged under subsection (c) of the new 
        statute, which prohibits the knowing transmission of 
        child pornography where the internet service provider 
        has actual knowledge that the content of the 
        transmission is child pornography and where it 
        intentionally transmits the visual depictions.
    Section 3. Limited Liability for Certain Persons When 
Responding to Search Warrants or Other Legal Process. This 
section, added by amendment, expands 18 U.S.C. 2258B, by 
explicitly giving immunity to internet service providers to 
send illicit visual depictions of minors in responding to legal 
process.

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

TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *

PART I--CRIMES

           *       *       *       *       *       *       *

      CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

Sec. 2251. Sexual exploitation of children

   [(a) Any person who employs, uses, persuades, induces, 
entices, or coerces any minor to engage in, or who has a minor 
assist any other person to engage in, or who transports any 
minor in or affecting interstate or foreign commerce, or in any 
Territory or Possession of the United States, with the intent 
that such minor engage in, any sexually explicit conduct for 
the purpose of producing any visual depiction of such conduct 
or for the purpose of transmitting a live visual depiction of 
such conduct, shall be punished as provided under subsection 
(e), if such person knows or has reason to know that such 
visual depiction will be transported or transmitted using any 
means or facility of interstate or foreign commerce or in or 
affecting interstate or foreign commerce or mailed, if that 
visual depiction was produced or transmitted using materials 
that have been mailed, shipped, or transported in or affecting 
interstate or fo reign commerce by any means, including by 
computer, or if such visual depiction has actually been 
transported or transmitted using any means or facility of 
interstate or foreign commerce or in or affecting interstate or 
foreign commerce or mailed.
   [(b) Any parent, legal guardian, or person having custody or 
control of a minor who knowingly permits such minor to engage 
in, or to assist any other person to engage in, sexually 
explicit conduct for the purpose of producing any visual 
depiction of such conduct or for the purpose of transmitting a 
live visual depiction of such conduct shall be punished as 
provided under subsection (e) of this section, if such parent, 
legal guardian, or person knows or has reason to know that such 
visual depiction will be transported or transmitted using any 
means or facility of interstate or foreign commerce or in or 
affecting interstate or foreign commerce or mailed, if that 
visual depiction was produced or transmitted using materials 
that have been mailed, shipped, or transported in or affecting 
interstate or foreign commerce by any means, including by 
computer, or if such visual depiction has actually been 
transported or transmitted using any means or facility of 
interstate or foreign commerce or in or affecting interstate or 
foreign commerce or mailed.]
   (a) Any person who, in a circumstance described in 
subsection (f), knowingly--
           (1) employs, uses, persuades, induces, entices, or 
        coerces a minor to engage in any sexually explicit 
        conduct for the purpose of producing any visual 
        depiction of such conduct, or transmitting a live 
        visual depiction of such conduct;
           (2) produces or causes to be produced a visual 
        depiction of a minor engaged in any sexually explicit 
        conduct where the production of such visual depiction 
        involves the use of a minor engaging in sexually 
        explicit conduct and such visual depiction is of such 
        conduct;
           (3) transmits or causes to be transmitted a live 
        visual depiction of a minor engaged in any sexually 
        explicit conduct;
           (4) has a minor assist any other person to engage in 
        any sexually explicit conduct during the commission of 
        an offense set forth in paragraphs (1) through (3) of 
        this subsection; or
           (5) transports any minor in or affecting interstate 
        or foreign commerce with the intent that such minor be 
        used in the production or live transmission of a visual 
        depiction of a minor engaged in any sexually explicit 
        conduct,
shall be punished as provided under subsection (e).
   (b) Any parent, legal guardian, or person having custody or 
control of a minor who, in a circumstance described in 
subsection (f), knowingly permits such minor to engage in, or 
to assist any other person to engage in, sexually explicit 
conduct knowing that a visual depiction of such conduct will be 
produced or transmitted shall be punished as provided under 
subsection (e).
   (c)(1) Any person who, in a circumstance described in 
paragraph (2), [employs, uses, persuades, induces, entices, or 
