19–006 

112TH CONGRESS REPT. 112–281 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

PROTECTING CHILDREN FROM INTERNET 

PORNOGRAPHERS ACT OF 2011 

NOVEMBER 10, 2011.—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. 1981] 

[Including cost estimate of the Congressional Budget Office] 

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

(H.R. 1981) to amend title 18, United States Code, with respect to 

child pornography and child exploitation offenses, 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 ............................................................................................ 5 

Background and Need for the Legislation ............................................................. 5 

Hearings ................................................................................................................... 21 

Committee Consideration ........................................................................................ 22 

Committee Votes ...................................................................................................... 22 

Committee Oversight Findings ............................................................................... 30 

New Budget Authority and Tax Expenditures ...................................................... 30 

Congressional Budget Office Cost Estimate .......................................................... 30 

Performance Goals and Objectives ......................................................................... 32 

Advisory on Earmarks ............................................................................................. 32 

Section-by-Section Analysis .................................................................................... 32 

Changes in Existing Law Made by the Bill, as Reported ..................................... 35 

Dissenting Views ..................................................................................................... 43 


jbell on DSK4TPTVN1PROD with REPORTS
2 

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 Children From Internet Pornographers 

Act of 2011’’. 

SEC. 2. FINANCIAL FACILITATION OF ACCESS TO CHILD PORNOGRAPHY. 

(a) OFFENSE.—Chapter 95 of title 18, United States Code, is amended by adding 

at the end the following: 

‘‘§ 1960A. Financial facilitation of access to child pornography 

‘‘(a) IN GENERAL.—Whoever knowingly conducts, or attempts or conspires to conduct, a financial transaction (as defined in section 1956(c)) in or affecting interstate 

or foreign commerce, knowing that such transaction will facilitate access to, or the 

possession of, child pornography (as defined in section 2256) shall be fined under 

this title or imprisoned not more than 20 years, or both. 

‘‘(b) EXCLUSION FROM OFFENSE.—This section does not apply to a financial transaction conducted by a person in cooperation with, or with the consent of, any Federal, State, or local law enforcement agency.’’. 

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 95 

of title 18, United States Code, is amended by adding at the end the following new 

item: 

‘‘1960A. Financial facilitation of access to child pornography.’’. 

SEC. 3. MONEY LAUNDERING PREDICATE. 

Section 1956(c)(7)(D) of title 18, United States Code, is amended— 

(1) by inserting ‘‘1466A (relating to obscene visual representation of the abuse 

of children),’’ before ‘‘section 1708’’; and 

(2) by inserting ‘‘1960A (relating to financial facilitation of access to child pornography),’’ before ‘‘section 2113’’. 

SEC. 4. RETENTION OF CERTAIN RECORDS BY ELECTRONIC COMMUNICATION SERVICE PROVIDERS. 

(a) IN GENERAL.—Section 2703 of title 18, United States Code, is amended by adding at the end the following: 

‘‘(h) RETENTION OF CERTAIN RECORDS.— 

‘‘(1) A commercial provider of an electronic communication service shall retain 

for a period of at least one year a log of the temporarily assigned network addresses the provider assigns to a subscriber to or customer of such service that 

enables the identification of the corresponding customer or subscriber information under subsection (c)(2) of this section. 

‘‘(2) Access to a record or information required to be retained under this subsection may not be compelled by any person or other entity that is not a governmental entity. 

‘‘(3) The Attorney General shall make a study to determine the costs associated with compliance by providers with the requirement of paragraph (1). Such 

study shall include an assessment of all the types of costs, including for hardware, software, and personnel that are involved. Not later than 2 years after 

the date of the enactment of this paragraph, the Attorney General shall report 

to Congress the results of that study. 

‘‘(4) In this subsection— 

‘‘(A) the term ‘commercial provider’ means a provider of electronic communication service that offers Internet access capability for a fee to the 

public or to such classes of users as to be effectively available to the public, 

regardless of the facilities used; and 

‘‘(B) the term ‘Internet’ has the same meaning given that term in section 

230(f) of the Communications Act of 1934.’’. 

(b) SENSE OF CONGRESS.—It is the sense of Congress— 

(1) to encourage electronic communication service providers to give prompt 

notice to their customers in the event of a breach of the data retained pursuant 

to section 2703(h) of title 18 of the United States Code, in order that those effected can take the necessary steps to protect themselves from potential misuse 

of private information; and 

(2) that records retained pursuant to section 2703(h) of title 18, United States 

Code, should be stored securely to protect customer privacy and prevent against 

breaches of the records. 


jbell on DSK4TPTVN1PROD with REPORTS
3 

(c) TRANSITION RULE.—The amendment made by this section shall not apply until 

180 days after the date of the enactment of this Act to a provider of an electronic 

communications service that does not, on that date of enactment, have in effect a 

system of retention of records that complies with the requirements of that amendment. 

(d) STUDY.— (1) The Attorney General, not later than 2 years after the date of the enactment of this Act, shall complete a study of providers affected by section 2703(h) 

of title 18, United States Code. 

(2) Such study shall include— 

(A) the privacy standards and considerations implemented by those providers as they comply with the requirements of section 2703(h); and 

(B) the frequency of any reported breaches of data retained pursuant to 

section 2703(h). 

(3) The Attorney General shall, upon the completion of the study, report the 

results of the study to Congress. 

SEC. 5. NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING INFORMATION UNDER THIS 

CHAPTER. 

Section 2703(e) of title 18, United States Code, is amended by inserting ‘‘retaining 

records,’’ after ‘‘other specified persons for’’. 

SEC. 6. GOOD FAITH RELIANCE ON REQUIREMENT. 

Section 2707(e)(1) of title 18, United States Code, is amended by inserting ‘‘, or 

the requirement to retain records under section 2703(h),’’ after ‘‘section 2703(f)’’. 

SEC. 7. SUBPOENA AUTHORITY. 

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. 8. PROTECTION OF CHILD WITNESSES. 

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; 


jbell on DSK4TPTVN1PROD with REPORTS
4 

‘‘(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.’’. 

SEC. 9. 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. 10. 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. 11. ADMINISTRATIVE SUBPOENAS. 

(a) IN GENERAL.—Section 3486(a)(1) of title 18, United States Code, is amended— 

(1) in subparagraph (A)— 

(A) in clause (i), by striking ‘‘or’’ at the end; 

(B) by redesignating clause (ii) as clause (iii); and 

(C) 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 

(2) in subparagraph (D)— 

(A) by striking ‘‘paragraph, the term’’ and inserting the following: ‘‘paragraph— 

‘‘(i) the term’’; 

(B) by striking the period at the end and inserting ‘‘; and’’; and 


jbell on DSK4TPTVN1PROD with REPORTS
5 

1The 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). 2Testimony of Mr. Ernie Allen, President and CEO of the National Center for Missing and 

Exploited Children, Hearing on H.R. 1981 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. 

(C) 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.).’’. 

(b) TECHNICAL AND CONFORMING AMENDMENTS.—Section 3486(a) of title 18, 

United States Code, is amended— 

(1) in paragraph (6)(A), by striking ‘‘United State’’ and inserting ‘‘United 

States’’; 

(2) in paragraph (9), by striking ‘‘(1)(A)(ii)’’ and inserting ‘‘(1)(A)(iii)’’; and 

(3) in paragraph (10), by striking ‘‘paragraph (1)(A)(ii)’’ and inserting ‘‘paragraph (1)(A)(iii)’’. 

Purpose and Summary 

H.R. 1981 provides additional investigative and prosecutorial 

tools and enhanced penalties to combat the proliferation of Internet 

child pornography and child exploitation offenses and other Internet-based crimes. 

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

The National Center for Missing and Exploited Children 

(NCMEC) created the CyberTipline 13 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 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 


jbell on DSK4TPTVN1PROD with REPORTS
6 

3 Id. at 3. 4Terry 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.ringl1lsexual-abuse-bulletin-board-images-and-videos?ls=PM:CRIME. 5 Id. 

6Staff Briefing by Officials from U.S. Immigration and Customs Enforcement, U.S. Dept. of 

Homeland Security, Aug. 16, 2011. 7 Jelani Jefferson Exum, Making the Punishment Fit the (Computer) Crime: Rebooting Notions 

of Possession for the Federal Sentencing of Child Pornography Offenses, XVI RICH. J.L. & 

TECH. 8, p.6 (2010), http://jolt.richmond.edu/v16i3/article8.pdf. 8Digital Currency Business E–Gold Indicted For Money Laundering and Illegal Money Transmitting, U.S. DEPT. OF JUSTICE, Apr. 27, 2007, available at http://www.justice.gov/criminal/ 

cybercrime/egoldIndict.htm. 9Trends in Migration, Hosting and Payment for Commercial Child Pornography Websites, FINANCIAL COALITION AGAINST CHILD PORNOGRAPHY (2008), available at http://www. 

missingkids.com/enlUS/documents/FCACPTechnologyChallengesWhitePaper5–08.pdf. 

CyberTipline include images of sexual assault of toddlers and even 

infants.’’ 3

A recent 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. 

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 To date, roughly 100 members of Dreamboard have 

been arrested in the United States and abroad. Nearly 500 members, including the top administrator of the forum, remain at large 

and free to continue abusing children.6

II. FINANCIAL FACILITATION OF INTERNET CHILD PORNOGRAPHY

Internet child pornography has become a commercial enterprise 

worth billions of dollars annually.7 In April 2007, executives from 

the online payment service E–Gold were indicted for permitting 

known child pornographers to use their service to complete illegal 

money transfers.8 The circumstances surrounding the E–Gold indictment typify the reasons why many online payment services, 

which offer anonymity and lack thorough regulation, are attractive 

to money launderers and criminals. 

Unlike banks, which must follow national and international 

banking regulations, online payment services bypass compliance 

rules that require identification of the payer and payee.9 For example, individuals using the E–Gold payment system were required to 

provide only an email address. Account holders were then free to 


jbell on DSK4TPTVN1PROD with REPORTS
7 

10See supra note 8. 11 Brian Krebs, U.S.: Online Payment Network Abetted Fraud, Child Pornography, WASH. POST, May 01, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/05/ 

01/AR2007050101291lpf.html. 12 Ernie Allen, In Child Pornography, Fight Harder, CHRISTIAN SCI. MONITOR, Nov. 26, 2007, 

available at http://www.csmonitor.com/2007/1126/p09s01-coop.html. 13Supra note 2 at 3. 14 Id. at 4. 15 Id. 

access their accounts over the Internet and conduct anonymous 

transactions with parties around the world.10

E–Gold also seemed to encourage illegal-activity in other ways. 

The payment service’s user agreement did not prohibit criminal activity and E–Gold only assigned one employee to monitor accounts 

for indications of criminal activity. When the criminal activity of 

E–Gold users was discovered, E–Gold advised the users to relocate 

their funds to different E–Gold accounts.11

As traditional credit card and payment services such as 

MasterCard, Visa, American Express, and Bank of America take 

steps to ‘‘virtually eliminate’’ their use in child pornography transactions, child pornographers will increasingly rely on online payment systems.12

Mr. Allen of NCMEC testified that ‘‘law enforcement investigations have found that organized crime networks operate some of 

these enterprises. One such case was that of the Regpay Company, 

a major Internet processor of subscriptions for third-party commercial child pornography websites. The site was managed in Belarus, 

the credit card payments were processed by a company in Florida, 

the money was deposited in a bank in Latvia, and the majority of 

the almost 300,000 credit card transactions on the sites were from 

Americans.’’ 13

In 2006, NCMEC created the Financial Coalition Against Child 

Pornography. ‘‘The Financial Coalition is made up of leading 

banks, credit card companies, electronic payment networks, third 

party payments companies and Internet services companies. Its 

members comprise nearly 90% of the U.S. payments industry.’’ 14

The Coalition’s goals are to ‘‘increase the risk of running a child 

pornography enterprise and to eliminate the profitability.’’ 15

H.R. 1981 targets the commercial Internet child pornography industry by establishing a new Federal offense for the financial facilitation of Internet child pornography. The offense makes it a crime 

punishable by fine or up to 20 years in prison to conduct a financial 

transaction knowing that it will facilitate access to child pornography. To encourage the continued efforts of NCMEC’s Financial 

Coalition, H.R. 1981 exempts from the new offense those transactions conducted in cooperation with law enforcement agencies. 

III. UNIFORM RETENTION OF CERTAIN DATA IS PARAMOUNT TO COM- BATING INTERNET CHILD PORNOGRAPHY AND OTHER INTERNET

CRIMES. 

The Internet has revolutionized modern-day commerce and communications. Individuals can transmit emails in a split second, 

download movies and TV shows to their computers, or purchase a 

plane ticket—all thanks to the Internet. The Internet has also revolutionized modern-day crime and crime fighting. Today, the Internet is used to facilitate a myriad of criminal enterprises, including 


jbell on DSK4TPTVN1PROD with REPORTS
8 

16See, e.g., Remarks of Rep. Conyers, Markup of H.R. 1981, House Committee on the Judiciary, July 28, 2011 at 60. 17Remarks of U.S. Deputy Attorney General Eric Holder, International Conference on ‘‘Combating Child Pornography on the Internet,’’ Vienna, Austria, Sept. 29, 1999, available at http:// 

www.justice.gov/criminal/cybercrime/dagceos.html. 18Testimony of Attorney General Alberto R. Gonzales, Hearing on the Sexual Exploitation of 

Children on the Internet before the Senate Committee on Banking, Housing, and Urban Affairs, 

United States Senate, 109th Congress, Sept. 19, 2006. 

drug trafficking, terrorism, cybercrime, fraud, human trafficking, 

and child pornography and exploitation. 