coerces any minor to engage in, or who has a minor assist any 
other person to engage in, any sexually explicit conduct] 
engages in any conduct described in paragraphs (1) through (5) 
of subsection (a) outside of the United States, its territories 
or possessions[, for the purpose of producing any visual 
depiction of such conduct,] shall be punished as provided under 
subsection (e).
   (2) The circumstance referred to in paragraph (1) is that--
           (A) the person intends such visual depiction to be 
        transported or transmitted to the United States, its 
        territories or possessions, by any means, including by 
        using any means or facility of interstate or foreign 
        commerce or mail; or
           (B) the person transports or transmits such visual 
        depiction to the United States, its territories or 
        possessions, by any means, including by using any means 
        or facility of interstate or foreign commerce or mail.
   (d)(1) Any person who, in a circumstance described in 
paragraph (2), knowingly makes, prints, or publishes, or causes 
to be made, printed, or published, any notice or advertisement 
seeking or offering--
           (A) to receive, exchange, buy, produce, display, 
        distribute, or reproduce, any visual depiction, if the 
        production of such visual depiction involves the use of 
        a minor engaging in sexually explicit conduct and such 
        visual depiction is of such conduct; or
           (B) participation in any act of sexually explicit 
        conduct by or with any minor for the purpose of 
        producing a visual depiction of such conduct;
shall be punished as provided under subsection (e).
   (2) The circumstance referred to in paragraph (1) is that--
           (A) such person knows or has reason to know that 
        such notice or advertisement will be transported using 
        any means or facility of interstate or foreign commerce 
        or in or affecting interstate or foreign commerce by 
        any means including by computer or mailed; or
           (B) such notice or advertisement is transported 
        using any means or facility of interstate or foreign 
        commerce or in or affecting interstate or foreign 
        commerce by any means including by computer or mailed.
   (e) Any individual who violates, or attempts or conspires to 
violate, this section shall be fined under this title and 
imprisoned not less than 15 years nor more than 30 years, but 
if such person has one prior conviction under this chapter, 
section 1591, 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, abusive sexual 
contact involving a minor or ward, or sex trafficking of 
children, 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 25 years nor more than 50 years, 
but if such person has 2 or more prior convictions 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 
the sexual exploitation of children, such person shall be fined 
under this title and imprisoned not less than 35 years nor more 
than life. Any organization that violates, or attempts or 
conspires to violate, this section shall be fined under this 
title. Whoever, in the course of an offense under this section, 
engages in conduct that results in the death of a person, shall 
be punished by death or imprisoned for not less than 30 years 
or for life.
   (f) The circumstances referred to in subsections (a) and (b) 
are--
           (1) that the person knows or has reason to know that 
        such visual depiction will be--
                   (A) transported or transmitted using any 
                means or facility of interstate or foreign 
                commerce;
                   (B) transported or transmitted in or 
                affecting interstate or foreign commerce; or
                   (C) mailed;
           (2) the visual depiction was produced or transmitted 
        using materials that have been mailed, or shipped or 
        transported in or affecting interstate or foreign 
        commerce by any means, including by computer;
           (3) such visual depiction has actually been--
                   (A) transported or transmitted using any 
                means or facility of interstate or foreign 
                commerce;
                   (B) transported or transmitted in or 
                affecting interstate or foreign commerce; or
                   (C) mailed; or
           (4) any part of the offense occurred in a territory 
        or possession of the United States or within the 
        special maritime and territorial jurisdiction of the 
        United States.
   (g) Notwithstanding any other provision of this section, no 
criminal charge under subsection (a)(3) may be brought against 
an electronic communication service provider or remote 
computing service provider unless such provider has 
intentionally transmitted or caused to be transmitted a visual 
depiction with actual knowledge that such depiction is of a 
minor engaged in sexually explicit conduct, nor may any such 
criminal charge be brought if barred by the provisions of 
section 2258B.

           *       *       *       *       *       *       *

Sec. 2258B. Limited liability for electronic communication service 
                    providers, remote computing service providers, or 
                    domain name registrar

   (a) In General.--Except as provided in subsection (b), a 
civil claim or criminal charge against an electronic 
communication service provider, a remote computing service 
provider, or domain name registrar, including any director, 
officer, employee, or agent of such electronic communication 
service provider, remote computing service provider, or domain 
name registrar arising from the response to a search warrant or 
other legal process or from the performance of the reporting or 
preservation responsibilities of such electronic communication 
service provider, remote computing service provider, or domain 
name registrar under this section, section 2258A, or section 
2258C may not be brought in any Federal or State court.
   (b) Intentional, Reckless, or Other Misconduct.--Subsection 
(a) shall not apply to a claim if the electronic communication 
service provider, remote computing service provider, or domain 
name registrar, or a director, officer, employee, or agent of 
that electronic communication service provider, remote 
computing service provider, or domain name registrar--
           (1) engaged in intentional misconduct; or
           (2) acted, or failed to act--
                   (A) with actual malice;
                   (B) with reckless disregard to a substantial 
                risk of causing physical injury without legal 
                justification; or
                   (C) for a purpose unrelated to the response 
                to a search warrant or other legal process or 
                to the performance of any responsibility or 
                function under this section, sections 2258A, 
                2258C, 2702, or 2703.
   (c) Minimizing Access.--An electronic communication service 
provider, a remote computing service provider, and domain name 
registrar shall--
           (1) minimize the number of employees that are 
        provided access to any image provided under section 
        2258A or 2258C; and
           (2) ensure that any such image is permanently 
        destroyed, upon a request from a law enforcement agency 
        to destroy the image.

           *       *       *       *       *       *       *

                            Dissenting Views

    H.R. 1761, the ``Protecting Against Child Exploitation 
Act,'' is intended to enhance section 2251 of title 18 of the 
United States Code, the statute prohibiting the production of 
child pornography. Although well-intentioned, the bill's 
resulting expansion of section 2251 would subject more 
individuals, including young people prosecuted for ``sexting,'' 
to substantial mandatory prison sentences. We have long-opposed 
the imposition of mandatory minimum sentences because they are 
unjust, cause prison overcrowding, waste taxpayer money, and 
defy common sense. Given the fact that H.R. 1762 would subject 
more individuals to mandatory minimum sentencing, we must 
respectfully dissent and urge our colleagues to oppose this 
legislation when it comes to the floor.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    H.R. 1761, the ``Protecting Against Child Exploitation 
Act,'' expands and modifies the meaning of ``sexual 
exploitation of children,'' thereby creating new offenses that 
may be prosecuted under section 2251 of title 18 of the United 
States Code, and modifies existing offenses included in that 
provision. The bill's amendments to section 2251 create two new 
offenses in direct response to the Fourth Circuit's decision in 
U.S. v. Palomino-Coronado, which limited the application of the 
statute.\1\ In addition to these substantive changes, this bill 
reorganizes section 2251 so that the statute can be read more 
easily.
---------------------------------------------------------------------------
    \1\U.S. v. Palomino, 805 F.3d 127 (4th Cir. 2015).
---------------------------------------------------------------------------