America’s communication systems are, for the most part, privately owned and operated. Telecommunications companies own 

and maintain the vast fiber optic, cable, and satellite networks that 

facilitate all landline and cellular telephone calls—including Voice 

over Internet Protocols (VOIP), email, instant messaging, chat 

rooms, bulletin boards, and the ever-expanding Internet. As a result, law enforcement agents are dependent upon these companies 

to store certain customer and transmission information and, when 

appropriate, disclose it to investigators. 

The Internet is an ideal place to engage in criminal activity. It 

allows for almost instantaneous transmission of information and affords criminals a great deal of anonymity. The old days of police 

officers patrolling the streets are, to a great extent, gone. Now, law 

enforcement officials must patrol the Internet for crime. 

When investigators encounter criminal activity on the Internet, 

such as a website peddling pain killers without a prescription or 

a chat room for pedophiles to exchange child pornography images, 

they are often unable to identify the perpetrators. Criminals use 

fake email addresses or log in names to disguise their true identities. What investigators do find is a numerical code, known as an 

Internet Protocol (IP) address, which is assigned to the person by 

an Internet provider as a way of connecting them to the Internet 

or transmitting their emails. 

Often the only mechanism for identifying criminals on the Internet is for investigators to trace the IP address back to the Internet 

provider, who can link the IP address to a customer and provide 

investigators the criminal’s true identity. Law enforcement agents, 

through a subpoena, will request from the provider the name and 

address of the user of the IP address. However, ISPs regularly 

purge these records—sometimes within a matter of days or 

weeks—making it impossible for investigators to identify the criminal. Without this information, the investigation ends and the criminal remains at large. 

Opponents of data retention have adopted the odd refrain that 

retaining IP addresses will do nothing to help combat the proliferation of child pornography on the Internet or other Internet 

crimes.16 This rhetoric is resoundingly rejected by the Justice Department, the FBI, and other law enforcement entities. 

Both Democratic and Republican Administrations have been calling on Internet providers to retain information for a decade. In 

1999, then-Deputy Attorney General Eric Holder said that ‘‘certain 

data must be retained by ISPs for reasonable periods of time so 

that it can be accessible to law enforcement.’’ 17 Attorney General 

Alberto Gonzales told the Senate Banking Committee in 2006: 

‘‘This is a problem that requires Federal legislation.’’ ‘‘We need information. Information that helps us make cases.’’ 18


jbell on DSK4TPTVN1PROD with REPORTS
9 

19Testimony of FBI Director Robert S. Mueller, III, Hearing on the Oversight of the Federal 

Bureau of Investigation before the Committee on the Judiciary, United States House of Representatives, 110th Congress, Apr. 23, 2008. 20 International Association of Chiefs of Police, Resolution in Support for Data Retention in 

Aid of the Investigation of Crimes Facilitated or Committed Through the Use of the Internet 

and Telephony-Based Communication Services, Adopted at the 113th Annual Conference, Oct. 

17, 2006., available at: http://www.iacp.org/resolution/index.cfm?fa=dislpubliclview& 

resolutionlid=294&CFID=70738225&CFTOKEN=44837577. 21Testimony of Mr. Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, 

U.S. Dept. of Justice, Hearing on ‘‘Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes’’ before the Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, U.S. House of Representatives, 112th Congress, Jan. 

25, 2011 at 3. 22 Id. at 6. 

FBI Director Robert S. Mueller told the House Judiciary Committee in April 2008, ‘‘It’s important that we have access to the 

records, and record retention by ISPs would be tremendously helpful in giving us the historical basis to make a case in a number of 

these child predators who utilize the Internet to either push their 

pornography or to lure persons in order to meet them.’’ 19 The FBI 

has identified this matter as one of its top legislative priorities. 

The International Association of Chiefs of Police (IACP) adopted 

a resolution on October 17, 2006 expressing its ‘‘support for data 

retention in aid of the investigation of crimes facilitated or committed through the use of Internet and telephony-based communication services.’’ Among other things, the resolution declared that 

‘‘the failure of the Internet access provider industry to retain subscriber information and source or destination information for any 

uniform, predictable, reasonable period has resulted in the absence 

of data, which has become a significant hindrance and even an obstacle in certain investigations, such as computer intrusion investigations and child obscenity and exploitation investigations, although law enforcement has generally acted expeditiously in processing lawful requests to Internet providers.’’ 20

In January 2011, the Justice Department testified before this 

Committee that ‘‘the problem of investigations being stymied by a 

lack of data retention is growing worse. One mid-size cell phone 

company does not retain any records, and others are moving in 

that direction. A cable Internet provider does not keep track of the 

Internet protocol addresses it assigns to customers, at all. Another 

keeps them for only 7 days—often, citizens don’t even bring an 

Internet crime to law enforcement’s attention that quickly. These 

practices thwart law enforcement’s ability to protect the public. 

When investigators need records to investigate a drug dealer’s communications, or to investigate a harassing phone call, records are 

simply unavailable.’’ 21

A. H.R. 1981 Standardizes Current Data Retention Practices 

H.R. 1981 brings uniformity to the existing data retention practices of domestic Internet providers. ‘‘Most responsible providers 

are already collecting the data that is most relevant to criminal 

and national security-related investigations. In many cases, they 

have to collect it in order to provide service to begin with. In other 

cases, they collect it for the company’s security, or to research how 

their service is being used. They simply do not retain that data for 

periods that are sufficient to meet the needs of public safety.’’ 22

Current law does not require Internet providers to retain the 

records of the IP addresses they assign to their customers. In order 


jbell on DSK4TPTVN1PROD with REPORTS
10 

23 Electronic Communication Privacy Act, Pub. L. No. 99–508, Title II, 18 U.S.C § 2702 et seq., 

100 Stat. 1860 (1986). 24Supra note 21 at 5. 

to accomplish uniform retention of certain data by providers, H.R. 

1981 amends an existing law known as the Stored Communications 

Act (SCA).23 The SCA was enacted in 1986 as a part of the larger 

Electronic Communication Privacy Act or ECPA. ECPA provides a 

statutory framework for the types of information law enforcement 

agents are authorized to request from cable and telephone providers and the types of disclosures these providers must make to 

investigators. 

The SCA requires law enforcement agents to present Internet 

providers with certain types of compulsory process, depending upon 

the type of information requested. For example, if investigators 

wish to access the content of communications, such as the ability 

to listen to a person’s phone calls or read emails, they must first 

obtain a warrant. To obtain other types of subscriber records that 

do not contain content, such as IP addresses or telephone numbers, 

agents must serve the provider with a subpoena or court order. It 

is important to note that ECPA does not simply apply to Federal 

law enforcement agencies, but to state and local agencies as well. 

An existing SCA provision, 18 U.S.C. 2703(f), requires a provider 

of wire or electronic communication services or a remote computing 

service to preserve certain customer records, including IP addresses 

assigned to the customer, at the request of law enforcement for 90 

days. Law enforcement can extend this request for an additional 90 

days. A section 2703(f) request functions like a snapshot. Providers 

preserve what records they have in their possession at the time of 

the request. If they do not have the records, they cannot and do 

not preserve them. 

This is where section 2703(f) falls short. Because providers either 

do not retain IP address-assignment records or do so only for short 

periods of time, the provider has often already purged the records 

by the time law enforcement has discovered the Internet child pornography or other Internet crime and made the request under section 2703(f). If the records have not been retained, then there is 

nothing to preserve. And, as noted above, if investigators cannot 

make the initial step of identifying the perpetrator, the case runs 

cold. 

The Justice Department testified in January 2011 that the section 2703(f) preservation ‘‘approach has had its limitations. The investigator must realize he needs the records before the provider deletes them, but providers are free to delete records after a short period of time, or to destroy them immediately. If, as has sometimes 

been the case, a provider deletes the relevant records after just a 

few seconds or a few days, a preservation request can come too 

late.’’ 24

H.R. 1981 adds a new subsection (h) to section 2703 to establish 

a uniform retention period of 1 year for IP address assignment 

records. This provision standardizes the retention period for all 

providers and ensures that these records are available for a sufficient period of time. This new requirement will dramatically increase the number of Internet crimes in which investigators can 

take the first step in their investigation—identifying the suspect. 


jbell on DSK4TPTVN1PROD with REPORTS
11 

25 47 C.F.R. § 42.6 (1986) (‘‘Each carrier that offers or bills toll telephone service shall retain 

for a period of 18 months such records as are necessary to provide the following billing information about telephone toll calls: the name, address, and telephone number of the caller, telephone 

number called, date, time and length of the call. Each carrier shall retain this information for 

toll calls that it bills whether it is billing its own toll service customers for toll calls or billing 

customers for another carrier’’). 26 U.S. CONST. amend IV. 

H.R. 1981 amends existing provisions in the law that provide liability protection to providers (subsection (e) of section 2703 and 

subsection (e) of section 2707) to include this new retention requirement in the list of activities for which providers are already 

afforded protection. These current liability provisions, even as 

amended by H.R. 1981, do not afford providers absolute immunity. 

Providers may still be liable for knowing or intentional violations 

of the law. 

H.R. 1981 does not alter the existing SCA structure for the compulsory process required to obtain the data. The data retained by 

providers under the new subsection (h) of section 2703 created by 

the bill will only be accessible to investigators via subpoena or 

court order. 

B. H.R. 1981 Balances the Needs of Law Enforcement Agencies and 

Service Providers and the Privacy Interests of Consumers 

Investigators do not become aware of a crime, particularly one 

committed over the Internet, at the moment it happens. When 

dealing with a crime on the Internet, which can easily cross state 

or even international jurisdictions, weeks or months may pass before law enforcement discovers or is tipped off to a crime. Therefore, the retention period for the new mandate must be long 

enough to serve a legitimate law enforcement function while still 

accommodating providers’ cost concerns and limiting the potential 

for a breach of the information. 

H.R. 1981 as introduced imposed an 18-month retention period 

on providers. This period mirrors an existing Federal Communications Commission (FCC) regulation that requires telephone companies to retain for 18 months telephone toll records, including the 

name, address, and telephone number of the caller, plus each telephone number called and the date, time, and length of the call.25

The 1-year retention period adopted as part of the manager’s 

amendment is even shorter than this long-standing FCC regulation 

and accordingly will reduce costs for providers, while still assisting 

law enforcement officers with apprehending some of the most dangerous criminals. 

Civil liberties and privacy groups contend that data retention 

threatens consumer privacy. They base this contention on the misplaced belief that Internet users are endowed with a 4th Amendment expectation of privacy in the non-content records held by providers. To be sure, the 4th Amendment to the Constitution affords 

individuals a right to be free from unreasonable searches and seizures of their persons, houses, papers, and effects.26 By and large, 

this protection extends to items the person owns or has possession 

of; for instance—papers in a file cabinet in one’s home or conversations one has over the telephone. 

Individuals do not, however, possess ‘‘a reasonable expectation of 

privacy in information disclosed to a third party. The Fourth 


jbell on DSK4TPTVN1PROD with REPORTS
12 

27Orin S. Kerr, The Case for the Third Party Doctrine, 107 MICH. L. REV. 561, 563 (2009). 28 425 U.S. 435 (1976). 29 Id. at 443. 30See, generally, supra notes 23 and 27. 31Supra note 21 at 6. 32Remarks of Rep. Lofgren, Markup of H.R. 1981, Committee on the Judiciary, 112th Congress, July 28, 2011 at 138–39. 

Amendment simply does not apply.’’ 27 As the Supreme Court noted 

in United States v. Miller,28

[T]he Fourth Amendment does not prohibit the obtaining 

of information revealed to a third party and conveyed by 

him to Government authorities, even if the information is 

revealed on the assumption that it will be used only for a 

limited purpose and the confidence placed in the third 

party will not be betrayed.29

Therefore, the records maintained by a business, such as billing 

records or the records required to be retained under H.R. 1981, are 

not afforded constitutional protection under the 4th Amendment.30

Indeed, the FCC requirement to retain telephone toll records is 

long-standing and non-controversial. The new requirement in H.R. 

1981 is no different. 

In enacting ECPA in 1986, Congress, however, chose to impose 

statutory requirements for the acquisition by the government of 

certain third-party business records, namely the requirement that 

law enforcement officials present a subpoena or court order to obtain these records from providers. The retention provision of H.R. 

1981 in no way disrupts or undermines this requirement. 

As the Justice Department explained in January 2011, ‘‘retained 

data is held by the provider, not the government. Federal law controls when providers can disclose information related to communications, and it requires investigators to obtain legal process, such 

as a subpoena or court order, in order to compel providers to disclose it.’’ 31

Unfortunately, opponents of H.R. 1981 chose to ignore this wellestablished precedent and intentionally mischaracterize the bill’s 

retention provision ‘‘requiring ISPs to keep the digital data for 

every American that will be submitted to the Federal Government 

without a warrant whenever we ask.’’ 32 This characterization is 

grossly inaccurate. As noted previously, many providers already retain this type of data in their ordinary course of business as it is 

their prerogative to do so. Law enforcement agencies also currently 

request and receive this data—via compulsory process as required 

by Federal law—in conjunction with their investigations. And, as 

the preceding discussion explains, a subpoena or court order, not 

a warrant, is required to obtain these non-content records. 

H.R. 1981 provides perhaps the narrowest type of data retention 

possible. The bill does not require the retention of any email or 

telephone content. It only requires providers to retain a log of the 

IP addresses they assign to their customers, and the information 

necessary to link that information to a specific customer. There is 

any number of records or other information that this legislation 

could have included in the retention mandate. Rather, H.R. 1981 

has a singular, narrow focus—retention of records needed to identify a criminal suspect. 


jbell on DSK4TPTVN1PROD with REPORTS
13 

33Supra note 21 at 6. 

Instead of threatening customer privacy, data retention can help 

to protect it. Both Congress and the Administration are currently 

addressing the issue of cyber security. As technology advances, so 

too does the opportunity to exploit it. Whether through a cyber attack by a foreign government or a data breach by identity thieves, 

‘‘data retention can help mitigate those threats by enabling effective prosecution of those crimes. Cyber criminals, often anonymously, hack into computer networks of retailers and financial institutions, stealing millions of credit and debit card numbers and 

other personal information.’’ 33 It is the retention of IP address information that allows law enforcement to identify these serious 

criminals. 