                               BACKGROUND

    Section 2251(a) of title 18 of the United States Code\2\ 
prohibits individuals from employing, using, persuading, 
inducing, enticing, or coercing a minor to engage in sexually 
explicit conduct for the purpose of producing a visual 
depiction of such conduct--known colloquially as the production 
of child pornography. Thus, section 2251(a) generally prohibits 
the production of child pornography.
---------------------------------------------------------------------------
    \2\18 U.S.C. 2251(e) (2017) provides that any individual who 
violates, or attempts or conspires to violate, section 2251(a) shall be 
imprisoned not less than 15 years nor more than 30 years.
---------------------------------------------------------------------------
    In U.S. v. Palomino-Coronado, the Fourth Circuit reversed a 
defendant's conviction for violating section 2251(a) based on a 
finding that the government failed to prove the defendant acted 
for the purpose of producing a visual depiction. The court 
reasoned that section 2251(a) contained a specific intent 
element, requiring the government prove that production of a 
visual depiction was the purpose for engaging in the sexually 
explicit conduct. Following this reasoning, the court 
determined that there was insufficient evidence that the 
defendant sexually abused the child victim for the purpose of 
taking a photograph, stating, ``The single photo is not 
evidence that Palomino-Coronado engaged in sexual activity with 
B.H. to take a picture, only that he engaged in sexual activity 
with B.H. and took a picture.''\3\
---------------------------------------------------------------------------
    \3\805 F.3d at 132.
---------------------------------------------------------------------------
    Under the reasoning of the Palomino opinion, a defendant 
could admit sexual conduct with a minor and also admit taking a 
photo of the conduct, but successfully prevent a conviction by 
arguing lack of intent to take the photo. Palomino is not the 
first case to examine the meaning and scope of ``for the 
purpose of'' in the context of section 2251.\4\ The Fourth 
Circuit discussed the examination of this language over the 
years by several other circuit courts. As stated by the 
Palomino court, section 2251(a) currently criminalizes the use 
of a child for an impermissible purpose.
---------------------------------------------------------------------------
    \4\Id. at 130-132.
---------------------------------------------------------------------------
    H.R. 1761 would add new offenses to section 2251 in 
response to the Palomino decision. It would explicitly prohibit 
the creation of a visual depiction or live transmission of a 
minor engaged in sexually explicit conduct; restructure 
provisions of section 2251 to clarify the elements of proof 
required for each variation of the offense, particularly the 
jurisdictional provisions; and ensure that all subsections use 
consistent language. The structure of the statute would be 
significantly modified for clarity, separating section 2251(a) 
into five enumerated offenses codified as section 2251(a)(1)-
(5).
    The bill would add new offenses to prohibit production of, 
or causing the production of, a visual depiction of a minor 
engaged in sexually explicit conduct; and the transmission of, 
or causing the transmission of, a live visual depiction of a 
minor engaged in sexually explicit conduct (such as live 
streaming sexual abuse). These offenses would be codified as 
sections 2251(a)(2) and (3). The current version of the statute 
criminalizes the use of a child for an impermissible purpose, 
requiring proof of conduct intended to cause a photo to be 
taken. These new provisions would criminalize the knowing 
creation of a visual depiction or the live transmission of a 
minor engaged in sexually explicit conduct, only requiring 
proof that a photo was taken.
    Section 2251(a) prohibits having ``a minor assist any other 
person to engage in'' any sexually explicit conduct for the 
purpose of producing or transmitting a visual depiction of the 
conduct. As amended, new section 2251(a)(4) would prohibit 
having a minor assist another person to engage in sexually 
explicit conduct during the commission of an offense described 
in sections 2251(a)(1) through (3). This provision would 
include, for example, a photo of a child forced to masturbate 
another person.
    Subsection 2251(b), which addresses production of child 
pornography by parents or guardians, and subsection 2251(c), 
which addresses production of child pornography abroad, would 
be modified for clarity to ensure that Sections 2251(a) through 
(c) are consistent in scope. Pursuant to H.R. 1761, section 
2251(c) would be amended to prohibit the live transmission of 
child pornography. Apparently, when the ``live transmission'' 
language was added to section 2251 in 2008,\5\ subsection (c) 
was inadvertently overlooked. Jurisdictional language would be 
placed in new subsection 2251(f), to improve readability as 
well as language establishing jurisdiction over cases within 
special maritime and territorial jurisdictions of the United 
States.
---------------------------------------------------------------------------
    \5\``Providing Resources, Officers, and Technology to Eradicate 
Cyber Threats to Our Children Act of 2008'' or the ``PROTECT Our 
Children Act of 2008,'' Pub. L. No. 110-401 (2008) (prohibiting the 
broadcast of live images of child abuse).
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 1761