C. Retention Should Not be Limited to Only Child Exploitation 

Offenses 

Opponents of H.R. 1981 contend that data retention provision is 

overly-broad because it does not limit retention or access to only 

Internet child exploitation offenses. This criticism is unfounded. 

Some have suggested that the data retention provision requires 

providers to retain only those records pertaining to child pornography. Such a limitation is both technologically impossible and presents a far greater threat to consumer privacy than the standardized retention proposed by H.R. 1981. 

The assignment of IP addresses to customers is computerized, instantaneous, and continuous. This is not like the early days of telephones, when you called the operator and asked to be connected to 

your friend across town. The Internet is operated by a system of 

computers and networks that transmit all of the information via 

numerical codes. 

Currently, providers retain customer IP address information 

through an automated computerized system. Providers cannot discern from the records what function they were used for (i.e., sending an email, logging onto a chat room, visiting a website) or the 

subject matter of the Internet transaction. 

To require providers to comb through their IP address assignments records in order to identify those records connected only to 

child pornography has four significant flaws: (1) providers cannot 

discern what a customer did on the Internet simply by looking at 

the IP address they assigned to a customer to access the Internet; 

(2) even if they could do this, providers would still be required to 

collect all records of all IP address assignments in order to dissect 

them all and determine what to retain; (3) this would require providers to investigate the Internet usage of every single customer, 

including the vast majority of law-abiding customers—a much more 

significant privacy intrusion than is contemplated by H.R. 1981; 

and (4) such a mandate would be financially untenable for the providers—well beyond simply retaining a log of all IP address assignments. 

In addition to proposing limiting retention to just child pornography investigations, some have also proposed limiting law enforcement access to the records to only child pornography investigations. 

This limitation too is flawed—and was rejected by the Committee 

at markup. 


jbell on DSK4TPTVN1PROD with REPORTS
14 

34Testimony of Mr. Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, 

U.S. Dept. of Justice, Hearing on ‘‘Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes’’ before the Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, U.S. House of Representatives, 112th Congress, Jan. 

25, 2011 at 2. 35See Remarks of Mr. Sensenbrenner, Markup of H.R. 1981, Committee on the Judiciary, U.S. 

House of Representatives, 112th Congress, July 27, 2011 at 78–79. 36Microsoft Internet Protocol Version 6, MICROSOFT TECHNET, available at http:// 

technet.microsoft.com/en-us/network/bb530961. 37 Robert Cannon, Potential Impacts on Communications From IPv4 Exhaustion & IPv6 Transition, FCC Staff Working Paper 3 (Dec. 2010), available at http://transition.fcc.gov/ 

DailylReleases/DailylBusiness/2010/db1230/DOC–303870A1.pdf. 38 Charles Arthur and Josh Halliday, Internet almost out of space with allocation of last addresses, THE GUARDIAN, (Feb. 1, 2011), available at http://www.guardian.co.uk/technology/2011/ 

feb/01/Internet-last-addresses-ipv4-ipv6 39 Id. 

The Internet is not simply home to child pornography crimes. It 

is a virtual world where thousands of crimes are carried out every 

day—including telemarketing fraud, drug trafficking, human trafficking, cyber attacks, and terrorist plots. The lack of a uniform 

data retention mandate affects these types of investigations as 

well. 

According to the Justice Department, ‘‘Internet and cell phone 

companies’ records are crucial evidence in cases involving a wide 

array of crimes, including child exploitation, violent crime, fraud, 

terrorism, public corruption, drug trafficking, online piracy, computer hacking and other privacy crimes. What’s more, these records 

are important not only in Federal investigations, but also in investigations by state and local law enforcement officers.’’ 34

The Committee rejected an amendment to limit access to IP address data to only certain crimes against children and related offenses. Opposition to this limitation was based in large part on the 

belief that subpoenas or court orders served on providers as part 

of a legitimate law enforcement investigation should not be precluded simply because they seek evidence for an investigation of 

criminal activity outside this narrow category of offenses.35

Limiting the new retention requirement in H.R. 1981 to only 

child pornography cases would significantly lessen what law enforcement agents are currently able to obtain from providers. Investigators are now able to request records for any crime, so long as 

they comply with the requirements of the law. The laws that set 

forth the types of duties imposed on providers or the types of compulsory process required by law enforcement agents make no distinction or limitation based on particular types of crime. Neither 

should the data retention mandate in H.R 1981. 

D. Transition to Internet Protocol Version 6 (IPv6) 

Internet Protocol Version 6 (IPv6) is the new standard protocol 

(infrastructure) of the Internet that will transition it from IPv4, the 

current protocol. These protocols provide IP addresses to providers. 

In non-technical terms, IP addresses are ‘‘the ‘phone numbers’ for 

the Internet that are responsible for identifying computers and devices so they can communicate.’’ 36

The current protocol, IPv4, was developed in the late 1970’s during the developmental years of the Internet.37 IPv4 uses 32-bit addresses and each address is a ‘‘collection of four ‘‘dotted quads’’ of 

numbers between 0 and 255, such as 7.91.248.30.’’ 38 ‘‘Each of the 

numbers is eight binary bits long, and there are four of them.’’ 39


jbell on DSK4TPTVN1PROD with REPORTS
15 

40Supra note 37. 41 IPV Transition Guidance, FEDERAL CIO COUNCIL ARCHITECTURE AND INFRASTRUCTURE

COMMITTEE, (Feb. 2006). 42Supra note 37. 43Supra note 41. 44 IPv6 Fact Sheet, ICANN.org, available at http://www.icann.org/en/announcements/factsheetipv6–26oct07.pdf. 45 IPv6 Address Added for Root Servers in Root Zone, ICANN, (Feb. 4, 2008), available at 

http://www.icann.org/en/announcements/announcement-04feb08.htm. 46Microsoft Internet Protocol Version 6, MICROSOFT TECHNET, available at http:// 

technet.microsoft.com/en-us/network/bb530961. 47 Id. 48Lagging Security Features, Vulnerabilities Could Hamper Transition to a New Network, 

SECNAP NETWORK SECURITY (Jun 8, 2011), available at http://www.secnap.com/support/ 

whitepapers/ipv6-status.html. 49 Carolyn Duffy Marson, Asian Carriers Grab IPv4 Addresses at Record Rate, PC WORLD, April 23, 2010, available at http://www.pcworld.idg.com.au/article/344143/asianl carrierslgrablipv4laddresseslrecordlrate/ 50Larry Greenemeier, Out with the Old: As Internet Addresses Run Out, the Next Generation 

Protocols Set Up, SCIENTIFIC AMERICAN, Feb 4. 2011, available at http://www. 

scientificamerican.com/article.cfm?id=ipv4-to-ipv6-transition. 51Working Group Launched to Ensure Seamless IPv6 Transition, CONSUMER ELECTRONIC ASSOCIATION, Sept. 01, 2011, available at http://www.ce.org/RSS/default.asp. 52Outcomes of the Consultation held on the Transition from IPv4 to Ipv6 in Mauritius and 

the Recommendations Thereon, ICTA OF MAURITIUS, July 2011, at 36, available at http:// 

www.icta.mu/documents/Outcomel%20IPv6lConsultation.pdf. 

IPv4 holds a capacity about 4 billion unique addresses.40 This ‘‘inherently limits the number of devices that can be given a unique, 

globally routable address on the Internet.’’ 41 At that time, 4 billion 

addresses appeared to be sufficient since no one envisioned the future rapid growth of the Internet. However, by the 1990’s, Internet 

engineers recognized that the supply of addresses was relatively 

limited compared to likely future demand.42 Considering that the 

earth’s population is approximately 6.6 billion people, under the 

current IPv4 protocol it is not possible to give a single IP address 

to every person on the earth.43

In response, IPv6 was developed to expand the address space on 

the Internet from 32 to 128 bits.44 This increase enables essentially 

an unlimited number of IP addresses (340 trillion trillion trillion 

addresses),45 and subsequently an unlimited number of devices 

that can be directly connected to the global Internet.46 In addition, 

‘‘IPv6 is designed to solve many of the problems of IPv4, including 

mobility, autoconfiguration, and overall extensibility.’’ 47

So far, the adoption to IPv6 has been slow and IPv6 traffic 

makes up only about 10% of all Internet traffic.48 Due to the increase in mobile technological devices, e.g. Smart phones, laptops, 

etc., there has been an increased address consumption rate.49 In 

fact on Feb. 3, 2011, the Internet Assigned Number Authority 

(IANA) assigned the last batch of 32 bit address blocks to the Regional Internet Registries.50 It is expected that the U.S. will exhaust its supply of IPv4 addresses by early-to mid-2012.51

The transition of the global Internet from IPv4 to IPv6 will not 

be instantaneous, but is expected to span many years. Since IPv6 

is not backwards compatible, both networks will exist for some 

time. Therefore during this period of transition, there will be an 

issue for how devices on IPv4 and IPv6 networks are able to interact with each other.52 There are two main solutions to solve this 

issue, ‘‘dual stack’’ and ‘‘tunneling.’’ 

With the dual stack solution, a host runs both an IPv4 and an 

IPv6 stack side by side. ‘‘Traffic which reaches the host using eiVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
16 

53 Robert Cannon, Potential Impacts on Communications From IPv4 Exhaustion & IPv6 Transition, FCC Staff Working Paper 18 (Dec. 2010), available at http://transition.fcc.gov/ 

DailylReleases/DailylBusiness/2010/db1230/DOC–303870A1.pdf. 54 Id. 55 IPV Transition Guidance, FEDERAL CIO COUNCIL ARCHITECTURE AND INFRASTRUCTURE

COMMITTEE (Feb. 2006) at 36. 56Supra note 53 at 22 (internal citations omitted). 

ther network protocol can interact with the host.’’ 53 In contrast, 

tunneling is a solution utilized when there is no native IPv6 

connectivity between different points on the network.54 ‘‘It encapsulates one version of IP in another so the packets can be sent over 

a backbone that does not support the encapsulated IP version. For 

example, when two isolated IPv6 networks need to communicate 

over an IPv4 network, dual-stack routers at the network edges can 

be used to set up a tunnel which encapsulates the IPv6 packets 

within IPv4, allowing the IPv6 systems to communicate without 

having to upgrade the IPv4 network infrastructure that exists between the networks.’’ 55

In the current IPv4 network, commercial wireline providers, with 

a few exceptions, assign dynamic IP addresses (or temporarily assigned network addresses) to their customers on a ‘‘one-to-one 

basis,’’ meaning that an individual IP address from a public block 

of addresses is assigned to an individual customer on a temporary 

basis. During the transition to the IPv6 network, commercial providers may rely on what is known as a Network Address Translation (NAT) box. 

The FCC provides the following description of a NAT system: 

A NAT box is a host on the Internet with an IP address 

that has behind it a network of privately addressed computers. A specific block of addresses has been set aside for 

private use and is not advertised by networks to the public 

Internet. Since these addresses only work internally and 

cannot be used to communicate on the public Internet, 

they can be reused over and over again behind NATs. 

An example of a NAT might be an off-the-shelf Wi-Fi access point that a residential user might use for home 

Internet access. The ISP assigns to that subscriber an IP 

address which is assigned to whatever computer the subscriber attaches at the end of the network. The subscriber 

attaches the Wi-Fi router. Behind the Wi-Fi router could 

be all of the computers in the house; the router assigns 

them IP addresses from the private IP address space. In 

this way, a subscriber with one public IP number can have 

multiple computers attached to the Internet. Commercial 

ISPs may utilize private IP numbers for their subscribers, 

and corporate LANs (such as the FCC internal network) 

may also utilize private IP addresses. 

Network operators utilize NATs for various objectives. 

First, NATs are used to conserve the scarce numbering resource; one public address maps to multiple private addresses. Second, NATs are also used for network management and security, creating single points of entry into networks.56


jbell on DSK4TPTVN1PROD with REPORTS
17 

57 Id. at 23. ‘‘After the transition to IPv6, with the dramatically increased address space, NATs 

would no longer be necessary in order to deal with the scarce numbering resource. It is expected 

that with IPv6 the use of NATs will likely decrease although it may not disappear.’’ 58 28 U.S.C. §§ 566(c), (e)(1)(A). 

Utilization of a NAT box during IPv6 transition will have the effect of changing the ‘‘one-to-one’’ IP address assignment process to 

a ‘‘one-to-many’’ process, in that one public IP address will be sent 

to a router or proxy which will, in turn, assign private IP addresses 

to a group of customers to access the Internet. 

Law enforcement officials or other governmental entities, private 

entities, and individuals that currently compel retained data from 

commercial providers typically proffer the IP address, date and 

time information, and perhaps other information to facilitate the 

provider identifying its customer or subscriber. The providers inform the Committee that during IPv6 transition, particularly if a 

NAT or proxy system is utilized, additional information from the 

requesting entity will likely be necessary to identify the individual 

customer or subscriber. This may include the private and public 

network source port numbers associated with the assigned subscriber IP address, which would be essential when providers are 

utilizing a carrier-grade NAT/Port Address Translation (PAT) solution. It would also be important for the requesting entity to be able 

to provide the private and public network destination port numbers 

in order to further correlate the customer or subscriber to the destination. 

The data retention mandate in Section 4 of H.R. 1981 is intended 

to apply before, during and after 57 IPv6 transition. The Committee 

appreciates, however, that during IPv6 transition, this mandate 

could impose additional technical and cost burdens on some commercial providers who utilize a NAT or proxy server system to assign private IP addresses to customers rather than public IP addresses. Therefore, provider compliance with a subpoena or court 

order for retained data from a NAT system will likely require additional information from the requesting entity. The Committee 

strongly encourages those commercial providers and federal, state 

and local law enforcement agencies, and other affected entities to 

work cooperatively to seek technically feasible and economically 

reasonable solutions for retaining private addresses and the information necessary to identify those addresses with subscriber information. 