   I. H.R. 1761 WOULD SUBJECT MORE INDIVIDUALS TO MANDATORY MINIMUM 
                               PENALTIES

    Although this bill is intended to protect children from 
being victimized through their depiction in child pornography, 
H.R. 1761 unfortunately subjects new classes of offenders to 
mandatory minimum sentencing. This bill expands section 2251 to 
include three new ways in which an individual may violate the 
prohibition against the production or dissemination of child 
pornography. Consequently, more offenders would be subject to 
the existing lengthy mandatory minimum terms of imprisonment of 
15 years, 25 years, or 35 years codified in section 2251.\6\ To 
eliminate this result, Ranking Member John Conyers, Jr. offered 
an amendment during the Committee's consideration of this bill 
to eliminate the mandatory minimum penalties applicable to 
section 2251 while retaining the existing maximum penalties, 
which are very high. The amendment was unfortunately defeated 
by a vote of 9 to 17.
---------------------------------------------------------------------------
    \6\See 18 U.S.C. 2251(e) (2017).
---------------------------------------------------------------------------
    We cannot overlook the consequences of mandatory minimum 
sentencing, which the Committee on the Judiciary helped expose 
in recent years.\7\ For far too long, the federal criminal 
justice system has relied on an unsustainable system of mass-
incarceration that is largely driven by inflexible mandatory 
minimum sentencing. Mandatory minimum penalties are applied 
inconsistently, contribute to unwarranted sentence disparity, 
disproportionate and excessively high sentences, and constitute 
neither a deterrent nor an effective law enforcement tool. 
Minority communities across the country have been especially 
impacted by mandatory minimum sentences. In an effort to 
earnestly reconcile the lessons learned in recent years, it is 
necessary to begin eliminating mandatory minimum penalties.\8\
---------------------------------------------------------------------------
    \7\See, e.g., Agency Perspectives: Hearing Before the Over-
criminalization Task Force of 2014, H. Comm. on the Judiciary, 113th 
Congress (2014) (statement of Judge Patti B. Saris, Chair, U.S. 
Sentencing Commission); Sentencing Reform Act of 2015: Hearing on H.R. 
3713 Before the H. Comm. on the Judiciary, 114th Congress (2015).
    \8\See, e.g., Michelle Alexander, The New Jim Crow: Mass 
Incarceration in the Age of Colorblindness (2010); Lauren-Brooke Eisen, 
Mandatory Minimum Sentences--Time to End Counterproductive Policy, 
South Coast Today (June 9, 2015).
---------------------------------------------------------------------------
    Of course, sex offenses that victimize children are 
reprehensible. Perpetrators of such crimes should be held 
accountable and we should do all we can to prevent such crimes 
and assist victims. Yet, as stated in a letter from Families 
Against Mandatory Minimums, ``even for the most serious crimes, 
courts should have flexibility to fit the punishment to each 
crime and each offender.''\9\ Sentencing based on mandatory 
minimum penalties inappropriately removes sentencing discretion 
from judges. Ranking Member Conyers's amendment would have 
placed discretion back in the hands of judges, who could still 
impose severe penalties, up to the maximum terms, as currently 
provided for in section 2251, when appropriate after evaluating 
the facts and circumstances of each case. The removal of 
mandatory minimum penalties will not hinder imposition of 
proportionate and just punishment for these very serious 
offenses.
---------------------------------------------------------------------------
    \9\Letter from Kevin Ring, President, Families Against Mandatory 
Minimums, to Chairman Bob Goodlatte (R-VA) & Ranking Member John 
Conyers, Jr., H. Comm. on the Judiciary (Apr. 4, 2017) (on file with H. 
Comm. on the Judiciary Democratic staff).
---------------------------------------------------------------------------