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. § 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.58


jbell on DSK4TPTVN1PROD with REPORTS
18 

59 28 U.S.C. § 566(e)(1)(B). 60Fact Sheets: Sex Offender Operations, U.S. MARSHALS SERVICE, Feb. 25, 2011, available at 

http://www.usmarshals.gov/duties/factsheets/fugitivelops-2011.html. 61Pub. L. No. 109–248, 111 Stat. 2466 (2006). 62Supra note 60. 

The Marshals Service is also the Federal Government’s primary 

agency for fugitive apprehension.59 The agency holds all Federal 

arrest warrants until they are executed or dismissed. In fiscal year 

2010, the Marshals apprehended more than 36,100 Federal fugitives, clearing approximately 39,100 felony warrants.60

The Adam Walsh Child Protection and Safety Act of 2006 61 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. 

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 2010, the Marshals apprehended 11,072 sex offenders, initiated 3,025 investigations, issued 426 warrants for registration violations, and arrested 360 people for other violations of 

the Adam Walsh Act.62

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 USC § 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. 

The administrative subpoena statute, 18 USC § 3486, 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 section 3486 does not automatically extend to the Marshals. 

H.R. 1981, therefore, performs two important steps. First, it 

amends the general administrative subpoena authority statute—18 

U.S.C. § 3486—to add investigations of unregistered sex offenders 

conducted by the U.S. Marshals Service. Second, it amends section 

566 of title 28 to give the Marshals express administrative subVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6601 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
19 

63Denver Attorney Arrested In Witness Intimidation Case, DENVER NEWS CHANNEL, Oct. 4, 

2007, available at http://www.thedenverchannel.com/news/14269922/detail.html. 64Father of Rape Suspect Charged with Witness Intimidation, WICKED LOCAL, Feb. 19, 2010, 

available at http://www.wickedlocal.com/milford/news/x1650244989/Father-of-rape-suspectcharged-with-witness-intimidation#axzz1RoFC05we. 65Whitman Man Indicted on Child Sex-Abuse Charges, ENTERPRISE NEWS, Mar. 09, 2011, 

available at http://www.enterprisenews.com/news/copslandlcourts/x13264467/Whitman-manindicted-on-child-sex-abuse-charges. 

poena authority—but only for fugitive investigations of unregistered sex offenders. 

Unlike the administrative subpoena authority exercised by the 

U.S. Secret Service and the FBI under 18 USC § 3486, which is 

used at the beginning of a criminal investigation, the administrative subpoena authority authorized by H.R. 1981 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 and an arrest warrant has been issued by a judge. 

V. ADDITIONAL PROTECTIONS FOR CHILD WITNESSES AND VICTIMS

Child pornography and exploitation prosecutions often hinge 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, a 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. The threats were intended to intimidate his sister, Rachel, who was 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 16-year-old victim.63 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.64 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.65

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 


jbell on DSK4TPTVN1PROD with REPORTS
20 

66 543 U.S. 220 (2005). 67 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). 68The 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. 

intimidation, more subtle forms of intimidation directed at a child 

remain unaddressed. 

H.R. 1981 provides Federal courts with the means to control such 

intimidation through effective protection orders, and a new felony 

penalty for violation of such orders will strengthen the deterrent effect of a restraining order and prevent intimidation. 

H.R. 1981 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. 

VI. ENHANCED PENALTIES FOR CHILD PORNOGRAPHY POSSESSION

Current law imposes a maximum 10-year penalty for child pornography possession offenses. Since the Supreme Court’s 2005 

United States v. Booker 66 decision, which made the Federal Sentencing Guidelines discretionary, in the Federal courts have begun 

to issue lower and lower 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%).67

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.’’ 68

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. NCMEC estimates 

that more than 40 percent of people convicted of possession are also 

guilty of victimizing a child, and there is 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. 

In 2009, a symposium of experts who studied child pornography 

met to share individual findings and develop an international consensus on the risks to children from child pornography. The sympoVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6601 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
21 

69 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/G8linternolgiustizia/ 

LEPSGlChildlExploitationlSymposium.pdf. 70 United States v. C.R., ll F.Supp.2d ll, 2011 WL 1901645, at *33 (E.D.N.Y. 2011). 

sium 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.69

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.’’ 70 These children’s lives are thrown into 

permanent disarray to feed the appetites of the ‘‘mere’’ possessors. 

H.R. 1981 ensures tough penalties for those who victimize the 

youngest and most vulnerable of our society by increasing 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. 

H.R. 1981 is supported by the National Center for Missing and 

Exploited Children, the National Center for Victims of Crime, the 

National Sheriffs’ Association, the Major County Sheriffs’ Association, the International Union of Police Associations, the Fraternal 

Order of Police, the International Association of Chiefs of Police, 

and the Federal Law Enforcement Officers Association. 

Hearings 

The Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held 1 day of hearings on H.R. 1981 on July 12, 2011. 

Testimony was received from Mr. Ernie Allen, President and CEO, 

National Center for Missing and Exploited Children, Sheriff Michael J. Brown, Bedford County Sheriff’s Office, and Mr. Marc 

Rotenberg, President, Electronic Privacy Information Center, with 

additional material submitted by the National Sheriffs’ Association, 

Major County Sheriffs’ Association, the Fraternal Order of Police, 

the International Union of Police Associations, the National Center 

for Victims of Crime, and Mr. Levi C. Maaia, Vice President, 

FullChannel. In addition, the Subcommittee held a hearing on January 25, 2011, to take testimony on the subject of data retention. 

Testimony was received from Mr. Jason M. Weinstein, Deputy AsVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
22 

sistant Attorney General, U.S. Department of Justice, Mr. John M. 

Douglass, Chief of Police, Overland Park, Kansas, Ms. Kate Dean, 

Executive Director, U.S. Internet Service Providers Association, 

and Mr. John B. Morris, Jr., General Counsel, Center for Democracy and Technology, with additional material submitted by Mr. 

Ernie Allen, President and CEO, National Center for Missing and 

Exploited Children. 

Committee Consideration 

On July 28, 2011, the Committee met in open session and ordered the bill H.R. 1981 favorably reported with an amendment, by 

a rollcall vote of 19 to 10, 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. 

1981. 

1. An amendment by Mr. Scott to limit the data retention period 

to 180 days. Defeated 12–14. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................

Ms. Adams ........................................................................................................

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen ..........................................................................................................

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 


jbell on DSK4TPTVN1PROD with REPORTS
23 

ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 12 14 

2. An amendment by Mr. Smith to add safe harbor language to 

Section 2 of the bill (creating a new offense for financial facilitation 

of access to child pornography) to exempt financial institutions assisting law enforcement investigations; to rewrite Section 4 relating 

to data retention; and to make other technical and conforming 

changes. Adopted 19–4. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte ....................................................................................................

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................

Mr. Issa .............................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks .........................................................................................................

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 19 4 

3. An amendment by Mr. Sensenbrenner to strike Section 7 and 

10 (redesignated) from the underlying legislation to strike all subpoena powers granted under the bill. Defeated 10–17. 


jbell on DSK4TPTVN1PROD with REPORTS
24 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................

Mr. Quayle .........................................................................................................

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 .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi .......................................................................................................

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 10 17 

4. An amendment by Ms. Lofgren to strike Section 4 from the 

bill. Defeated 8–15. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................

Mr. Issa .............................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 


jbell on DSK4TPTVN1PROD with REPORTS
25 

ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................

Ms. Adams ........................................................................................................

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen ..........................................................................................................

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 8 15 

5. An amendment by Mr. Scott to authorize additional funds for 

FBI agents, prosecutors and defenders assigned to work on child 

exploitation cases. Defeated 7–11. 

ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ...........................................................................................................

Mr. Gallegly .......................................................................................................

Mr. Goodlatte ....................................................................................................

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa .............................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks .........................................................................................................

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Cohen .......................................................................................................... X 


jbell on DSK4TPTVN1PROD with REPORTS
26 

ROLLCALL NO. 5—Continued 

Ayes Nays Present 

Mr. Johnson .......................................................................................................

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 7 11 

6. An amendment by Ms. Lofgren to require ISPs to report nature of requests for data and costs to AOC, and also to require AOC 

to report to Congress yearly. Defeated 9–15. 

ROLLCALL NO. 6 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks .........................................................................................................

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin .........................................................................................................

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Cohen .......................................................................................................... X 

Mr. Johnson .......................................................................................................

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 9 15 

7. An amendment by Ms. Lofgren to strike Sections 5 and 6 and 

to replace with language clarifying that existing protections under 

ECPA apply to data retained under Section 4. Defeated 7–18. 


jbell on DSK4TPTVN1PROD with REPORTS
27 

ROLLCALL NO. 7 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ...........................................................................................................

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................

Mr. Cohen .......................................................................................................... X 

Mr. Johnson .......................................................................................................

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 7 18 

8. An amendment by Ms. Lofgren to forbid communication services from collecting any additional data that they do not already associate or collect for business reasons, and to forbid communication 

services from associating any information with a particular user. 

Defeated 7–16. 

ROLLCALL NO. 8 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa .............................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 


jbell on DSK4TPTVN1PROD with REPORTS
28 

ROLLCALL NO. 8—Continued 

Ayes Nays Present 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Cohen ..........................................................................................................

Mr. Johnson .......................................................................................................

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 7 16 

9. An amendment by Ms. Lofgren to retitle the bill as the ‘‘Keep 

Every American’s Digital Data for Submission to the Federal Government Without a Warrant Act of 2011.’’ Defeated 9–18. 

ROLLCALL NO. 9 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin .........................................................................................................

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 


jbell on DSK4TPTVN1PROD with REPORTS
29 

ROLLCALL NO. 9—Continued 

Ayes Nays Present 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen ..........................................................................................................

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 9 18 

10. Motion to report H.R. 1981 favorably, as amended. Passed 

19–10. 

ROLLCALL NO. 10 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

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 ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 19 10 


jbell on DSK4TPTVN1PROD with REPORTS
30 

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. 1981 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, October 12, 2011. 

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. 1981, the ‘‘Protecting 

Children from Internet Pornographers Act.’’ 

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

to provide them. The CBO staff contact is Martin von Gnechten (for 

Federal costs), who can be reached at 226-2860, and Marin Randall 

(for the impact on the private sector), who can be reached at 226- 

2940. 

Sincerely, 

DOUGLAS W. ELMENDORF, 

DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 1981—Protecting Children from Internet Pornographers Act. 

H.R. 1981 would amend current law to modify and expand Federal crimes related to child pornography. The legislation would prohibit financial transactions that facilitate access to child pornography. The legislation also would require Internet service providers 

to retain Internet usage information for at least 18 months and 

prevent legal actions against the providers related to the retention 

of those records. The bill also would allow the U.S. Marshals Service to issue administrative subpoenas to investigate unregistered 

sex offenders. Under the legislation, district courts would be required to issue protective orders to prevent harassment or intimidation of a minor victim or witness. H.R. 1981 also would direct the 


jbell on DSK4TPTVN1PROD with REPORTS
31 

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

IMPACT ON THE FEDERAL BUDGET

Enacting the legislation 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. The 

bill could increase direct spending by extending witness protective 

services to certain minor witnesses and victims. 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. 

1981 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. 

Based on information from the Department of Justice (DOJ), CBO estimates that implementing H.R. 1981 would cost around $1 

million over the 2012-2016 period, assuming the availability of appropriated funds, mostly for DOJ to complete two studies and for 

changes in prison sentences. CBO estimates that H.R. 1981 would 

have a negligible impact on the number of offenders under Federal 

incarceration because many of the offenders prosecuted under H.R. 

1981 can be prosecuted under current law. 

IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS AND THE

PRIVATE SECTOR

H.R. 1981 contains no intergovernmental mandates as defined in 

the Unfunded Mandates Reform Act (UMRA) and would impose no 

costs on the State, local, or tribal governments. 

The bill would impose private-sector mandates, as defined in 

UMRA, on providers of electronic communications services (such as 

telecommunication companies and Internet service providers) and 

on entities who have a right to file certain claims against those 

providers. The bill would require providers to retain for one year 

a detailed log of all electronic addresses assigned to each of their 

customers. To comply, providers would have to upgrade or build 

systems and buy hardware to collect, store, secure, and administer 

the required data. 

CBO estimates that the total costs to private entities of the mandates in the bill would exceed the annual threshold established in 

UMRA for private-sector mandates ($142 million in 2011, adjusted 

annually for inflation). 

According to data from the Census Bureau, there are approximately 3,000 providers of electronic communications services. 

Based on information from industry experts and data technology 

professionals about current practices and the cost to design and install the data systems that would be required by the bill, CBO estimates that the aggregate cost of this mandate to the private sector 

would be more than $200 million. 

The bill also would eliminate an existing right to file claims 

against providers for retaining records of assigned electronic addresses. The cost of this mandate would be the forgone net value 


jbell on DSK4TPTVN1PROD with REPORTS
32 

of any awards and settlements in such claims. Based on value of 

awards and settlements in recent court decisions related to privacy 

rights and assigned electronic addresses, CBO expects that the cost 

of this mandate would not be large. 

STAFF CONTACTS

The CBO staff contacts for this estimate are Martin von 

Gnechten (for Federal costs) and Marin Randall (for the impact on 

the private sector). The estimate was 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. 1981 provides 

additional investigative and prosecutorial tools and enhanced penalties to combat the proliferation of Internet child pornography, 

child exploitation offenses, and other Internet-based crimes. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 1981 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 ‘‘Protecting Children from Internet Pornographers Act of 

2011.’’ 

Section 2. Financial Facilitation of Access to Child Pornography. 

This section creates a new Federal offense for the financial facilitation of child pornography. Any person who conducts a financial 

transaction knowing that it will facilitate access to child pornography will be liable under this section and may be fined or imprisoned up to twenty years. This new offense makes it a crime for 

someone to conduct a financial transaction knowing that such 

transaction will facilitate access to child pornography. Section 2 

does not apply to financial transactions conducted by a person in 

cooperation with, or with the consent of, a federal, state or local 

law enforcement agency. 

Section 3. Money Laundering Predicate. This section adds section 

1466A of title 18 (relating to obscene visual representation of the 

abuse of children) and section 1960A of title 18 (relating to financial facilitation of access to child pornography) as specified unlawful activities under section 1956 of title 18, the Federal money 

laundering statute. 

Section 4. Retention of Certain Records by Electronic Communication Service Providers. Subsection (a) requires commercial providers of an electronic communication service to retain for 1 year 

a log of the temporarily assigned network addresses the provider 

assigns to a subscriber or customer. Such log must enable the identification of the corresponding customer or subscriber information 

that providers are currently required to disclose pursuant to 18 


jbell on DSK4TPTVN1PROD with REPORTS
33 

71 According to information compiled by Justice Department on the six largest wireless providers in the U.S., one major provider already retains IP session information for 1 rolling year, 

two wireless providers retain this data for 60 days, one provider retains non-public IP address 

data for 72 hours, and two providers do not retain at all. See Retention Periods of Major Cellular 

Service Providers, Data Gathered by the Computer Crime and Intellectual Property Section, U.S. 

DEPT. OF JUSTICE (Aug. 2010). 

U.S.C. § 2703(c)(2). The intent of this language is for these two subsections—the newly created 2703(h) and the existing (c)(2) to work 

in tandem with each other. Section 4 does not instruct providers 

on how they retain IP address assignment logs out of an abundance 

of caution to not disrupt the current retention practices of many 

providers. Section 4 is intended to enable the identification of a 

customer or subscriber to a corresponding IP address since this is 

often the only mechanism for identifying a criminal suspect operating via the Internet. It is envisioned that once such person’s identity is determined, investigators will immediately seek disclosure of 

any information the provider also has under (c)(2). The types of information listed under (c)(2) are already held by most if not all providers as a necessary function of their businesses—name, address, 

billing information, etc. Without the required retention under the 

new 2703(h), there is often no way for law enforcement to request 

this commonly-held information under (c)(2). 

Section 4 applies to both commercial wireline and wireless providers of an electronic communication service.71 The provision does 

not extend to commercial providers of a remote computing service 

since such a service does not engage in the act of assigning temporarily assigned network addresses to subscribers or customers. This 

section defines commercial providers in such a way as to exclude 

retention by a modem in a home or network in a business, free WiFi services provided by bookstores, coffee shops, restaurants or 

other businesses, and fee-based Wi-Fi provided by hotels or other 

entities whose services are not available to the public. The intent 

is to maintain the current retention practices by telecommunication 

companies while not creating a new requirement on services such 

as those described above that may fall incidentally within the technical definition of electronic communication service. 

Specifically, the definition of commercial provider excludes Internet services offered for free. Numerous businesses, city governments, and airports offer free Internet services to customers or to 

those within the range of service (such as Wi-Fi). By limiting the 

application of the bill to commercial providers who offer electronic 

communication services for a fee, an entity that offers free Internet 

service is excluded from the mandate. 

Likewise, the bill also limits application of Section 4 to only commercial providers who offer electronic communication services to 

the public. Hotels and airlines, for example, offer fee-based Internet 

service to their customers, which is incidental to the primary service provided. This service also is available only to customers who 

first acquire the primary service of a hotel room or airline ticket. 

Unlike free Internet service available to all people who are in the 

District of Columbia or who purchase a coffee at Starbucks (and 

even those who do not), fee-based Internet service provided by hotels, airlines, or other similar businesses is not available to the 

public. 

To be sure, although a member of the general public can enter 

a hotel lobby, that same person cannot enter a hotel room—for any 


jbell on DSK4TPTVN1PROD with REPORTS
34 

reason—without first paying for it or without the permission of a 

paying guest. To do so would be trespassing. No one would contend 

that the Snickers candy bar in a hotel room minibar or the wine 

offered for purchase on an airplane is available to any member of 

the public who wishes to purchase them. These are incidental services to the primary services of a hotel room or airline flight and can 

only be purchased once the necessary steps to acquire the primary 

service are completed. The same is true for fee-based Internet service in a hotel room or on an airplane. They are not available to the 

public but only to paying hotel room guests or airline passengers. 

Subsection (a) limits access to such records to only governmental 

entities and directs the Attorney General to conduct a study of the 

costs associated with compliance by providers with the retention 

mandate. ‘‘Governmental entity’’ is defined by 18 U.S.C. § 2711(4). 

Subsection (b) expresses the Sense of Congress that records retained pursuant to this section should be stored securely to protect 

customer privacy and prevent against potential breach of the 

records. 

Subsection (c) gives providers up to 180 days to comply with the 

retention requirement. 

Subsection (d) directs the Attorney General to study the privacy 

standards implemented by providers with regard to compliance 

with the retention requirement and the frequency of any reported 

breaches of such data. 

Section 5. No Cause of Action against a Provider Disclosing Information under this Chapter. This section amends section 2703(e) of 

title 18 to provide additional liability protections to providers who 

retain records pursuant to section 4 of the Act. 

Section 6. Good Faith Reliance on Requirement. This section 

amends section 2707(e) of title 18 to add retention of records pursuant to the requirement under section 4 to the list of actions afforded liability protections. 

Section 7. Subpoena Authority. 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. 

Section 8. 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. The core of the section is an amendment to the current Federal protection order statute to allow courts 

greater flexibility in cases involving child victims and witnesses, 

who are more vulnerable to intimidation and manipulation. 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 inVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00034 Fmt 6659 Sfmt 6601 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
35 

tentional 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 was 

previously approved by both the House and Senate in the 111th 

Congress but not enacted into law. 

Section 9. Sentencing Guidelines. This section directs the United 

States Sentencing Commission to review and amend Federal sentencing guidelines and policy statements to ensure that such guidelines provide an additional penalty for obstruction of justice, namely witness intimidation, associated with sex trafficking of children 

and other child abuse crimes. Similar language passed the House 

and Senate in the 111th Congress but was not enacted into law. 

Section 10. Enhanced Penalties for Possession of Child Pornography. This section increases the maximum penalty from 10 to 20 

years for child pornography offenses involving prepubescent minors 

or minors under the age of 12. This increase was approved by the 

House and Senate in the 111th Congress but not enacted into law. 

Section 11. Administrative Subpoenas. This section 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. 

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 italic, 

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 

* * * * * * * 

§ 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 


jbell on DSK4TPTVN1PROD with REPORTS
36 

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. 

ø(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. 

ø(3)¿ (4) A protective order shall set forth the reasons for the 

issuance of such order, be specific in terms, describe in reasonable 

detail ø(and not by reference to the complaint or other document)¿ 

the act or acts being restrained. 

ø(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. ø(c) As used in this section— 

ø(1) the term ‘‘harassment’’ means a course of conduct directed at a specific person that— 

ø(A) causes substantial emotional distress in such person; and 

ø(B) serves no legitimate purpose; and 

ø(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; 


jbell on DSK4TPTVN1PROD with REPORTS
37 

(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 95—RACKETEERING 

Sec. 

1951. Interference with commerce by threats or violence. 

* * * * * * * 

1960A. Financial facilitation of access to child pornography. 

* * * * * * * 

§ 1956. Laundering of monetary instruments 

(a) * * * 

* * * * * * * 

(c) As used in this section— 

(1) * * * 

* * * * * * * 

(7) the term ‘‘specified unlawful activity’’ means— 

(A) * * * 

* * * * * * * 

(D) an offense under section 32 (relating to the destruction of aircraft), section 37 (relating to violence at international airports), section 115 (relating to influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member), section 152 (relating 

to concealment of assets; false oaths and claims; bribery), 

section 175c (relating to the variola virus), section 215 (relating to commissions or gifts for procuring loans), section 

351 (relating to congressional or Cabinet officer assassination), any of sections 500 through 503 (relating to certain 

counterfeiting offenses), section 513 (relating to securities 

of States and private entities), section 541 (relating to 

goods falsely classified), section 542 relating to entry of 

goods by means of false statements), section 545 (relating 

to smuggling goods into the United States), section 549 

(relating to removing goods from Customs custody), section 


jbell on DSK4TPTVN1PROD with REPORTS
38 

554 (relating to smuggling goods from the United States), 

section 641 (relating to public money, property, or records), 

section 656 (relating to theft, embezzlement, or 

misapplication by bank officer or employee), section 657 

(relating to lending, credit, and insurance institutions), 

section 658 (relating to property mortgaged or pledged to 

farm credit agencies), section 666 (relating to theft or bribery concerning programs receiving Federal funds), section 

793, 794, or 798 (relating to espionage), section 831 (relating to prohibited transactions involving nuclear materials), 

section 844 (f) or (i) (relating to destruction by explosives 

or fire of Government property or property affecting interstate or foreign commerce), section 875 (relating to interstate communications), section 922(1) (relating to the unlawful importation of firearms), section 924(n) (relating to 

firearms trafficking), section 956 (relating to conspiracy to 

kill, kidnap, maim, or injure certain property in a foreign 

country), section 1005 (relating to fraudulent bank entries), 1006(relating to fraudulent Federal credit institution entries), 1007(relating to Federal Deposit Insurance 

transactions), 1014(relating to fraudulent loan or credit applications), section 1030 (relating to computer fraud and 

abuse), 1032(relating to concealment of assets from conservator, receiver, or liquidating agent of financial institution), section 1111 (relating to murder), section 1114 (relating to murder of United States law enforcement officials), 

section 1116 (relating to murder of foreign officials, official 

guests, or internationally protected persons), section 1201 

(relating to kidnaping), section 1203 (relating to hostage 

taking), section 1361 (relating to willful injury of Government property), section 1363 (relating to destruction of 

property within the special maritime and territorial jurisdiction), 1466A (relating to obscene visual representation of 

the abuse of children), section 1708 (theft from the mail), 

section 1751 (relating to Presidential assassination), 1960A 

(relating to financial facilitation of access to child pornography), section 2113 or 2114 (relating to bank and postal 

robbery and theft), section 2252A (relating to child pornography) where the child pornography contains a visual depiction of an actual minor engaging in sexually explicit 

conduct, section 2260 (production of certain child pornography for importation into the United States), section 2280 

(relating to violence against maritime navigation), section 

2281 (relating to violence against maritime fixed platforms), section 2319 (relating to copyright infringement), 

section 2320 (relating to trafficking in counterfeit goods 

and services), section 2332 (relating to terrorist acts 

abroad against United States nationals), section 2332a (relating to use of weapons of mass destruction), section 

2332b (relating to international terrorist acts transcending 

national boundaries), section 2332g (relating to missile 

systems designed to destroy aircraft), section 2332h (relating to radiological dispersal devices), section 2339A or 

2339B (relating to providing material support to terrorists), section 2339C (relating to financing of terrorism), or 


jbell on DSK4TPTVN1PROD with REPORTS
39 

section 2339D (relating to receiving military-type training 

from a foreign terrorist organization) of this title, section 

46502 of title 49, United States Code, a felony violation of 

the Chemical Diversion and Trafficking Act of 1988 (relating to precursor and essential chemicals), section 590 of 

the Tariff Act of 1930 (19 U.S.C. 1590) (relating to aviation 

smuggling), section 422 of the Controlled Substances Act 

(relating to transportation of drug paraphernalia), section 

38(c) (relating to criminal violations) of the Arms Export 

Control Act, section 11 (relating to violations) of the Export Administration Act of 1979, section 206 (relating to 

penalties) of the International Emergency Economic Powers Act, section 16 (relating to offenses and punishment) of 

the Trading with the Enemy Act, any felony violation of 

section 15 of the Food and Nutrition Act of 2008 (relating 

to supplemental nutrition assistance program benefits 

fraud) involving a quantity of benefits having a value of 

not less than $5,000, any violation of section 543(a)(1) of 

the Housing Act of 1949 (relating to equity skimming), any 

felony violation of the Foreign Agents Registration Act of 

1938, any felony violation of the Foreign Corrupt Practices 

Act, or section 92 of the Atomic Energy Act of 1954 (42 

U.S.C. 2122) (relating to prohibitions governing atomic 

weapons) 

* * * * * * * 

§ 1960A. Financial facilitation of access to child pornography 

(a) IN GENERAL.—Whoever knowingly conducts, or attempts or 

conspires to conduct, a financial transaction (as defined in section 

1956(c)) in or affecting interstate or foreign commerce, knowing that 

such transaction will facilitate access to, or the possession of, child 

pornography (as defined in section 2256) shall be fined under this 

title or imprisoned not more than 20 years, or both. 

(b) EXCLUSION FROM OFFENSE.—This section does not apply to a 

financial transaction conducted by a person in cooperation with, or 

with the consent of, any Federal, State, or local law enforcement 

agency. 

* * * * * * * 

CHAPTER 110—SEXUAL EXPLOITATION AND OTHER 

ABUSE OF CHILDREN 

* * * * * * * 

§ 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, 


jbell on DSK4TPTVN1PROD with REPORTS
40 

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. 

* * * * * * * 

§ 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. 

* * * * * * * 

CHAPTER 121—STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS 

* * * * * * * 

§ 2703. Required disclosure of customer communications or 

records 

(a) * * * 

* * * * * * * 

(e) NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING IN- FORMATION UNDER THIS CHAPTER.—No cause of action shall lie in 

any court against any provider of wire or electronic communication 

service, its officers, employees, agents, or other specified persons 

for retaining records, providing information, facilities, or assistance 

in accordance with the terms of a court order, warrant, subpoena, 

statutory authorization, or certification under this chapter. 