    II. H.R. 1761 WOULD SUBJECT YOUNG AMERICANS WHO PARTICIPATE IN 
 ``SEXTING'' TO MANDATORY MINIMUM PENALTIES AND SEX OFFENDER REGISTRY 
                              REQUIREMENTS

    Teenagers who send seemingly innocuous photos of a sexual 
nature to their friends may be prosecuted pursuant to the 
current version of section 2251 and, thus, subject to mandatory 
prison sentences of at least 15 years. Section 2251 lacks any 
``Romeo and Juliet'' exceptions, i.e., the penalties apply even 
when conduct is consensual and when the victim and offender are 
close in age. For example, if a 19-year-old and a 17-year-old 
videoed themselves engaged in a sexual act and then emailed the 
video to their own email accounts, the 19-year-old would be 
subject to the mandatory minimums set by section 2251.\10\
---------------------------------------------------------------------------
    \10\Id.
---------------------------------------------------------------------------
    The pervasiveness of personal devices, such as cellphones 
and tablets, has given rise to teenage ``sexting''--the use of 
these devices to send and receive sexually explicit messages or 
images. Research has shown that teenage sexting is widespread, 
even among middle school-aged youth.\11\ A study conducted by 
Drexel University found that more than half of the 
undergraduate students who took part in an online survey said 
that they sexted when they were teenagers.\12\ Thirty percent 
said they included photos in their messages and 61 percent did 
not know that sending nude photos via text could be considered 
child pornography. Another online survey published in 2008 
found that almost 40 percent of teenagers between ages 13 and 
19 had sent sext messages, almost 50 percent had received a 
sext message, and 20 percent posted nude or semi-nude content 
online.\13\ Under section 2251, teenagers prosecuted for taking 
and sending such messages would be subject to mandatory prison 
sentences of at least 15 years and sex offender registration.
---------------------------------------------------------------------------
    \11\Dep't of Justice, Office of Violence Against Women, Futures 
Without Violence. Effective Responses to Teen Sexting: A Guide for 
Judges and Other Professionals (2009).
    \12\H. Strohmaier et al., Youth Sexting: Prevalence Rates, Driving 
Motivations, and the Deterrent Effect of Legal Consequences, 11 D. Sex 
Res Soc Policy 245 (2014).
    \13\Sex and Tech: Results from a Survey of Teens and Young Adults, 
The National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmo 
Girl.com (2008).
---------------------------------------------------------------------------
    Crime, Terrorism, Homeland Security, and Investigations 
Ranking Member Shelia Jackson Lee offered two amendments during 
the Committee's consideration of this bill that would have 
provided an opportunity to avoid mandatory minimum sentences 
and sex offender registry requirements in cases involving 
sexting by teenagers. Unfortunately, both amendments were 
defeated. The first amendment, defeated by a vote of 11 to 18, 
would have allowed for the imposition of misdemeanor penalties 
as an alternative, in cases involving a defendant who is no 
more than 19 years old and no more than four years older than 
the victim, where the victim was a willing participant in 
producing or transmitting a sexually explicit video or video. 
Additionally, since sex offender registration can inflict 
lifelong consequences that affect registrants' ability to work, 
obtain an education, or find housing, the Rep. Jackson Lee's 
amendment would have specifically exempted teenagers who were 
involved in sexting and convicted of the proposed misdemeanor 
offense from federal sex offender registration requirements. 
The amendment, however, was defeated by a vote of 9 to 18.

                               CONCLUSION

    No child pornography offense should go unpunished. H.R. 
1761, however, would subject more individuals to mandatory 
minimum penalties at a time when the federal criminal justice 
system should be moving away from such sentencing schemes. 
While well-intentioned, the bill would exacerbate a problem 
that is clearly unfair and unnecessary.
    Accordingly, we oppose H.R. 1761 and we urge our colleagues 
to join us in opposition.
                                   Mr. Conyers, Jr.
                                   Ms. Jackson Lee.
                                   Mr. Johnson, Jr.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Ms. Jeffries.
```