* * * * * * * 

(h) RETENTION OF CERTAIN RECORDS.— 

(1) A commercial provider of an electronic communication 

service shall retain for a period of at least one year a log of the 

temporarily assigned network addresses the provider assigns to 

a subscriber to or customer of such service that enables the 


jbell on DSK4TPTVN1PROD with REPORTS
41 

identification of the corresponding customer or subscriber information under subsection (c)(2) of this section. 

(2) Access to a record or information required to be retained 

under this subsection may not be compelled by any person or 

other entity that is not a governmental entity. 

(3) The Attorney General shall make a study to determine the 

costs associated with compliance by providers with the requirement of paragraph (1). Such study shall include an assessment 

of all the types of costs, including for hardware, software, and 

personnel that are involved. Not later than 2 years after the 

date of the enactment of this paragraph, the Attorney General 

shall report to Congress the results of that study. 

(4) In this subsection— 

(A) the term ‘‘commercial provider’’ means a provider of 

electronic communication service that offers Internet access 

capability for a fee to the public or to such classes of users 

as to be effectively available to the public, regardless of the 

facilities used; and 

(B) the term ‘‘Internet’’ has the same meaning given that 

term in section 230(f) of the Communications Act of 1934. 

* * * * * * * 

§ 2707. Civil action 

(a) * * * 

* * * * * * * 

(e) DEFENSE.—A good faith reliance on— 

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a 

request of a governmental entity under section 2703(f), or the 

requirement to retain records under section 2703(h), of this 

title); 

* * * * * * * 

PART II—CRIMINAL PROCEDURE 

* * * * * * * 

CHAPTER 223—WITNESSES AND EVIDENCE 

* * * * * * * 

§ 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; øor¿ 

(ii) an unregistered sex offender conducted by the United 

States Marshals Service, the Director of the United States Marshals Service; or 

ø(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 ofVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6601 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
42 

fense or the threat against the person protected is imminent, 

the Secretary of the Treasury, 

* * * * * * * 

(D) As used in this øparagraph, 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 ø.¿; 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 øUnited 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 ø(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 øparagraph (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 

§ 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; øand¿ 

(B) investigate such fugitive matters, both within and outside the United States, as directed by the Attorney Generalø.¿; 

and 

(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). 

* * * * * * * 


jbell on DSK4TPTVN1PROD with REPORTS
(43) 

1Letter from Advocacy for Principled Action in Gov’t; Am. Booksellers Fund. for Free Expression; ACLU; Am. Library Ass’n; Ass’n of Research Libraries; Bill of Rights Def. Comm.; Ctr. for 

Dem. & Tech.; Ctr. for Digital Dem.; Ctr. for Fin. Privacy & Human Rights; Ctr. for Media & 

Dem.; Ctr. for Nat’l Sec. Studies; Consumer Action; Consumer Fed. of Am.; Consumer Watchdog; 

Council on Am.-Islamic Relations; Defending Dissent Found.; Demand Progress; 

DownsizeDC.org, Inc.; Elec. Frontier Found.; Elec. Privacy Info. Ctr.; Friends of Privacy USA; 

Liberty Coalition; Muslim Pub. Affairs Council; Nat’l Ass’n of Crim. Def. Lawyers; Nat’l 

Workrights Inst.; Patient Privacy Rights; Privacy Activism; Privacy Journal, Robert Ellis Smith, 

Publisher; Privacy Rights Clearinghouse;and World Privacy Forum; to Rep. Lamar Smith, 

Chairman, and Rep. John Conyers, Jr., Ranking Member (July 27, 2011) (‘‘Privacy Sign-On Letter’’) (on file with H. Comm. on the Judiciary, Dem. Staff). 2Letter from Competitve Enter. Inst., TechFreedom, & Am. for Tax Reform’s Digital Liberty, 

to Rep. Lamar Smith, Chairman, and Rep. John Conyers, Ranking Member at 2 (n.d.) (‘‘Free 

Enter. Coal. Letter’’) (on file with H. Comm. on the Judiciary, Dem. Staff). 

Dissenting Views 

I. INTRODUCTION

H.R. 1981, the ‘‘Protecting Children From Internet Pornographers Act of 2011,’’ is a seriously flawed bill. Although it purports to be a bill to protect children from Internet pornographers, 

its reach extends well beyond this goal and is not narrowly tailored 

to combat child pornography. It includes an expensive and dangerous data retention mandate that would compromise the privacy 

of all Americans and unnecessarily burden the telecommunications 

industry. In addition, this legislation vastly expands administrative 

subpoena power, circumventing both judicial oversight and supervision by the Attorney General. 

These problems, as well as additional concerns, have prompted 

more than 30 organizations to declare their strong opposition to 

H.R. 1981. These diverse organizations include religious groups, 

groups committed to the protection of civil liberties and privacy, 

advocates against domestic violence, and technology policy groups.1

Additional organizations and think tanks have also registered their 

opposition stating that, ‘‘H.R. 1981 . . . follows in the footsteps of 

repressive governments such as China, which recently enacted a 

similar retention mandate . . . to facilitate its suppression of dissidents.’’ 2

For these reasons, and those discussed below, we respectfully dissent and urge our colleagues to reject this seriously flawed legislation. 

II. H.R. 1981’S DATA RETENTION MANDATE IS INTRUSIVE, EXPENSIVE, AND INEFFECTUAL

Section 4 of H.R. 1981 provides that ‘‘[a] commercial provider of 

an electronic communication service shall retain for a period of at 

least one year a log of the temporarily assigned network addresses 

the provider assigns to a subscriber to [sic] or customer of such 

service that enables the identification of the corresponding customer or subscriber information. . . .’’ This principle is called 

‘‘data retention.’’ 


jbell on DSK4TPTVN1PROD with REPORTS
44 

3Data Retention As a Tool for Investigating Internet Child Pornography and Other Internet 

Crimes: Hearing Before the H. Comm. on the Judiciary, 112th Cong. at 73 (2011) (‘‘Data Retention Hearing’’) (statement of Kate Dean, Exec. Dir., U.S. Internet Svc. Provider Ass’n). 4Data Retention Hearing at 73 (statement of John Morris, Gen. Counsel, Ctr. for Dem. & 

Tech.). 5ONLINE SAFETY AND TECHNOLOGY WORKING GROUP, YOUTH SAFETY ON A LIVING INTERNET: REPORT OF THE ONLINE SAFETY AND TECHNOLOGY WORKING GROUP at 100 (2010) (‘‘OSTWG Report’’), available at http://www.ntia.doc.gov/reports/2010/OSTWGlFinallReportl060410.pdf. 6See generally, Memorandum from John Morris, Greg Nojeim, & Erica Newland, Ctr. for Dem. 

& Tech. (July 19, 2011) (‘‘CDT Memo’’) (on file with H. Comm. on the Judiciary, Dem. Staff); 

Letter from Laura W. Murphy, Director, D.C. Legis. Office, Christopher Calabrese, Legis. Counsel, & Jesseslyn McCurdy, Senior Legis. Counsel, ACLU, to Rep. Lamar Smith, Chairman, and 

Rep. John Conyers, Ranking Member (July 27, 2011) (‘‘ACLU Letter’’) (on file with H. Comm. 

on the Judiciary, Dem. Staff). 7 Amdt. No. 6 to the bill. 

8Tr. of Markup on H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 75 (July 

28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981% 

20HR%201433.pdf. 9 CONG. BUDGET OFFICE, COST ESTIMATE FOR H.R. 1981 at 1 (Oct. 12, 2011) (emphasis added). 10Free Enter. Coal. Letter at 2. 

Data retention should be distinguished from data preservation, 

which is a request by law enforcement for an Internet Service Provider (‘‘ISP’’) to refrain from destroying specific data about a particular individual, on the basis of individualized suspicion that the 

subject of the request is involved in criminal activity.3 Data retention, by contrast, is a blanket requirement that ISPs keep data on 

every customer, including customers who have no connection to 

criminal activity. In the United States, where 70 percent of 309 

million Americans have Internet access, this means approximately 

230 million Americans will be subject to the bill’s data retention requirements,4 and almost none of these data will ever be useful in 

a criminal investigation.5 Even though section 4’s data retention 

mandate is intrusive, expensive, ineffectual, and bad public policy,6

Representative Zoe Lofgren’s (D–CA) amendment 7 to strike this 

provision from the bill failed by a vote of 8 to15.8

A. The Data Retention Mandate Will Not Significantly Further 

Law Enforcement Goals 

The bill’s data retention mandate will not significantly improve 

law enforcement efforts, as analyzed by the Congressional Budget 

Office (CBO). According to the CBO, ‘‘H.R. 1981 would have a negligible impact on the number of offenders under federal incarceration because many of the offenders prosecuted under H.R. 1981 

can be prosecuted under current law.’’ 9

Nevertheless, supporters of the bill are all too willing to compromise privacy and burden industry for an untested, albeit laudable, concept. Although there is myriad anecdotal evidence and 

strong personal views about the critical nature of the data, there 

is no empirical evidence to indicate that this mandate will actually 

further law enforcement’s goals in any significant way.10 To the 

contrary, the available data reveals that the status quo is working 

for industry and law enforcement alike and that a data retention 

mandate will exacerbate the current forensic evidence backlog crisis that law enforcement is already experiencing. In addition, we 

cannot ignore the fact that technology will cause numerous gaps in 

the gathering of this data that will severely undermine the purpose 

of the bill. The only goal the bill will actually further is that of 

compromising consumer privacy. 


jbell on DSK4TPTVN1PROD with REPORTS
45 

11See Pub. L. No. 110–385, 122 Stat. 4103, § 214(a)(3). 12OSTWG Report at 110. 13 Id. at 105, n.87. 14See 18 U.S.C. §§ 2703(f) & 2258A(h) (requiring ISPs to preserve data on a particular customer, upon request of law enforcement, for up to 180 days). 15GOV’T ACCOUNTABILITY OFFICE, GAO–11–334, COMBATING CHILD PORNOGRAPHY: STEPS ARE

NEEDED TO ENSURE THAT TIPS TO LAW ENFM’T ARE USEFUL AND FORENSIC EXAMINATIONS ARE

COST EFFECTIVE at 44–45 (2011) (‘‘GAO Report’’), available at http://www.gao.gov/new.items/ 

d11334.pdf. 16 Id. at 45. 

1. The Current Data Preservation Tools Are Effective 

There is no consensus among either the law enforcement community or industry representatives that there is a need for a data retention mandate, despite a decade-long debate over data retention. 

Most recently, in 2008, Congress created the Online Safety and 

Technology Working Group (OSTWG) to, among other things, ‘‘review and evaluate . . . the practices of electronic service providers 

and remote computing service providers related to record retention 

in connection with crimes against children.’’ 11 The panel, which included industry representatives, issued a final report, concluding in 

part that ‘‘there is not—either within OSTWG or the broader community—consensus on whether any data retention mandates 

should be imposed on service providers.’’ 12 Indeed, while some law 

enforcement representatives favor the bill, the U.S. Department of 

Justice has not taken a position on H.R. 1981.13

The available data suggests that the existing procedures for individualized data preservation on a specific customer 14 are sufficient 

to provide law enforcement officials with the evidence they need to 

investigate and prosecute child exploitation offenses that occur on 

the Internet in about 80 percent of cases 15 and, in the remaining 

20 percent of cases, law enforcement officials obtain the required 

evidence ‘‘through other means, such as by interviewing suspects at 

their residences or reviewing information on [suspects’] computers.’’ 16 Moreover, industry representatives observe that data 

preservation tools are underutilized by law enforcement. If the 

preservation period is insufficient, a better solution would be to extend the data preservation period by perhaps another 180 days, 

rather than create a new mandate. Data preservation is an effective and, unlike data retention, targeted law enforcement tool, 

which is much more consistent with American values that citizens 

are entitled to a presumption of innocence and invasive law enforcement tools require individualized suspicion. Moreover, unlike 

data preservation, data retention can misdirect law enforcement efforts. While effective prosecution requires urgency and real-time investigations, this bill focuses law enforcement’s attention backward, toward mass amounts of stale, unusable information. 

The bill’s effectiveness is further undermined by the carve-out for 

the vast majority of information that is useful to law enforcement, 

specifically the data needed to identify users of free social networking, email and instant message services. The bill presumes 

that criminal activity occurs predominantly over paid accounts. Experience and common sense tell us that this type of activity occurs 

more commonly on free services. 


jbell on DSK4TPTVN1PROD with REPORTS
46 

17Pub.L. 108–21, 117 Stat. 650 (2003). 18GAO Report at 36–40. This backlog was partly a result of a 3000% increase in the amount 

of data that law enforcement had to review, and leading to delays in the analysis of suspects’ 

computers of up to a year. Id. at 35–36. 19 Id. at 50, 57 (reduction in both FBI and U.S. Postal Inspectors personnel dedicated to child 

pornography cases). Accordingly, the number of child pornography prosecutions is also decreasing. Id. at 9–10. 20 CDT Memo at 4–5. 21Tr. of Markup of H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 87 (July 

28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981% 

20HR%201433.pdf. 22GAO Report at 9–10. 23The CyberTipline numbers are reported by calander year (January 1 to December 31), while 

the investigations numbers are reported by fiscal year (October 1 to Sept 30 of the following 

year). 24GAO Report at 51 (computed by adding together the numbers for FY2008, FY2009, and 

FY2010). 25 Id. at 55 (computed by adding together the numbers for FY2008, FY2009, and FY2010). 26 Id. at 57(computed by adding together the numbers for FY2008, FY2009, and FY2010). 27 Id. at 56 (computed by adding together the numbers for FY2008, FY2009, and FY2010). 28Tr. of Markup on H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 81 (July 

28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981% 

20HR%201433.pdf. 

2. The Biggest Challenge to Investigating Child Exploitation 

Offenses is Not a Lack of Data, but a Backlog in Forensic 

Examinations 

H.R. 1981 will exacerbate the current backlog in forensic examinations. For example, during its study of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today 

Act (‘‘PROTECT’’) Act,17 the Government Accountability Office 

(GAO) found that the biggest barrier to investigating and prosecuting child pornography and other online child exploitation cases 

was a backlog of digital forensic evaluations,18 not an inability to 

locate data from an ISP prior to its destruction. Considering the recent reduction in the number of investigators dedicated to child 

pornography and other online child exploitation cases,19 Congress 

would be better off dedicating more resources to law enforcement 

personnel.20 H.R. 1981, however, fails to authorize any such additional resources. In fact, when Representative Bobby Scott (D–VA) 

offered an amendment to appropriate funds for an additional 200 

FBI agents, 30 additional prosecutors, and 20 additional public defenders, Committee Chairman Smith argued against the amendment and it was defeated by a 7 to 11 vote.21

The problem is not the lack of information provided to law enforcement. For instance, ISPs provided 248,000 tips through the 

Cyber Tipline from January 1, 2008 to December 31, 2010,22 but 

federal law enforcement agencies only investigated a fraction of 

these tips during the same 23 period: 17,799 24 investigations by the 

FBI, 8,414 25 by ICE, 684 26 by the Postal Inspectors, and 424 27 by 

the Secret Service. Giving law enforcement even more data to sort 

through will not further the goal of safeguarding our children 

against Internet pornographers, particularly when there is no willingness to provide more personnel. As Representative Scott stated 

at the markup, ‘‘When the problem is finding the needles in the 

haystacks of information . . . , the priority should not be adding 

more hay.’’ 28


jbell on DSK4TPTVN1PROD with REPORTS
47 

29TOR PROJECT, http://www.torproject.org. 30 U.S. NAVAL RESEARCH LAB, ONION ROUTING, http://www.onion-router.net. 31The Tor Project, which provides the software and operates the network of tunnels, has a 

more comprehensive, illustrated explanation. TOR PROJECT, TOR: AN OVERVIEW, http:// 

www.torproject.org/about/overview.html.en. 32 Julian Sanchez, Congress out to spy on your ‘puter, N.Y. POST (July 31, 2011), available 

at http://www.nypost.com/p/news/opinion/opedcolumnists/congressloutltolspylonlyourl 

puterlz8eadkV4ktqtKfanoon1eL. 

3. The Nature of Current Technology and Limitations Imposed by H.R. 1981 will Prevent Millions of IP Addresses 

from being Retained 

Even if there was a demonstrated need for data retention, the 

mandate imposed by H.R. 1981 is wholly ineffective. Specifically, 

the nature of our current technology, as well as limitations built 

into the bill, would cause millions of Internet users to escape the 

reach of the mandate. 

i. Tor 

One example of such technology is Tor 29—a simple, free software 

application originally developed as a project of the U.S. Naval Research Laboratory.30 Tor routes a user’s Internet traffic through a 

series of secure tunnels (the ‘‘Tor network’’) before passing it off to 

the user’s final destination, using layers of concentric encryption in 

such a way that obscures: (1) the destination and content of users’ 

traffic from the user’s ISP, and (2) the users’ identity and location 

from the user’s website or other Internet destination the user intends to access.31 Tor’s goal is to allow people to browse and communicate over the Internet without being tracked or monitored, 

even by their ISP or by law enforcement. 

Among its many uses, Tor enables child pornography traffickers 

to avoid detection and identification while they trade their illicit 

media. Law enforcement with access to an ISP’s retained data on 

a Tor user can discern only one thing: that a given user connected 

to the Tor network. Law enforcement would not be able to discern 

the content of the user’s communications over the Internet (e.g., 

whether the user’s Internet traffic contained child pornography) 

nor would law enforcement be able to track down the user’s ultimate destination beyond the Tor network (e.g., whether the user 

was visiting a child pornography website). Also, law enforcement 

could not work backwards to discover the identity and location of 

a Tor-using child pornography consumer using a list of computers 

known to have accessed a child pornography distributor. All that 

law enforcement would discover is that a computer from the Tor 

network accessed the distributor, but could not penetrate the Tor 

network to determine the identity or location of the actual user 

trafficking the child pornography. 

‘‘Unfortunately, nobody has explained to Congress that techsavvy criminals can easily evade detection even if ISPs are required to retain data, by using such anonymity tools as TOR 

[sic]. . . .’’ 32 H.R. 1981’s data retention mandate does nothing to 

eliminate the ability of child pornographers to use Tor to ply their 

illicit trade. H.R. 1981 applies only to ‘‘commercial provider[s] of an 

electronic communication service,’’ that is, services that ‘‘offer[] 

Internet access for a fee,’’ but Tor neither provides Internet access 

by itself, nor charges a fee. This is a gaping hole in the data retenVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00047 Fmt 6604 Sfmt 6604 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
48 

33TOR PROJECT, WHO USES TOR?, http://www.torproject.org/about/torusers.html.en. 

tion regime, and would ensure that anyone could avoid the data retention mandate simply by downloading and using a simple—and 

free—software program. 

Before Congress rushes to criminalize it, we must recognize that 

Tor has myriad legitimate uses. It is accessed by law-abiding users 

who want to utilize the Internet anonymously and avoid detection 

or monitoring, while still exercising their First Amendment 

rights.33 Pro-democracy dissidents in China use Tor to circumvent 

the ‘‘Great Firewall of China’’ and publish pro-democracy content. 

Journalists use Tor to privately and securely communicate with 

their sources. U.S. law enforcement uses Tor to conduct Internet 

surveillance or Internet-based sting operations without fear that 

the targets will discover the law enforcement officers’ identities. 

Whistleblowers use Tor to call attention to wrongdoing or malfeasance in their organizations without fear that their organization 

will eventually track down and retaliate against the whisteblower. 

Unless H.R. 1981 is applied to Tor, child pornographers will be 

able to anonymize their Internet usage and circumvent the goal of 

the bill. This false choice between targeting child pornographers 

and protecting the First Amendment rights of law abiding citizens 

perfectly illustrates why the data retention mandate is unworkable 

and ineffective. 

ii. Complimentary Wireless Internet Access 

The proliferation of free Internet usage means that millions of 

users will be exempted from the mandate, which requires only fee 

based services to retain data. A host of businesses provide free 

wireless Internet access to their guests as a courtesy, including coffee shops, hotels, fast food restaurants, airlines, passenger rail, 

public libraries, universities, and even some law firms and doctors’ 

offices. As reported, H.R. 1981 exempts all of these organizations 

from the data retention mandate, because they do not offer Internet access ‘‘for a fee.’’ 

By only requiring ISPs that ‘‘offer Internet access capability for 

a fee’’ to retain information, the bill fails to recognize the nuance 

inherent in distinguishing free versus paid business models. It creates an arbitrary distinction that means two identical entities are 

subject to a vastly different, and costly, government mandate depending on whether they charge for use of the Internet. For example, a hotel, under this law, that directly charges a customer for 

Internet access would be required to retain data while a hotel that 

provides free access (meaning the cost is built into the room rate) 

would not. Not only is there no rational basis for this type of distinction, but it could motivate some businesses not to charge for 

their services, to avoid the burden of complying with the mandate. 

Similarly, universities, in-flight Internet, coffee houses, rail service 

and other ISP services would either fall under or be exempt from 

this law based only on their current business model. 

Further yet, child predators eager to avoid the law’s reach will 

have an incentive to spend time in places where children typically 

congregate, such as public libraries and McDonald’s restaurants. 

For example, McDonald’s, which is a popular family destination, 


jbell on DSK4TPTVN1PROD with REPORTS
49 

34 Christopher Soghoian, Grad. Fellow at the Ctr. for Applied Cybersecurity Research at Ind. 

Univ., Unhappy meal: Data retention bill could lure sex predators into McDonalds, libraries, ARS

TECHNICA: LAW & DISORDER BLOG (July 11, 2011), available at http://arstechnica.com/techpolicy/news/2011/07/unhappy-meal-data-retention-bill-could-lure-sex-predators-into-mcdonaldslibraries.ars. 35Like industry, privacy experts also believe that the approach set forth in § 2703(f) is better, 

because it targets those suspected of wrongdoing, rather than innocent users of the Internet. 

See OSTWG Report at 113. 36See ACLU Letter at 2; CDT Memo at 2. 37OSTWG Report at 114; see also 18 U.S.C. § 2703(c)(2) and 18 U.S.C. § 2703(c)(3). 

has 11,500 United States locations that provide free wireless internet. By placing these locations outside the reach of the data retention mandate, H.R. 1981 ‘‘will encourage sexual predators to visit 

McDonald’s restaurants in order to share their illicit contraband 

online,’’ even though such ‘‘restaurants [are] packed with innocent 

children. . . .’’ 34

B. The Data Retention Mandate Seriously Infringes on the Legitimate Privacy Interests of Everyday Consumers 

The data retention mandate is a substantial infringement on privacy rights, particularly when one considers that the vast majority 

of people using the Internet are innocent, law-abiding individuals.35 The legislation mandates the retention of extremely sensitive and detailed personal information 36 that could be misused, 

fall into the wrong hands or be inadvertently or carelessly disclosed. Despite these risks, H.R. 1981 has no significant protections 

to protect sensitive personal information from abuse by industry or 

the government. 

1. The Scope of the Data Retention Mandate is Overly Broad 

By requiring paid ISPs to retain all IP data that can ‘‘enable the 

identification of the customer,’’ H.R. 1981 will force companies to 

retain a broad swath of private data about consumers pertaining 

to, among other things, their private communications, location and 

web-surfing activity. Once retained by ISPs, law enforcement need 

only meet a minimal standard to obtain this data—private, personal information including IP addresses, corresponding user identifying information and transactional data—because the data is 

subject to subpoena, without notice to the user or any judicial action.37 Furthermore, this mandate would create a treasure trove of 

consumer information that would be susceptible to a data breach. 

The overly broad data retention mandate will also eliminate competition between companies with respect to privacy. Some consumers place a high premium on privacy and choose a telecommunications company based upon the rigor of their privacy 

policies, such as the ability to opt-out of having their web-surfing 

information tracked or stored. These policies recognize the consumer’s right to maintain control over their information and are an 

important tool in securing user trust. By mandating the retention 

of all IP addresses in an identifiable format, H.R. 1981 would take 

away the discretion that ISPs currently have to tailor their privacy 

policies to the needs of consumers. 

2. The 12-Month Data Retention Period is Excessive 

Some ISPs already retain data on their customers’ IP addresses 

for varied amounts of time as part of their normal business pracVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00049 Fmt 6604 Sfmt 6604 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
50 

38OSTWG Report at 103. 39 CDT Memo at 4. 40 Amdt. No. 1 to the Manager’s Amdt. 41Tr. of Markup on H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 69 (July 

27, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2027%2011%20HR% 

202633%20HR%201981.pdf. 42 Cf. 18 U.S.C. § 2519 (Reports concerning Intercepted Wire, Oral, or Electronic Communications). 43 Amdt. No. 8 to the bill. 44Tr. of Markup on H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 100 

(July 28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011% 

20HR%201981%20HR%201433.pdf. 45 CONG. BUDGET OFFICE, COST ESTIMATE FOR H.R. 1981 at 2 (Oct. 12, 2011). 

tices.38 H.R. 1981, however, would mandate a 12-month data retention period for all ISPs, even though the National Cable and Telecommunications Association (‘‘NCTA’’) reports that no law enforcement agency has ever requested data from their members that is 

more than 3 months old. In fact, ‘‘in Europe—where the Data Retention Directive requires that providers retain all sorts of data for 

a 6–24 month period—studies have made clear that the usefulness 

of retained data for law enforcement investigations falls off sharply 

after 6 months and again after twelve months.’’ 39

Given the privacy interests implicated by such a long retention 

window and the fact that law enforcement practice is not to request 

stale data, Representative Scott offered an amendment 40 to reduce 

the retention period to 180 days, from 1 year. Unfortunately, the 

Committee defeated this amendment by a 12 to 14 vote.41

3. The Bill Fails to Provide Even Minimal Transparency for 

a Major Expansion of Law Enforcement Surveillance Powers 

This sweeping new data retention mandate also raises the possibility of government overreach and abuse, far beyond what is necessary to stop child exploitation. However, H.R. 1981 lacks any 

safeguards or reporting requirement that would ensure that both 

Congress and the public have a way to know how often the government is demanding Internet user data and whether those demands 

are being put to uses beyond tracking child pornographers. 

Representative Zoe Lofgren offered an amendment that would 

have guaranteed a minimum of transparency for this major expansion of law enforcement surveillance powers. The amendment 

would have required a report on law enforcement’s requests for historical information from providers that includes the number of requests that law enforcement made, the types of cases, and the results of such requests. This report would have been similar to the 

annual Wiretap Report that the Administrative Office compiles, on 

the volume and nature of government wiretap applications.42 The 

Committee defeated Representative Lofgren’s amendment 43 by by 

a vote of 9 to 15.44

C. The Data Retention Mandate Imposes Significant Costs on the 

Private Sector 

The costs of complying with H.R. 1981 will be onerous for the 

private sector. In fact, the Congressional Budget Office estimates 

that the aggregate cost of the mandate on the private sector would 

be more than $200 million.45 This amount exceeds the threshold 

set by the Unfunded Mandates Reform Act for private sector manVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00050 Fmt 6604 Sfmt 6604 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
51 

46Free Market Coalition Letter at 1(‘‘[C]onsumers themselves [will] ultimately bear most of 

the costs incurred by companies in complying with the data retention mandate.’’). 47See generally ROBERT CANNON, FCC, FCC WORKING PAPER 3, POTENTIAL IMPACTS ON

COMMC’NS FROM IPV4 EXHAUSTION & IPV6 TRANSITION (Dec. 2010). 48See id. at 25 (‘‘These solutions [to various problems arising due to the transition to IPv6], 

however, break end-to-end connectively and make it difficult to map specific IP numbers to individual end users. IP numbers may map to carrier grade NAT boxes which may have behind 

them many households, neighborhoods, or even towns, making it difficult to know to whom an 

IP address belongs.’’). 49 ‘‘Data Retention Directive: reactions related to the costs involved,’’ 18 January, 2006, available at http://www.edri.org/edrigram/number4.1/dataretentioncosts (last accessed October 14, 

2011) 50 CONG. BUDGET OFFICE, COST ESTIMATE FOR H.R. 1981 at 2 (Oct. 12, 2011). 51See OSTWG Report at 111 (noting that data retained under the bill ‘‘would present new 

and unparalleled risks to privacy and security’’); see also Free Enter. Coal. Letter at 2. 52See Letter from Shirley Bloomfield, CEO, National Telecommunications Cooperative Association to Rep. Lamar Smith, Chair (July 26, 2011) (‘‘NTCA Letter’’) at 1; see also Letter from 

Levi C. Maaia, Vice President of Full Channel (July 8, 2011). 53 NTCA Letter at 1. 54See, e.g., CDT Memo at 3. 

dates. Much, if not all, of this cost will likely be passed on to consumers by ISPs in the form of fees or higher rates.46

Industry representative argue that the actual cost to the private 

sector and consumers may be much higher than the CBO estimates. The cost of compliance with the data retention mandate 

could be $1.6 billion because of the transition from using IPv4 to 

IPv6 47 and the greater difficulty in maintaining data about customers under IPv6 48 than under the currently-used IPv4, the cost 

of compliance with the data retention mandate could be $1.6 billion. The U.S. Internet Service Provider Association (‘‘USISPA’’) estimates that the cost of implementing and operating H.R. 1981’s retention requirement over 5 years would be $500 million. The European Union’s experience is also telling. According to Finland’s Ministry of the Interior, if the original proposal had been adopted it 

would have involved costs of about $5.5 billion Euro for his country.49

H.R. 1981 would require ongoing costs, in addition to the ‘‘costs 

the provider would incur to design and install the data systems 

that would be required by the bill.’’ 50 For example, AOL considered 

a smaller ISP with only about 4 million customers, estimates that 

it issues more than 50 million IP addresses per day. AOL’s costs 

under H.R. 1981 will not only include creating, maintaining, and 

securing 51 the infrastructure to store the 50 million specific IP addresses created per day, and all of the related required information, 

but also creating and maintaining similar infrastructure to sort 

and search through all that data with the speed and precision law 

enforcement will demand. 

H.R. 1981’s unfunded private sector mandate will hit small and 

rural providers especially hard, driving some of them out of business and leaving some rural residents without any Internet provider.52 According to National Telecommunications Cooperative Association (‘‘NTCA’’), rural Internet providers ‘‘are small businesses 

that operate on thin margins and lack the economies of scale to absorb a large, sudden cost,’’ in part because they ‘‘serve areas where 

there is no business case for service and where others refuse to 

serve.’’ 53 If the high cost of H.R. 1981’s regulatory mandate drives 

rural providers out of business,54 ‘‘there [will] typically be no proVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00051 Fmt 6604 Sfmt 6604 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
52 

55 NTCA Letter at 1. 56 Amdt. No. 38 to the bill. 57Tr. of Markup of H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 137 (July 

28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981% 

20HR%201433.pdf. 58Letter from National Network to End Domestic Violence to Representative Lamar Smith, 

Chairman, and Representative John Conyers, Jr., Ranking Member at 1 (July 26, 2011) (on file 

with H. Comm. on the Judiciary, Dem. Staff). 59 Id. 60 Id. 61 Id. 62See H.R. Rep. 109–395 at 2–3 (2006) (discussing ‘‘pretexting’’). 63Pub. L. No. 109–476, 120 Stat. 3568 (codified at 18 U.S.C. § 1039). 

vider ready to step in and provide the kind of area-wide service 

that the local and national economies rely on.’’ 55

To help ISPs deal with an unfunded mandate that could range from $200 million to $1.6 billion, Representative Lofgren offered an 

amendment 56 to clarify that the bill would not require any ISP to 

collect any information which it was not already collecting for business purposes. The committee defeated this amendment by a vote 

7 to 16.57

D. The Data Retention Mandate Endangers Victims of Domestic Violence, Sexual Assault, and Stalking 

For domestic violence victims and other victims of stalking and 

sexual assault, the data retention mandate increases their risk of 

further abuse.58 Cindy Southworth, founder of the Safety Net Technology Project at the National Network to End Domestic Violence, 

cites the example of a domestic violence victim whose abuser subpoenaed her cell-phone records, after the victim went into hiding 

across the country.59 Armed with these cell phone records, the 

abuser found out where the victim lived, worked, and which friends 

and family she called for support.60 H.R. 1981’s data retention 

mandate creates another trove of information for abusers to mine 

for information on their victims, putting victims at risk.61

Although the bill, as reported, provides that only ‘‘governmental 

entities’’ may access the retained data, this will not prevent malicious abusers and stalkers from illegally obtaining the data by impersonating a law enforcement agent and conning ISP employees 

into turning over the confidential data to the stalker or abuser. In 

fact, Congress has already recognized that this so-called 

‘‘pretexting’’ is a problem when it comes to phone call records.62 In 

response, the Law Enforcement and Phone Privacy Protection Act 

of 2006 63 was enacted to criminalize this conduct and provide increased penalties. There is no reason to suggest that the stalkers 

and abusers of domestic violence victims will have any more trouble obtaining Internet records than phone records. Once armed 

with this information, a stalker or abuser can locate their intended 

victim, even after that victim has gone into hiding. Accordingly, the 

mere existence of this retained data is a threat to victims of domestic violence and stalking. 

E. Despite its Stated Purpose, H.R. 1981 Is Not Limited to Child 

Pornography Offenses 

While the stated goal of H.R. 1981 is to combat Internet-based 

child pornography and other child exploitation cases, it is not limited to such cases. There is nothing in the bill to prevent law enVerDate Mar 15 2010 02:05 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00052 Fmt 6604 Sfmt 6604 E:\HR\OC\HR281P1.XXX HR281P1

jbell on DSK4TPTVN1PROD with REPORTS
53 

64See 18 U.S.C. § 2332b. 65See 18 U.S.C. § 46. 66Pub. L. No. 107–56 § 213, 115 Stat. 272, 286, codified at 18 U.S.C. § 3103a. 67See JAMES C. DUFF, DIRECTOR, ADMIN. OFFICE OF THE U.S. COURTS, REPORT OF THE DIREC- TOR OF THE ADMIN. OFFICE OF THE U.S. COURTS ON APPLICATIONS FOR DELAYED-NOTICE SEARCH

WARRANTS & EXTENSIONS (2009) at 6, available at http://big.assets.huffingtonpost.com/ 

SneakAndPeakReport.pdf. 68 Id. 69 ‘‘If Congress had to name laws honestly, [H.R. 1981] would be called the ‘Forcing Your 

Internet Provider to Spy On You Just In Case You’re a Criminal Act of 2011’. . . .’’ Julian Sanchez, Congress out to spy on your ‘puter, N.Y. POST (July 31, 2011), available at http:// 

www.nypost.com/p/news/opinion/opedcolumnists/congressloutltolspylonlyourlputerlz8eadkV4ktqtKfanoon1eL; see also Jim Harper, Moral 

Panic & Your Privacy, CATO@LIBERTY (July 11, 2011), available at http://www.cato-at-liberty.org/moral-panic-and-your-privacy. 70Tr. of Markup on H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 148 

(July 28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011%20HR% 

201981%20HR%201433.pdf. 71 ‘‘As used in [inter alia, 18 U.S.C. § 2703, the U.S. Code section amended by H.R. 1981 § 4], 

the term ‘governmental entity’ means a department or agency of the United States or any State 

or political subdivision thereof.’’ 18 U.S.C. § 2711. 

forcement from using the data for investigations of any crime from 

terrorism 64 to the unlawful interstate transport of water hyacinths,65 and even in intelligence gathering operations, which generally do not require disclosure to the target. 

This kind of ‘‘mission creep’’ is hardly unprecedented. When Congress passed the ‘‘sneak and peak’’ provisions of the Uniting and 

Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism (‘‘USA PATRIOT’’) Act of 2001 66

in the wake of the September 11th terrorist attacks, it intended for 

the provision to be used in terrorism investigations. And yet, of the 

763 ‘‘sneak and peak’’ warrants issued between October 1, 2007 

and September 30, 2008, only 3 were terrorism-related;67 the biggest category was narcotics investigations, for which 474 sneakand-peak warrants were issued.68

Knowing that law enforcement will have such broad access to 

their personal data, with no restrictions on the reason for obtaining 

it, Internet users may alter their usage habits, even if entirely 

legal. A gay or lesbian student may not want to find a support 

group to help him or her through bullying; a woman who felt a 

lump in her breast may avoid looking up medical information on 

breast cancer; a political activist may avoid organizing supporters 

online out of the fear that complete strangers may discover their 

perfectly legitimate, but private, activities. 

Even the bill’s short title is misleading.69 Representative Zoe Lofgren (D–CA) sought to amend the title to reflect what the bill actually does, ‘‘Keep Every American’s Digital Data for Submission to 

the Federal Government Without a Warrant Act of 2011.’’ This 

amendment, however, was rejected by the Committee by a vote of 

9 to18.70

F. H.R. 1981 Contains An Unconstitutional Limitation on Access to 

Personal Data 

The bill, as reported, includes a provision limiting access to the 

data retained under section 4 to ‘‘governmental entities.’’ 71 This 

language was added in an attempt to address concerns that, once 

ISPs are required to maintain this data, private parties, such as divorce lawyers, insurance companies, bill collectors, or marketing 

companies, could also access the data. The limitation on access to 


jbell on DSK4TPTVN1PROD with REPORTS
54 

72 ‘‘Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must 

comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to 

present a complete defense. To safeguard that right, the Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ ’’ California v. Trombetta, 

467 U.S. 479, 485 (1984) (quoting United States v. Valenzuela–Bernal, 458 U.S. 858, 867 (1982)). 73Persons convicted of certain sex-related federal crimes are required to register with the federal government. 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.). 74 ‘‘Administrative subpoenas are an improvisation to accommodate the massive power of the 

bureaucracy, and they’ve become another end-run around the Fourth Amendment.’’ Jim Harper, 

Moral Panic and Your Privacy, CATO@LIBERTY (July 11, 2011 5:02pm), available at http:// 

www.cato-at-liberty.org/moral-panic-and-your-privacy. 75 18 U.S.C. § 3486(a)(1)(A)(i)(II). 76 ACLU Letter at 5. 77Reauthorization of the Adam Walsh Act: Hearing Before the H. Comm. on the Judiciary, Serial No. 112–12, 112th Cong., at 63 (Feb. 15, 2011) (statement of Dawn Doran, Dep. Dir., Sex 

Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office, 

U.S. DOJ). 

‘‘governmental entities,’’ however, would also preclude criminal defendants from accessing this information because they are not ‘‘governmental entities.’’ Under the Constitution, however, criminal defendants are entitled to receive all evidence favorable to them and 

a restriction on access to that data violates the defendants’ right 

to due process.72 This limitation will not withstand judicial scrutiny. 

III. H.R. 1981 CONTAINS AN UNNECESSARY AND BROAD EXPANSION OF

ADMINISTRATIVE SUBPOENA POWER

Section 11 of H.R. 1981 grants the United States Marshals Service (‘‘USMS’’) administrative subpoena power in cases involving 

unregistered sex offenders.73 This unprecedented expansion of administrative subpoena power circumvents the normal, judicially-supervised subpoena process and grants the USMS unfettered authority to investigate cases that do not even deal with child pornography. 74

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. . . .’’ 75 Section 11 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,’’ 76 and even though there is no difference in recidivism rates 

between former offenders who comply with registration requirements and former offenders who do not.77

Further, this bill 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 even more authority than the Secret Service 

when confronted with an imminent threat against a President, 

when there is simply no exigency warranting such extraordinary 

power. As Assistant Attorney General Robert Rabin explained in 

2000: 

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 


jbell on DSK4TPTVN1PROD with REPORTS
55 

78Letter from Robert Raben, Ass’t Att’y Gen., to Rep. Henry Hyde, Chairman, H. Comm. on 

the Judiciary (June 9, 2000), quoted in H.R. REP. 106–669, at 14–15 (2000). 79 Amdt. No. 11 to the bill. 80Tr. of Markup on H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 122 

(July 28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011%20HR% 

201981%20HR%201433.pdf. 81 Amdt. No. 3 to the bill. 82Tr. of Markup on H.R. 1981: Before the H. Comm. on the Judiciary, 112th Cong. at 42 (July 

28, 2011), available at http://judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981% 

20HR%201433.pdf. 

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.78

Even if it could be demonstrated that the USMS needed 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. Unfortunately, when 

Representative Scott offered an amendment 79 to accomplish this 

result, the Committee defeated it by voice vote.80 And when Mr. 

Sensenbrenner offered an amendment 81 to strike both sections containing the subpoena authority, the Committee defeated it by a 

vote of 10 to 17.82

X. CONCLUSION

H.R. 1981 contains numerous problematic provisions, many of 

which—including the data retention mandate—will do little to further the goal of apprehending child pornographers. Instead, this 

legislation would compromise the privacy of all Americans and unnecessarily burden the telecommunications industry, all under the 

guise of protecting children. The bill contains an intrusive and expensive data retention mandate that threatens the privacy of Internet users everywhere. In addition, H.R. 1981 dramatically expands 

administrative subpoena power, circumventing judicial oversight. 

For these reasons, we respectfully dissent. 

JOHN CONYERS, JR. ROBERT C. ‘‘BOBBY’’ SCOTT. ZOE LOFGREN. HENRY C. ‘‘HANK’’ JOHNSON, JR. 

Æ 


jbell on DSK4TPTVN1PROD with REPORTS